Adalberto Jordan to be invested

It's today at 3:30 at the Wilkie Ferguson Jr. Courthouse and it's going to be packed.  I hear there are at least 3 overflow courtrooms set up.  How big will his Supreme Court investiture be?

Some other good news to report -- Wilkie Ferguson's son, Wilkie Ferguson III, is pictured below holding the Tony Award for best revival of a musical for 'Porgy and Bess,' which he currently appears in on Broadway. Very cool.

Ho hum Monday

School's out, camp started, and the Heat made the Finals (take that Rumpole!).

Other than that, the SDFLA is pretty quiet.

-- Clarence Thomas is now taking the position that oral argument should be done away with altogether (via Charlotte Observer):

Earlier, Sentelle and Thomas discussed the law before a luncheon audience at the Charlotte City Club. Somebody asked Thomas what he’d change about the process.
Do away with oral arguments, he said.
Thomas hasn’t spoken during the high court’s oral arguments for more than six years.

Read more here: http://www.charlotteobserver.com/2012/06/08/3302996/justice-honors-fellow-displaced.html#storylink=cpy

-- Paul Clement guards his oral argument prep time "jealously."

-- The WSJ blog reports that Rajat Gupta will not testify even though his lawyers said in open court on Friday that it was "highly likely."  Anything wrong with making the prosecutors work over the weekend to prepare the cross even though Gupta probably knew before the weekend that it was highly likely that he was going to take the stand?

Alicia Otazo-Reyes...

... will have her investiture today at 3pm in the new courthouse on the 13th Floor. 

Congrats to Judge Otazo-Reyes!

Does anyone miss, like I do, the investitures in the courtyard of the Dyer building with Christy's catering?

Trust us!

That's the message from Deputy AG James Cole's testimony before the Senate Judiciary Committee yesterday, in which he speaks out against Sen. Murkowski's (R-Ala) bill to require more disclosure under the federal criminal discovery rules.  Here are his comments.

In addition to the "trust us" argument (who needs changes to the rules when the internal guidelines say disclose!), the DOJ resorts to the unfortunate fear argument.  People will DIE if the discovery rules are changed.  The argument gets absurd:

Legislation requiring earlier and broader disclosures would likely lead to an increase in such tragedies.   It would also create a perverse incentive for defendants to wait to plead guilty until close to trial in order to see whether they can successfully remove identified witnesses from testifying against them.

 Really?  This is why prosecutors shouldn't be required to disclose Brady and Giglio well in advance of trial -- because defendants are going to wait to see if the witnesses are killed?

I've spoken out before about the need for discovery reform. But I never thought we'd see this sort of argument.  I hope that the Senate sees through it.

Judge Altonaga orders new trial for e-discovery violations

For a long time, it was impossible getting critical discovery from the government.  Now many prosecutors are taking the opposite approach -- overload the defense lawyer with mountains of discovery without identifying what is relevant or important.  This happened in a recent trial before Judge Altonaga, where the prosecutor disclosed unusable electronic discovery to the defense (led by a wonderful lawyer, Sabrina Puglisi, who was appointed). 

When the defense disclosed what it would be arguing at trial, the government used a computer expert to extract "Skype chats" that couldn't be seen by simply opening folders or searching on the computer.  They had to be extracted by an expert.  After the defendant testified, the government disclosed a 214 page log of the chats to the defense and called its expert in rebuttal.  The defendant was convicted.

Judge Altonaga ordered a new trial (here's the order):

The Government never advised the defense of the existence of the information obtained by Agent Etter. It simply never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed. It did not turn over the communications until the morning of its expert’s testimony, near the end of the trial. As the Defendant explains in his Reply [ECF No. 207], "[production of something in a manner which is unintelligible is really not production." (Id. 3). This is not like the cases cited by the Government in its Response [ECF No. 204] or Surreply [ECF No. 210], where courts have consistently refused to require the Government to identify exculpatory or inculpatory evidence within a larger mass of disclosed evidence. This case brings to the fore the challenges presented when electronically stored information is produced in discovery.

Commenting on the implications of criminal ESI production, the court in United States v. Briggs recently observed that while the Federal Rules of Civil Procedure need not be adopted as the standard for production of criminal ESI, the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii) should apply and the Government be required to produce ESI in a reasonably usable form. See No. 10CR184S, 2011 WL 4017886, at *8 (W.D.N.Y. Sept. 8, 2011). If, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial.

The Court witnessed the damaging impact the Skype communications had on Stirling’s credibility. His testimony was largely discredited without opportunity for rehabilitation or for the selection of a reasonable defense and trial strategy by counsel. Consequently, the interest of justice requires that he be afforded a new trial where he and his counsel can make an intelligent decision regarding whether and how he should testify.

This is an important ruling by a judge who understands the difficulties that are presented by e-discovery in federal criminal cases.  A number of cases around the country have started saying, like Judge Altonaga, that e-discovery in criminal cases must be produced in a reasonably usable form.  Not only did the government not do that in this case, but then it didn't even confront the defendant with the material and waited until rebuttal to use it. 

Big congrats to Sabrina Puglisi for the big win and bringing this issue up in this District.

Meantime, Rumpole has all of the coverage of Bill Matthewman's big win in a state murder case yesterday.  What a sweet way to head into his new life as a magistrate.  He gets to end his trial practice with a huge NG.  Well done.

"Their conduct was outrageous, disgusting, abhorrent. [I] would go so far as to describe it as being the most outrageous in … 25 years on the bench."

That was Judge Turnoff in the contempt hearing of two lawyers whose conduct has gone from bad to worse.  The Sun-Sentinel has the details here.  From the end of the article, explaining Paul Petruzzi's efforts to get his client's money back:

While it looked as if Turnoff might lock up Mayas because of his actions, the judge stopped short of that on Friday. Instead, he ordered Mayas to report daily to pre-trial release officers, surrender his passport — and hire a lawyer who is qualified to represent him in federal court.

The judge gave both sides 10 days to file legal arguments about the contempt issue, and indicated he expects to see Mayas and Roy together in his courtroom very soon so he can hear the full story.

Outside court, Petruzzi said he suspects “pigs will fly” before his client gets any money from Roy or Mayas or they pay Petruzzi's $7,500 — and rising — bill, as ordered by the judge.

“But I'm not going to stop until we do [get the money], because it's wrong,” Petruzzi said. “Neither of these guys ought to be practicing law anywhere.”

Meantime, the Ninth Circuit is trading jabs in a mining case of all things.  From the WSJ blog quoting from the dissent:

“No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.
“Unfortunately,” he added, “I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role.”

Last week was a good one for Mike Tein.  He was cleared by the Bar and his client in a lengthy medicare fraud case was found not guilty of two counts and hung on another.  The Miami Herald covers the case in which the DOJ prosecutor, Jennifer Saulino, obtained guilty verdicts for the other defendants:

The 12-person Miami jury convicted psychiatrists Mark Willner of Weston and Alberto Ayala of Coral Gables, the medical directors for American Therapeutic Corp., for their roles in a $205 million scheme to fleece the taxpayer-funded program for the elderly and disabled. The jurors found them not guilty on other healthcare fraud offenses.
In addition, the jury convicted Vanja Abreu, Ph.D, program director for American Therapeutic in Miami-Dade, of the same healthcare-fraud conspiracy offense, and two other defendants, Hilario Morris and Curtis Gates, of paying kickbacks to residential home operators in exchange for providing patients.
However, the jurors, who deliberated for five days after a nearly two-month trial, could not reach conspiracy verdicts against Lydia Ward, Ph.D., program director for American Therapeutic in Broward, Nichole Eckert, a Fort Lauderdale therapist, or Morris and Gates. Justice Department lawyers said they plan to retry those defendants on the deadlocked counts.

Read more here: http://www.miamiherald.com/2012/06/01/v-fullstory/2827660/miami-medicare-fraud-jurors-tell.html#storylink=cpy

  One final note -- the NY Times has this op-ed about federal judges writing their own opinions:

THERE is a crisis in the federal appellate judiciary. No, I’m not referring to the high number of judicial vacancies or overloaded case dockets — though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I’m talking about the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work.

With so much news and controversy about what federal appellate judges say in their opinions, it would be natural for a layperson to assume that such opinions actually come from judges’ own pens (or keyboards). But ever since the beginning of the law-clerk age, which dates back at least 70 years, most judges have been content to cast their vote in a case and then merely outline the shape of their argument — while leaving it to their clerks to do the hard work of shaping the language, researching the relevant precedents and so on. Almost all federal appellate judges today follow this procedure. 

***

There is also the matter of intellectual integrity. Put simply, it cannot be accepted as legitimate that judges can put their names on opinions that they did not write. It’s not quite plagiarism, but it puts me in mind of the product known in the academic world as “managed books”: a professor will use research assistants to not only research a project but also write a first draft — but nonetheless the professor claims the work as his own. The managed books approach has been condemned as an affront to intellectual integrity. There is no principled reason the judicial counterpart should not be similarly condemned. I am reminded of Henry J. Friendly, the great judge of the Second Circuit, who explained that he wrote his own opinions because “they pay me to do that.”

Younger members of the judiciary need to take a hard look at themselves and ask how what they are doing stacks up against the known examples of judging at its highest level — not just Judge Posner and his contemporaries who write, but also gifted writers among judges of earlier eras like Learned Hand and Oliver Wendell Holmes Jr. The next generation will need to accept the opportunities and challenges of appellate judging and dare to do all the work that befits a judge.

 I think the piece way overstates the "crisis" about this issue...  But what do you all think?

"I bear no animosity toward the prosecutors, even though they pursued false charges based on fabricated evidence."

Ben Kuehne is the only person I know who could say such a thing and actually mean it.  Ben is quoted in Jay Weaver's article about John Sellers, who prosecuted Ben and who also prosecuted banker Sergio Masvidal. 

Masvidal was represented by Joe DeMaria, who was able to get his client's name cleared.  Although OPR concluded that his conduct was "reckless," the Justice Department let him keep his job:

Five years after unsuccessfully targeting two prominent Miami figures — one a banker, the other a lawyer — in separate cases, a Justice Department prosecutor faces a July disciplinary trial by Maryland Bar regulators.


John W. Sellers left the Justice Department in 2010 amid an internal probe concluding that he committed “reckless” misconduct in a money-laundering case against Miami-based American Express Bank International, which was headed by banker Sergio Masvidal.
***
Masvidal’s Miami lawyer, Joseph DeMaria, said the Justice Department should have fired Sellers after concluding that he had committed reckless misconduct, according to the agency’s internal probe in 2010.

Sellers now works as a Treasury Department attorney on the federal bailout program for the banking industry.

“The Justice Department let him sneak out the back door to the Treasury Department so he could keep his same salary, benefits and pension,” DeMaria said. “And now he’s working as an attorney on the federal bailout. How ridiculous is that?”

Indeed. 

The article ends with this quote from Ben:  “Lawyers reap what they sow. He will need to answer for his own conduct.”   But prosecutors who engage in misconduct rarely have to answer for their conduct.  That's part of the problem.  OPR rarely does anything, and the few times it does do something, it's a slap on the wrist.  See, e.g., Ted Stevens' prosecutors. 


In this case, the Maryland Bar has initiated a case against Sellers, so it will be interesting to see what happens. (Here's the Maryland complaint).  The problem is that even when the Bar tries to disclipline prosecutors, DOJ claims that they are immune even from Bar rules, and of course, civil remedies are not available.

Welcome to Amercia!

It's just a typo for goodness sake.





In more important news, what do you think of the 30-day sentence on the Rutgers student convicted of the hate crime?  Not surprisingly, the prosecutors weren't happy, but the judge defended the sentence:

No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”

***

On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate. The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice. 

 ***

 While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing. Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.  

In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend. Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.

Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said.

But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.” That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.

In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail. Under state statute, Mr. Ravi could serve as little as 20 days, if he earns work credits and rewards for good behavior in jail.

The judge said he had relied on the statute’s recommendation in imposing the fine, and set it at an amount he considered “affordable, impactful and proportionate.”

Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.”

He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy.

“I also know his age,” Judge Berman added, calling it a mitigating factor.

“I believe justice compels me to deviate from the guidelines,” he said.