Judge Fay vs. Judge Martin

This opinion about what counts as an aggravated felony got a little heated between Judges Fay and Martin. 

First, a portion of the dissent by Judge Martin:

This case, of course, presents one of the rare instances in which showing deference and comity to the State Court would benefit a federal defendant. But here, in contrast to our usual practice, the Majority shows no comity and no deference to an order of the State Court clarifying the terms of the sentence that it imposed on Mr. Garza-Mendez. The Majority’s refusal to credit the State Court’s clarification of its own sentence is perplexing, especially given that, in my experience, we do not scrutinize State Court judgments in the same way when they result in a harsher sentence for criminal defendants. 

Here's Judge Fay's response:

The dissent’s assertion that we use comity only when it increases a defendant’s sentence is off the mark. When comity aids defendants in reducing federal sentences, the overwhelming probabilities are there would be no appeals. The dissent does not cite one case in the posture of this case, where defense counsel obtained a clarification order of a state-court sentence well after the state procedural period for challenging the sentence had expired to attempt to alter a later federal sentence in federal court. Under the circumstances of this case, the district judge determined the subsequent state-court clarification order was not entitled to deference, because of the unambiguous language of the sentencing order as well as federal statutory and circuit law. The dissent’s charges impugning the integrity of our court are both outrageous and totally unfounded. 

Woah. It didn't seem to me at all that Judge Martin was impugning the integrity of the court of which she is also a member. It seemed to me that she was pointing out what all criminal practitioners know about appellate courts. Good for Judge Martin. (As an aside, the majority only had one 11th Circuit judge, who was joined by a judge from the court of international trade.) 

Happy Birthday Judge Turnoff!

No cert grants yesterday...

...but a three interesting opinions attached to cert denials.  How Appealing has all of the links, as usual:

Justice Sonia Sotomayor issued a dissent, in which Justice Stephen G. Breyer joined in part, from the denial of certiorari in Woodward v. Alabama, No. 13-5380. In news coverage, Mark Sherman of The Associated Press reports that "Justice Sotomayor faults Ala. death sentences." And Lawrence Hurley of Reuters reports that "Supreme Court declines to hear Alabama death penalty case."
Justice Samuel A. Alito, Jr. issued a statement respecting the denial of the petition for writ of certiorari in Martin v. Blessing, No. 13-169. In news coverage, Lawrence Hurley of Reuters reports that "U.S. justice airs concerns about using race in picking lawyers."
And Justice Alito also issued a dissent, in which Justice Antonin Scalia joined, from the denial of certiorari in Rapelje v. McClellan, No. 12-1480.

Tom Goldstein explains what all of this means at SCOTUSblog: "What you can learn from opinions regarding the denial of certiorari."

Today’s order list from the Court included three opinions respecting the denial of certiorari – i.e., denials of review in which the Justices felt strongly enough about the issue that they went to the effort of writing separately.  Almost always, when a Justice votes to review a case but there are not enough votes to grant certiorari (four are required), the dissent is not publicly noted.  So the parties and lawyers – and litigants in later similar cases – have almost no way of knowing whether the issue generated any interest at the Court.
Two of the opinions today were traditional dissents from the denial of certiorari.  In a habeas corpus case, Rapelje v. McClennan, Justice Alito wrote an opinion (joined by Justice Scalia) arguing that the Court should review the decision by a court of appeals on how to review a summary order of a state court.  In a death penalty case, Woodward v. Alabama, Justice Sotomayor wrote an opinion (joined by Justice Breyer) arguing that the Court should review Alabama’s practice of permitting judges to override juries’ death penalty recommendations.  The two cases illustrate that frequently Justices Scalia and Alito will view the federal habeas laws as imposing the most significant constraints on overturning convictions, while Justices Breyer and Sotomayor will have the most interest in considering issues related to the administration of the death penalty.
The more interesting opinion to me as a matter of Supreme Court practice is Justice Alito’s opinion respecting the denial of certiorari in Martin v. Blessing.  In an opinion of this kind, a Justice agrees that certiorari should be denied but emphasizes that the denial of review does not endorse the lower court’s ruling.  Sometimes the opinion notes a procedural flaw in the case that prevents Supreme Court review.  But sometimes there is a further subtext:  the opinion is a warning shot that some anomalous practices should be stopped without the Court ever having to get involved. ...

 Meantime, trial started for Frank Excel Marley III, a lawyer accused of stealing more than $1 million from the Seminole Tribe.  Paula McMahon has the details:

Marley's former legal assistant, Maria Hassun, 66, of Coral Gables, pleaded guilty to her role earlier this year and agreed to testify against her boss.
She is scheduled to begin serving a year and a day in federal prison on Dec. 13 but prosecutors said they will recommend a sentence reduction for her if she testifies truthfully against Marley. She must also repay $148,658 to the tribe.
Marley's attorney, Bruce Zimet, told jurors Monday that his client is part African-American and part Native American and is still owed a lot of money for unpaid work he did for the tribe. Marley "made millions and millions of dollars" for the tribe and protected them from losing millions.
Marley "became a pawn in a war of power" between factions in the tribe, Zimet said.
And Hassun is a liar who gained Marley's trust, then defrauded him, Zimet said. Hassun told prosecutors that she acted on Marley's instructions when she inflated invoices that were submitted to the tribe.
The prosecution says Marley committed fraud by padding his legal bills and charged for services, travel, phone calls and meetings "that did not occur."

Justice Thomas speaks!

OK, so it wasn't at an oral argument, but it still was quite a talk at the Federalist Society last week.  ATL has the complete write-up here, and it's lengthy.  Here's one clip:

Judge Sykes asked Justice Thomas how the Court has changed over the 22 years he has served on the Court, alluding to various SCOTUS developments of the past two decades, such as the rise of a specialized Supreme Court bar. But as Robert Barnes put it in the Washington Post, CT “didn’t seem particularly interested in Sykes’s questions about the workings of the modern court.” That’s a fair characterization, in light of Justice Thomas’s concise summary of life as a justice:

There are a lot of briefs, and people doing a lot of talking. I mean, it’s law.

With that attitude, it’s no wonder that Justice Thomas has been silent all these years (at least in terms of asking questions of counsel during oral argument).
But don’t mistake his lack of participation in oral argument for boredom or disinterest. He talked about how a clerk just brought him a draft opinion in a pending case, apologizing for how boring the issue is — by the way, if you have a boring case under submission at SCOTUS, Justice Thomas might be writing your opinion — and he disagreed with that clerk. He explained to Judge Sykes how much he enjoys his work at the Court:

Even the most boring cases are fascinating to me….
I love the cloistered life; I was in the seminary. I love my law clerks. I have this wonderful work to do.

No, I’m not exaggerating the Oprah-esque outpouring of love. As Robert Barnes put it, in an article entitled Clarence Thomas: The Supreme Court’s most happy fella, “the 65-year-old Thomas was full of ‘love’: for his colleagues, for his law clerks, for his life.”
But not, it should be noted, for stare decisis. Justice Thomas — who must have a Word macro that says, “this case does not raise / the parties have not argued [issue X], but in an appropriate case, this Court should revisit [issue X] — had the following exchange with his interlocutor:

Judge Sykes: Stare decisis doesn’t hold much weight with you?
Justice Thomas: Oh it does. But not enough to keep me from going to the Constitution.

Cue the standing ovation. To quote Justice Willett again, #Nerdvana.
Justice Thomas is patient enough to wait for history to catch up with him, comparing some of his jurisprudence to “a fine wine — it just needs aging.” He noted that it took the first Justice Harlan, author of the great dissent in Plessy v. Ferguson, sixty years to be vindicated.
The high-stakes cases, which cluster toward the end of the Term, can produce tension and frayed nerves. Judge Sykes asked Justice Thomas about this, and whether he’s eager to escape the building by summer. CT diplomatically responded that he doesn’t really have such problems, which led Justice Scalia to call out from the audience: “I get out of there as soon as I can!”

Friday news & notes (UPDATED)

UPDATE -- CONGRATULATIONS to Alicia Valle.  Today is her formal investiture at the courthouse. 

1.  The comments to the last post got interesting.  Go weigh in.

2.  Amy Howe of SCOTUSblog spoke to the Federal Bar Association in Miami on Wednesday.  It was a great talk to a packed house.  She said that if she and Tom Goldstein sell the blog, they plan on staying on to continue their roles in running it.

3.  Ted Cruz says the Obama administration is taking "radical" positions before the Supreme Court because it loses 9-0 a lot.  From the BLT:

According to Cruz, who headed Morgan Lewis & Bockius’s Supreme Court and appellate practice until his was elected to the Senate in 2012, the Obama administration is not pursuing “reasonable litigating positions within the bounds of ordinary discourse. These positions are extreme, and they are united by one thing: an embrace of unchecked federal government power.”

As an example, he pointed to U.S. v. Jones, which involved the government’s bid to place a GPS tracking device on a suspected drug dealer’s car without a warrant. “If the Obama Justice Department had prevailed, the federal government would be able to electronically track all of our movements,” he said. “Let me mention an aside. For those of you who have cell phones, please leave them on. I want to make sure President Obama hears everything I say.”

4.  Russell Adler was suspended for 90 days.  From the Sun-Sentinel:

Adler's lawyer, Fred Haddad, called the suspension an overreaction to misconduct that would have resulted in a reprimand if Adler had not been connected to Rothstein.
"This all comes about because he was, like millions of others, wounded by Rothstein," Haddad said. "Russell Adler has been very successful after leaving that firm. He'll be back, when this suspension is over, same as ever – on top, trying cases and winning."
It's still not clear whether Adler will face criminal charges in connection with his association with Rothstein, who is serving a 50-year prison sentence after pleading guilty to federal charges in 2010.
Adler agreed to pay $350,000 to settle a civil suit in 2011 filed by bankruptcy attorneys looking to recover money for investors scammed by Rothstein's firm.
"Who knows what the feds are going to do," said Haddad, who challenged Rothstein's credibility as a witness who could implicate others in his wrongdoing. "He's less reliable now than when he was a lawyer. He can't be trusted."

Gotta love Fred Haddad. 

5.  It's the 150th anniversary of the Gettysburg address, and lots of people are giving their rendition of it here.  (I'd like to hear Haddad!).  You can watch Crist, Rubio, Wasserman-Schultz, and even Alyssa Milano.  I like this Colbert rendition:

Black Federal Judges

The Atlantic has an in depth piece about how President Obama is doing with his goal of diversity on the federal bench.  Here's the section on the 11th Circuit and Florida:

11th U.S. Circuit Court of Appeals
The 11th U.S. Circuit Court of Appeals represents Alabama, Florida, and Georgia. Its territory comprises the highest percentage of blacks—approximately 25 percent—of any federal judicial circuit in the country. Today, there are eight judges on "active" status on the bench there and eight more on "senior" status. Of these 16 jurists, only one is black—Judge Charles Wilson, who was appointed by President Bill Clinton in 1999. Judge Wilson, in turn, replaced Judge Joseph Hatchett, the first black judge ever to serve in the 11th Circuit since its creation in 1981. There has never been a black female judge on the 11th Circuit.
There have been six vacancies on the 11th Circuit since President Obama took office in January 2009. He has not nominated a single black man or woman to fill them. He has nominated instead one Latino man and four white women. The Senate has confirmed two of these nominees—Adalberto Jordan and Beverly Martin, both of whom were Clinton district court appointees. As set forth below, there is currently a vacancy, for an "Alabama" spot on the 11th Circuit, that is so new the White House has not yet named a nominee for it.
By contrast, four of the 15 judges currently on the 4th U.S. Circuit Court of Appeals are black (two of whom were appointed to their post by President Obama, the other two by President George W. Bush). The territory of the 4th Circuit comprises a slightly smaller percentage of blacks—23 percent—than does the 11th Circuit. Even the 5th U.S. Circuit Court of Appeals, still by far the most conservative in the nation, has two black federal appeals judges—one appointed by President Obama, the other by Bill Clinton.

Florida
The black population of Florida in 1970, the first census year following the Voting Rights Act of 1965, was 15.3 percent. Today, according to U.S. Census Bureau figures, it is 16.6 percent. Today, only three of the state's 37 federal trial judges are black women. The first, Marcia Cooke, arrived on the bench just nine years ago, a nominee of George W. Bush. The second, Mary Scriven, arrived in 2008, another Bush nominee. The third, Charlene Honeywell, was nominated by President Obama during his first term.
There are currently four federal district vacancies in Florida (and a fifth is on its way). To the spot vacated by the aforementioned Jordan, the president has nominated the aforementioned Thomas, who would become the first openly gay black man to serve on the federal bench.  The president has nominated another black man, Brian Davis, to another federal district position in Florida. Senator Rubio withdrew his hold on the Davis nomination in September but still opposes the Thomas bid. That leaves three vacancies for which the White House has not yet made a nomination.
One of those trial court vacancies was created recently by a promotion. Last week, to replace Judge Rosemary Barkett on the 11th Circuit, President Obama nominated a white woman named Robin S. Rosenbaum. He had appointed Judge Rosenbaum only last year to a spot in the Southern District of Florida, which she will leave if confirmed to the 11th Circuit. So there is no black 11th Circuit nominee from Alabama. And no black 11th Circuit nominee from Florida. Judge Wilson, the Clinton appointee, still stands alone.

SCOTUSblog for sale (UPDATED with Kim Rothstein's sentence)

I wonder how much it will go for. We can ask co-founder Amy Howe at tomorrow's federal bar luncheon.  Here's the AP:

The blog got a huge boost in credibility when it hired veteran reporter Lyle Denniston, who began covering the Supreme Court during the Eisenhower administration. Goldstein attracted a deep-pocketed sponsor in Bloomberg Law, the legal research unit of Bloomberg LP, and says he now spends $500,000 a year on the blog. The relationship with Bloomberg is in its third and final year, Goldstein said.
Next year, Goldstein said he intends to sell SCOTUSblog. To that end, he wants a formal press credential for Denniston, whose pass is courtesy of a Boston public radio station for which he works only rarely, and maybe even Howe.
The formal recognition he seeks is part of a series of moves aimed at making SCOTUSblog more attractive to prospective buyers. "We put more effort into covering the Supreme Court than any other organization in American history," Goldstein says, including in his claim even specialty legal publications like the American Lawyer.
The court, though, has remained noncommittal about how to treat SCOTUSblog. Court spokeswoman Kathy Arberg said she is reviewing the credentialing process for the first time in nearly 40 years. "We won't act on any pending requests until we have completed that process," Arberg said.

I'm also putting this blog for sale if anyone is interested... We'll start the bidding at $1 million.



In other news, Kim Rothstein is to be sentenced today.  I really don't see how sending her to jail does anyone any good.  Probation is sufficient here.  The Sun-Sentinel has background on her sentencing memo by David Tucker:

Just days before Kim Rothstein will be sentenced for hiding expensive jewelry from federal authorities, the former socialite has filed for divorce from her imprisoned Ponzi schemer husband, court records show.
"Last week, Kim filed for divorce from Scott Rothstein," her attorneys wrote in a sentencing memo filed Friday in federal court in Fort Lauderdale.
Her husband physically and mentally abused her, openly cheated on her, controlled her every move and kept her in the dark about his crimes, her defense team said.
When she confronted him, she said, he yelled at her: "You can't walk away from me, Kimmy. I'm the President of [expletive] Florida and I'll say when you can come and go!"
Kim Rothstein and her friend Stacie Weisman are to be sentenced Tuesday afternoon. Both women admitted they tried to hide about $1 million worth of jewelry from federal authorities after Scott Rothstein admitted he ran the biggest investment fraud scheme in South Florida history.
It was her husband's idea to hide the jewelry from prosecutors and bankruptcy authorites who were seizing the couple's ill-gotten assets, Kim Rothstein's defense attorneys say, but she takes full responsibility for doing it. The couple communicated through coded letters about their plan while Scott Rothstein was held at a secret location before he was imprisoned, the lawyers wrote in court records.
"Kim is fully responsible for her behavior. However, it was her husband, Scott Rothstein who originally requested that she take some family heirlooms, watches and other items of value as insurance," her lawyers, David Tucker and David Kotler, wrote in court records. "Scott also recommended that Kim turn these items over to someone whom she trusted to sell them."
Kim Rothstein claims that through their coded letters, her husband supervised the sale of the assets they were trying to hide from authorities and also her attempts to get the loot back so she could "come clean" with authorities after realizing how much legal trouble she was in.

UPDATE -- Judge Rosenbaum sentenced Kim Rothstein to 18 months in prison. 

Is 10 days in jail sufficient for someone who sent an innocent man to jail for 25 years?

I'd like to hear your thoughts on this.

Here is the NY Times story covering the issue:

For what may be the first time on record, a former prosecutor in Texas is going to jail for failing to turn over exculpatory evidence in a murder trial. The 10-day jail sentence for the prosecutor, Ken Anderson, is insultingly short — the victim of his misconduct, Michael Morton, spent nearly 25 years in prison. But because prosecutors are so rarely held accountable for their misconduct, the sentence is remarkable nonetheless.
In 1987, Mr. Morton was convicted of beating to death his wife, Christine, and sentenced to life in prison. He maintained his innocence, and in 2010 DNA testing confirmed that he was not the killer.

Even before a Texas court vacated Mr. Morton’s conviction, his lawyers alleged that Mr. Anderson, the prosecutor in his case, had deliberately withheld evidence that would have exonerated him. During Mr. Morton’s trial, the judge had ordered Mr. Anderson to turn over any such evidence and received only a few documents in return. In fact, Mr. Anderson possessed many documents he did not turn over, including a transcript of a phone conversation revealing that the Mortons’ 3-year-old son had described his mother’s killer as a “monster” who was not his father.

Mr. Anderson, who later became a judge, has said he did not consider the judge’s order official because it was not written down. But he was fully aware of his ethical duty to disclose important exculpatory evidence and that a failure to disclose violates due process rights under the Constitution. In April, a judicial investigation found probable cause to believe that Mr. Anderson was in criminal contempt for withholding the documents. On Friday, he pleaded no contest. In addition to receiving the jail sentence, he was disbarred and stripped of his law license.

This case may sound extreme, but prosecutorial misconduct is far too common, and the remedies for it, if any, usually come long after the harm has been done. Criminal defense lawyers have called for judges to issue a standard written order reminding prosecutors of their ethical duty and to warn them of contempt charges if they do not comply. Prosecutors should welcome this practice to reinforce professional standards and identify the wrongdoers among them.