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This weekend, the NY Times was discussing that the Supreme Court was issuing a record number of unanimous opinions:

There has been a remarkable outbreak of harmony at the Supreme Court. Of the seven decisions issued in the last two weeks, six were unanimous.
There have been no dissents in more than 60 percent of the 46 cases decided so far this term. At this point last year, the justices were unanimous just 48 percent of the time, according to statistics compiled by Scotusblog. In the two terms before that, 52 percent of the cases decided by now were unanimous.

The harmony will dissipate in the final weeks of the term, which will probably conclude in late June. It is the divisive and hard-fought decisions that take the longest to produce, as the justices exchange draft opinions and respond to one other in evolving majority opinions, concurrences and dissents.

The marquee decisions of the term — on affirmative action, voting rights and same-sex marriage — will almost certainly be closely divided on the core issues. But the overall percentage of unanimous decisions is unlikely to drop to 40 percent, the average rate for full terms in recent years.

For now, consensus reigns. That is partly because some of the recent decisions were decidedly minor. One, concerning a towed car, would not have been out of place in small claims court or before Judge Judy. Another, about the meaning of the word “defalcation” in the Bankruptcy Code, must have made Justice Stephen G. Breyer, its author, wonder what he had done to deserve the assignment.

The end of the unanimity began yesterday with two 5-4 opinions.  From ScotusBlog:

In Trevino v. Thaler, in an opinion by Justice Breyer (but announced by Justice Kennedy, because Justice Breyer was absent), the Court held by a vote of five to four  that when a state’s procedural framework, by reason of its  design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise on direct appeal a claim that his trial counsel provided ineffective assistance, the good cause exception recognized in Martinez v. Ryan applies.

Opinion author in red. Dissenting Justices in grey.

In McQuiggin v. Perkins, in an opinion by Justice Ginsburg, the Court held by a vote of five to four that actual innocence, if proved, serves as a gateway through which a habeas petitioner may pass whether the impediment to consideration of the merits of a constitutional claim is a procedural bar, as it was in Schlup v. Delo and House v. Bell, or expiration of the Antiterrorism and Effective Death Penalty Act statute of limitations, as in this case.

Opinion author in red. Dissenting Justices in grey.

Should judges be a part of plea negotiations?

While all of you were having Bachelorette viewing parties last night, old time blog friend Vanessa Blum was covering the debate about judges participating in plea negotiations in this Recorder article.  A snippet from the lengthy interesting piece about the case just heard by the Supremes:

The scope of that prohibition could be clarified by the U.S. Supreme Court in a pending case, U.S. v Davila, which addresses the limits on judicial involvement in plea discussions. The case has largely escaped notice locally despite its possible implications.
To Beeler, the benefits of the conferences are both practical, such as saving court resources, and human.
"It brings the defendant back to the table," she said in an interview. "People make decisions better if they're part of them."
The process can be intense, sometimes requiring all-day sessions and the sort of difficult, honest conversation more commonly associated with a therapist's office than a federal courthouse.
Also, it doesn't always end in a meeting of the minds. By one count, roughly one-third of criminal cases referred for settlement talks since 2011 resulted in plea agreements that obviated the need for trial. An additional 12 percent ended with some but not all defendants pleading guilty, an outcome with less systemic and cost-saving benefits because a jury trial must still be held.
In the state system, judges play a larger role in plea bargaining. However, direct judicial involvement is explicitly banned by federal rules, making criminal settlement conferences sensitive, as well as a rarity nationwide.
The local practice has started to draw more attention from other districts, particularly in the current federal budget crisis, said Northern District federal public defender Steven Kalar.
"Every defender I've spoken to is envious of our system," said Kalar. "I've personally spoken with judges in other districts about how this works and emulating our model. I think we're on the vanguard, but in a good way."
Kalar's counterparts in the U.S. attorney's office are somewhat less enthusiastic. A common gripe from line prosecutors is that participating in criminal settlement conferences is time-consuming and mainly helps defense attorneys to persuade clients that pleading guilty is their best option.
For now, U.S. Attorney Melinda Haag isn't putting a stop to them.

I see these settlement conferences as a good thing and don't really see the downside.  What say you readers?

Justice Scalia's footnote draws criticism

In City of Arlington v. FCC, Justice Scalia wrote the following footnote to introduce one of the parties, “CTIA-The Wireless Association,”:

“This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what itstands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.”

 Seems like Scalia is merely reminding lawyers to let the Court know what acronyms stand for.  No big deal and harmless enough. 

But David Post from the Volokh conspiracy is all fired up, calling it "embarrassing," "nonsense," "smarmy," "snarky" and "extraordinarily stupid".  Dude needs to relax:

This is a really embarrassing bit of nonsense — smarmy and snarky and extraordinarily stupid.
First:  0.45 seconds of work reveals that CTIA originally stood for the “Cellular Telephone Industry Association.”  It’s not a big mystery, “known only to wireless-service-provider insiders”: that’s what it says on the organization’s Wikipedia page.  So Scalia’s footnote communicates, to me, that he has never heard of “the Internet” and the very amazing things called “search engines” that let you “retrieve information” very, very quickly
And why that snarky remark about how it’s unpronounceable?  Let’s see ... can Justice Scalia pronounce “FBI”?  (here’s a hint: “eff-bee-eye”).  DHS?    KLM Airlines?
If this were a student paper, I’d circle this and write something like:  “Really bad footnote – why highlight your own cluelessness in the very first footnote.”  From the Supreme Court, it’s really a bit embarrassing.  Reminds me, again, of what Justice Jackson said many years ago:  We’re not final because we’re infallible, we’re infallible because we’re final.

Those poor students.

One many saved and another to be executed

1.  Big win for Alfredo Izaguirre, who got an acquittal on murder and kidnapping charges before Judge Moore yesterday.  From the Herald:

A member of the Santiesteban clan’s pot-peddling ring bear-hugged his defense attorney Monday after he was acquitted of killing a rival gang member who stole a load of marijuana from the Southwest Miami-Dade grow-house organization.
Norge Manduley was found not guilty of kidnapping and killing the robber after a handful of government witnesses testified in federal court that he was the shooter, but a couple of defense witnesses countered that he wasn’t the triggerman who killed Fidel Ruz Moreno four years ago.
If convicted, Manduley, 39, would have faced a mandatory life sentence.
“There was a lot on the line here,” Manduley’s attorney, Alfredo Izaguirre, said after the 12-person jury concluded deliberations following a one-week trial.
“The government had a bunch of co-defendants who were all dirty and the jury didn’t like that,” Izaguirre told The Miami Herald. “The government brought no independent witnesses. I brought two independent witnesses who identified another person as the shooter.”
The jury, which began deliberations late Friday, found Manduley guilty of one count: conspiring to possess with intent to distribute less than 100 marijuana plants. Sentencing is set for July 30 before U.S. District Judge K. Michael Moore.

2.  In another case, the 11th Circuit affirmed Florida's decision to execute John Ferguson, who believed he was the "prince of god."  Here are the key portions of the 65-page opinion:

The habeas petitioner in our case, John Ferguson, contends that under the Panetti decision he is mentally incompetent to be executed. As the facts come to us, Ferguson has a mental illness but he does understand that he is going to die by execution, and he understands that it is going to happen because he committed eight murders. Ferguson also believes, as tens of millions if not hundreds of millions of other people do, that there is life after death. Countless people also believe, as he does, that they are among God’s chosen people. But Ferguson’s religious belief is more grandiose than that because he believes that he is the Prince of God. The Florida courts rejected Ferguson’s Panetti claim, and we must decide whether their decision to do so “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” or was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). The key words being “clearly established law.” Or the lack of it.

***

AEDPA “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at 786 (quotation marks omitted) (emphasis added). There was no extreme malfunction in his case. The Florida Supreme Court properly applied Panetti’s “rational understanding” standard, considered conflicting expert testimony about the nature and severity of Ferguson’s mental illness, and made a determination about his competency to be executed that is by no means beyond any possibility for fair-minded disagreement. AEDPA requires that federal habeas relief be denied and that we affirm that denial.

 Prior blog coverage of the case here.

Read more here: http://www.miamiherald.com/2013/05/20/3407160/miami-dade-man-acquitted-of-killing.html#storylink=cpy

Joint post by Justice Building, South Florida Lawyers, and Southern District of Florida Blogs

You lose your rights, not with a bang, but with a whimper. One small encroachment after another. A bureaucrat pushes the edges here, a prosecutor challenges the boundaries in a few cases there. No one says or does anything and then you look up and suddenly a cherished right is gone.
Nothing is more insidious and dangerous to our constitutional rights than a bureaucrat who, under the cover of a government agency, seeks to intimidate someone. That is why the letters we have posted  from the Florida Bar to attorney and blogger William Gelin have so alarmed us:the bloggers who run the Justice Building Blog, the South Florida Lawyers Blog, and the Southern District of Florida Blog.

WIlliam Gelin runs the JAA Blog which covers the Broward County Courthouse. To Mr. Gelin's credit he has never sought to hide his identity as the lawyer behind the blog. As a blogger who has openly challenged the way things are done in Broward, Mr. Gelin has courageously taken on numerous people in Broward County, including judges. Now, apparently after a series of posts about two Judges in West Palm Beach and Broward County, (ironically) anonymous bar complaints have prompted the Bar to send Mr. Gelin letters seeking him to admit or deny his involvement in the JAA Blog.

We as the legal blogging community in Miami view these letters as an unprecedented attack on the First Amendment and freedom of speech. The letters are chilling, and will have a chilling affect on the free speech of lawyers. Judges are invested with responsibilities and powers and all too often those powers cloud their judgment. The ability of lawyers to freely comment on a Judge represents an important check on those powers. The ability of citizens to write about the issues of the day has a long and storied history in our country. James Madison anonymously published many of the federalist papers under the pseudonym Publius in the local newspapers of the time. Blogging, anonymous and otherwise, serves a similar purpose.

The Florida Bar's letters to Mr. Gelin amount to both a fishing expedition and a veiled threat for him to stop criticizing Judges from the pages of his blog.  We jointly condemn the letters the Bar has written, and stand behind our colleague in this matter. That is why all three blogs have taken the unprecedented step of running this post simultaneously.We urge our readers to voice their support of Mr. Gelin by writing to the Bar to condemn the actions of the Bar Counsel in this case.


Thank you.

Justice Building Blog
South Florida Lawyers Blog
Southern District of Florida Blog

Friday morning news and notes

1.  The former Hialeah mayor and his wife have been indicted on tax evasion charges.  Via Jay Weaver:

In 2010, while peeling back the layers of Hialeah’s “shadow banking’’ industry, federal prosecutors pressed the city’s mayor about allegations that he had collected exorbitant cash interest payments on more than $1 million in loans he made to friends and acquaintances.
Julio Robaina’s answer? Not true.
On Thursday, Robaina’s words came back to haunt him, when a federal grand jury indicted him and his wife on charges of conspiring to evade income taxes, making loans at sky-high interest rates, failing to report secret cash payments — and lying to federal authorities.
He made the statements at issue in August 2010, while preparing an unsuccessful run to become Miami-Dade County mayor.
Robaina, 47, and his wife Raiza Villacis Robaina, 39, who operated two loan companies, are accused of receiving the undisclosed cash payments as interest on the personal loans they made to friends, including convicted Ponzi schemer Luis Felipe Perez. The loans were doled out as part of an informal banking system operating below the radar in Hialeah.
The indictment alleges the couple tried “to enrich themselves by concealing, disguising and failing to report the true and correct amount of their income to the Internal Revenue Service.”
Husband and wife, scheduled to surrender to authorities and have their initial court appearance Friday, proclaimed their innocence through Julio Robaina’s defense attorney.

 

2.  The defendants in the B-Girl case who went to trial and lost got whacked; the judge went above the guidelines for each of them according to the Herald.  Jay Weaver is all over the courts today:

A South Beach nightclub operator was sentenced Thursday to 12 years in prison for directing a bunch of “bar girls” to seduce and swindle customers at a string of Russian-style lounges.
Albert Takhalov was convicted in December along with two other businessmen of fleecing hundreds of thousands of dollars from dozens of male patrons by racking up bogus bills for champagne, vodka and caviar on their credit cards at seven private Miami Beach clubs.
Takhalov, 31, cried as he apologized to U.S. District Judge Robert Scola, saying he made a “great mistake” but “had no intention of breaking the law.” Other tearful family members asked for leniency, to no avail.
Scola, who found that Takhalov committed perjury on the witness stand at his trial, expressed no sympathy for the defendant, saying “he doesn’t have a right to lie.”

3.  Paula McMahon covers the big takedown in the staged accident case:

The vehicle collisions looked like typical South Florida accidents with motorists and passengers reporting they needed treatment from chiropractors and massage therapists.
But investigators said the crashes were carefully staged by willing participants who were trained how to defraud the insurance system to make money for themselves and a highly organized group of medical professionals, clinic owners and recruiters.
Investigators announced charges Thursday against 33 people they said were involved in staging accidents for insurance fraud — the latest hit in a three-year investigation that identified about $20 million in fraudulently obtained payouts from insurers.
"If you get upset about your car insurance premiums going up, this crime is one of the reasons why," said William J. Maddalena, the assistant special agent in charge of FBI Miami. "Every time an insurance payout is made for a staged accident in Florida, we all feel the pain in the pocketbook."
Operation Sledgehammer, a state and federal investigation, has led to charges being filed against a total of 92 defendants from Palm Beach, Broward and Miami-Dade counties. Those already convicted have been ordered to pay more than $5 million in restitution to insurance companies so far, prosecutors said.

The operation got its code name when undercover investigators saw suspects using a sledgehammer to make vehicles look like they'd been in an accident.
The fraud involved a "massive," complicated, highly organized scheme that investigators said included everyone from clinic owners and medical staff who provided fraudulent diagnoses and prescribed fake treatment, to office workers who billed for the services, and recruiters who found accident "victims" and trained them to stage collisions on the streets and highways of South Florida.
 

AUSA Mike Garofola's profile on ABC.com for the Bachelorette

Well, you all remember that local AUSA Mike Garofola is going to be appearing on the Bachelorette.  Now, his profile is on ABC.com.  Here's the picture:




Below is the questionnaire that he filled out for the show, and here are the highlights posted on the site:


What do you hope to get out of participating in this television show?
I hope to find the woman I am going to marry and have a blast doing it while friends watch it unfold on television.

If you were stranded on a desert island, what 3 things would you bring and why?
1. Insulin - to survive
2. Food/water - see #1
3. Fully charged cell phone - To ask for transportation off said island

Describe your best friend of the opposite sex and why she deserves that title.
Ashley - She has always been there for me during my worst times, is very perceptive and very feisty. She sugar coats nothing, which is good because I can't have sugar.

Where do you see yourself in five years?
I will be married with two children and another on the way, in an amazing home, and at another stage of my professional career.

If you wanted to approach a woman you had never met before, how would you go about it?
I just go up to her and introduce myself. Nothing to it. No gimmicks.

What's your biggest date fear?
I don't have any "fears" when I go on a date.

Kosher Prisons

Curt Anderson is covering the kosher meal dispute in Florida jails.  Here's the latest twist and turn from the 11th Circuit:

Despite Florida's recent change of policy, a federal appeals court Tuesday reinstated a lawsuit filed by a Jewish prison inmate who claimed his rights were violated by the state Department of Corrections' previous refusal to serve kosher meals.
The 11th U.S. Circuit Court of Appeals ordered a lower federal judge to reconsider the lawsuit filed in 2010 by Bruce Rich, an Orthodox Jew who is serving a life sentence at Union Correctional Institution. The judge previously dismissed the lawsuit at the state's request, citing lack of evidence.
Florida announced earlier this year it would resume offering kosher meals statewide by September to prisoners who qualify. The appeals judges, however, determined that Rich deserved a new hearing on his lawsuit despite the policy change.
"There is nothing to suggest that Florida will not simply end the new kosher meal program at some point in the future, just as it did in 2007," they wrote. The judges also noted that the policy was changed just two weeks before oral arguments were held in Rich's appeal and initially affected only his prison.
The ruling comes as a federal judge in Miami is considering a similar lawsuit filed by the Justice Department's Civil Rights Division, which contends that the new prisons diet program should be overseen by court order. U.S. District Judge Patricia Seitz has scheduled a June 4 hearing in that case.
State officials "continue to argue that they may deny a kosher diet to prisoners at any time," the federal lawyers wrote.