Go Heat & other SDFLA News & Notes

1.  Lewis Tein and Paul Calli are dominating the proceedings before Judge Cooke.  The latest victory -- disqualification of the Tribe's lawyer -- is reported in the DBR:

She said Cortiñas as Lehtinen's former law partner would be familiar with all of the small firm's business with the tribe and agreed with Lehtinen that it amounted to an "unfair informational advantage."She said this perceived conflict was reason enough to disqualify Cortiñas. "How does it look for those on the outside who are not lawyers?" Cooke asked. "How do we police ourselves?"Cooke ruled Cortiñas did not violate ethics rules by representing the tribe after hearing similar issues while an appellate judge. Though she added his appearance "disturbs me."As a result, she ruled the Gunster firm was not disqualified from representing the tribe or its attorneys at the evidentiary hearing on sanctions.Cortiñas told Cooke before his disqualification that the tribe's former attorneys were afraid of his legal prowess. "The reason they really don't want me here is I know fraud cases very well," Cortiñas said.Cooke said the comment somewhat indicated the tribe may have had incompetent counsel in Roman and his associates.

2.  Check out this order from the 11th. The defendant's lawyer challenged (on rehearing) the fact that the panel had two visiting district judges.  The same panel consisting of only one active 11th Circuit judge said no problem.  Well, the court is getting Judge Rosenbaum now.  I wonder if the order allowing two visiting judges still applies.


3.  Meantime, Judge Rosenbaum's elevation has caused an emergency on the district court....

How's it looking for the new Georgia judges?

Not so good.  The Democrats might block Obama's deal.  From District Chronicles:

Democrats and civil rights advocates continue to express concerns over two of President Obama’s federal judicial nominees for Georgia’s northern district, who have suspect civil rights backgrounds.

 In a package deal with Republican United States Sens. Saxby Chambliss and Johnny Isakson from Georgia, President Obama nominated Julie Carnes and Jill A. Pryor to the United States Eleventh Circuit Court, Leslie Abrams to the United States Court of the Middle District of Georgia, and Michael Boggs, Mark Cohen, Leigh May, and Eleanor Ross to the Court of the United States Northern District of Georgia.

 If confirmed, Abrams and Ross would become the first Black women to serve lifetime appointments as federal judges in Georgia.

 However, Democrats and some progressive groups object to the nominations of Boggs and Cohen.

 The United States Senate Judiciary Committee held a hearing for the nominees where Democratic senators grilled Boggs, who is currently a judge on Georgia’s appeals court, over his voting record while he served in the Georgia state legislature.

 When questioned about his votes against removing the Confederate battle emblem from the Georgia state flag, Boggs said that although he found the Confederate symbol personally offensive, his constituents wanted the opportunity to vote on any changes to the state flag.

 Boggs also voted for legislation requiring doctors to list how often they provided abortion services. When senators questioned him about the public safety concerns associated with publishing such a list following decades of violence against doctors who performed abortions, Boggs said that he was unaware of that history at the time of the vote.

 A day before the hearing, Rep. David Scott (D-Ga.) said on the Tom Joyner Morning Show, “Here you have the architect and the attorney that defended photo ID voter suppression laws in Georgia, the very same laws the president is fighting all across the country” nominated to the federal bench in Atlanta where most of the Black people are.

 To have this being done by the first African-American president is shameful, it’s painful, and it hurts deeply.”

 Scott continued: “The president should have stood up to those Republicans and said, ‘No, I can’t do this to my people. You wouldn’t do it to George Bush. You wouldn’t have done it to Bill Clinton. Why are you doing it to me?’”

 When white students sued the University of Georgia over the school’s freshman admissions policy that used race as factor, Cohen scored a court victory in 2001 for affirmative action proponents who supported the university’s program, according to Brooks.

 Nearly a decade later, then-Georgia state Attorney General Thurbert Baker, asked Cohen to defend Georgia’s photo identification law for in-person voting that many voter’s rights advocates say discriminates against Blacks and the poor. Brooks said it was a move that likely provided Baker, who is Black, political cover.

 Brooks called Boggs and Cohen friends and said that he had no reason to oppose their nominations.

 “This isn’t the perfect deal, but I trust the president,” said Brooks. “If [the president] had a different hand of cards, the package would look different, but he’s doing the best that he can do under these circumstances.”

 Mary Frances Berry, former chair of the U.S. Commission on Civil Rights, says that President Obama held his ground and nominated Boggs and Cohen, assuming that the civil rights groups and Democrats in the Senate would go along with his decision.

 “The problem with that is that the advocacy groups believe that the president should fight harder to get the nominees that he wants. The president has a lot of power to make horse trades with people on things other than appointments,” said Berry. “There are always things that Senators want.

 Obama made the deal but some think the price is too high, said Berry.

Stay out of Brevard county!

This story is insane:

A judge allegedly struck a public defender Monday after a verbal confrontation in a Brevard County courtroom.

Judge John Murphy is accused of hitting Andrew Weinstock, according to the public defender's office.

During a court session, Murphy asked Weinstock to waive his client's right to a speedy trial, but Weinstock refused, the public defender's office said.

The confrontation leading up to the fight was captured on video.

"If I had a rock, I would throw it at you right now," Murphy said. "Stop pissing me off. Just sit down. I'll take care of it. I don't need your help. Sit down."

"I'm the public defender, I have the right to be here and I have a right to stand and represent my clients," Weinstock said.

"Sit down," Murphy said. "If you want to fight, let's go out back and I'll just beat your ass."

"Let's go right now," Weinstock said.

The two went into a hallway and Murphy allegedly grabbed Weinstock by the collar and started hitting him, according to the public defender's office.

Although off camera, the two can still be heard yelling at each other, with one of them saying, "You want to (expletive) with me?"

A Brevard County sheriff’s deputy stopped the fight.

The participants refused to press charges, and no arrests were made.

Video also shows the judge being applauded as he returned to the courtroom.

It's not known if the judge or public defender will face any disciplinary action.

Meantime, let's go HEAT:

Feds can't prosecute "unremarkable local offense"

That's what the Supreme Court said today in a very interesting opinion, Bond v. United States.  From Chief Justice Roberts' majority:

The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed. The nearly life-sized work depicts two lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.
     The painting reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I. That battle and others like it led to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings. Today that objective is reflected in the international Convention on Chemical Weapons, which has been ratified or acceded to by 190 countries. The United States, pursuant to the Federal Government's constitutionally enumerated power to make treaties, ratified the treaty in 1997. To fulfill the United States' obligations under the Convention, Congress en-
acted the Chemical Weapons Convention Implementation Act of 1998. The Act makes it a federal crime for a person to use or possess any chemical weapon, and it punishes violators with severe penalties. It is a statute that, like the Convention it implements, deals with crimes of deadly seriousness.
     The question presented by this case is whether the Implementation Act also reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband's lover, which ended up causing only a minor thumb burn readily treated by rinsing with water. Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. The Chemical Weapons Convention Implementation Act contains no such clear indication, and we accordingly conclude that it does not cover the unremarkable local offense at issue here.

ScotusBlog has this summary:

The Court appeared to bring to an end a case that even the Justices acknowledged was a “curious” one:  a federal criminal prosecution, with a potential life sentence, of a Pennsylvania woman because she sought revenge by spreading poison chemicals on surfaces that her husband’s paramour would touch — a door knob, a car door handle, the mailbox.  The other woman did touch one of those surfaces, and got a minor burn on a thumb – dealt with by rinsing her hand with water.
Although the prosecuted woman, Carol Anne Bond, may have violated a number of laws in her state, she actually was charged under state law only for making harassing telephone calls and letters, and state officials refused to accuse her of assault.  She had pleaded guilty to the federal crime of using a “chemical weapon,” on condition that she could later challenge the prosecution. She was convicted under the 1998 law, but Monday’s decision wiped out that result because the law did not even apply to what she did, according to the Court majority.
Aside from its own unusual facts, the case had attracted wide notice because it seemed to pose the ultimate question of just how far Congress could go, in regulating activity entirely inside the U.S., when it was enacting a law to carry out a global obligation that the federal government had assumed under a treaty.  In particular, the case raised a question about the continuing validity of a 1920 precedent, Missouri v. Holland, that had seemed to endorse sweeping congressional power to implement treaty promises.
But Chief Justice John G. Roberts, Jr., writing for himself and five other Justices, invoked the traditional practice of avoiding constitutional issues if not necessary to a decision, and chose to deal only with the question of whether Congress had meant to pass a law that was so nearly limitless that it would reach “a purely local crime” growing out of “romantic jealousy.”
‘The global need to prevent chemical warfare,” the Chief Justice wrote, “does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.   There is no reason to suppose that Congress — in implementing the Convention on Chemical Weapons — thought otherwise.”
Among other reasons that the majority felt driven to read the 1998 law narrowly was its view that, as applied to Carol Anne Bond’s case, the law meant a deep intrusion into the traditional authority of states to enforce criminal laws within their own jurisdictions.  The decision did not in any way seek to absolve her of criminal behavior, but stressed that this was a matter that state law could handle.

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.