Very secret case

So secret that the judge can't read a government motion in his chambers.  Via the Sun-Sentinel:

The evidence against two Broward County brothers accused of plotting a terrorist attack is voluminous, a government prosecutor said Friday, and could take months for defense lawyers to sort out.
Assistant U.S. Attorney Karen Gilbert also told U.S. Magistrate Judge John J. O'Sullivan the government is drawing up a highly secret motion in Washington, D.C., to be hand-delivered to the judge by special courier. "Because of the classification level, you'll have to view it somewhere else than your chambers," she said.
Gilbert told O'Sullivan that she has turned over to defense attorneys nearly all the government's evidence in the case of Sheheryar Alam Qazi, 30, and his brother Raees Alam Qazi, 20. The Oakland Park men, 2000 immigrants from Pakistan, are charged with plotting to detonate a bomb somewhere in New York City.
Much of the evidence consists of wiretapped recordings and computer correspondence, Gilbert told the judge during a hearing in Miami federal court, enough to fill a file cabinet.
"There are thousands of audio sessions of different lengths," she said. "There's probably thousands of emails. It would take weeks, if not months, to get through."

If the judge can't look at the motion in chambers, can the prosecutors prepare it in their offices?  Where do they review the evidence?

Sen. Nelson issues blue slip for William Thomas, but Sen. Rubio still holding out

That's the report by The Washington Blade:

The confirmation of William Thomas, whom President Obama first named in November for a seat on the U.S. District Court for the Southern District of Florida, was as of last week held up by both U.S. senators in Florida — Bill Nelson and Rubio — who had yet to return the “blue slips” for the nomination even though it had been pending for more than eight months.

But on Wednesday, following the publication of several media reports on the issue — including one from the Washington Blade — Nelson submitted the blue slips for the nomination, according to Senate sources familiar with the process. Dan McLaughlin, a Nelson spokesperson, confirmed the Florida Democrat had returned the blue slips for the nomination.

Judge Nushin Sayfie is also coming to Judge Thomas' aid, sending this letter to Sen. Rubio.

HT: Glenn Sugameli, who has all the info on Judge Thomas at his website.

Friday news and notes -- Law Professor edition

1.  Professor Rick Bascuas' appellate clinic at UM is making new law again.  This time it's a confrontation clause issue in United States v. Manouchecka Charles.  The issue -- can an agent testify regarding a defendant's translated statement to him through an interpreter, or does the government have to call the interpreter to comply with the Constitution's right to confront witnesses.  The 11th Circuit held that a defendant is entitled to confront the interpreter and relying only on the agent violates the Confrontation Clause.  But because there was no objection during the trial, there was no plain error.  Congrats to Professor Bascuas for spotting this issue and running with it.

2.  Courts around the country continue to give huge downward variances in fraud cases -- even after trial -- because the guidelines make no sense.  Professor Berman has the update on the latest one here, by Judge Kimba Wood in an bid-rigging case:

As reported in this Wall Street Journal, headlined "US set back on bid-rig sentencing," a federal district judge in NYC yesterday handed down a set of white-collar sentences that were far below calculated guideline ranges and far below the sentences being sought by federal prosecutors.  Here are the details:

US District Judge Kimba Wood of the Southern District of New York handed Peter Ghavami, the former co-head of UBS' municipal-bond reinvestment and derivatives desk, an 18-month sentence. Prosecutors had sought at least 17½ years and as long as 21 years, 10 months for Ghavami, who also served as the Swiss bank's head of commodities at one point.
The much harsher sentence proposed by the government would have been longer than the 11-year term given in 2011 to Galleon hedge-fund founder Raj Rajaratnam for his insider-trading conviction.
But Judge Wood, a one-time nominee to become US attorney general who also sentenced former Drexel Burnham Lambert executive Michael Milken to 10 years in prison, raised questions about the government's method of calculating losses in the case, which it had pegged at about $25 million.
She also praised Ghavami's "admirable history" and noted that he faces other penalties including a $1 million fine and deportation to Belgium, where he is a citizen. Because Ghavami, 45 years old, is not a US citizen, he also has to serve in a "low security" prison instead of a "miminum security" camp.
One of Ghavami's former colleagues, Gary Heinz, 40, a former vice president on UBS' municipal-bond reinvestment desk, was given a 27-month sentence Wednesday, while Michael Welty, 49, another former vice president, got 16 months. Prosecutors had asked for at least 19½ years for Heinz and about 11 years or more for Welty.
Last summer, a New York jury found the three former UBS employees guilty of leading a scheme that caused municipalities to pay millions of dollars more for bond deals than they needed to pay. The case dealt with an obscure corner of the bond market in which local governments raise money from investors through bond deals, then invest the proceeds in investment products that banks and others are supposed to sell in a competitive process....

3.  Professor Fredrick Vars has started an online petition to save the Federal Defenders:

Petition: Save Federal Defender Services

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel.  In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.
Funding for prosecutors is apparently headed in the opposite direction.  The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.  This radical imbalance threatens the fundamental right to counsel.
Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services. 
Update: Thanks to all for the strong support so far. Please send me an email (fvars@law.ua.edu) with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.
Fredrick Vars
Associate Professor, University of Alabama School of Law
Birmingham, Alabama

Your moment of Zen -- cubicle guy

The First Circuit's 57-page opinion about a misdemeanor for soiling a federal courthouse bathroom

Here, including pictures and a dissent.

Judge Richard Kopf discussed the case at his blog:

In Strong, the defendant was convicted of three misdemeanors, and received a sentence of seven days in jail, for literally messing up a bathroom in a federal court-house.  He claimed to have a problem with his bowels, but the government saw his conduct in more a malicious light.  This is the way the bathroom looked to the cleaning lady shortly after Strong left the bathroom:

The supervisor of the courthouse’s cleaning company,
Christina Mason, arrived to clean the restroom after receiving a call requesting that it be cleaned. She smelled feces from the hallway, and when she opened the door she could not enter the restroom because feces were on the floor where one would need to step to get inside. The restroom was unusable because it was so soiled. She saw that seventy-five percent of the floor was covered in feces, in chunks. She also saw feces smeared in spots on several walls in different areas. In fact, some of the feces were
smeared more than two feet up on the walls. Feces were smeared on the paper towel and toilet paper dispensers, on the toilet paper itself, and on part of the toilet seat and the left side of the toilet bowl. There was also urine in the toilet, which had not been flushed; no feces were inside the liquid in the bowl. Mason testified that the feces were not only all over the bathroom but were “smear[ed] in spots,” and not splattered. Strong’s plaid blue boxers, which were covered in feces, were found by Mason draped over the wastebasket where Strong admits he placed them because they were “destroyed.”

The state of the bathroom was so bad that Mason, who had
fourteen years’ experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to clean the restroom. She devised a plan and first used paper towels and disinfectant to remove the feces from the floor. She then cleaned the restroom three times with a bleach and water solution, and discarded the soiled underpants, the potentially soiled rug that had been outside the restroom, and the clothes she had been wearing using a biohazard bag.

Id. at slip op. pp. 5-6.

Strong appealed. If you include the dissent, and the photographs attached to the decision, the discussion on whether the defendant had been proven guilty goes on for 57 pages. Two judges voted to affirm the conviction, and one judge voted to reverse.

I don’t know much.  But I do know this:  No misdemeanor case about a soiled toilet and a seven-day jail sentence is worth 57 pages of attention from a United States Court of Appeals. That’s true even if you, like me, are a freak about toilets.

"Justice Sequestered"

That's the headline of this NY Times opinion piece.  The intro:

The madness of Washington’s across-the-board budget cuts known as sequestration is causing real damage to the American justice system — undermining the sound functioning of the courts and particularly imperiling the delivery of effective legal representation to poor people accused of federal crimes.

The $350 million reduction in the federal judiciary’s budget for fiscal 2013 has resulted in a roughly 8 percent cut to the network of high-quality federal defender offices across the country. It has forced the layoffs of many experienced lawyers who have devoted their professional careers to the underappreciated and underpaid work of representing indigent federal defendants. And it has inflicted a pay cut on the defenders who remain on staff in the form of up to 20 unpaid furlough days.

These hits to the core legal staff have been accompanied by other blows, including reductions in lawyer training, research, investigation of cases and expert help, including interpreters. The cuts have also meant crippling reductions to federal probation and pretrial services, including mental health treatment, drug treatment and testing, and court supervision — all with disquieting implications for people’s rights and public safety. 

And it's not getting better:

That things have reached this point is a deep embarrassment for a nation grounded on the rule of law. Yet it appears that the situation is about to get much worse. Federal defender offices have been told to prepare for another round of cuts of roughly 14 percent for the 2014 fiscal year that begins Oct. 1. 

But this will save the government money, right?  Nope.  Huffington Post followed up with this article about how the cuts will cost the taxpayer much more:

When federal public defenders aren’t able to take a case because of a conflict, or because their workload is too great, the job falls to private court-appointed attorneys known as Criminal Justice Act panel attorneys. Those lawyers are paid from the same pool of money as federal public defenders, but they cost much more and, according to some studies, are less effective.
To keep the budget from completely exploding, the Judicial Conference, a group of senior circuit judges that helps administer guidelines for the courts, could -- indeed, may have to -- reduce the rates paid to private attorneys, but that could mean fewer CJA lawyers would be willing to take up such cases. That, in turn, would result in the accused spending more time in prison waiting for trials -- only further driving up costs.
“It’s a situation where the federal government will wind up paying far more,” said A.J. Kramer, the top federal public defender in Washington, D.C.
It doesn't make any sense. But it wasn't supposed to. The $85 billion in sequestration cuts -- which included reductions to the federal public defender budget -- were designed to be so onerous that lawmakers would have no choice but to turn the whole thing off. Except they never did.

 What's the federal government's answer?  Build more prisons even though it costs more to put someone in prison than it does to supervise him.  A lot more:

In 2012, the annual cost of placing an offender in a Bureau of Prisons institution or federal residential reentry center was roughly eight times the cost of placing the same offender under post-conviction supervision by a federal probation officer. Pretrial detention for a defendant was nearly 10 times more expensive than the cost of supervision of a defendant by a pretrial services officer in the federal system.

Trayvon Martin demonstration held outside Miami federal courthouse over the weekend

It was covered by the NY Times and the Miami Herald.

From the Herald:

But Trayvon’s dad had a far simpler message Saturday in downtown Miami.
“I’d like the world to know that Trayvon was my son. He was a loved child. He did nothing wrong,” Tracy Martin said to the crowd of about 500 at the federal courthouse on North Miami Avenue.
“I promised Trayvon, when he was laying in his casket, that I would use every ounce of energy in my body to seek justice for him,” he said. “I will continue to fight for Trayvon until the day I die.”
“Not only will I fight for Trayvon, I’ll be fighting for your child as well,” he said. “One of our deepest missions is to make sure that we advocate against senseless violence. Senseless violence is just a disease. And we as a people have the cure. We just have to come together.”

 

Some pictures by Emily Michot of the Herald:

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.