Federal JNC to interview for two open judicial seats, not just one

Here's the letter from Senators Nelson and Rubio, saying that in addition to Judge Seitz's seat, they would like the JNC to interview for Judge Graham's seat because he is taking senior status at the end of the year.  Applications are due August 19, and the interviews will be September 17 (see JNC letter). 

Meantime, it's time for William Thomas to be confirmed to the federal bench.  This is just getting absurd already (his nomination has been pending 263 days) and people are starting to take notice. For example, the Congressional Black Caucus had this to say (via the Miami Herald):

“We have no idea,” Rep. Frederica Wilson, D-Miami, said in an interview, her frustration visible. “When there’s just absolute silence, you can’t think of anything but political gamesmanship.”

The complaints from the Congressional Black Caucus are broader than Florida. In a statement, the group said, “Currently, 30 percent of judicial nominees pending confirmation in the Senate are African-American.”

The group said that out of 787 federal positions, only 95, or about 8 percent, are held by black judges.

“A more diverse judicial system helps to deliver justice but also to boost public confidence in the vote,” Wilson said. “So I ask, why the delay?”

Judge Thomas is one of the most respected state court judges that we have. It's not right that he's been waiting so long.

From the Huffington Post:

Rep. Alcee Hastings (D-Fla.) said he has known Thomas since he was a child and can't figure out why Rubio isn't letting his nomination through. Both nominees have cleared Florida's Federal Judicial Nominating Commission, which vets nominees and makes recommendations to senators representing the state.
"I know this much: William Thomas was here before Marco Rubio's family came here," Hastings fumed during a press conference with members of the Congressional Black Caucus, or CBC. "It would seem to me that Marco Rubio could pick up the telephone and call me and ask me a little bit more about William Thomas if he needs to know something more about him."

Glenn Sugameli always has the scoop on this stuff, and is tracking the lengthy delay for Judge Thomas, which will hopefully end soon.

Zimmerman jury initially split

I find the post-trial interviews with the jurors fascinating. Last night one of the jurors spoke with Anderson Cooper and explained that the initial vote was 3 Not Guilty, 2 Manslaughter, and 1 Murder. Wow -- this just shows how hard it is to get an across-the-board acquittal and how much closer this case was than the pundits said. I also thought it interesting how important jury instructions are in close cases. The jurors quickly came to agreement on the facts, but struggled with how those applied to the law, especially with manslaughter and self-defense. Who can blame them... the instructions were impenetrable. Lots of credit to jury consultant Robert Hirschhorn who picked the jury.

In other news:

1. The NY Times covers the government's secret surveillance program and how it's playing out in courts, including our District:

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Mr. Verrilli’s representation.

“If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”)

What has happened since then in actual criminal prosecutions? The opposite of what Mr. Verrilli told the Supreme Court. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures.

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

In the Fort Lauderdale case, Magistrate Judge John J. O’Sullivan ordered the government to disclose whether it had gathered information for the case under the 2008 law. He relied on Justice Alito’s statement in the Clapper decision. The government has moved for reconsideration.

2. I always like FNU LNU stories:

When the man appeared before a federal judge in Manhattan to be sentenced in a drug case, he had a lawyer by his side, supporters in the courtroom and letters attesting to his character. Only one thing was missing: his true identity.

A program from “Fnu Lnu,” an Off Broadway play inspired by a newspaper correction published after the term was mistaken for an actual name.

Throughout his trial and conviction, the defendant had claimed to be someone he was not, and no one had any idea who he really was.

“I sentence people almost every day,” the judge, Richard J. Sullivan, said, “and I will tell you candidly, I am not aware of anybody who has done what you have done in this case.”

Court records had listed the man as “Fnu Lnu,” shorthand for “First name unknown, Last name unknown.” The acronym is often used in the early stages of a criminal case, when investigators cannot identify a voice on a wiretap, or the identity of someone picked up in an immigration sweep.

“Fnu Lnu is a stand-in; he’s the missing man; he’s the defendant you know exists but cannot name,” said Steven M. Cohen, a former federal gangs prosecutor.

But the designation, at once mysterious and common, has taken on a life of its own in courts around the country, with Fnu Lnus being mistaken for an actual name, confusing judges and lawyers, and in one case spawning a memorable newspaper correction and even an Off Broadway play.

At any given time there can be hundreds of Fnu Lnus in the court system. Such defendants’ identities are usually sorted out quickly, through fingerprints or by other means. But in rare cases where defendants have remained anonymous throughout their entire prosecution, defense lawyers end up making arguments that can border on the surreal.

3. Should the AG be commenting on (some say undermining) a jury verdict? From the Washington Post:

With the acquittal of George Zimmerman continuing to reverberate nationwide, Attorney General Eric H. Holder Jr. said Monday he shares concerns about “the tragic, unnecessary shooting death” of an unarmed black teenager in Florida last year, and he vowed to pursue a federal investigation into the matter.

In a speech at the social action luncheon of the Delta Sigma Theta sorority, Holder pledged that the Justice Department would “continue to act in a manner that is consistent with the facts and the law” and would work to “alleviate tensions, address community concerns and promote healing” in response to the case.

“We are determined to meet division and confusion with understanding and compassion — and also with truth,” he said. “We are resolved, as you are, to combat violence involving or directed at young people, to prevent future tragedies and to deal with the underlying attitudes, mistaken beliefs and stereotypes that serve as the basis for these too common incidents. And we will never stop working to ensure that — in every case, in every circumstance, and in every community — justice must be done.”

Should the feds indict George Zimmerman?

Although Zimmerman was just acquitted of second degree murder, many are now clamoring for a federal indictment.

But doesn't the double jeopardy bar a federal prosecution after a complete acquittal in state court?

Nope. Although the Fifth Amendment provides, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," the Supreme Court in Abbate v. United States, 359 U.S. 187 (1959), said the dual sovereignty doctrine permits both the State and the Feds to prosecute the same person for the same crime:

The basic dilemma was recognized over a century ago in Fox v. Ohio. As was there pointed out, if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered. For example, the petitioners in this case insist that their Illinois convictions resulting in three months' prison sentences should bar this federal prosecution which could result in a sentence of up to five years. Such a disparity will very often arise when, as in this case, the defendants' acts impinge more seriously on a federal interest than on a state interest. But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes. See Screws v. United States, 325 U. S. 91, 109; Jerome v. United States, 318 U. S. 101, 104-105. Thus, unless the federal authorities could somehow insure that there would be no state prosecutions for particular acts that also constitute federal offenses, the efficiency of federal law enforcement must suffer if the Double Jeopardy Clause prevents successive state and federal prosecutions. Needless to say, it would be highly impractical for the federal authorities to attempt to keep informed of all state prosecutions which might bear on federal offenses.

Even though the law allows for a federal prosecution, it seems extremely unlikely in this case for all sorts of policy reasons.

The DOJ issued this statement, saying its investigation was ongoing:

JUSTICE DEPARTMENT STATEMENT ON THE TRAYVON MARTIN-GEORGE ZIMMERMAN CASE

As the Department first acknowledged last year, we have an open investigation into the death of Trayvon Martin. The Department of Justice's Criminal Section of the Civil Rights Division, the United States Attorney's Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the Department's policy governing successive federal prosecution following a state trial.

The Herald quotes friends of the blog here:

Jurors found that prosecutors failed to prove the more serious second-degree charge that Zimmerman, the neighborhood watchman at a Sanford gated community, possessed “ill-will,” “hatred” or “spite” in the fatal shooting of Martin. Instead, the six female jurors found that Zimmerman acted in self-defense.

Consequently, experts said, it would be legally inconsistent for the Justice Department to consider filing criminal charges against Zimmerman under the federal Shepard-Byrd Hate Crimes Prevention Act of 2009. Generally, that law prohibits someone from “willfully causing bodily injury” to another person because of his race, color, religion or national origin.

“If the state jury had been persuaded beyond a reasonable doubt that Zimmerman caused bodily harm to Trayvon Martin because of Martin’s race, it would have almost certainly convicted Zimmerman of second-degree murder, which requires proof of ‘ill-will’ or ‘malice,’” said Scott Srebnick, a prominent federal criminal defense attorney in Miami. “So, to bring a federal civil-rights prosecution against Zimmerman, the attorney general would essentially be second-guessing the state jury’s verdict as opposed to vindicating a different or broader federal interest.”

Srebnick added: “I find it doubtful that the attorney general will pursue a prosecution on a civil rights theory simply out of displeasure with the state jury’s verdict.”

Brian Tannebaum, a Miami defense attorney and past president of the Florida Association of Criminal Defense Lawyers, agreed.

“People are comparing this case to Rodney King, where there was a federal prosecution after a state acquittal, but the difference there was there were witnesses, specifically the video everyone still remembers,” Tannebaum said, referring to a man’s sensational videotape of the police beating.

Role Reversal: Zimmerman closing arguments

Interesting dynamic in the Zimmerman closings so far.

The prosecutor's closing yesterday seemed very much like a defense closing -- passionate and poking holes in Zimmerman's story. He seemed to be arguing that there is a reasonable doubt about Zimmerman's version of events.

This morning, O'Mara started his closing by accepting the burden of proof and arguing that Zimmerman is "100% innocent." He is also very low key, walking them through the facts and the elements of self-defense.

I thought the prosecution crushed the defense in opening statements, but it seems just the opposite so far in closings. The prosecutor was screaming and yelling way too much.

Anyway, Rumpole hates when juries go out on Friday afternoon... But I don't think there will be a verdict today.

UPDATE -- the rebuttal was much better, but than the opening summation. Intense, but not screaming at the jury. Predictions on when the verdict will come back and what it will be?

Thursday News & Notes

1.  Judge Lenard denied Juan Caro's bid for a new trial, rejecting his request for a hearing to find out when the government knew about Nevin Shapiro's bad acts.  From the Herald:

Lenard rejected a new bid by defense attorney Arturo Hernandez to hold an evidentiary hearing to explore whether a Justice Department lawyer who teamed up with a Miami prosecutor in the La Bamba trial knew about the FBI’s investigation of Shapiro in New Jersey months before he took the stand.
Hernandez filed documents such as government emails in hopes of challenging the Miami prosecution team’s timeline.
The Miami prosecutors first informed Hernandez of the Shapiro criminal probe when Shapiro was charged in April 2010.
Hernandez argued that had he been told about the Shapiro probe, he would have asked him about his investment scam on the witness stand. Hernandez said he was “disappointed” with the judge’s ruling.

2.  The Justice Department found lots of bad Miami police shootings.  From the NY Times:

Federal officials have found that the Miami Police Department engaged in a pattern of excessive force that led to a high number of shootings by officers, among them episodes that resulted in the deaths of seven young black men over an eight-month period in 2011.
The findings, released on Tuesday, came after a two-year investigation by the Justice Department’s civil rights division, and they identified “troubling” practices, including delays in completing investigations of officer-involved shootings, questionable police tactics and a lack of adequate supervision. From 2008 to 2011, officers intentionally fired their weapons at people 33 times, the investigation found.       

In a summary addressed to Tomas P. Regalado, Miami’s mayor, and Manuel Orosa, the police chief, the Justice Department noted that its own investigation would have been completed sooner if not for the Police Department’s “frequent inability to produce necessary documents in a timely fashion.”

 Here's the letter to the Mayor.

3.  Young guns can see who the best closer is at this upcoming competition.  My advice -- don't start with a knock knock joke.

4.  Judge Kozinski is so good.  Footnote 1 from a 1992 opinion of his that was recently emailed to me:

We do not (except in the caption) follow the appellant's counsel's interesting practice of writing the names of the people involved in CAPITAL LETTERS. Neither do we follow the appellee's counsel's practice of writing appellant's name in BOLD-FACED CAPITAL LETTERS. Nor do we intend to write all numbers both as text and numerals, as in "eleven (11) loose teeth, two (2) of which were shattered[;] [m]oreover, her jaw was broken in three (3) places." Appellee's Brief at 7. Finally, we will also not "set off important text" by putting it on "separate lines" and enclosing it in "quotation marks."
See id. at 10. While we realize counsel had only our welfare in mind in engaging in these creative practices, we assure them that we would have paid no less attention to their briefs had they been more conventionally written.

AUSA Michael Garofola doesn't get a rose

This was Michael G.'s last episode (prior blog coverage about the federal prosecutor on the Bachelorette here).  He had a good run on the show, making it to the final five. 

 
 


Gossip Cop has the recap of the show.  Some highlights:

Next up was Michael G, getting to have a 1-on-1 with Hartsock for the first time.
After going tobogganing, the federal prosecutor opened up about his estrangement with his father, his battle with Type I diabetes, and finding out his live-in girlfriend was cheating on him.
“The silver lining to all this is that — I mean this from the bottom of my heart — is I’m feeling these feelings again,” he told Hartsock, adding to the camera later that he’s “falling in love.”
For her part, the reality star told the camera that “Michael is one of the greatest guys I ever met.”
***
At the rose ceremony, Hartsock ultimately gave roses to everyone except Michael.
She explained to the shell-shocked contestant her other relationships were “growing differently.
“I’m heartbroken,” he confessed as Hartsock went on to praise their “friendship,” before wishing each other “the best.”

Did you know we had a secret court, operated by similar thinking judges on an ex parte basis?

The New York Times had a front page piece on the FISA Court this weekend.  The whole thing is worth a close look.  From the article:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
***
Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

Closer to home, visa-fraud prosecutions are up.  According to the Herald:

A report released in April by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that visa fraud criminal prosecutions now rank third among the top 10 immigration law prosecutions in the country.
Also, a Government Accountability Office report issued in September said the State Department screens visa applicants for fraud.
But GAO auditors found that consulates do not systematically employ methods to prevent fraud.
“State has a variety of technological tools and resources to assist consular officers in combating fraud, but does not have a policy for their systematic use,” the GAO report said.
In response, the State Department said it generally agreed with GAO findings and would implement recommendations to improve fraud tracking .
The GAO report said the top 10 countries where visa fraud occurs are China, Dominican Republic, Mexico, India, Brazil, Ghana, Cambodia, Jamaica, Peru and Ukraine.

Your Friday moment of Zen

Gotta love technology.  Here's Rachel Maddow on the Zimmerman trial getting Skype Bombed:

And here's the actual raw footage of the whole thing: