Should Judge Fuller resign?

Another district judge and blogger -- Judge Kopf -- strongly says yes:

I would not waste the effort trying to impeach him. I know something about impeachment having actually tried such a case before the Nebraska Supreme Court where I sought to oust Nebraska’s Attorney General. I doubt that you would ever get the House to act and any such action would probably not succeed as a legal matter even if you did. By the time it got to trial in the Senate, under his plea deal, the conviction would no longer exist. It will have been erased.
Instead, the Chief Judge of the Circuit and the Circuit Judicial Council should strip him of his ability to hear cases for as long as the law allows. See 28 U.S. Code § 354(a)(2)(A)(i) (“ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint”). They should also publicly reprimand him and formally request that he resign. Id.§ 354(a)(2)(A)(ii-iii) & § 354(a)(2)(B)(ii). Pay him forever as an inducement to resign–the statute gives them that leverage. I don’t care. That’s chump change. Just neuter him for as long as possible. Approach this process practically and quickly. But be tough.
I don’t care about punishing Judge Fuller. I don’t want to hurt his family. I just want him off the bench for as long as possible. Why? It is very simple. Given what happened in that hotel room, no one should trust his judgment in a federal trial courtroom. That courtroom is a hallowed place where trust in the one person wearing a black robe is absolutely indispensable.*
*By the way, this has nothing to do with the Ray Rice case.

I see that Kopf says that this has nothing to do with the Ray Rice case, but this is bad timing for Fuller of course.

I also wonder whether Judge Kopf thinks any federal judge who enters into a diversion program should resign?  What about marijuana possession?  What about DUI? (Sadly, these things happen with some regularity in Florida state courts...)


What say you?

Ana Alliegro sentenced to time served

She was represented by Richard Klugh.

Marc Caputo has the story here of the sentencing:

The federal investigation into former Congressman David Rivera took another major step Wednesday when his close friend and political ally was sentenced for her role in allegedly helping him break campaign finance laws.

"I took responsibility," Ana Alliegro said in court before she was sentenced to six months of house arrest and two years of probation after serving six months in jail.

"I owe the voters of Florida ... a huge apology," she said.

U.S. District Judge Robert Scola indicated he would have sentenced Alliegro to more time in prison — at least 18 months total and as much as five years — if she had gone "rogue" and not coordinated with Rivera.

Scola suggested Rivera wasn't acting like a man.

"Some might call it sexism [but] the man should come forward and not let the woman do time," Scola said.

Jose Padilla to be re-sentenced this morning (UPDATED WITH SENTENCE)

Judge Cooke still has the case, this time on remand after the 11th Circuit said 17 years wasn't enough. Padilla couldn't have asked for a better lawyer to represent him this morning -- he's got the FPD Michael Caruso. Paula McMahon has the details:

Padilla, 43, was convicted of conspiracy and providing support for a terrorism group. He's already spent more than 12 years in solitary confinement, enduring some of the harshest incarceration conditions ever imposed on a U.S. citizen.

If prosecutors get what they want, Padilla — a broken man, his lawyer says — could be in for even more punishment.

Padilla is scheduled to be re-sentenced Tuesday after an appeals court ruled that the 17 years and four months imprisonment initially imposed by U.S. District Judge Marcia Cooke was not enough. That punishment would have seen him released in May 2022, at age 51.

Prosecutors have agreed to recommend a prison term of no more than 30 years for Padilla, who converted to Islam in a Broward jail in the 1990s, was recruited at a Sunrise mosque and later signed up for al-Qaida training. The prosecution suggests the minimum he could legally get is 20 years and 10 months.

Padilla's lawyer, Federal Public Defender Michael Caruso, did not say exactly how much punishment he should face, instead highlighting the extraordinarily severe treatment Padilla has received at the hands of government operatives. That mistreatment, he said, merits a lesser penalty.

In a break from legal tradition, Caruso repeatedly refers to Padilla by first name in the court filings, an attempt to humanize him.

The defense portrays Padilla as a middle school dropout and fast food restaurant worker who was easily manipulated by sophisticated terrorist operatives.

Most importantly, Caruso wrote, Padilla has been completely broken and subdued by aggressive and "inhumane" tactics, including constant isolation.

"Jose has always been peaceful and compliant with his captors. He was, and remains to the time of this [court] filing, docile and resigned," Caruso wrote.

"Many of the conditions Jose experienced were inhumane and caused him great physical and psychological pain and anguish … All of the deprivations and assaults … were employed in concert in a calculated manner to cause him maximum anguish and to 'break' him," Caruso wrote. "As is evident to anyone who has had any contact with Jose in the ensuing years … [it has] succeeded."

Can you imagine these conditions:

At the brig, the defense said Padilla was held in solitary confinement with no access to a lawyer, his family or the outside world. The intent: "to maximize his disorientation, discomfort, hopelessness, and despair."

According to court records, interrogators assaulted and screamed at him, shackled him for hours in "excruciating stress positions," and threatened to kill him. They also used extreme temperature changes, glaring lights and darkness to disorient him, confined him to a windowless cell and injected him against his will with substances they said were truth serums, the defense wrote.

In America? Yup, and it hasn't stopped:

The harsh treatment of Padilla continued after his sentencing, the defense wrote.

Padilla has been in solitary confinement at the Federal Detention Center in downtown Miami awaiting re-sentencing for the past two years.

But he was kept in the notorious "Supermax" federal prison in Florence, Colo. — which one former warden called "a clean version of hell" — from 2008 to late 2012. He will likely be sent back there after Tuesday's re-sentencing.

Padilla spends 24 hours a day in solitude in a cell the size of a small bathroom, with just five hours a month of exercise in an outdoor cage that Supermax inmates call "the dog run." He's allowed no physical contact visits and just one monthly "social" phone call.

Nevertheless, the prosecutors are asking for 30 years this morning.

UPDATE -- Judge Cooke sentenced Jose Padilla to 21 years, which is what Caruso asked for and 9 years less than the government's request.

Jill Pryor confirmed to 11th circuit 97-0

Congrats to Judge Pryor.

We now have two judges named Carnes and two judges named Pryor.

I had always hoped for two Barketts...

"I reached this difficult decision after consulting with my family, and deciding that it was in everyone's best interests to put this incident behind us."

That was District Judge Mark Fuller after taking pretrial diversion on his domestic battery case.  The question now is what will happen to the 11th Circuit's order reassigning all of his cases. 

More from the Atlanta Journal & Constitution on the plea:

“I reached this difficult decision after consulting with my family, and deciding that it was in everyone’s best interests to put this incident behind us,” Fuller said in a statement released by one of his attorneys. “While I regret that my decision means that the full and complete facts regarding this incident will likely not come out, I have no doubt that it is what is best for all involved.”
Fulton County Chief Magistrate Stephanie Davis set an Oct. 14 court date for Fuller to provide proof he had received alcohol and drug treatment and enrolled in a 24-week program for those accused of domestic violence. It is then that the charge from an Aug. 9 incident at The Ritz-Carlton will be dropped. He also cannot have any “violent contact” with his wife, Davis said during the Friday court hearing.
“This incident has been very embarrassing to me, my family, friends and the court,” said Fuller, 55, who has presided in the federal court in the Northern District of Alabama since President George W. Bush appointed him in 2002. “I deeply regret this incident and look forward to working to resolve these difficulties with my family, where they should be resolved.”
Last month, Fuller’s wife called 911 to report he was beating her, police said. Moments later, an Atlanta police officer knocked on the Fullers’ hotel room door.
According to a police report, the judge’s wife had lacerations to her mouth and forehead and she said her husband had thrown her to the ground, pulled her hair and kicked her after she confronted him over an alleged affair her husband was having with a law clerk. Fuller’s wife told police that he dragged her around the room “and hit her several times in the mouth with his hands.”
Fuller told police his wife threw a glass at him and that he was defending himself. “When asked about the lacerations to her mouth, Mr. Fuller stated that he just threw her to the ground and that was it,” the report stated.
Fuller had no visible injuries, according to the report.
According to a transcript of the 911 phone call, Fuller’s wife pleaded for help.
“He’s beating on me,” she told a dispatcher before requesting an ambulance. “Please help me.”

BREAKING -- JNC CUTS LIST TO 3 FOR OPEN DISTRICT SEAT (UPDATED)

And those three are:

Mary Barzee-Flores
Peter Lopez
Barry Seltzer

Congrats to the finalists.  Now it's up to Nelson/Rubio and Obama for the nomination.

Update -- Apparently, the Herald sat through the interviews and posted this editorial about the appointment process:

The three South Florida finalists advancing for consideration for a coveted opening on the federal bench in the Southern District are to be congratulated. They’ve earned it.

On Thursday, they, along with other aspirants to the prestigious, lifetime appointment, sat on the hot seat in a large conference room on the 14th floor of the Wilkie D. Ferguson Jr. U.S. Courthouse in downtown Miami.

A member of the Miami Herald Editorial Board was present as the 20-plus members of the Florida Judicial Nominating Commission quizzed and grilled the 15 candidates for 25 minutes each, the final phase of a long process that began in July for the privilege of having their names recommended to Florida’s two U.S. senators.

In this race, voters did not pick the winner; the blue-ribbon panel made up of local legal eagles and community leaders had the honor — and somehow that seemed right and how, perhaps, it should be done for all judicial races.

The different selection processes for state and federal judges — the first are generally elected, the latter selected — highlighted the anemic slate of judicial candidates and bitter races with plenty of mudslinging that played out in Miami-Dade and Broward last month. Judicial decorum was missing among a number of candidates.

Many of the eight contested circuit and county races in Miami-Dade were marked by the emergence of political committees supporting judicial candidates. Rival committees sent out biting attack mailers, unsavory in a judicial race, and scary — these are nonpartisan races in which candidates can only promise to follow the law. The most bitter contest pitted former Miami-Dade School Board member Renier Diaz de la Portilla against Veronica Diaz, an assistant attorney with the city of Miami. She eventually won.

Race and ethnicity also came into play, as has happened in the past. For example, the supporters of incumbent Miami-Dade Circuit Judge Rodney “Rod” Smith, who is black, accused unsuccessful challenger Christian Carrazana of running with the hope his last name appealed to voters in the heavily Hispanic county, a charge that Mr. Carrazana denied.

None of that took place Thursday in the conference room where committee members drilled down to gauge the smarts, temperament and dedication of each candidate.

11th Circuit grants en banc in cell-site case

Well, that was fast.  The government asked for en banc review in Quartavious Davis' case on August 4 (covered by the blog here). 

I've asked this before, and I'll ask it again here -- has the 11th Circuit ever granted en banc review when the defense has asked for it?

News & Notes

1.  JNC interviews are today for the open federal seat.  Will be interesting to see who makes the cut.

2.  The 11th Circuit granted en banc review in United States v. Roy.  This was the case authored by Judge Wilson in which the court granted a new trial for a defendant because the district judge conducted part of the trial without him and his counsel.  Chief Judge Ed Carnes dissented.  Now the whole court is going to hear the case.  Interestingly, the Carneses are using their first names now to distinguish themselves.  Here's the beginning line of the order: Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, PRYOR, MARTIN, JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.  Soon the Pyrors will be doing the same thing...


3. Judge Tjoflat, joined by Judge Ed Carnes and Judge Marra, has this new opinion in United States v. Campbell, which starts this way:

In this case, Maurice William Campbell, Jr., and several co-conspirators, created, and successfully executed, a scheme to defraud the State of Alabama to the tune of several million dollars. The scheme was ultimately uncovered, and the co-conspirators were separately indicted by a Northern District of Alabama grand jury. Campbell was charged with wire fraud, mail fraud, money laundering, engaging in monetary transactions in criminally derived property, and conspiring to commit those offenses.
Campbell pled not guilty and stood trial. Several of his co-conspirators, having pled guilty, testified for the prosecution. The jury believed what they had to say and found Campbell guilty as charged. At sentencing, the District Court departed downward from the sentence range the Sentencing Guidelines prescribed, 262 to 327 months’ confinement, and imposed prison sentences totaling 188 months. The court also ordered him to pay $5.9 million to the State of Alabama in the form of restitution.
Campbell appeals his convictions and sentences. He appeals his convictions on the ground that the Government failed to prove his guilt beyond a reasonable doubt.2 He appeals his sentences on the ground that they are procedurally and substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We find no merit in Campbell’s challenges to his convictions, and therefore affirm them, because the evidence of guilt, which we set out in considerable detail infra, was overwhelming. We also affirm his sentences, finding no procedural or substantive error.

4.  Check out  the Dade County Defense Bar Association's Fall 2014 Ethics Seminar, which is being put on by Robert Kuntz.  Looks interesting!