Justices don't use email

I guess this is no surprise, and I assume that they wouldn't get much out of the Federal Bar's upcoming talk on social media, but it's still pretty interesting:

"Well, we either talk to each other, which is not a bad thing," said Kagan, to applause from the well-heeled audience of female CEOs and business leaders.
"Or we write memos to each other," she continued.
"And you know, you have to remember that the Court is an institution where...we're not horse trading. We're not bargaining. We're reasoning. And we're trying to persuade people. And often the best way to do that is by putting things down on paper in a kind of careful and deliberate way and saying this is what I think and, and giving people an opportunity to read a memo and to think about it and to reflect on it," she said.
"And so we do a lot of our communicating by these, it looks, it's sort of 19th century. It's very heavy ivory paper—it looks like it came out of the 1800s or something. But it seems to work pretty well," she added. "And when you think about it, how many emails have you sent that you wished you could take back? So, so we're careful and deliberative."

Visiting Judge Bowen issues strongly worded concurrence

From U.S. v. Rodriguez, it's definitely worth a read. Judge Bowen was visiting from the S.D. Georgia.

Judge Martin, for the majority, finds that the government didn't prove up 50 victims at sentencing:

Mr. Rodriguez argues that the District Court clearly erred when it found that his offense involved more than 50 victims. Although he acknowledges that the government presented 42 affidavits of victims who suffered a loss and a summary chart indicating that there were 238 victims total, he points out that the government provided no witnesses or underlying data to authenticate the government’s summary chart. For this reason, Mr. Rodriguez argues that the District Court’s finding is not supported by reliable and specific evidence. We agree.

And here's Judge Bowen's concurrence:

I concur in the opinion in full. I write specially to comment on the Government’s treatment of the sentencing proceedings.

This is another case wherein the Government has failed to come forward with evidence at a critical time. Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought. The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical. In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else.
***

Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude. Responsible advocacy demands more.

Transcript posted from the Kaley argument this morning

Here is the link.  And Justice Scalia got some laughter right from the start:

CHIEF JUSTICE ROBERTS: We'll hear argument next this morning in Case 12-464, Kaley vs. United States.
Mr. Srebnick?
ORAL ARGUMENT OF HOWARD SREBNICK ON BEHALF OF THE PETITIONER
MR. SREBNICK: Thank you, Mr. Chief Justice, and may it please the Court:
When the government restrains private property, the owner of that property has the right to be heard at a meaningful time and in a meaningful manner. For a criminal defendant who's facing a criminal trial, whose property has been restrained, that time is now, before the criminal trial, so that he or she can use those assets, that property, to retain and exercise counsel of choice.
JUSTICE SCALIA: Well, I -- you know, I -- I find it hard to think that -- that the right of property is any more sacrosanct than the -- the right to freedom of the person. And we allow a grand jury indictment without -- without a separate mini-trial to justify the arrest and -- and holding of -- of the individual. And if he -- if he doesn't have bail, he's permanently in
jail until the trial is over. And we allow all of that just on the basis of a grand jury indictment. And you're telling us it's okay for that -- maybe you think it's not okay for that.
But I think you're saying it's okay for that, but it's not okay for distraining his property. I -- I find it hard to -- to think that it's okay for the one and not okay for the other.
MR. SREBNICK: Justice Scalia, it's not okay for either.
JUSTICE SCALIA: Ah, okay. This is a bigger case than I thought.
(Laughter.)
MR. SREBNICK: The right to be released on bail, that is, the right not to be detained all the way until trial, under this Court's precedent in United States v. Salerno, the Court provided procedural safeguards to ensure that before someone is held all the way until trial, they would have a hearing, a hearing which would include a right to challenge the weight of the evidence and other factors.
We ask for something no different. Indeed, the indictment itself can justify the detention of the body and the detention of the asset until such time --

Miami attorney Julio Ayala in skirmish with Alex Rodriguez's lawyer Joe Tacopina

From the NY Daily News:

According to several sources with knowledge of the altercation, Tacopina instigated a confrontation with Julio Ayala, one of the Miami attorneys who represent Anthony Bosch, the proprietor of the now-defunct Biogenesis clinic that was a source of performance-enhancing drugs for more than a dozen big leaguers — and MLB’s chief witness.
During the first week of the arbitration, the sources say, Tacopina launched an aggressive attack on Bosch’s credibility after Bosch authenticated a pile of documents and electronic communications that MLB says reflect the league’s conclusion that Rodriguez acquired banned substances from Bosch over several years. It was during a break in one of those tense sessions that Tacopina and Ayala nearly came to blows.

The sources told the Daily News that Tacopina — who was frustrated that Bosch’s testimony had dominated the first three days of the hearing — asked another MLB attorney how long he planned on having baseball’s most important witness on the stand during the break in the testimony on Oct. 2.
The attorney, the sources said, told Tacopina that Bosch’s testimony would take several more hours and might spill over to the next day. “Well, I guess we have all of October, and by then Mr. Bosch will be in jail,” Tacopina replied, referring to the fact that Bosch and his now-defunct clinic are being investigated by Florida state authorities and federal law-enforcement officials from the Southern District of Florida.

“If he is, he is not going alone,” Ayala fired back, implying that if Bosch goes to prison, he is taking Rodriguez with him.
Tacopina, a former hockey player who holds the Skidmore College record for most penalty minutes in a season, then made a derogatory statement about Ayala and “his lying wife,” Susy Ribero-Ayala, another attorney representing Bosch, angering Julio Ayala. Tacopina then “bull-rushed” Ayala, who went toe-to-toe with Tacopina, in the words of one source.
Ayala, a former high school football player, stood his ground, but other attorneys restrained Tacopina before any punches were thrown. Eventually, the two men calmed down and the hearing resumed after the break.
Tacopina and Ayala both declined to comment on the incident when contacted by The News, citing the confidentiality order barring participants in the arbitration hearing from discussing it publicly. It is not known if arbitrator Fredric Horowitz, who will ultimately decide if Rodriguez’s suspension should be upheld, reduced or overturned, witnessed the altercation. The incident is not likely to be part of the official record, since the court reporter was taking a break at the time.
Rodriguez and Bosch did not witness the confrontation — they were both using the men’s room when things got heated in the arbitration room.
One source told The News that Tacopina apologized to Ayala the following day, and that Ayala accepted the apology and said he wished to move on.

Howard Srebnick and Richard Strafer head to the Supremes

They have oral argument this week in Kaley v. United States, presenting the following issue: whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

Here's the 11th Circuit opinion, holding that no adversarial hearing was required, which split with a number of other circuits, leading the Solicitor General to agree with the cert request.

Harvey Silverglate wrote an op-ed in the WSJ supporting the Kaleys:

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?
Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.

And Jay Weaver covered the upcoming argument in the Miami Herald:

Srebnick will argue that defendants should be allowed to keep their bank accounts and other possessions unless prosecutors can show before trial that the evidence supporting an indictment justifies the seizure of those assets.
For decades, prosecutors have only needed to point to a federal grand jury indictment to argue that defendants' assets are traceable to the criminal allegations and therefore can be seized. And judges have almost always ruled in the prosecution's favor because of the presumption that the grand jury found "probable cause" that a crime was committed.
Eventually, depending on whether a defendant is found guilty or is acquitted, frozen assets are either kept or returned by the government.
In legal briefs, Srebnick has asked the Supreme Court to allow a hearing that would test the strength of the prosecution's evidence before a jury hears the government's case against his two clients, a New York couple. Kerri and Brian Kaley were charged in 2007 with illegally profiting from the resale of older medical devices in South Florida's "gray market." The equipment had been given to the wife and other equipment sales representatives by hospitals that no longer needed them because they purchased newer devices.
The couple obtained a $500,000 equity line of credit on their home so they could pay projected legal fees to their "preferred" defense lawyers, Srebnick, and colleague, Susan Van Dusen, who claimed the government's case was "baseless." But after the couple's indictment, prosecutors obtained a judge's order to seize their home and other assets valued at nearly $2.2 million, leading to the Supreme Court case.

Read more here: http://www.sacbee.com/2013/10/13/5818574/supreme-court-to-hear-challenges.html#storylink=cpyGood

Good luck Howard and Richard!

Judge Jordan sits for first time on Miami panel

He was paired with Judge Martin and a visiting judge this week on the 12th Floor of the King Building.  It was the first time Judge Jordan was on an oral argument calendar in Miami.  They heard an interesting case regarding a "voter purge" issue.  John Pacenti covered the story.

President Obama is trying to get other judges on the 11th Circuit.  But it's a slog.  Here's the latest from the Robin McDonald:

Georgia's Congressional Democrats met Thursday in Washington with staff of the Office of White House Counsel to discuss Georgia's open federal judgeships, an aide to U.S. Rep. David Scott confirmed.
The meeting took place after Georgia's five Democratic House members sent a letter on Sept. 17 to President Barack Obama's White House counsel, Kathryn Ruemmler, expressing their shock and disappointment over a proposed list of six candidates for federal judgeships in Georgia, including two open seats on the Eleventh Circuit U.S. Circuit Court of Appeals and four seats on the District Court.
... In their letter to the White House counsel, the Democratic congressmen insisted it is "essential" that they participate in selecting candidates for nomination to the federal bench "to ensure a representative federal judiciary in Georgia."
The current slate of proposed nominees includes one African-American woman for the District Court, three white women—two for the Eleventh Circuit and one for a District Court seat—and two white men for the District Court.
Georgia lawyers familiar with the nomination process who asked not to be identified because of the sensitivity of the negotiations have told the Daily Report that the proposed nominees for two open seats on the Eleventh Circuit are:
• Jill Pryor, a partner at Atlanta's Bondurant, Mixson & Elmore whom President Obama has twice nominated to an open post on the Eleventh U.S. Circuit Court of Appeals.
• U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia, who was appointed by President George H.W. Bush in 1992.
U.S. Senators Saxby Chambliss and Johnny Isakson have, so far, blocked Pryor's nomination, but as part of the deal agreed to waive their objections in return for Carnes' appointment and three nominees of their choosing for the Northern District of Georgia bench.
Carnes' nomination, if confirmed, would create a fourth vacancy on the District Court bench in Atlanta, where three judges who took senior status in 2009, 2010 and this year have yet to be replaced.
The senators' picks for the Northern District are:
• Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and then in 2011 for the Eleventh Circuit after he defended Georgia's voter identification law in a federal lawsuit;
• DeKalb County State Court Judge Eleanor Ross, a former prosecutor who was appointed to the bench by Governor Nathan Deal in 2011 and the only African-American on the list;
• Judge Michael Boggs of the Georgia Court of Appeals , a former Superior Court judge from the Waycross Judicial Circuit in the Southern District of Georgia and a Deal appointee to the appeals court.
The only Democratic nominee for the District Court is Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer.

The Miami Herald ran an op-ed earlier in the week, titled: "Blacks lack presence on federal court." Here's the intro:

The government shutdown epitomizes the dysfunction caused by a small faction of Congress. But for federal judicial nominations, which require the “advice and consent” of the Senate, obstruction is nothing new. The confirmation process has been broken for some time. The result is a judicial vacancy crisis that harms the administration of justice and, just as important, the diversity of the federal bench.
Sen. Marco Rubio has blocked the nomination of William Thomas to Florida’s federal district court. Thomas is the first openly gay African-American nominee to any federal court. Sen. Rubio’s own 64-member judicial search commission supported Thomas as did the senator, initially. Sen. Rubio has now withdrawn his support, effectively denying Thomas a confirmation vote by the Senate. This obstruction, in the face of a superbly qualified candidate, is cause for great concern. But it is not the only issue looming for Florida’s federal judiciary.
Another issue concerns the racial diversity of judges on the federal appellate court that serves Florida, Georgia and Alabama, the U.S. Court of Appeals for the Eleventh Circuit. With the ever-shrinking docket of the U.S. Supreme Court, the Eleventh Circuit is effectively the court of last resort for residents of these states. Twenty-five percent of the residents are African-American, giving the Eleventh Circuit the highest percentage of African Americans of any circuit court in the country.
Although there are 12 judicial seats on the Eleventh Circuit, only one is held by an African American. Judge Charles Wilson, from Florida, was appointed by President Clinton in 1999.
Only one other African American has ever served on this court. The Eleventh Circuit was created in 1981, when Congress divided six states comprising the Fifth Circuit into two circuits. At that time, Judge Joseph Hatchett, also a Floridian and the only African American on the Fifth Circuit, was reassigned to the Eleventh. When he retired, Judge Wilson took his place.
In other words, the number of African-American judges sitting today on the Eleventh Circuit is the same as it was more than 30 years ago. This should concern everyone who cares about ensuring that our federal judiciary reflects the diversity of our nation and that our courts inspire confidence among our communities. Given its substantial African-American population, and the large pool of superbly qualified African-American attorneys and judges from which to select an appellate judge, the Eleventh Circuit should have more than one African-American jurist by this time.

Read more here: http://www.miamiherald.com/2013/10/08/3677936/blacks-lack-presence-on-federal.html#storylink=cpy

We need more Judge Gleesons

I can't do justice to the 60-page sentencing order that Judge Gleeson entered today, calling DOJ out for using the threat of 851 enhancements to force defendants to plead. 

Here's the conclusion to the must-read order:

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him. The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over. Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose. It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee
him: hold the government to its burden of proving him guilty beyond a reasonable doubt. And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.
Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose – to no avail.”181 I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty. But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy. Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.

And here's the entire order:

US v Kupa Statement of Reasons Final

Tuesday news and notes

1.  David Mandel, the lawyer who got the huge verdict against TD Bank in the Coquina case, participated in a charity boxing event and knocked down his opponent.  Check out the video here. 

2.  Kim Rothstein's lawyer Scott Saidel was sentenced to 3 years in federal prison yesterday. From the Sun-Sentinel:

The courtroom was packed Monday morning, nearly 30 strong with supporters of the fallen attorney.
Saidel's defense attorney, Tama Beth Kudman, said her client was not driven by profit or greed and that he erred by viewing Kim Rothstein as a friend rather than a client.
"He saw this woman drowning and he tried to help her," Kudman told the judge. "She was losing everything in the world through no fault of her own. … He handled this horribly, and what he did was absolutely wrong."
Kudman, in her quest for a minimal sentence, emphasized Saidel's "extraordinary life of kindness, and empathy and giving."
"He has lost his career … his wife and child have moved out of their home. … He has no money left," Kudman said. "He's lost everything in the world."
As part of his plea deal, Saidel has agreed to forfeit $515,000 to federal authorities — including the $65,000 he received in legal fees from Kim Rothstein, four expensive pens and a pair of mother of pearl, diamond and sapphire cuff links.
Federal prosecutor Lawrence LaVecchio did not discredit Saidel's good deeds or cooperation with authorities, but he did take issue with minimizing the forethought and planning that went into the scheme to hide the jewelry.
"Nobody gets dragged into federal criminal court in cases like these because they committed errors in judgment," LaVecchio said. "It's not some isolated event, or lapse in judgment, that brought the defendant here today."
From a lectern in the middle of the courtroom, Saidel offered a round of apologies to the government, prosecutors, the judge, the Florida Bar, friends, family and — his voice cracking with emotion — to his client, Kim Rothstein.
"I am profoundly sorry for the conduct that led me here today," he said. "I apologize to my family and friends, who I have let down and hurt and embarrassed, and to my client Kimberly Rothstein, who might not find herself standing here in this very same spot at a later time, if I had simply been a better lawyer."

Seems like a huge sentence to me.  What are your thoughts?

3.  Meantime, why do misbehaving prosecutors get a pass in court opinions?  The Huffington Post examines the interesting issue in this interesting article:

Last month, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit ruled that a prosecutor in San Mateo County, Calif., committed "textbook" misconduct when she "knowingly elicited and then failed to correct false testimony" during an armed robbery trial. A judge from the U.S. District Court for the Northern District of California also found misconduct in the case, but ruled it was a "harmless error" and upheld the conviction of the defendant, La Carl Martez Dow. The appeals court panel overturned that ruling, and Dow's conviction.
But an important detail was missing from both those rulings -- the prosecutor's name, Jennifer Ow. At the time of Martez Dow's conviction, she was an assistant district attorney for San Mateo county. She currently holds the same title in Nevada County, Calif.
Earlier this year, the U.S. Supreme Court declined to hear an appeal alleging misconduct by a federal prosecutor who made racially offensive remarks during a drug trial in Texas. Justice Sonia Sotomayor wrote a separate opinion that excoriated the prosecutor, who, she wrote, "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation."
"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," she wrote. "Such conduct diminishes the dignity 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."
But Sotomayor didn't name the prosecutor, either. And while her opinion attracted a fair amount of media attention, those initial accounts also failed to give the prosecutor's name.
Ken White, a former federal prosecutor who now blogs at Popehat.com, checked the legal document service PACER and tracked down the name: Sam L. Ponder. He is still an assistant U.S. attorney in Texas.
After White found Ponder's name, many media outlets amended their original reports to include it. But the case is an exception. The names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct. Those opinions aren't all that well covered in the media to begin with, but when they are, it can take a fair amount of digging for a reporter on the courts beat to match the prosecutor to the case. So most don't.
There's no formal rule precluding the publication of a prosecutor's name in an opinion. White says it's more about professional courtesy.
"It's tradition. It's an informal practice driven by the government's fairly strong stand that the names shouldn't be published," he said. "I've seen some really egregious, outrageous examples of misconduct in which the government actually asked for opinions to be republished to remove names of specific prosecutors." 

4.  The Sun-Sentinel has this long piece on how the Sunrise police department and others like it are making millions off of the cocaine business:

Police in this suburban town best known for its sprawling outlet mall have hit upon a surefire way to make millions. They sell cocaine.
Police confiscate millions from these deals, money that fuels huge overtime payments for the undercover officers who conduct the drug stings and cash rewards for the confidential informants who help detectives entice faraway buyers, a six-month Sun Sentinel investigation found.
Police have paid one femme fatale informant more than $800,000 over the past five years for her success in drawing drug dealers into the city, records obtained by the newspaper show.
Undercover officers tempt these distant buyers with special discounts, even offering cocaine on consignment and the keys to cars with hidden compartments for easy transport. In some deals, they’ve provided rides and directions to these strangers to Sunrise.
This being western Broward County, not South Beach, the drama doesn’t unfold against a backdrop of fast boats, thumping nightclubs or Art Deco hotels.
It’s absurdly suburban.
Many of the drug negotiations and busts have taken place at restaurants around the city’s main attraction, Sawgrass Mills mall, including such everyday dining spots as TGI Fridays, Panera Bread and the Don Pan International Bakery.
Why would police bring criminals to town?
Money.

5.  Is a hot bench always a good thing at the Supreme Court.  The NY Times looks into it:

The Supreme Court has what lawyers call a hot bench, and temperatures are rising.

 

“The hot bench is a bench that asks a lot of questions,” Judge J. Harvie Wilkinson III explained at a judicial conference in June. “The Supreme Court bench seems to me to get hotter and hotter and hotter.”

The justices returned to that bench on Monday. Over the summer, several of them acknowledged that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases.

Judge Wilkinson, who sits on the federal appeals court in Richmond, Va., made his observations in a public conversation with Chief Justice John G. Roberts Jr. The chief justice pleaded guilty, even as he explained that some people misunderstand the nature of oral arguments.

“First of all, there are excuses for it,” Chief Justice Roberts said.

“We don’t talk about cases before the argument,” he went on. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”

Justice Ruth Bader Ginsburg made a similar observation to me in August. “Oral argument questions are often directed more to a colleague than to the lawyer,” she said. “It’s a little unruly.”

In remarks at Harvard last month, Justice Elena Kagan agreed. “There’s no doubt,” she said, “that part of what oral argument is about is a little bit of the justices talking to each other with some helpless person standing at the podium who you’re talking through.”

Before Justice Kagan joined the court, she argued before it as United States solicitor general, and she learned to make her points quickly.

“You don’t get a chance to talk in paragraphs at the Supreme Court,” she said.

Chief Justice Roberts gave another reason for the warming trend.

“Recent appointees tended to be more active in questioning than the justices they replaced,” he said, referring to Justices Kagan and Sonia Sotomayor. “It’s nothing bad about either of them. It’s just a fact.”

Justice Ginsburg defended her new colleagues, noting that Justice Antonin Scalia is also a frequent questioner.

“These women are not shrinking violets,” she said. “Justice Sotomayor won the contest with Scalia for who would ask the most questions at oral arguments this year. It’s always Scalia, but this year it was Sotomayor.”

It falls to Chief Justice Roberts to be the traffic cop when two or more of his colleagues try to talk at once, and it is a role he does not relish.

“I’ve had to act as,” he said, pausing to search for the right word, “an umpire in terms of the competition among my colleagues to get questions out.”

There seems to be a consensus that the justices should moderate their volubility.

“It is too much, and I do think we need to address it a little bit,” Chief Justice Roberts said. “I do think the lawyers feel cheated sometimes. It’s nice for us to get a good feel for where everyone else is, but it also would be nice for them to have a chance to present their argument.”