"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

That's Ninth Circuit Chief Judge Kozinski dissenting from the denial of en banc review in U.S. v. Olsen.  He isn't happy with the panel:

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

Or the prosecutor:

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

Ho hum. 

At Judge Kopf's blog, he recommends having prosecutors turn over everything to the defense to make sure these complaints can't be lodged.  I've never heard a good response to this proposal.

Some other notes:

• Albert Lichy, Judge Huck's former law clerk, wrote an op-ed in the DBR, titled: DOJ's Shift in Corporate Prosecutions: Too Big to Ignore.  The conclusion:

A retreat of any degree from federal prosecutors' reliance on DPAs to resolve corporate criminal investigations would be utterly misguided. The risk of another Arthur Andersen-style collapse is much too high to justify any added measure of deterrence a criminal conviction offers. While many are quick to criticize the Justice Department for maintaining a de facto policy that some institutions are too big to jail or take to trial, few have offered a convincing argument for why the perceived benefit of a conviction outweighs its potential costs. Corporate defendants, unlike their individual counterparts, can't go to jail—however big or small. They don't suffer the same reputational harm as a branded criminal. Nor do they lose any fundamental constitutional rights. A conviction is purely symbolic. But in pursuing this symbolic gesture, prosecutors are needlessly creating the risk of emitting a systemic shock through the financial system—one that's too big to ignore.
The cautionary note Attorney General Eric Holder sounded in 2002 in arguing against the indictment of WorldCom is as appropriate today as it was then: "to ensure that even more innocent Americans are not harmed, prosecutors must not give in to the pressures of the day and feel compelled to indict more corporations simply because they can."

• Alyson Palmer is doing a great job covering the 11th Circuit appointment process.  Here are recent articles here and here covering how the Judge Rosenbaum may be confirmed quickly and who is being interviewed for the open Alabama seat (Judge Dubina).

One last thing -- Thanks again to everyone for their kind words and emails over the past week.  I really appreciate it.

RIP Richard Sharpstein

Jeez, what an awful week.

We lose another giant today, Richard Sharpstein, who was only 63.

One of the most fun people I have ever known.

Sharpie and my Dad are up there exchanging jokes right now and telling war stories.  I smile thinking about the two of them.

Damn.

R.I.P. Dad (UPDATED WITH SCHOLARSHIP INFORMATION)

I really feel strange posting about my personal life on the blog, but I just wanted to take a second and thank everyone for their emails, calls and notes about my dad, Stuart Markus.  He was such a good man.  I really can't think of a person that didn't love the guy. 

I also want to thank Dave Ovalle for writing this obituary, which captures a lot of great stories about him.

He was almost 60 in this picture.  60!  I wish I looked that good now.



And here he is recently, in his 80s:

 UPDATED--WE ARE SETTING UP A SCHOLARSHIP IN MY DAD'S NAME AT THE UNIVERSITY OF MIAMI LAW SCHOOL WHERE HE GRADUATED IN 1958.  DONATIONS CAN BE MADE AS FOLLOWS:

Stuart Markus Scholarship

University of Miami School of Law

Office of Law Development & Alumni Relations

PO Box 248087

Coral Gables, Florida 33124-8087

Donations can also be made online at this link:

https://advancement.miami.edu/NetCommunity/SSLPage.aspx?pid=196

Donors should select "Other" from the drop-down menu and type "Stuart Markus Scholarship" in the field to earmark the funds.

Thursday News & Notes (UPDATED)

1. Attorney Anthony Livoti Jr. was convicted in the Mutual Benefits case after a lengthy trial before Judge Scola.  He was also acquitted of 20 counts, but that won't help him much at sentencing.

2.  Judge Mark Bennett is (rightfully) railing on the federal sentencing guidelines.  Via CNN:

 Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. 

After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.

It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.

The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.

After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities.

3.  Didn't the AG say that he was trying to fix the sentencing problem?  Yes, but apparently, he is saying the right things but not actually doing much.  According to the Atlantic:

When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.
In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).
The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers.

4.  Here's a great story about how a reporter was able to break the Bonds grand jury testimony.  Right place, right time.  If you were the reporter's lawyer, would you have had the guts to tell him to go forward?

5.  Irfan Khan is suing the federal government for malicious prosecution.  Any chance to play this:




6.  Texas Rangers Leonys Martin Tapanes was apparently kidnapped and extorted, leading to federal charges.  The Herald has the details:

Leonys Martin Tapanes seemed like yet another Cuban baseball player with tremendous promise when he signed a $15.5 million contract with the Texas Rangers in 2011.
But there apparently is a darker story behind Martin’s climb from poverty to Major League Baseball success.
The U.S. attorney’s office in Miami on Wednesday charged three people — Eliezer Lazo, 40, formerly of Miami Lakes, Joel Martinez Hernandez, 37, formerly of Miami-Dade, and Yilian Hernandez, 30, of Hialeah — with conspiring to smuggle, kidnap and extort the 25-year-old Rangers outfielder.
The trio are also charged with smuggling 13 other Cuban baseball prospects to the United States — all of them going from Cuba into Mexico and then into the United States.
Yilian Hernandez, arrested Wednesday by Homeland Security and FBI agents, will have her first appearance in Miami federal court Thursday. Lazo and Martinez are currently serving respective prison sentences of five and seven years for 2012 money-laundering convictions related to Medicare fraud.

7. Finally, the blog gets a little shout out in the DBR for breaking the story yesterday on the two new federal judges being vetted:

The White House is vetting Miami-Dade Circuit Judges Beth Bloom and Darrin Gayles for two open positions on the federal bench in Miami, a legal blog reported.

The Southern District of Florida blog, which is associated with the Daily Business Review, said the judges were picked from among four finalists selected by the Florida Federal Judicial Nominating Commission in August. Miami-Dade Judges Peter Lopez and John Thornton rounded out those on the short list.

Both Bloom and Gayles are serving in the civil division.

The openings were created when U.S. District Judge Patricia Seitz took senior status last November and plans by U.S. District Judge Donald Graham to take senior status this month.

BREAKING -- The White House is vetting two district court candidates

A big congratulations to Beth Bloom and Darrin Gayles who are being vetted for the two openings on the district court bench in the Southern District of Florida.

Both are current state judges on the Circuit bench. Judge Bloom received her JD from the University of Miami in 1988, and Judge Gayles received his JD from George Washington in 1993.  Gayles has ties to the federal system as a former Assistant U.S. Attorney in the late 90s.  Both will make excellent federal judges. 

DBR covers AUSAs getting bought out

Here:

Five veteran South Florida federal prosecutors are taking buyouts, the Daily Business Review has learned.
The assistant U.S. attorneys who have opted to take the buyouts are Grisel Alonso, Kerry Baron, Carole Fernandez, Aloyma Sanchez and William White, according to sources.
Alonso, who served for 26 years, and Sanchez, who worked in the office for 23 years, were in the civil financial litigation unit when they took early retirement. Baron was a criminal prosecutor, White was in the national security section, and Fernandez was in the civil division handling most Freedom of Information Act litigation.
All were in the Miami office except for Baron, who worked in West Palm Beach.
Sanchez said the Justice Department offers buyouts on an irregular basis. The assistant U.S. attorneys who spoke to the Daily Business Review didn't want to talk financial specifics but said it included a $25,000 bonus.

The USAO, however, is in much better shape than the Federal Public Defender's Office, which has had its budget slashed, which has forced defenders to take lengthy unpaid furloughs, and which has had buyouts for an office one quarter the size of the USAO.

Cyber Monday

The ABA and Thomson-Reuters are even getting into it, offering whopping sales on landlord-tenant treatises and the like.  Wooohooo!

Rumpole is giving out free (and good!) trial advice.  No jury trials in January.  The conventional thinking is that the Thanksgiving to Christmas window is a wonderful time to try cases because jurors are more forgiving.  Thoughts?

Meantime, the Supreme Court can't find enough cases to hear.  From the WP:

It’s the result of a diminished docket at the court, one with the potential of a historic low. So far, the justices have found fewer cases than usual worthy of receiving full briefing and oral argument.
According to Scotusblog, the independent Web site that tracks the court’s proceedings, the justices are about 10 cases short of what they normally would have taken at this point of the term.
The court has almost total discretion over its docket and accepts about 1 percent of the petitions its receives. At least four of the nine justices must agree to take a case, and attorneys, law professors and legal experts love to speculate on why the court takes so few.
There’s the view that the law clerks who review the petitions are reluctant to suggest their bosses take a case, for fear the case might not turn out to be a good vehicle. There is a theory that the court’s deep ideological divide makes agreement difficult, or that the lack of major legislation from Congress gives the court less to interpret.
But some things simply haven’t worked out the way the justices planned. For instance, the court decided to examine Oklahoma’s new abortion restrictions. But first it asked for clarification from the state’s highest court on the breadth of Oklahoma’s law restricting drug-induced abortions.
When the state court said that the law would virtually eliminate all nonsurgical abortions, the Supreme Court simply let stand the lower court’s decision that it was unconstitutional. There was no explanation, but the justices apparently were looking for an opportunity to decide the more narrow issue on when the drugs could be prescribed.
Another case — on a fundamental civil rights rule that a public policy may be found discriminatory because of its results, rather than any biased intent — was scuttled when the lawsuit was settled just before oral arguments.
The court got rid of one case after it became clear during oral arguments that it had fundamental flaws that prevented the justices from deciding the broader issues at hand.
Justice Antonin Scalia scolded one of the lawyers in the age-discrimination case for not doing of better job of telling the court all the reasons “why we shouldn’t have taken it in the first place.”
In the parlance of the court, the case was DIGged — “dismissed as improvidently granted.”

Your Monday moment of zen:

Happy Thanksgiving!

Just a few things before the break:

1.  Attorney Frank Excel Marley III was convicted yesterday.  Paula McMahon explains:

A South Florida lawyer was found guilty Tuesday of stealing about $1.3 million from the Seminole Tribe of Florida in a fraud conspiracy that went on for several years.
Frank Excel Marley III, 39, of Southwest Ranches, was convicted of one count of wire and mail fraud conspiracy and six counts of theft from Indian tribal organizations after a jury trial in federal court in Fort Lauderdale. The jury found him not guilty of three other counts of theft from the tribe.
Prosecutors told jurors that Marley had submitted bills to the tribe – that were inflated by more than $1 million – in a conspiracy that went on between 2006 and 2011.
Marley, who has been free on bond since his arrest earlier this year, was released pending his sentencing on Feb. 21.

2.  Curt Anderson has this interesting story about a blast from the past:

Federal drug agents are investigating a Florida aircraft leasing business operated by two former champion race drivers who are suspected of providing airplanes to South American drug traffickers, according to court documents and interviews.
Agents from the U.S. Drug Enforcement Administration, FBI and Homeland Security Department raided the Fort Lauderdale offices Monday of World Jet Inc., which is controlled by brothers Don and Bill Whittington. They raced in the Indianapolis 500 and other tracks, teaming up with a third driver to win the France's 24 Hours of Le Mans race in 1979.
Later, both brothers pleaded guilty for their roles in a $73 million marijuana smuggling ring that authorities said financed their racing careers.
Now, according to a DEA search warrant affidavit that relies on several confidential informants, the Whittingtons are suspected of illegally leasing aircraft from Florida to cocaine cartels and laundering drug-related profits through a hot springs resort hotel and a ranch in Colorado.
Mia Ro, a DEA spokeswoman in Miami, confirmed her agency is leading the investigation but declined to provide details. Agents were seen carrying boxes of records and other items from World Jet's offices at Fort Lauderdale Executive Airport on Monday.
No charges have been filed. An employee at World Jet hung up Tuesday when telephoned for comment, and the Whittingtons did not respond to email messages. It wasn't clear if they had attorneys related to the DEA probe.
According to the DEA, World Jet leases or sells aircraft to drug traffickers in Colombia, Venezuela, Mexico and Africa at inflated prices, keeping the plane under the Whittington name or that of a third party and maintaining a U.S. tail number. After a certain period, the aircraft is returned to World Jet.
"In the event that the aircraft is seized pursuant to a narcotics interdiction, both parties can deny responsibility and World Jet Inc. can reclaim the aircraft," the DEA said in the affidavit, filed in Colorado federal court.

 While we are thinking about old times, here's a good one from the Wire: