Florida Bar proposes advisory opinion re 2255 waivers

Back in September, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement (see Blog coverage here). Over strong opposition by the government, the Bar just proposed this advisory opinion on the subject:

A member of The Florida Bar has requested an opinion regarding the ethical propriety of offering or advising a criminal defendant to accept a plea offer in which the criminal defendant waives past or future ineffective assistance of counsel and prosecutorial misconduct. The committee first notes that whether particular plea agreements are lawful, enforceable and meet constitutional requirements are legal questions outside the scope of an ethics opinion. Reviewing these issues in light of ethics considerations, the committee concludes that both offering and recommending acceptance of such a plea offer is improper. ***

The Committee concludes that a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer's own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer's own performance.

Regarding the prosecutor's conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee's opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.

As I've said before, it's odd to me that the government opposed this opinion:

Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up. Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?

Well, now it's unethical for prosecutors to ask or defense lawyers to advise clients to sign 2255 waivers. Congrats to all of the lawyers who pushed for this rule. I know Michael Caruso spoke at the Florida Bar meeting in support of the opinion. Also, Bruce Reinhart was the member of the Florida Bar who requested than an opinion be issued.

Fourth of July

Hope everyone had a nice holiday yesterday.  Those in San Diego were supposedly disappointed that all the fireworks for the show went off at once, but it looks pretty cool to me:



Meantime, everyone is still debating "tax" or "penalty." Romney says it's now a tax because the Supreme Court said so, but he is not happy about it:

Emphasizing his disagreement with the Supreme Court’s decision to uphold President Obama’s healthcare law, Mitt Romney criticized Chief Justice John G. Roberts Jr. on Wednesday, stating that Roberts reached a conclusion that was inappropriate and “took a departure” from sound reasoning. Before the healthcare ruling, Romney had praised Roberts. His website says he would “nominate justices in the mold of Chief Justice Roberts and Justices Scalia, Thomas and Alito,” candidates who “exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written.” But Romney displayed a cooler attitude toward Roberts in his interview with CBS News’ Jan Crawford on Wednesday near his vacation retreat of Wolfeboro, N.H. When Crawford asked whether he would nominate a justice like Roberts, now that the chief justice voted to uphold the president’s healthcare law, Romney answered that he “certainly wouldn’t nominate someone who I knew” was going to come out with a decision that I “vehemently disagreed with.” Roberts’ decision to side with the liberals of the court, Romney added, gave the impression his “decision was made not based upon [a] constitutional foundation but instead, [a] political consideration about the relationship between the branches of government.” Romney called Roberts “a very bright person,” according to a transcript provided by CBS News, and said he would look to nominate justices with intelligence who “believe in following the Constitution.”

Judge Cooke sides with Docs over Glocks

Jay Weaver covers the story here:

A federal judge has blocked the state of Florida from enforcing a new law pushed by firearm advocates that banned thousands of doctors from discussing gun ownership with their patients.
U.S. District Judge Marcia Cooke, who had already issued a preliminary injunction last September, made her decision permanent late Friday when she ruled in favor of groups of physicians who asserted the state violated their free speech rights. She said the law was so “vague” that it violated the First Amendment rights of doctors, noting the legislation’s privacy provisions “fail to provide any standards for practitioners to follow.”
The physicians’ lawsuit, an ideological battle between advocates of free speech and the right to bear arms, has been dubbed “Docs vs. Glocks.” The state Department of Health could appeal her summary judgment, which addressed legislation signed into law last year by Gov. Rick Scott.
In her 25-page ruling, Cooke clearly sided with the physicians, saying evidence showed that physicians began “self-censoring” because of the “chilling” effect of the legislation.
“What is curious about this law — and what makes it different from so many other laws involving practitioners’ speech — is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient,” Cooke wrote, citing the benefit of such “preventive medicine.”
“The state asserts that it has an interest in protecting the exercise of the fundamental right to keep and bear arms,” Cooke wrote in another section about the Second Amendment issue. “I do not disagree that the government has such an interest in protecting its citizens’ fundamental rights. The Firearm Owners’ Privacy Act, however, simply does not interfere with the right to keep and bear arms.”

Read more here: http://www.miamiherald.com/2012/07/02/2879089/miami-federal-judge-sides-with.html#storylink=twt#storylink=cpy

Bill Matthewman sworn in today

Congrats to our newest Magistrate Judge. Judge Matthewman will be sitting in West Palm Beach, along with another new Magistrate -- Dave Brannon.

End of Term

The Supreme Court is now on summer break till October. There are a bunch of good articles about the end of the Term, but the place to go is SCOTUSBlog, which has pages and pages of stats-- really anything you could ask about the Term is broken down statistically. Here are some of the take-away stats highlighted by the blog:

The Sixth Circuit continued its abysmal streak in the Supreme Court. Between OT08 and OT10, cases originating in the Sixth Circuit were affirmed only once in 18 attempts. All 5 cases from the Sixth Circuit were reversed during OT11. [Page 3].

The Court released a rare 5-4 summary reversal this Term in American Tradition Partnership v. Bullock — a rarity because four Justices can usually grant certiorari in a case and force oral arguments, thereby eliminating the need for a dissenting opinion. [Page 5].

The Court has decided fewer merits cases after oral argument, 65, than it has during any time in the last twenty years. The Court was already cruising to a relatively low number of merits cases when it finished granting cases for oral argument during OT11 in January, but the dismissals of Vasquez v. United States and First American Financial v. Edwards, the rebriefing of Kiobel v. Royal Dutch Petroleum, and the eventual consolidation of Jackson v. Hobbs with Miller v. Alabama for purposes of the opinion have resulted in the Court issuing a record low number of opinions in fully briefed merits cases. [Page 9].

Although it issued a low number of signed merits cases, the Court did released a high number of summary reversals, 10. From OT00-OT10, the Court averaged 6 summary reversals per Term. [Page 10].

Justices Scalia and Thomas have finished the Term with the highest rate of agreement on the judgment across all cases. They agreed 93.3% of the time. Justices Scalia and Ginsburg finished with the lowest rate, agreeing 56.0% of the time. [Page 23].

The two fastest signed majority opinions of OT11 were authored by Justice Scalia. He produced Greene v. Fisher in 28 days and RadLax v. Amalgamated Bank in 36 days. Justices Ginsburg, Sotomayor, and Kagan each authored 2 of the top 10 fastest opinions. [Page 27].

Fascinating stuff. I thought this stat was particularly interesting:

Justice Kennedy is, for the fourth consecutive Term, the Justice most likely to appear in the majority. This Term he voted with the majority in 69 out of the 74 cases he voted in, marking the second-highest percentage of the past five Terms (93.2%) and falling only to his frequency in the majority from last Term (93.8%). Chief Justice Roberts, who himself has become a mainstay of recent majority opinions, had the second-highest frequency in the majority (91.9%). In 3 of the last 4 Terms, the Chief Justice has been either the most likely or second-most likely Justice to appear in the majority of a decision. Just as she was last Term, Justice Ginsburg is the Justice least likely to vote with the majority; she votes with the majority in 69.3% of all cases.

69 out of 74 for Kennedy is amazing. It really is his Court. One big asterisk though in that he lost the biggest case of the Term. It must kill Kennedy that he had to dissent in the Health Care cases and that he couldn't convince Roberts to come back to the conservative Justices.

Enjoy the summer SCOTUS.

The Health Care Ruling is a Big win for....

...the Supreme Court. 

The Chief Justice, by joining the left and upholding the law, saved the Supreme Court from being looked at as only a political body.  If it would have struck down the ACA on political 5-4 voting lines, it would have been Bush v. Gore all over again (which was the Rehnquist Court, not the Roberts Court), and the Court would have been delegitimized.  But now, even though Republicans and Democrats will fight over this in the upcoming elections, the Court will be seen as more neutral than in the past.

"It's our Super Bowl."

That's how Tom Goldstein describes today on the live blog over at SCOTUSBlog, which is worth headed to right now. 

I'm actually very excited to see what the Court does on the lying about a military honor case...

I'll hopefully post something this afternoon with some discussion about the cases today.

UPDATE -- the reason you should have been at SCOTUSBlog instead of CNN is that CNN reported "Individual Mandate Struck Down" for about 6 minutes before realizing its mistake.  So bad.  Goldstein, Howe & Company got it right from the get go.  Bloggers are better than MSM....

UPDATE 2 -- Here's the lengthy healthcare opinion.

P.S. Valor Act struck down...

Judge Robin Rosenbaum confirmed!

92-3 by the Senate. Well done and congratulations!

Update-- to answer the questions in the comments, per Glenn Sugameli, the only No votes (GOP Sens. Lee [UT], DeMint [SC] and Paul [KY]) were from those who have been continuing to vote NO on all judicial nominees in protest of three President Obama Executive branch nominees