Fun writing today in the 11th Circuit

It's Judge Pryor vs. Judge Jordan in this bank robbery case (USA v. Lonnie Whatley), and Judge Pryor starts off this way:

When asked why he robbed banks, legend has it that famed American bank robber Willie Sutton replied, “Because that’s where the money is.” Bryan Burrough, Books: The Robber’s Last Ride, Wall St. J., Sept. 29, 2012, at C6. Lonnie Whatley may have taken this advice to heart when he robbed four banks in the greater Atlanta area during 2003 to 2006 and attempted to rob another in 2007. In this appeal of his convictions for the robberies, Whatley asks us to resolve four
issues: (1) whether the admission of 14 in-court identifications of Whatley by bank employees violated his right to due process; (2) whether the district court abused its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery as evidence of a modus operandi; (3) whether the district court abused its discretion when it declined to grant Whatley a new trial after the parties discovered that the jurors had considered extrinsic evidence during their deliberations; and (4) whether the district court erred when it applied a four-level sentencing enhancement for abduction of the bank employees because Whatley ordered the bank employees to move around to different areas within the banks. 

We conclude that, based on the recent decision of the Supreme Court in Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716 (2012), which requires no preliminary examination for an identification not arranged by law enforcement officers, the admission of the in-court identifications of Whatley did not violate his right to due process. We also conclude that the district court did not abuse its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery and that the district court did not abuse its discretion when it denied Whatley a new trial. But we also conclude that the district court erred when it applied the enhancement for abduction. We affirm Whatley’s convictions, vacate his sentence, and remand for resentencing with instructions to apply the two-level enhancement for physical restraint of the employees instead of the four-level enhancement for abduction.

Judge Jordan concurs in part and dissents in part, and has some great quotes and references in his opinion:

Procrastination is not generally seen as a good character trait, but in constitutional adjudication it can often be a virtue. In my opinion, we need not and should not decide the effect of Perry here because Mr. Whatley cannot prevail on his due process claim even under our pre-Perry precedent.
***
Nor does the evidence on Count 1 allow the government to discharge its burden. It is true, as the majority writes, that three bank employees identified Mr. Whatley as the perpetrator of the June 2003 robbery at trial. But these in-court identifications cannot be considered in a vacuum. To begin with, the identifications were made in 2010, seven years after the bank robbery in question, and it does not take a Nobel laureate in medicine to understand that “[t]ime’s the thief of memory.” STEPHEN KING, THE GUNSLINGER 161 (Signet rev. & exp. ed. 2003).

Maryland v. King decided 5-4, allowing DNA swabs on arrest

The Court, per Kennedy, says it's like fingerprinting and photographing.

Justice Scalia authors the dissent, joined by Kagan, Ginsburg, and Sotomayor.

The opinion is here.

The issue presented to the Court was: "Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes."

More to follow.

 In the meantime, check out SCOTOSBlog

UPDATE -- the intro of Scalia's dissent:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi nating evidence. That prohibition is categorical and with out exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work. 

And from the conclusion:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; 

then again, so would the taking of DNA samples from anyone who flies on an airplane 

(surely the Transportation Security Administration needs to know the “identity” of the flying public), 

applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic 

panopticon is wise. But I doubt that the proud men who wrote the charter of our

liberties would have been so eager to open their mouths for royal inspection.

Update to yesterday's post on flooding in the Broward Federal Courthouse

Acting Chief Judge Donald Graham sent the letter below on Wednesday to the GSA regarding the flooding.  You can read the whole back and forth, but GSA's position is absurd -- that the flooding will be fixed by February 2014.

Graham Letter Re Courthouse

You can see the videos from the courthouse here.

It's time for a new federal courthouse in Broward...

...because it's raining INTO the current courthouse.  Literally:

SHOCKING!

This is more than absurd; it's unsafe.

Who has more power -- a King or a Federal District Judge?

My money is on the district judge.  But Judge Scola had an entertaining exchange with Joel Steinger in the Mutual Benefits case yesterday.  Curt Anderson reports:

The alleged leader of an $800 million South Florida insurance fraud scheme was found competent to stand trial Wednesday despite severe pain from a spinal cord ailment that requires him to take powerful drugs including morphine.

U.S. District Judge Robert Scola issued his ruling at a hearing Wednesday for 63-year-old Joel Steinger. Steinger was the top executive at Mutual Benefits Corp., which prosecutors say was a massive fraud scheme in which some 34,000 investors lost more than $800 million.

Steinger, seated in a wheelchair during the hearing, said he needs surgery to correct the spinal problem and complained loudly it would be unfair if he's forced to stand trial in September without the operation. Steinger said he cannot control his bowel movements or bladder and takes enough morphine "to choke a horse."

"I can't concentrate for five minutes because I'm all hopped up on drugs," Steinger told the judge. "And you're asking me to defend my life in a trial under these conditions? Do you think that's fair, your honor? I don't."

Scola, relying on a report by Bureau of Prisons mental health and drug experts, said there was no evidence to indicate Steinger suffered from mental problems or could not understand and take part in a trial. Assistant U.S. Attorney Karen Rochlin agreed.

"Simply put, the defendant is competent," she said.

The judge also said it's not within his power to order surgery for Steinger at the University of Miami, as he has requested, rather than at another hospital. Steinger is being held without bail until his trial and most of his assets were frozen long ago.

"I wish I were the king of the world, but I'm not," Scola said.

 

Ha! Okay, judge, maybe not the world, but of South Florida! 

Sample Size

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.