Blogger's block

I wish I had something exciting to blog about this Monday morning...

I could try to tie in Miami by discussing how great the traffic is compared to, say, DC:

The usually punctual Sen. Patrick Leahy (D-Vt.) had some choice words for District of Columbia leaders this week, when he blamed their policies for making his 11-mile commute to Capitol Hill last an hour and 40 minutes on Wednesday.
"We go through a city that will spend millions of dollars and enforce parking meters and get fines, and pay for speed cameras which mainly make out of town companies rich, and so on," Leahy said after arriving about 10 minutes late to a 9:30 a.m. hearing. "But they can't coordinate their street lights when their street lights are broken."
Leahy, while pouring himself water on the dais of the Senate Judiciary Committee, didn't say where he was driving from or what roads he took. But he observed that "the main thoroughfares have a green light that will go on for one second and go 10 minutes red."

That prompted Sen. Chuck Grassley (R-Iowa) to joke: "Aren't you sure the problem probably is that they purposely don’t coordinate?"

Or compare the 11th Circuit conference to the 9th Circuit, which was planning a $1 million affair in Hawaii until Congress got wind of it:

Political controversy persists over a conference planned for federal judges on Maui, with two Republican senators calling for the event to be canceled or at least scaled back.

Sen. Jeff Sessions of Ala­bama and Sen. Chuck Grassley of Iowa, who have been questioning the need to hold the August conference at a "far-flung island paradise," sent another letter Friday to the chief judge of the 9th U.S. Circuit Court of Appeals.

"During this time of extraordinary debt, and given the history of opulence — including repeated trips to the Hawaiian Islands — we believe you should cancel the million-dollar conference," the letter said. "Failing that, ample opportunities to scale back costs at this event and at future conferences remain."

After that letter, the Circuit cancelled the conference.  Maybe they should call Adam Rabin to plan the next one.

But those comparisons seem like too much of a stretch.  The District is quiet.... Maybe we'll hear some exciting news today.  Send me your tips!

Judge Beverly Martin says what criminal practitioners are thinking about 11th Circuit's sentencing jurisprudence:

District judges only get reversed when they go way down, but not when they go way up. It's a fabulous concurrence and it invites en banc review.

The case is United States v. Early, and Judge Martin starts her concurrence way:


Where a sentencing court addresses the factors set out in 18 U.S.C.
§ 3553(a) and imposes a sentence within the statutory maximum, this court’s
precedent teaches deference to that judgment on any variance above the Guideline
range, no matter how large. See, e.g., United States v. Shaw, 560 F.3d 1230, 1241
(11th Cir. 2009) (upholding a 120-month sentence representing a 224 percent
upward variance from the maximum Guideline sentence); United States v.
Amedeo, 487 F.3d 823, 834 (11th Cir. 2007) (upholding a 120-month sentence
representing a 161 percent upward variance); United States v. Turner, 474 F.3d
1265, 1281 (11th Cir. 2007) (upholding a 240-month sentence representing a 281
percent upward variance). Indeed, in all the cases decided by this court since
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), I have found none
in which we vacated an upward variance from the Sentencing Guidelines on
reasonableness grounds. For this reason, even though Mr. Early’s sentence of
210-months imprisonment represents a 116 percent variance above the 97-month
sentence set by the top of his Guideline range and a remarkable 169 percent
increase from the 78-month sentence requested by the government itself, I cannot
say the panel’s decision here is contrary to our precedent.

At the same time, I write separately to note that this Court has declined to
exercise similar deference toward a sentencing court’s decision to grant a
downward variance. See, e.g., United States v. Jayyousi, 657 F.3d 1085, 1118–19
(11th Cir. 2011) (holding that a 42 percent downward variance was substantively
unreasonable); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en
banc) (same); United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008)
(holding that a 100 percent downward variance was substantively unreasonable).
This, even where the extent of the variance from the Guideline range was far
smaller and where the reasons given by the sentencing court were more
substantial.

My reading of these cases tells me that in considering sentences above the
Guideline range, we look only to whether the sentencing court seemed to consider
the § 3553(a) factors and we ignore whether the court might have disregarded one
of the factors or weighed the factors in an unreasonable way. In contrast, for
downward variances, we show no such deference and instead scrutinize how a
sentencing court applied each and every § 3553(a) factor. We even go so far as to
decide for ourselves whether the factors were weighed correctly. See Irey, 612
F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203.

And Judge Martin finishes like this:


In sum, even though our case law purportedly requires “a significant justification”
to support a “major departure” from the Guidelines, see Pugh, 515 F.3d at 1201, 
the panel’s review of Mr. Early’s 116 percent upward variance evinces little
indication that such a requirement even applies here.

Absent correction, I fear this Court’s different approach for reviewing up and down sentence variances may erode public trust in our work.

One of the cases that Martin cites is Jayyousi, which is the co-defendant's name in Jose Padilla's case.  There, the 11th Circuit found that the district court's below guideline sentence was unreasonable and cert was just denied.  But, the case is far from over.  Check out this article about the DoD report explaining how Padilla was tricked into believing that the feds injected him with truth serum:

In 2006, a lawyer for Jose Padilla, the accused dirty-bomb plotter, made an explosive claim in a federal court filing: the "enemy combatant" was "given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations."
But what Seymour failed to disclose, reported here for the first time, was that Padilla was given the flu shot during an interrogation session and told by his interrogators the injection was "truth serum," according to a declassified Department of Defense (DoD) inspector general's report that probed the use of "mind-altering drugs" during the interrogation of war on terror detainees.
Sanford Seymour, the technical director of the US Naval brig in South Carolina where Padilla was held, however, vehemently denied the charge during a 2006 hearing to determine whether Padilla, a US citizen, was competent to stand trial. Seymour asserted Padilla was injected with an influenza vaccine.
The inspector general's investigation determined that although Padilla was not administered mind-altering drugs (such as LSD), "the incorporation of a routine flu shot into an interrogation session ... was a deliberate ruse by the interrogation team, intended to convince [redacted] he had been administered a mind-altering drug."

 How long till the motion for new trial is filed?

Thunderstorm Wednesday News & Notes

Looks like everyone is gonna be dragging this morning after those loud storms woke us in the middle of the night.  Some news and notes for this rainy day:

1.  The Herald supports Judge Cooke's ruling in the Docs vs. Glocks case and urges the Governor not to appeal.

2.  The 11th Circuit decides a Stolen Valor case (in this unpublished opinion, USA v. Amster) right after the Court rules.  The opinion basically says -- we have to follow the Court's holding that the Act is unconstitutional but we can still affirm the false statement convictions under other statutes. 

3.  AUSA Lynn Rosenthal is now a Circuit judge in Broward (via DBR).

4.  A defendant calls the former US Attorney in Chicago a "rooster with no nuts." (via Main Justice)

5.  Jay Weaver covers this semi-secret hearing in which an ex-Haiti official gets a year in prison.

Are across the board appellate waivers also unethical?

Perhaps.  Professor Berman has the story on a judge rejecting a plea deal with an appellate waiver here.

From the Denver Post:


They began appearing in federal criminal cases in Colorado after the state's current U.S. attorney, John Walsh, took office in 2010, said Jeff Dorschner, a spokesman for the office. Walsh, Dorschner said, was concerned about wasting the court's and the government's resources when defendants appeal the sentences they received after initially agreeing to those sentences in plea deals. Such appeals are almost always denied.
"The concept is simple," Dorschner said. "If you are sentenced within the guideline you agree to in the plea agreement, then you don't have the ability to appeal that sentence. ... This is the most narrow, limited appellate waiver I think you're going to find."
In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.
Vanderwerff's attorney also urged Kane to accept the deal.
"Both sides benefit from it," Assistant Federal Public Defender Edward Harris wrote.
Harris did not return a call for comment.
Kane, though, viewed the waiver dimly.
"[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."



 From the opinion:

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers.  Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment.  See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012).  Ethical and moral values inevitably infuse the decisionmaking process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such.
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline.  That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly.  Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.
Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.  Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court’s recent history.  See Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005)).  Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Inside baseball at SCOTUS

Tom Goldstein has all the goods here on how SCOTUSblog got it right on Health Care day and CNN/FOX got it wrong.

One thing that is totally annoying:

The Supreme Court will not grant SCOTUSblog a press credential. Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston. There are six other members of our team nearby, running nine computers on eight separate Internet connections.

Why wouldn't the Court give SCOTUSblog access when it is the site most people are relying on for SCOTUS news?  And to boot, the Court won't email the opinion:

The Court’s own technical staff prepares to load the opinion on to the Court’s website. In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced. But now it relies only on its website, where opinions are released approximately two minutes later. The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.
But it does. At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever. It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling. And millions of people are now on the site anxiously looking for the decision. They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again. In the face of the crushing demand, the Court cannot publish its own decision.
The opinion will not appear on the website for a half-hour. So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

The article explains how CNN and Fox do not at all get it right.  Fun read.
Another fun article, but not related to the law, is this piece on the '83 Fleer baseball card set:

A fan here named Scott Mortimer has his own pursuit, with July 31 as the date to watch. That is when the Class AA Erie Seawolves come to Manchester to play the New Hampshire Fisher Cats. The hitting coach for Erie is Jerry Martin, a former outfielder who hit .251 for five teams from 1974 to 1984. Scott Mortimer needs him.
Mortimer, 41, is a stay-at-home father on a worldwide baseball scavenger hunt. He is trying to get autographs on all 660 cards in the 1983 Fleer baseball card set. After six years of trying, he is down to his final 99. One of the blank cards is Martin’s.
“I don’t know what kind of person Jerry Martin is, if he’d be willing to sign the card, if he would even pop out of the dugout before the umpires come out,” Mortimer said at his home last Sunday. “But that’s part of the excitement.”
Mortimer calls it the 83F Project and runs a blog with images of the autographs. He is part of a tribe of collectors who put their twist on a child’s hobby, mining a subset of the industry for fun, not profit. He trades with other collectors pursuing their own autographed sets, and has friends in other countries — scouts, in a way — who keep a lookout for his targets.

Judge Carnes...

...starts off his latest opinion (Larry Butler vs. Sheriff of Palm Beach County) this way:

In one of his ballads, Jim Croce warned that there are four things that you
just don’t do: “You don’t tug on Superman’s cape/ You don’t spit into the wind/
You don’t pull the mask off that old Lone Ranger/ And you don’t mess around
with Jim.” He could have added a fifth warning to that list: “And you don’t let a
pistol-packing mother catch you naked in her daughter’s closet.”

It gets better:

It all started with a phone call.2 Nineteen-year-old Uzuri Collier called
Larry Butler, who was of a similar age, and invited him to her house. Butler
responded to the invitation the way most young men over the age of consent
would have—he went. Once Butler was at Uzuri’s house, he and she consented to
watch television for a while. Then they consented to do what young couples alone
in a house have been consenting to do since the memory of man (and woman)
runneth not to the contrary. The record does not disclose how long these two
young people had known each other in the dictionary sense, but that afternoon in
Uzuri’s bedroom they also knew each other in the biblical sense. While doing so,
and while clothed in the manner that is customary in such matters, which is to say
not at all, they heard someone coming into the house.

The opinion is packed with this sort of fun writing, and it ends this way:

The amended complaint and Butler’s briefs leave no doubt that he feels
mistreated, and with what appears to be some justification. If the allegations are
true, Collier’s treatment of Butler was badder than old King Kong and meaner
than a junkyard dog. She might even have acted like the meanest hunk of woman
anybody had ever seen. Still, the fact that the mistreatment was mean does not
mean that the mistreatment was under color of law. Because the alleged
mistreatment of Butler was not inflicted under color of law, the district court
correctly dismissed his § 1983 claims. Butler will have to seek his remedies under
state law and in state court.

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.”