"At the cost of being blunt, permit me to resort to scatological commentary to tell you Joel that you're about the most untrustworthy, double-dealing sack of s--t I've met I can't remember how long."

That's your quote of the day from a bankruptcy court filing by Sandy Rosen, a retired attorney and bridge player, in a letter to Joel Tabas.  John Pacenti covers the story here.

Oh, and FYI:

sca·tol·o·gy  (sk-tl-j, sk-)n. pl. sca·tol·o·gies

1. The study of fecal excrement, as in medicine, paleontology, or biology.

Great New York Times articles this weekend

The first is Adam Liptak's look at how two different jurisdictions are trying new approaches to make sure Gideon's promise is upheld:

Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.

The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.

The county calls it “client choice.” Another name: Gideon vouchers.

In Washington, Judge Robert S. Lasnik drew on Supreme Court decisions involving school busing and prison overcrowding to impose a federal monitor on two Washington cities that had, he found, failed to provide meaningful representation to poor criminal defendants.

Judge Lasnik, of the Federal District Court in Seattle, found that the cities of Mount Vernon and Burlington had effectively instituted a “meet and plead” system in which lawyers handling 500 cases at a time would “often meet their clients for the first time in the courtroom, sometimes with a plea offer already in hand.”

“The system is broken to such an extent,” he wrote, “that confidential attorney-client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.”

The second is an editorial about how bad prosecutorial misconduct has become and urging something to be done about it:

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”       

***

 Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence “so long as it’s possible the defendant would’ve been convicted anyway,” as the judge wrote. This creates a “serious moral hazard,” he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.       

Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.

The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving “the public’s trust in our justice system,” and the foundation of the rule of law.

I have been calling for open file reform for a long time and have never heard a good response about why we shouldn't have open files from the government.  If any current prosecutor would like to debate this issue, I will set it up with one of the local organizations.

Time to pay your dues

Just in case you didn't get the e-blast today from the Clerk's office:

Pursuant to Administrative Order 2012-4, all members of the Bar of the USDC-SDFL, are required to pay a renewal fee of $25.00 starting in 2012, and every other year thereafter. The Court will begin accepting fees for the 2014 renewal cycle on or aboutJanuary 6, 2014. Failure to pay the 2014 renewal fee before the deadline of April 14, 2014, will result in a $50 late fee and deactivation of the attorneys CM/ECF account. If 2012 renewal and late fees are not paid by April 14, 2014, the attorney will no longer be a member of the USDC-SDFL Bar and must reapply for membership. Please visit our website [www.flsd.uscourts.gov] for information

New beginnings

The courthouse is open, but it's going to be a very quiet Thursday and Friday.  For those of you working, you can check out the Chief Justice's report on the judiciary here.  Here's a fun and depressing snippet:

The year’s end brings predictable constants, including the revival of favorite phantoms —Scrooge’s ghosts and George Bailey’s guardian angel — who step out from the shadows for their annual appearance and then fade away.  Who doesn’t welcome the familiarity of the seasonal cycles, or retelling classic stories that, at their core, contain important truths? There are, however, some cycles from which we would all wish a break.  At the top of my list is a year-end report that must once again dwell on the need to provide adequate funding for the Judiciary.

I would like to choose a fresher topic, but duty calls.  The budget remains the single most important issue facing the courts.  This year, however, let’s take a page from Dickens and Capra.  Let’s look at what has made our federal court system work in the past, what we are doing in the present to preserve it in an era of fiscal constraint, and what the future holds if the Judiciary does not receive the funding it needs....

After rising four percent in 2012, filings in the regional courts of appeals dropped two percent to 56,475 in 2013.  Appeals involving pro se litigants, which amounted to 51 percent of filings, fell one percent.  Criminal appeals decreased 13 percent....

Filings for criminal defendants (including those transferred from other districts) decreased three percent to 91,266.  Excluding transfers, fewer defendants were reported for most types of major offenses, including drug crimes.  Filings for defendants charged with immigration violations dropped five percent.  The southwestern border districts accounted for 75 percent of the nation’s immigration defendant filings.  Defendants prosecuted for sex offenses rose 10 percent.  There also were increases in defendants charged with violent crimes and regulatory offenses....

The 131,869 persons under post-conviction supervision on September 30, 2013, was less than one percent below the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions increased one percent to 109,379 and constituted 83 percent of all persons under supervision. Cases opened in the pretrial services system in 2013, including pretrial diversion cases, declined six percent to 103,003.

Or maybe you want to read this 11th Circuit unpublished per curium opinion.  Below is the intro, and I bet you can guess who wrote it (thanks to my tipster for sending this along):

The defendants in this case participated in a multi-state prostitution
enterprise involving spas where the masseuses offered to provide clients with “happy endings” in exchange for cash. The scheme, however, did not end happily for the five defendants who brought this appeal. A jury ultimately convicted all five of them –– Alexandr Postica, Aleksandra Liubina, Natalia Federova, Alina Priadko, and Saida Babaeva –– of aiding and abetting a violation of the Travel Act, 18 U.S.C. § 1952(a), and of conspiring to violate the Travel Act. Postica was also convicted of conspiring to violate three additional statutes: 8 U.S.C. § 1328, 8 U.S.C. § 1324a(a)(1)(A), (a)(2), and 18 U.S.C. § 2421. The other four defendants in this appeal were not charged with conspiring to violate those three other statutes. The district court sentenced Postica to concurrent terms of 15 months imprisonment while the other four defendants were sentenced to time served. They now appeal their convictions on various grounds. The defendants challenge their convictions, not their sentences.

 Judge Kopf has ended his excellent blog, which is a shame.  Here's the last post, and sone of his concluding remarks:

Before I conclude this last post, I wish to make several points:

• I am not quitting because of ethics concerns. Such problems are real, but vastly overblown. A thoughtful judge has about the same chance of violating the Code of Conduct when writing a book, giving a speech, authoring a law review article or writing a blog post.

• Conspiracy buffs need not fret and anti-judge nuts need not cheer. No one has given me the slightest trouble about expressing myself here. I am quitting voluntarily and without a nudge from anyone.

• Although I am truly worn out, I am OK. I am not quitting because of health reasons.

• This is a powerful medium for, among other things, making federal trial judging transparent and for trying to wrap one’s arms around the conundrum of judicial role.. I hope some other federal trial judge takes up that hard but enormously satisfying labor.

• I look forward to commenting on other blogs now that I am out of the biz.

• To my astonishment, I have made several, perhaps many, friends along the way. I will maintain the e-mail address for the site, and I welcome hearing from these kind, smart (Oxford comma coming but just for fun), and thoughtful people. But, I don’t promise to respond as quickly as before. The foregoing said, you and each of you have my sincere thanks. Readers have taught me many valuable lessons about how to become a better judge and human being.

• I will keep the blog “alive” for archival purposes, but nothing more. I will shut down the comment section in a week or so.

Happy New Year SDFLA!

Justice Sotomayor was asked to participate in the festivities in New York. From the LA Times:

New York City is going to kick in the new year with one of its own: U.S. Supreme Court Associate Justice Sonia Sotomayor, a native of the Bronx, has been tapped to lead the Times Square countdown on New Year's Eve on Tuesday.

The announcement was made Sunday by the organizers of America's highest-profile New Year's Eve event, which typically features star performances and always concludes with the dropping of a ball to mark the stroke of midnight.

Sotomayor -- who grew up in the Bronx housing projects and became the first Latina on the nation's highest court in 2009 -- will push the button to start the dropping of the ball, and will lead the final 60-second countdown to the new year, organizers said.

“Justice Sotomayor is an inspiration to many, and it is a privilege to welcome her to our celebration to ring in 2014,” Times Square Alliance President Tim Tompkins said in a statement. “Who better to join us in the Crossroads of the World than one of New York’s own?”

Sotomayor won't be the only Latina to play a high-profile role at the ceremony, with musical artists El Dasa and Jencarlos Canela among the musicians giving performances in the closing hours of 2013.

Rap duo Macklemore & Ryan Lewis and Miley Cyrus were also scheduled to perform. 

Best posts of 2013

By far the post with the most hits this year was "Local AUSA Mike Garofola to be on The Bachelorette," (with over 20,000 hits) followed by "Go, Dore, Go" (which was about his novel motion to compel NSA records, with almost 15,000).  Make your own conclusions about the readership... 

But before you do, know that other top hit posts were mostly the scoops regarding JNC lists, judges, and magistrates --  including Robin Rosenbaum being vetted for the 11th Circuit seat and the Rubio/Thomas blue slip controversy.  With these posts in particular (of the almost 2,500 in total), the blog was able to fulfill its mission of getting District news out quickly and accurately to the local federal court family.  

  

Miami Herald op-ed on Sen. Rubio

It's here.  Of relevance to this District:

The nomination of Miami-Dade Circuit Judge William Thomas to fill a federal judicial vacancy is illustrative. Mr. Thomas, if confirmed, would become the first openly gay black man to serve on a federal bench. After first recommending him, Sen. Rubio withdrew support, citing concern over two rulings — even though a prosecutor whom the judge ruled against in one case wrote the senator in support of Judge Thomas. Mr. Rubio’s office points out that he has supported some of President Obama’s judicial picks; critics say opposition to Judge Thomas is rooted in anti-gay politics.
As 2016 approaches, the presidential campaign will pick up speed. Given Sen. Rubio’s obvious political appeal, he should be a strong contender for his party’s nomination if he chooses to run, but his political calculus should not require support for an agenda that does not fit the needs of a large, diverse state like Florida.

Read more here: http://www.miamiherald.com/2013/12/21/3830328/rightward-shift.html#storylink=cpy

Some Holiday goodies

1.  George Will is ripping min/man sentences in this Washington Post article:

Thousands of prisoners are serving life without parole for nonviolent crimes. Gleeson, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as “sledgehammers” to extort guilty pleas, effectively vitiating the right to a trial. Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. “Judging is removed,” Gleeson says, “prosecutors become sentencers.” And when threats of draconian sentences compel guilty pleas, “some innocent people will plead guilty.”
Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy (D-Vt.) and Rand Paul (R-Ky.) are questioning the regime of mandatory minimum sentences, including recidivism enhancements, that began with the Anti-Drug Abuse Act of 1986. Meanwhile, the human and financial costs of mass incarceration mount. 

2.   The 11th Circuit came out with a big Christmas present for Dudley Bryant -- a habeas win on a Begay/savings clause issue:

Petitioner Dudley Bryant appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas petition, brought pursuant to the “savings clause” in 28 U.S.C. § 2255(e). Bryant’s appeal presents the issue to which this Court alluded in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), and subsequently left undecided in Gilbert v. United States (Gilbert II), 640 F.3d 1293 (11th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1001 (2012), and Williams v. Warden, 713 F.3d 1332 (11th Cir. 2013). The issue is whether the savings clause in § 2255(e) permits a federal prisoner to bring a § 2241 petition when he has established that his current 235-month sentence for an 18 U.S.C. § 922(g) conviction exceeds the 10-year statutory maximum penalty authorized by Congress under 18 U.S.C. § 924(a).
When a conviction has become final, a federal prisoner usually may challenge the legality of his detention only through a § 2255 motion. However, the savings clause in § 2255(e) permits the prisoner to file a § 2241 habeas petition when a § 2255 motion was “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). After review of the record, the briefs of the parties and the amicus, and having the benefit of oral argument, we conclude Bryant has satisfied the savings clause’s requirements in § 2255(e).
Bryant has proven that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention” and that his § 2241 petition can now proceed under § 2255(e) because: (1) from the time of his initial sentencing in 2002 throughout his first § 2255 proceeding in 2005, our Circuit’s binding precedent in United States v. Hall, 77 F.3d 398, 401-02 (11th Cir. 1996), held that a concealed-firearm offense under Fla. Stat. § 790.01 was a “violent felony” under § 924(e) and squarely foreclosed Bryant’s claim that he was erroneously sentenced above the 10-year statutory maximum penalty in § 924(a); (2) subsequent to Bryant’s first § 2255 proceeding, the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), set forth a new standard to evaluate which crimes constitute violent felonies under § 924(e), and Begay, as interpreted by United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), and United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009), overturned our Circuit precedent in Hall; (3) Begay’s new rule is substantive and applies retroactively to Bryant’s § 924(e) claim on collateral review; (4) as a result of pure § 924(e)-Begay error and retroactive application of Begay, Bryant’s 235-month sentence exceeds the 10-year statutory maximum authorized by Congress in § 924(a); and (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum penalty. Accordingly, we vacate the district court’s dismissal of Bryant’s § 2241 petition and remand with instructions set forth herein.
We first review the procedural history of Bryant’s case, the savings clause in § 2255(e), and our Circuit’s prior rulings about § 2255(e). We then summarize the five specific requirements a § 2241 petitioner must satisfy to proceed under § 2255(e) and explain why Bryant has satisfied them.

3.  President Obama's six (!) nominees are ready for confirmation.  Georgia Democrats are not happy about the lack of diversity and the deal cut with Republicans, but it looks like that ship has sailed.  From the Daily Report:

President Barack Obama's six federal judicial nominees in Georgia appear poised for Senate consideration after years of delay in filling seats on the U.S. Court of Appeals for the Eleventh Circuit and U.S. District Court for the Northern District of Georgia.
The White House announced late Thursday that Obama had selected Northern District Chief Judge Julie Carnes for the Eleventh Circuit. The president also tapped four lawyers and judges to fill spaces on the Northern District, including one to replace Carnes, a 1992 appointee of President George H.W. Bush.
Those five nominees join Jill Pryor, a partner at Bondurant, Mixson & Elmore who was nominated by Obama for the Eleventh Circuit nearly two years ago. She was blocked by Georgia Sens. Saxby Chambliss and Johnny Isakson, but they appear to back all six nominees now.
The district court nominees are Judge Michael Boggs of the Georgia Court of Appeals, Mark Cohen of Troutman Sanders, Leigh Martin May of Butler, Wooten & Fryhofer, and Judge Eleanor Ross, a DeKalb County State Court judge.