Why won't the Supreme Court hear a prosecutorial misconduct case

There have been a bunch lately, but the Court keeps turning them away.  Justice Sotomayor issued a rare statement condemning the prosecutor (joined only by one other Justice), but why won't the Court take these cases? 

From her conclusion:

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dig nity of our criminal justice

system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assis tant United States Attorney for the Western District of Texas missed the mark. 

 

Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, the

Government failed to recognize the wrongfulness of the prosecutor’s question, instead

calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19-20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated acknowledgment came only after the Solicitor General waived the Government’s response

to the petition at first, leaving the Court to direct a response.

 

I hope never to see a case like this again.

"Attorney Maria Elena Perez blazes her own path in defense of former UM booster Nevin Shapiro"

That's one way to put it.  It's the headline for John Pacenti's in depth article about Maria Elena Perez, the lawyer representing the lowest of low snitches, Nevin Shapiro. 




Donna Shalala is outraged by it all: 

UM president Donna Shalala attacked the NCAA for its flawed investigation and maintains the university has been punished enough through two self-imposed postseason bans even though the NCAA gives the final word on punishment for violations.
Shalala is incredulous that the NCAA is taking the word of Perez's client, "who made a fortune by lying."

 Welcome to the federal criminal justice system.  This is the dirty little secret of federal criminal cases -- they are built on snitches like Shapiro every day of the week.  The criminal defense bar has gotten so used to it they it's become learned helplessness.  Maybe cases like this will push people to fight back instead of laying down while taking the shocks over and over again.  

Does DNA collection from arrestees violate the 4th Amendment?

That's the question before the High Court this morning.  Police, of course, say it's a vital tool:

The bolstered federal database has helped solve thousands of crimes by linking DNA evidence at old crime scenes to newly arrested people.
"Behind every number is a human story, a case in which a buccal swab sample collected from a felony arrestee played a crucial role in solving a violent crime," says a brief submitted by all 49 other states backing Maryland's law.
On the other side is Alonzo Jay King, who was arrested on assault charges in 2009. Police collected DNA from a simple cheek swab and matched it to a 2003 rape case, for which King then was convicted. The Maryland Court of Appeals reversed that decision, ruling that the cheek swab constituted a search without either a warrant or suspicion of another crime. Now the state, backed by the federal government, is challenging that ruling.

The NY Times, on the other hand, says no way:

The state did not, however, obtain a warrant to collect his DNA, nor did it establish that it had probable cause to think that his DNA would link him either to the assault or the rape. It did not even meet the lowest threshold for some searches, by establishing that it had a reasonable basis for taking his DNA, or showing that the DNA evidence would disappear unless it was collected.

Maryland argues that collecting and analyzing DNA is like fingerprinting. But the purpose of fingerprinting is to identify someone who has been arrested. Maryland was using DNA for investigative purposes, not identification, and doing so without legal justification.

Maryland also argues that the incursion on Mr. King’s privacy was minor compared with the major benefit in crime-solving. But the number of crimes solved with DNA from people arrested has been low. The substantial harm to innocent people that could result from the misuse of DNA greatly outweighs the benefits. And the safeguard against such harm is the Fourth Amendment, whose fundamental protections the Maryland court upheld. The Supreme Court should do likewise.

 

Will be interesting to see how this one comes out.  Predictions?

The twists and turns of the "psychic fraud" case

I haven't covered this story all that much, but Paula McMahon over at the Sun-Sentinel has been all over it, and here's the latest:

Federal prosecutors and investigators received a severe scolding in court this week from one of the judges overseeing a $25 million fraud case against a Broward County family of fortune tellers.
"I'm disappointed by the shameful conduct of the government here," the usually mild-mannered U.S. Magistrate Judge James Hopkins said during a hearing on defense allegations in federal court in West Palm Beach on Wednesday. "There's much about the government's conduct in this case that's very troubling."
Among the problems identified by the judge were grand jury testimony that included "ethnic stereotypes" about Gypsies or the Roma allegations an investigator had a financial relationship with alleged victim and best-selling romance novelist Jude Deveraux; that agents and a prosecutor helped Deveraux in a court case about money she owed her ex-husband; and that some "victims" were included in the indictment without agents ever contacting them to confirm any crime occurred.
The judge also called some of the investigative team's actions "deficient" and said they raised "the specter of misconduct."
Defense lawyers asked the judge to dismiss charges against Rose Marks and eight family members alleging the behavior was sufficiently egregious.
The judge said he felt the alleged misconduct did not rise to the level required by law to dismiss the charges against the family before their April 1 trial. Four family members have pleaded guilty but may withdraw those pleas if the case is dismissed for governmental misconduct.
Hopkins said the defense can raise the issue at trial and ask U.S. District Judge Kenneth Marra, the trial judge, to toss out the case before it goes to a jury. Hopkins will make his formal recommendations soon, but the defense is expected to ask Marra, who has the final say, to reconsider.
Hopkins became aggravated Wednesday when he said the U.S. Attorney's Office for the Southern District of Florida was not "'fessing up to significant errors."

Meantime, last night was the big federal bar event at the Hyatt.  It was a success as usual with a large turnout.  Most of the federal judges were there and the lines at the bar weren't too long.  So good times for all!

Have a nice weekend.

"I kindly suggest to you that you go to a hospital."

That was 77-year old defendant Hafiz Kahn to the AUSA during cross-examination, suggesting that he was mentally ill for the questions he was asking.  The prosecutor responded: "KAHHHHHHNNNNNNN!"



Actually, he said: "I'll let the jury make that determination, Mr. Khan."

Judge Scola then sent the jury out and told the defendant to chill: "You are never going to convince Mr. Shipley to change his mind about you. The only chance you have is to convince the jury to believe you."

Curt Anderson from the AP has all the dramatic details here.  A snippet:

"In front of God, I did the right thing. In front of my tribe, I did the right thing," Khan testified in Pashto through an interpreter. "It was all lies, and it was all because of the money."
Khan spent a second day on the witness stand in his own defense on charges of funneling at least $50,000 to the Pakistani Taliban beginning in 2008. He previously testified that money he sent overseas was for the poor, for his extended family and for a religious school, or madrassa, he owns in the Swat Valley. He insisted he has never supported the Taliban.
The imam repeatedly clashed during cross-examination with Assistant U.S. Attorney John Shipley, who pressed Khan on whether the FBI recordings represented his true beliefs on terrorism. Among other things, the recordings have Khan praising the attempted bombing in 2010 in New York's Times Square and hoping that Americans would die trying to capture former al-Qaida leader Osama bin Laden.
In taped conversations with the informant Siddiqui, Khan answered, "There are many times I am agreeing with him, but that does not mean that I mean it. I didn't want to harm anyone."

Read more here: http://www.bellinghamherald.com/2013/02/20/2887605/fla-imam-claims-extremist-talk.html#storylink=cpy

Read more here: http://www.bellinghamherald.com/2013/02/20/2887605/fla-imam-claims-extremist-talk.html#storylink=cpy

Read more here: http://www.bellinghamherald.com/2013/02/20/2887605/fla-imam-claims-extremist-talk.html#storylink=cpy

The twists and turns of the Pakistani Terror trial

Last week witnesses were testifying via video feed from Pakistan.  The feed cut-off midstream (with some arguing that the Pakistan government was responsible because they were tipped off).  Judge Scola ordered that the trial continue, and now the defendant 77-year old Hafiz Khan has taken the stand.  Day two of his testimony is today.

From the AP (Curt Anderson):

"We are innocent of these accusations," said Khan, speaking in Pashto through an interpreter. "We have no connection with them whatsoever. We hate them."
Khan, who became a naturalized U.S. citizen after arriving here in 1994, said he is proud to live in this country, is registered to vote and does not even know how to fire a gun. Frequently stroking his flowing white beard and adjusting his skullcap, the imam of a downtown Miami mosque said he does not own a television and concentrates mainly on Islamic studies and teaching – something he feels utterly free to do in the U.S. because of its guaranteed rights.
"It is really a good thing to be a citizen of the United States," Khan said.

Tuesday morning notes (UPDATED)

1. The Washington Post has a good article about Clarence Thomas and the fascination behind him not asking questions.  A snippet:

Some justices have told others that Thomas sometimes jots down inquiries and urges Justice Stephen G. Breyer, his friend and seatmate on the bench, to pose them.
The two often confer during oral arguments, and Thomas confirmed during a recent appearance at Harvard Law School that the talkative Breyer sometimes throws in a Thomas question.
“I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” a laughing Thomas told the law students. “I’ll say, ‘It was just something I was throwing out.’ So you can blame some of those [Breyer questions] on me.”
And another thing is the Harvard speech itself. Although he described himself during the interview with HLS Dean Martha Minow as “quite introverted” and said he could “go a lifetime without making public appearances,” his extracurricular life is as busy as that of any of his colleagues.
***
He described himself as someone who tends “to get along well with people.” He was lavish with praise for his colleagues — especially the liberals.
He called Justice Ruth Bader Ginsburg the epitome of what a judge should be. “She makes all of us better judges,” he said. He called President Obama’s most recent nominee, Justice Elena Kagan, a delight and said he told her that “it’s going to be a joy disagreeing with you for years to come.”
And Thomas once again explained why he doesn’t ask questions at oral arguments.
“I think it’s unnecessary to deciding cases to ask that many questions and I don’t think it’s helpful,” he said. “I think we should listen to lawyers who are arguing their case and I think we should allow the advocates to advocate.”

 2. In local news, Paul Calli who is representing the Lewis Tein firm, is showing why people shouldn't rush to judgment (via DBR):

A longtime accountant who was fired by the Miccosukee Indians days before she was to give a deposition in the tribe's malpractice lawsuit against the Lewis Tein law firm testified tribal lawyer Bernardo Roman III tried to influence her testimony and wanted her to lie.
Jodi Goldenberg, who worked for the Miccosukees for 21 years, said at the deposition attended by Roman that she was not told why she was fired but suspected there were several reasons.
"One being that I know the truth in some of these cases that are going on, and I think that what I'm going to say is contrary to what the tribe's attorney wants me to say. Maybe he wanted me to appear to be a disgruntled employee," Goldenberg said.

UPDATED:

3.  Two big search cases from the Supreme Court today.  From SCOTUSblog:

First opinion — Harris (dog sniffs) — Kagan for the Court reversing the Florida S. Ct. unanimously.
The Court holds that because training and testing records supported the dog's reliability, and the defendant failed to undermine that evidence, there was probable cause to search the defendant's truck.... 

Here's the opinion in Florida v. Harris....  The Harris opinion does not refer to the Jardines opinion, so we may not get it today after all.  From the Harris opinion: "The Florida Supreme Court flouted this established approach to determining probable cause." (Ouch.)...

Third opinion -- Bailey v. United States -- per Kennedy, the Second Circuit is reversed. The vote is 6-3, with Breyer, Thomas, and Alito dissenting....
The Court holds that Michigan v. Summers is limited to the immediate vicinity of the premises.  Justice Scalia writes separately.  Kagan and Ginsburg join both the Court's opinion and the Scalia concurrence.

This was the case about searching someone on the basis of a warrant to search a house, when they have left the premises.  Here is the opinion in Bailey v. US....
The Court will have more opinions at 10 am tomorrow. Again, we do not know which ones or how many there will be.  The other dog-sniffing case is 11-564, Fla. v. Jardines.  It did not come out today.

Jury duty

Yesterday I was in Rumpole's building serving as a potential juror.  It was an interesting experience.  I wasn't selected to actually sit on a jury, but I participated in Judge Andrea Wolfson's voir dire in a misdemeanor battery case. 

Judge Wolfson was fantastic and ran a very good jury selection. I was impressed by her demeanor and how she handled the lawyers and the jury pool.

It's eye-opening to see the process from the juror's point of view.  I don't think lawyers realize how much waiting around there is, but more on this later.

So what did I miss yesterday?  The Pakistan trial has hit some bumps in the road.  Rhino horn smuggling.  And Justice Scalia is hunting again, this time with Justice Kagan.  He spoke about it during a Q&A with Nina Totenberg at the same time the President gave his State of the Union Address.  From the AP:

Lest anyone think the timing of his talk was anything other than a coincidence, Scalia tried to put those thoughts to rest.
"I didn't set this up tonight just to upstage the president," he said. "The State of the Union is not something I mark on my calendar, like Easter or Yom Kippur."
Scalia said the justices in attendance inevitably keep their eyes on the chief justice, who decides when it is appropriate to applaud.
If the president says the United States is a great country, clap away, he said. But no justice can clap "if it's anything anybody can disagree with," Scalia said.
Prodded by Totenberg, Scalia also commented on the hunting ability of Justice Elena Kagan, who has joined Scalia to shoot quail, pheasant and larger animals.
Last year, on a trip to Wyoming, they had a license to go after antelope and mule deer. But there were none to be found.
Instead, "she ended up killing a white-tailed doe, which she could have done in my driveway" in suburban Virginia, Scalia said.
He said Kagan, who never handled a gun before joining the court, is just a beginner, but "she dropped that doe in just one shot."