A call to the judiciary

There was an article in the NY Times this weekend about why cops lie.  It's a nice piece, but nothing really new.  Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense:

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS.

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV. 

Those are interesting concepts, but the following 4 statements will encourage more discussion:

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.

VII. ALL JUDGES ARE AWARE OF RULE VI.

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 

There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.

What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor. 

--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).   

--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid. 

--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.      

--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

--Grant motions to suppress when the officer is lying.  This goes to the NY Times article and Dershowitz's rules.

A big part of all of this goes to the court of appeals.  The 11th Circuit rules for the government even more than the district court does.  This has been the culture for a long time.  (When is the last time the court reversed a sentence within or above the guidelines?) But there is new blood on the 11th.  And three new open spots (two now, and one more this summer) will really change the court.

See what happens when there is a blackout during the Super Bowl.  The game is now back on, so I'll get off the soapbox. 

Kim Rothstein vs. Justice Sonia Sotomayor

Kim Rothstein pleaded guilty yesterday while Justice Sonia Sotomayor spoke at the University of Miami campus.  Who got more press in South Florida?  Sadly, Rothstein by a ton.  From Jon Burtstein's story:

Five years ago this week, she was a bride who had just gotten married at South Beach's Versace Mansion to a rich, charismatic attorney who had Fort Lauderdale abuzz.

Three years ago, she was in seclusion after watching her husband, Scott Rothstein, go before a federal judge to plead guilty to the largest financial fraud in South Florida history.

On Friday, Kim Rothstein was back at the federal courthouse in Fort Lauderdale. This time, it was to admit that she too is a criminal.

Rothstein, 38, pleaded guilty to a plot to hide more than $1 million in jewelry from federal authorities as they were seizing her husband's assets to reimburse victims of his swindle. She admitted conspiring with her then-attorney and a friend to secretly sell the jewels, including a 12-carat diamond ring, and to persuade her imprisoned husband to lie under oath about the ring's whereabouts.

She faces up to five years in prison when sentenced April 19 by U.S. District Judge Robin S. Rosenbaum.

Dressed in a dark pantsuit, Rothstein answered Rosenbaum's questions in a clear, steady voice as she pleaded guilty to a felony charge of conspiracy to commit money laundering, obstruct justice and tamper with a witness.

"Are you pleading guilty because you are in fact guilty?" Rosenbaum asked.

"Yes, your honor," Rothstein responded.

She left the courthouse flanked by her defense attorneys, David Tucker and David Kotler. She did not acknowledge the reporters and cameramen outside as she got into a sports utility vehicle waiting for her.

From the Herald story on the Supreme Court Justice visit:

From her days as a young girl in the Bronx being raised by her mother after the death of her father to becoming the first Hispanic on the highest judicial body in the country, U.S. Supreme Court Justice Sonia Sotomayor told the story of her journey before a captivated audience at the University of Miami on Friday night.


Sotomayor spoke with University of Miami President Donna E. Shalala at the BankUnited Center to University of Miami students, Coral Gables residents and perhaps a future Supreme Court justice about the inspiration behind her recently published memoir My Beloved World.

“Love and passion, that is the only way you do something well,” Sotomayor said. “Do a few things, but do them well.”

Sotomayor, 58, spoke of the many things that inspired her to share her story with the world, one of which was in responses to questions she hadn’t expected during her confirmation process, such as how children cope when a parent dies, especially if they don’t have a mother like hers.

“I began to understand that I couldn’t talk to every child in the country,” Sotomayor said. “I could give them the answers in a book.”

Is there a federal judicial clerkship crisis?

Apparently there is because federal judges won't follow the (voluntary) rules about timing of interviews and hiring.  So clerks are getting interviewed and hired earlier and earlier, which is really messing up the process.  What's the solution?  Aaron Zelinsky says take the voluntary out of the rules:

Congress has the power of the purse. It allocates funds for building courthouses, keeping the lights on, and employing staff. For instance, law clerks are employed under 28 U.S.C. 752 (for district courts) and 28 U.S.C. 712 (for circuit courts). If the judiciary really wants to fix the hiring plan, then judges should request that Congress condition salaries for law clerks upon them being hired in compliance with the judicial hiring plan. In other words, if you don't play by the rules, you don't have law clerks.


But wait, isn't that unconstitutional? Nope. The Constitution prevents Congress from lowering the salaries of federal judges, but says nothing about their staff (anyways, such a law could be written to apply only to those hired in the future, not those already employed). And Congress isn't infringing on the judicial power in any way - this law does not effect how judges make use of their clerks, just the timing of how they hire them. And it would leave the actual formation of the plan up to the judiciary.

Federal judges could ask Congress to make the hiring plan mandatory via a proposal from a special judicial working group, or even in Chief Justice Roberts's year end report to Congress. And they should. A new, mandatory plan would be fairer for less-advantaged law students and late-bloomers, more efficient for federal judges, and maybe even better for you.

Good luck with that one...

Meantime, over at his blog, Rumpole asks whether you'd rather be on the Third DCA or on the SDFLA district bench.  Or a Florida Supreme Court Justice or on the 11th Circuit.  Seems to me that the federal positions are much more sought after and are thought of in the legal community as more prestigious.  And speaking of clerks, the feds get the cream of the crop.  I imagine that the district court clerks have better resumes than the clerks on the Florida Supreme Court.  Is that right?

Can we clone Judge Gleeson?

District Judge John Gleeson is doing more good work in the Eastern District of New York.  The latest is this sentencing order about the guidelines in drug cases.  The reasoning applies also in white collar cases and just about every other guideline calculation.  Judge Gleeson is no bleeding heart -- he is a former (very tough) federal prosecutor who put John Gotti away. We need more Judge Gleesons. From his order (via Professor Berman's site):

Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....
Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.
The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

...

If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....
Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case.  The debate is good for the health of our federal criminal justice system.  But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous.  That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself.  If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....
The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline.  The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing.  We must never lose sight of the fact that real people are at the receiving end of these sentences.  Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.

Closer to home, Judge Scola is beaming in testimony from Pakistan.  Curt Anderson has the details:

U.S. District Judge Robert Scola approved the unusual testimony in the case of 77-year-old imam Hafiz Khan. The first five witnesses will be questioned beginning Feb. 11 at an Islamabad hotel, and jurors will watch on courtroom TV screens. Scola said Tuesday the arrangement is costing taxpayers about $130,000.
Khan is on trial for allegedly funneling at least $50,000 to the Pakistani Taliban, listed by the U.S. as a terrorist group linked to al-Qaida. Khan insists the money was for innocent purposes, and the Pakistani witnesses are expected to back that up. If convicted, Khan faces up to 15 years in prison on each of four counts.
At a hearing Tuesday, Khan attorney Khurrum Wahid asked Scola to allow six additional witnesses to testify from Pakistan, over prosecutors' objections. The judge did not immediately rule but seemed inclined to approve the request, noting that an appeals court might toss out any convictions if the trial appears unfair to Khan.
"I don't want to have a second trial. I want to have one fair trial," Scola said.

Is the Constitution a living document or is it "dead, dead, dead"?

Justice Scalia said the latter in a speech in Dallas, via the Dallas Morning News:

“The judge who always likes the results he reaches is a bad judge,” he told an audience Monday evening at Southern Methodist University.


He and SMU law professor Bryan A. Garner shared the stage at McFarlin Auditorium for a lecture on their second book together, Reading Law: The Interpretation of Legal Text.
Garner said that though he and Scalia differ politically, they agree on staying true to the law and on separating politics from legal interpretation.

“I will tell you that my political beliefs are different from those of Justice Scalia,” he said.
Garner supports gay marriage and favors stricter gun control laws.
But Scalia, who is regarded as one of the most conservative justices on the high court, declined to contrast his opinions on such matters.
“I haven’t expressed my views of either of those,” Scalia interjected. “You’re a bleeding heart.”

Congratulations to Magistrate Patrick Hunt

He was sworn in today by Chief Judge Moreno.

Monday news and notes (updated)

Update-- the Sentencing website has been re-hacked and is now the game Asteroids. I would have preferred Galaga...


Sorry for the slow blogging lately.  Hopefully will be back in full blogging mode soon.  In the meantime, here's what's up:

1.  The Sentencing Commission website was hacked by Anonymous (it's back up now).  From Anonymous' statement:

Last year the Federal Bureau of Investigation revelled in porcine glee at its successful infiltration of certain elements of Anonymous. This infiltration was achieved through the use of the *same tactics which lead to Aaron Swartz' death. It would not have been possible were it not for the power of federal prosecutors to thoroughly destroy the lives of any hacktivists they apprehend through the very real threat of highly disproportionate sentencing.
As a result of the FBI's infiltration and entrapment tactics, several more of our brethren now face similar disproportionate persecution, the balance of their lives hanging on the severely skewed scales of a broken justice system.
We have felt within our hearts a burning rage in reaction to these events, but we have not allowed ourselves to be drawn into a foolish and premature response. We have bidden our time, operating in the shadows, adapting our tactics and honing our abilities. We have allowed the FBI and its masters in government -- both the puppet and the shadow government that controls it -- to believe they had struck a crippling blow to our infrastructure, that they had demoralized us, paralyzed us with paranoia and fear. We have held our tongue and waited.
With Aaron's death we can wait no longer. The time has come to show the United States Department of Justice and its affiliates the true meaning of infiltration. The time has come to give this system a taste of its own medicine. The time has come for them to feel the helplessness and fear that comes with being forced into a game where the odds are stacked against them.
This website was chosen due to the symbolic nature of its purpose -- the federal sentencing guidelines which enable prosecutors to cheat citizens of their constitutionally-guaranteed right to a fair trial, by a jury of their peers -- the federal sentencing guidelines which are in clear violation of the 8th amendment protection against cruel and unusual punishments. This website was also chosen due to the nature of its visitors. It is far from the only government asset we control, and we have exercised such control for quite some time...

2.  The D.C. Circuit says no to recess appointments.  It will be interesting to see how this plays out.  The case will certainly go to the Supremes.  Remember that a recess appointment was used with Judge Pryor, but he was eventually confirmed by the full Senate 53-45, so the case has no bearing on him.

3.  Speaking of the 11th Circuit,  Chief Judge Joel F. Dubina, will be the keynote speaker at a PBCBA membership luncheon on February 1 at 11:45 a.m. at the Marriott West Palm Beach. He will be speaking regarding the inner workings of the 11^th Circuit and how things work behind the scenes. The luncheon will be co-hosted by the Palm Beach County Chapter of the Federal Bar Association and the Bankruptcy Bar Association for the Southern District of Florida.

 

President George H.W. Bush appointed Chief Judge Dubina to the 11^th Circuit in 1990 and he was appointed as Chief Judge in 2009. Judge Dubina previously served as a U.S. District Judge for the Middle District of Alabama from 1986-1990. He received his B.S. from the University of Alabama and his J.D. from Cumberland School of Law. Pre-registration for this luncheon is required and can be done on the Bar's website by clicking here.

“JUSTICE THOMAS: Well, there — see, he did not provide good counsel.”

The riddle is solved. From the Washington Post:

[T]he court released a new transcript Wednesday that contains the complete sentence:

“JUSTICE THOMAS: Well, there — see, he did not provide good counsel.”

The point remained the same. Thomas was tossing a lighthearted barb during a discussion about the qualifications of some of the attorneys representing murder suspect Jonathan Boyer.

One had attended Yale and one had attended Harvard. Thomas is a Yale Law grad who has been a frequent critic of his alma mater. On the other hand, he may have been making a crack about rival Harvard, because the lawyer from Cambridge was a man, and the New Haven graduate was a woman.

Maybe the joke was directed at the entire Ivy League, a favorite Thomas target. Every member of the high court attended Yale or Harvard, although Justice Ruth Bader Ginsburg finished at Columbia.