Back in business

A big thanks to Rumpole, SFL, and Jeff Marcus for their wonderful blogging while I took a break.

Nothing much happened while I was gone -- there was naked face eating, the Heat kept on winning, and Heath Bell blew some saves. 

More importantly:

-- Lewis Tein was cleared.

-- Interesting maneuvering in the 11th Circuit with the recent judges taking senior status.  More here.

-- The Unabomber gets into the Harvard alumni book.

-- The Vatican is in chaos because a butler released some documents.

If you want something really interesting to read, check out this article in the WSJ about why we lie.  It's a wonderful piece that explains, in part, that stiffer jail sentences don't really deter criminals.  From the intro:

Not too long ago, one of my students, named Peter, told me a story that captures rather nicely our society's misguided efforts to deal with dishonesty. One day, Peter locked himself out of his house. After a spell, the locksmith pulled up in his truck and picked the lock in about a minute.
"I was amazed at how quickly and easily this guy was able to open the door," Peter said. The locksmith told him that locks are on doors only to keep honest people honest. One percent of people will always be honest and never steal. Another 1% will always be dishonest and always try to pick your lock and steal your television; locks won't do much to protect you from the hardened thieves, who can get into your house if they really want to. The purpose of locks, the locksmith said, is to protect you from the 98% of mostly honest people who might be tempted to try your door if it had no lock.
We tend to think that people are either honest or dishonest. In the age of Bernie Madoff and Mark McGwire, James Frey and John Edwards, we like to believe that most people are virtuous, but a few bad apples spoil the bunch. If this were true, society might easily remedy its problems with cheating and dishonesty. Human-resources departments could screen for cheaters when hiring. Dishonest financial advisers or building contractors could be flagged quickly and shunned. Cheaters in sports and other arenas would be easy to spot before they rose to the tops of their professions.
But that is not how dishonesty works. Over the past decade or so, my colleagues and I have taken a close look at why people cheat, using a variety of experiments and looking at a panoply of unique data sets—from insurance claims to employment histories to the treatment records of doctors and dentists. What we have found, in a nutshell: Everybody has the capacity to be dishonest, and almost everybody cheats—just by a little. Except for a few outliers at the top and bottom, the behavior of almost everyone is driven by two opposing motivations. On the one hand, we want to benefit from cheating and get as much money and glory as possible; on the other hand, we want to view ourselves as honest, honorable people. Sadly, it is this kind of small-scale mass cheating, not the high-profile cases, that is most corrosive to society.

"PROSECUTOR'S RUN OUR SYSTEM"

One last word from Rumpole before your beloved blogger returns from wherever "elite criminal defense attorneys" go when they are not partying at Urban Weekend on Miami Beach. 


Federal judges have had enough with the powers prosecutors wield in federal sentencing, and they are starting to write freely about their frustrations the NY Times reported on Sunday. 

“Prosecutors run our federal justice system today,” Judge William G. Young of Federal District Court in Boston wrote in this
sentencing memorandum.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.”

On the twenty year anniversary of his closing argument in USA v. John Gotti, former federal prosecutor and current United States District Judge for the Eastern District of New York Judge John Gleeson is also at his wits end over the decisions of federal prosecutors to seek lengthy minimum mandatory sentences for small time drug offenders. “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

From the Times article on the case before Judge Gleeson:
The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.

“We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time....  The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Rumpole says: There are similar problems in state court. We have written many times before of the strange scenario played out countless times in state courts where the legislature has invested more power and discretion in the hands of a twenty five year old prosecutor two years out of law school than in the hands of a fifty five year old judge appointed by the Governor or elected because of his/her (supposed) wisdom, experience and abilities. 

Strange. Sad and frustrating, but strange nonetheless.  

Welcome back DOM.  

Another Vacancy on the 11th Circuit -- Is a Compromise Near?

Hi there, SFL filling in for DOM as we hit the long holiday weekend.

It's true our own Judge Jordan was elevated without too much drama, discord, or delay, but that's not the case with Jill Pryor, who was nominated in February to fill Judge Birch's seat but has yet to be confirmed.

Now comes word that Judge J.L. Edmondson plans to go senior, possibly paving the way for a deal:

An intriguing possibility is that Edmondson's decision could allow the White House and the senators to compromise on a package of two nominees to the Eleventh Circuit — namely, Pryor and Troutman Sanders partner Mark Cohen.

Earlier this year, Chambliss and Isakson sent White House Counsel Kathryn Ruemmler a letter indicating they would return blue slips on Pryor and U.S. Magistrate Judge Linda Walker for district court spots and Cohen for the circuit seat.

The Daily Report previously reported that Cohen was vetted late last year by FBI agents and the U.S. Justice Department for the Eleventh Circuit post, an indication the White House had considered him for Birch's seat. Cohen has Democratic connections — he served as Governor Zell Miller's executive counsel and chief of staff.

But, acting as a special assistant attorney general for the state, he defended challenges to Georgia's voter ID law, a statute that Democrats generally consider anathema. Pryor, a partner at the Atlanta litigation boutique Bondurant Mixson & Elmore, previously was a member of the American Civil Liberties Union of Georgia's legal committee.

But it's by no means clear that either the White House or the senators would go for such a package.

Hmm, a Troutman Sanders partner who defended Georgia's voter ID law --  I think that makes you a moderate in the Peanut State.

Funny Bunny Money? Edwards Jury: Four Days and Counting

It's the old axiom: $400 hair cuts never pay.  Senator Edwards's hairgate episode has resurfaced during the trial in the form of a key handwritten letter written by FOJ heiress, Rachel "Bunny" Mellon, to former Edwards aide and star government witness, Andrew Young.  The letter written in response to negative hair press has been dubbed by trial followers as the "haircut letter."  In it, Mellon wrote, "From now on, all haircuts, etc., that are a necessary and IMPORTANT PART OF HIS CAMPAIGN, please send the bills to me. It is a way to help our friend WITHOUT GOVERNMENT RESTRICTIONS."  Over the next 8 months, Mellon sent Young more than $700,000 in checks made out to Young's wife -- payments to support and stash Edwards's mistress and love child.  Another large donor, Fred Barron, also made similar payments.  Neither Mellon (101 years old) nor Barron (deceased) were available to testify at trial.  The jury has been poring over the letter as well as two related letters written by Mellon's personal attorney during its now-four days of deliberations.  The jury is likely stuck on whether payments made to hide Edwards's affair can be reasonably classified as illegal campaign contributions.  Many legal commentators already have poked holes in the government's novel theory of prosecution so I won't bore you with my defense musings.  You can read more here.

Btw, there is a local angle to the case.  Pictured above (stage center just behind D.C. defense superlawyer Abbe Lowell) is the always-dapper DOJ prosecutor and SDFLA alum, Jeff Tsai.  In my former life, I had the pleasure of second-chairing one of Jeff's first trials in the office.  Jeff is a good trial lawyer (and an even better dresser).  His perfect Windsor knots in an office of government schleps were the stuff of legend.  In a different world, he and Senator Edwards would have a beer summit over hair coif tips.  

College Student to Plead Guilty for Obama Facebook Threats

Hi folks, SFL here.

My knowledge of crim law is limited to booking crim pro in law school about forty thousand years ago, plus sitting through multiple plea hearings as the lawyers wait to finally get in front of a federal judge on one of our civil matters.

Speaking of plea hearings, this kid is set to plea out on his cute Facebook musings which evidently involved our President:

A Miami college student plans to plead guilty in federal court to threatening President Barack Obama on Facebook.

A plea hearing is set for Wednesday afternoon for 20-year-old Joaquin Amador Serrapio Jr.

His attorney says he intends to plead guilty to one count of threatening to kill or harm the president.

Federal prosecutors say Serrapio posted threats on Facebook in February when Obama was in Miami to give a speech.

The posts threatened to put a bullet in the president's head and asked if anyone wanted to help in a presidential assassination.

Oh, the kids today and their social media -- why don't they want to go outside and throw the football around anymore?

(You can read the probable cause affidavit here.)

 

Feeling the Heat

The "other" Marcus in for the King.  I'll try not to pull a James Jones this week.  Let's Go Heat! 

I SPY

DOM asked us to help out this week and we've put together a little Supreme Court update. The Supreme Court agreed to return to the arena of terrorism Monday when they granted cert in 
Clapper v. Amnesty International  which challenged the constitutionality of  the Foreign Service Intelligence Surveillance Act. 
The second circuit found that the plaintiffs- a collection of lawyers, journalists and the odd activist- had standing to challenge the Foreign Intelligence Surveillance Act, and it is this point only that is on appeal. The second circuit then  refused to re-hear the case en banc, prompting Chief Judge Jacobs to issue a rare dissent on the denial to re-hear the case en banc.
The CJ's attack on the veracity of the  plaintiffs/lawyers is startling, and the CJ's comparison of the plaintiffs to a disturbed pro se plaintiff suing the CIA for thought control is downright amusing. From the CJ's dissent (you can read it all here): 


      An assortment of lawyers, journalists and activists, 
and organizations representing such people, facially  challenge the constitutionality of § 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”... Their claim is that the FAA lowers the standards for obtaining warrants to surveil foreign persons abroad, which has caused the plaintiffs, who are not foreigners, to develop a reasonable fear of being surveilled when communicating with foreigners around the world who are their journalistic sources, clients, human rights victims, witnesses and so on--all of whom are, in plaintiffs’ estimation, potential objects of surveillance. The plaintiffs contend that this fear compels them to communicate with their clients or foreign contacts only in  person, at such trouble and expense as to constitute injury that supports standing. ..
To support the otherwise-mysterious idea of injury to these plaintiffs (and causation), the panel opinion relies entirely (even credulously) on affidavits submitted by the plaintiffs, describing their supposed anxieties. But these affidavits employ all the lawyer’s arts to convey a devious impression...
At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake--for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel’s and plaintiffs’ only perceptible interest is to carve out for themselves an influence over  government policy--an interest that the law of standing  forecloses. For the foregoing reasons, I conclude that the plaintiffs suffered no injury, and certainly none that can  be redressed by this Court. In part, that is a function of the frivolous nature of the claim. In that respect, it bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar. But, as to the standing analysis, there is this difference: The pro se plaintiff is actually suffering, is truly hoping for redress, and is not bringing suit as a  pretext to weigh in on government policy. 
Rumpole says: Wow. It's not often the Chief Judge of the Second Circuit Court of Appeals writes with  sympathy for pro se plaintiffs suing the CIA for thought control. "Politics and standing make strange bedfellows, eh?" 

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Lawyers behaving badly

Everyone's all aflutter about the depo drawings leading to sanctions against lawyers.  Here's the order by Judge Altonaga. 

South Florida Lawyers and ATL cover the story. 

Civil lawyers are so funny.  All this fighting about discovery.  Try coming to criminal land -- no depos, no witness statements, no nothing.  And when something does get buried, no sanctions are allowed. 

Anyway, I'm taking the week off from blogging next week, and leave you in the capable hands of Rumpole, SFL, Jeff Marcus, and a potential mystery blogger.  If something really exciting does come up, I'll pop my head in.

For now, I'm going to go and try to get in on some of this Facebook action.

Have a nice weekend.