Your moment of Zen for Monday morning

Judge Gleeson is awesome

He is pushing the U.S. Attorney's Office in the EDNY to cure an injustice related to the trial tax:

  Because clemency is not a realistic option, the United States Attorney is respectfully requested to reconsider her decision not to agree to an order vacating two or more of Holloway’s 18 U.S.C. § 924(c) convictions. The onerous enhancement in § 924(c)(1)(c) for “second or subsequent conviction[s]” under § 924(c) masquerades as a recidivism enhancement, but when the “second or subsequent” conviction occurs in the very same case as the first one, as they did here, the result is frequently a manifestly unjust mandatory sentence with a disparate impact on black men.1 Holloway deserved harsh punishment for his three robberies, but no one can reasonably contend that his mandatory sentence was not excessive.
The case will be called for a status conference on June 20, 2014, at 2:00 p.m. The government is respectfully directed to take the steps necessary to produce Holloway in court at that time. Harlan Protass is appointed pursuant to the Criminal Justice Act to represent Holloway. Once again, I ask the United States Attorney to exercise her discretion to permit me to reopen the sentence in this case to do justice.In the absence of a government agreement to reopen the sentencing, I will address the pending application to reopen Holloway’s collateral challenge to his conviction. The extraordinary trial penalty in this case may warrant further briefing on the constitutional issues raised by such a use of prosecutorial power. In addition, though I long ago rejected a claim of ineffective assistance of counsel based on trial counsel’s admission in his opening statement that Holloway in fact robbed the three victims of their cars, upon further reflection I may direct a closer inspection of that issue as well.

 Fantastic. 

The Attorney General should be applauded for taking steps (even if they are small steps) to fix the ridiculous sentences and incarceration rates in the U.S., but we need more judges like Gleeson who is willing to tell it like it is.

Should judges participate in plea discussions?

The Rules and 11th Circuit have an absolute ban on the practice.  But Judge Jed Rakoff persuasively argues that we should make a change:

Too many innocent people go to prison because the American plea bargain process is broken, says a prominent New York judge with an innovative new solution.
Manhattan Federal Judge Jed Rakoff argues judges should become more involved in the process so prosecutors armed with harsh mandatory minimum sentences are less able to bully defendants, he told the Daily News in a rare sit-down interview.
"The current process is totally different from what the founding fathers had in mind," because nearly all cases end in pleas, he said.
Nationwide, 97% of federal defendants plead guilty instead of taking their chances at trial. Thirty of 316 convicts exonerated by DNA evidence had entered a guilty plea, according to the Innocence Project.
The current system forces defendants to "choose between Satan and Lucifer," says Rodney Roberts, a Newark man exonerated this year on charges related to a sexual assault after 17 years in prison.
"I knew I didn't do it, but I didn't want to be in prison for the rest of my life," Roberts said. "They made me believe they were ready to enforce a life sentence.”
That's why Rakoff is proposing a mechanism that would designate junior judges to hear evidence and issue plea bargain recommendations early on in cases.
The junior judges, called magistrate judges in the federal system, would hear from prosecutors and defense lawyers separately before weighing in. Their recommendations wouldn't be binding.
Rakoff says the setup, which could begin as a pilot program, would bring plea bargaining out from behind closed doors and relieve pressure on defendants deciding whether to risk a longer sentence by heading to trial.
"There are some people who will say, 'I'm innocent and I'm going to fight to the end,' but they're the exception," Rakoff observed.
Rakoff would most like to see Congress trash mandatory minimums, but isn't holding his breath. He says an all-out elimination just isn't politically feasible.

Our state system allows the practice and the sky hasn't fallen.  What do you think?

Tuesday news and notes

Welcome back everyone.  Some happenings:






1.  Judge Rosenbaum's cases should be reassigned this week and next.  Look out for the notices.






2.  There were more Rothstein pleas last week.  Is this still news?






3.  Did you know that Supreme Court cases get revised after they are published?  The NY Times explains:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.                    

The larger point, said Jeffrey L. Fisher, a law professor at Stanford, is that Supreme Court decisions are parsed by judges and scholars with exceptional care. “In Supreme Court opinions, every word matters,” he said. “When they’re changing the wording of opinions, they’re basically rewriting the law.”

4.  Justice Ginsburg performed the wedding for an old client of hers.  Great story, and here's the intro:

Stephen Wiesenfeld’s first collaboration with Ruth Bader Ginsburg at the Supreme Court was in 1975.
She was a Columbia Law School professor, head of the American Civil Liberties Union’s Women’s Rights Project and making a name for herself as the lawyer systematically prodding the court to rewrite its jurisprudence concerning gender equality.

Wiesenfeld was a young father whose wife had died in childbirth, leaving him with a son he loved and a grievance with his government, which he felt had done him and his family an injustice.
The result of their lawsuit was a unanimous victory for Wiesen­feld and an important link in the landmark chain of cases Ginsburg brought to get rid of laws she felt made irrational distinctions between men and women.
The two met again at the Supreme Court on Saturday, nearly 40 years later. Ginsburg, of course, is now the court’s senior liberal justice.
And Wiesenfeld was a 71-year-old groom.
Ginsburg officiated at Wiesen­feld’s marriage to Elaine Harris in front of family and friends, including Jason Wiesenfeld, the little boy at the center of Weinberger v. Wiesenfeld.
“I’ve kept up over the years with all of them,” Ginsburg said in an interview last week, referring to the clients in the cases she either briefed or argued before the Supreme Court in the 1970s. 

5.  One of the few areas that the 11th Circuit consistently reverses trial judges on is sentencing guideline determinations without the requisite proof.  Here's one dealing with loss calculations that originates from the SDFLA, U.S. v. Isaacson.

Rothstein dominoes

Stu Rosenfeldt is the latest domino to fall, again to a 5-year cap.  If he hadn't cooperated and agreed to plead, what would he have been facing after a trial?  How do you feel about this sort of charge-bargaining?

Anyway, have a great Memorial Day weekend.  See you Tuesday.

"Mozie’s home was a den of degradation."

That's one of the opening lines in Judge Carnes' opinion in United States v. James Mozie.  I'm sure you can bet how this one is going to come out.... But just in case there was any doubt, here's the whole intro:

James Mozie hosted “parties” at his house six days a week, every day but Sunday. With the help of his family members, including his teenage sons, he sold food, alcohol, and drugs to his party guests. He also sold sex, providing young girls who would strip for tips and have sex for money. Many of them were teenagers and one was only thirteen. For them Mozie’s home was a den of degradation.
Mozie found the teenage girls he used by posing as a benevolent businessman who ran a modeling agency. He was anything but benevolent and no respectable business would have been named, as his was, “Pretty Pink Pussy Enterprises.” Mozie preyed on vulnerable girls, many of whom were teenage runaways with no money and no shelter. In return for alcohol, drugs, and a place to stay, the young girls became what he called his “merchandise.”
Mozie’s brothel business led to a ten-count indictment charging him with eight counts of child sex trafficking, one count of conspiring to commit child sex trafficking, and another count of producing child pornography. He was convicted on all ten counts and sentenced to life imprisonment. This is Mozie’s appeal in which he raises three challenges to his convictions and two challenges to his sentence.

Judge Moreno moving on up...

Although Judge Moreno will be stepping down as Chief Judge this summer (and handing the baton over to Judge Moore), he will still be very active for the Circuit. The Circuit and District judges of the Eleventh Circuit have just elected Judge Moreno to be the next district judge member of the Judicial Conference of the United States from the 11th Circuit.

Congratulations to Judge Moreno.

How much time should Christina Kitterman get? (UPDATED)

UPDATE -- KITTERMAN SENTENCED TO 5 YEARS.

Paula McMahon has the preview of the sentencing here. 

When Scott Rothstein's former protegee Christina Kitterman went to trial earlier this year, she became the only one of his associates — so far — to roll the dice and force prosecutors to prove their case.
It didn't work out for her. Jurors found her guilty of three counts of wire fraud for impersonating a Florida Bar official during an April 2009 conference call that federal prosecutors said kept Rothstein's massive Ponzi scheme alive for its final six months.
Kitterman is facing a very uncertain fate when she is sentenced Tuesday in federal court in West Palm Beach.
Sentencing guidelines recommend a punishment of 20 years in prison, her defense attorney Valentin Rodriguez Jr. said, but he hopes U.S. District Judge Daniel T.K. Hurley will sentence her to probation.
"She had to endure Scott Rothstein for many years, which is punishment enough," Rodriguez wrote in court records submitted to the judge.
Kitterman is a convicted felon, will lose her license to practice law and was "blacklisted in the legal community," Rodriguez wrote.

How much time should Kitterman get?
	To the moon -- 20 years
	20 years is too much, but she should get a significant sentence
	5 years, like many of the co-defendants who pleaded guilty, sounds about right
	Probation because as her lawyer says, she has suffered enough
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