6th Circuit upholds gay marriage ban, creates circuit split

It's an interesting debate about the role of judges.  Is it the judiciary's duty to defer to the will of the people or to provide a check against the majority while upholding our constitutional rights.  I think the dissent has the better of this one (here are both opinions):

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. The framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Meantime, Sandy Yates, the wife of Supreme Court litigant John Yates, posted in our comment section for yesterday's post:

Just to clarify a couple of points. The fish measured off shore had been frozen for 4 days. When remeasured on shore were put up a metal conveyor and dumped into a vat of water in August in Florida. Hmmm, do you think they may have thawed out. The average fish on shore were 1/2 on bigger than off shore. In addition the FWC officer testified he does NOT measure fish in accordance with federal law. Now, add the fact that the FWC expert witness provided a document with an analysis of measuring the fish the correct way those fish (even frozen) were mostly over 20 inches. Not for the clincher. While NOAA was running around getting this "paper shredding indictment", the head Law Enforcement officer for the whole US was in front of Congress for shredding 80% of his files while being investigated by the Inspector General's Office for abuse of fisherman. Ironic, don't you think.

Go get 'em Mrs. Yates!

"No, I'm not talking about Congress. I'm talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?"

That was Justice Scalia today in the "fish case", Yates v. U.S., going after the government lawyer for his argument on the statute.   SCOTUSBlog has a summary of the oral argument, which looks like it was a rough ride for the SG's office:

Within minutes, Scalia leaned forward and, accusingly, told Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion?  Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.
Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one?  Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.
Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors.  Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”
In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws.  When Martinez tried to portray the fisherman as someone who ordered the destruction of evidence, disobeyed a federal officer, and worked out a cover-up scheme, Chief Justice John G. Roberts, Jr., commented: “You make him sound like a mob boss.”
Just what sentence did prosecutors recommend here, Justice Kennedy asked.  Martinez said twenty-one to twenty-seven months, but then added that thirty days here was “reasonable” and twenty years “would have been too much.”
The hearing’s tone had changed totally, and Martinez was on the defensive throughout the remainder of his time.  He tried to recover by going over the specific words and headings in the law, trying to show what Congress had intended for the law.
As he was nearing the end of his half-hour, Martinez was suddenly confronted by Justice Samuel A. Alito, Jr.   The lawyer, the Justice said, had a lot of arguments on the fine points about the law, but “you are asking us for something that is pretty hard to swallow,” that this law could be used for “really trivial matters.”
When Martinez protested that the law would not be used for “trivial matters,” Alito conjured up just such small offenses as throwing a single trout, illicitly caught, back into a lake, and then Justice Breyer asked about kicking a small ember away to try to conceal a forbidden campfire in a public park.  “You could multiple the examples beyond belief,” Breyer said.
In between those exchanges, Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of “prosecutorial discretion” if it was open to use as in this case.
Martinez’s woe had started with Justice Scalia, and it never ended until he sat down.

Judge Hoeveler's retirement reception

Here he is with some of his colleagues from last week's reception honoring him.

Ft. Lauderdale jury finds UBS executive not guilty in tax case

Matthew Menchel represented Raoul Weil in this lengthy trial before Judge Cohn.  Here's the AP's Curt Anderson:

A federal jury acquitted a former top Swiss banking executive of U.S. charges that he conspired with wealthy Americans to hide $20 billion in secret accounts from the Internal Revenue Service.
Jurors deliberated just over an hour before returning the not guilty verdict for Raoul Weil, formerly the No. 3 executive at UBS AG. He had faced up to five years in prison and a $250,000 fine if convicted of conspiring to defraud the U.S. government.
"We're obviously pleased with the verdict. This was a case that should never have been brought," said Weil's attorney, Matthew Menchel.
...
In the courtroom, Weil hugged his wife and lawyers, clenching both fists when the verdict was announced.
Weil was the highest-ranking Swiss banker prosecuted under an IRS and Justice Department crackdown on Americans' use of offshore accounts to dodge U.S. taxes. In 2009, UBS paid a $780 million U.S. fine and disclosed names of thousands of American account holders to the IRS, many of whom were later prosecuted.

"An estimated 20,000 persons, or more, ... are in prison for crimes to which they pleaded guilty but did not in fact commit."

And those are conservative numbers according to Judge Jed Rakoff, who has written a compelling piece explaining that innocent people are pleading guilty to crimes that they have not committed.  There is a lot to blame for this phenomenon but he offers this solution:

What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys.

Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.
I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.
As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.
The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.
Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program.
I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?

Stop using Courier (and Times New Roman)

Font choices are in the news because the Massachusetts Supreme Court is still using Courier, as are a number of judges in this District.  You must stop!  From the Boston Globe:

The court’s opinions all come down in Courier, the old-fashioned typeface designed to mimic electric typewriters. Courts are known for being tradition-bound, but today the SJC is one of only five state high courts that still issue opinions in Courier. And Massachusetts is one of only three states—along with Alabama and New Jersey—that essentially force appeals court attorneys to file their briefs in the font.

As a result, Massachusetts court proceedings have an almost uniquely retro look. The US Supreme Court publishes its opinions in neat, literary Century type. The State Department defected from Courier a decade ago in favor of Times New Roman. Even middle-school students can print their papers in high-toned Bodoni or Garamond.

“If the court asked, ‘So, would you like to stop using Courier?’ there probably would be a tsunami of, ‘Yes, please!’” said Susan Sloane, the director of Legal Research and Writing at Northeastern University School of Law.

Why does Massachusetts cling to Courier? The habit began with typewriters, of course, but its persistence in 2014 offers an illustrative window into the workings of the court, where deference to judges—and to precedent—governs things that have nothing to do with the law itself.

In the type world, Courier is what’s called a “monospaced” font, in which letters are squeezed or stretched to have equal width and spacing; for example, Courier adds a wide tail to lowercase “i” and squishes “w,” so they take up the same amount of room on the page. Most fonts used for texts today—including the one you’re reading—are “proportional,” meaning the spacing of each letter varies according to its size. These are easier to read, but didn’t work for typewriters, which were mechanically unable to vary spacing or the width of the metal type.

For decades, most appellate court briefs and opinions were produced on Courier typewriters, so they all looked the same. They also all had roughly the same number of words per page, because of the font’s uniform monospacing. So judges could conveniently and fairly set a page-count limit on their length.

With the advent of computers, lawyers began dabbling in different fonts that looked better—but also let them squeeze way more text onto the page. A 50-page brief might have the equivalent of 70 pages of Courier text in it. Many overwhelmed courts responded by passing rules requiring the use of Courier or a similar monospaced font.

In 1999, the Massachusetts SJC imposed a restriction in its Rules of Appellate Procedure, which govern the form of legal briefs. “Only a monospaced font is allowed,” that rule says, and Courier is the only one suggested. If there were any doubt as to why, SJC clerk Francis Kenneally points out, you can actually find a note in the rules explaining that it’s to prevent lawyers from sneaking extra text into the 50-page brief limit. (The rule doesn’t apply to the more egalitarian trial courts, which accept even handwritten suits, according to Michael Donovan, clerk of the Suffolk County Superior Court for Civil Business.)

The past 20 years have seen writing and typography advocates successfully pressing courts to modernize—not only in fonts, but in other typewriter holdovers such as double-spacing and in-line citations. A top advocate for better-looking court documents is Matthew Butterick, a Los Angeles attorney who’s also a Harvard-trained typeface designer. His blog “Typography for Lawyers” and 2010 book of the same name have been influential on many courts. He considers himself something of a Courier assassin.

“Have you ever seen a book, newspaper, or magazine printed in Courier? Never,” Butterick said in an e-mail. And for good reason, he said: It’s hard to read, and the written equivalent of “droning along in a monotone.”

 Butterick says stop using Times New Roman as well:

Why not? Fame has a dark side. When Times New Roman appears in a book, document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.
If you have a choice about using Times New Roman, please stop. Use something else. See font recommendations for other options.

Okay, Okay, so you don't want to read about font choices on Monday morning.  Well here's a story from USA Today on a big fight in the Supreme Court about overcriminalization:

 Look up the definition of "fisherman" and John Yates' wrinkled, weather-beaten, Winston-puffing mug might appear. But these days, he's limited to restoring antique furniture and dealing in scrap metal.
Now look up the Sarbanes-Oxley Act of 2002, and you'll find the federal government's Enron-inspired crackdown on financial fraud and document shredding.
But three years ago, the act reeled in Yates for tossing 72 undersized red grouper into the Gulf of Mexico.
On Wednesday, the Supreme Court will examine the curious case of Yates v. United States, which asks the question: Was it the government that went overboard?
"It's obvious that a fish is not a document," says Yates, 62, over a lunch of grouper bites and Budweisers on the Gulf coast, which has been his home for the past 15 years. "You don't have to be that smart to figure that out."
Does the nation's highest court have bigger things to fret about than six-dozen 19-inch fish? Certainly.
But the justices agreed to hear Yates' appeal, even after two lower federal courts determined that his prosecution under a law targeting white-collar criminals was justified. It mirrors a similar case last year, in which the government prosecuted a jilted wife's clumsy effort at revenge under a federal chemical weapons treaty. The court reversed that one, 9-0.
The facts of the case: Yates was captaining the 47-foot "Miss Katie" in 2007 when a state conservation officer with federal enforcement power boarded, measured some 3,000 pounds of fish and found 72 grouper under the 20-inch minimum. He ordered them returned to shore.
Not throwing back in the undersized fish is a civil violation, punishable by a fine or fishing license suspension. But this fish tale got more complicated when Yates allegedly ordered a crew member to throw the offending fish overboard and replace them with longer ones. When the fish were remeasured on dry land, the government smelled a rat. So to speak.
It's a charge Yates still denies to this day; He says they were the same fish, measuring differently based on their mouths, tails and temperature. His wife, Sandy, a former paralegal, keeps a voluminous file that includes the original handwritten measurements of each fish.
Yates was convicted in 2011 of violating Sarbanes-Oxley, which carries a possible 20-year sentence for tampering with or destroying "any record, document or tangible object." He served a 30-day sentence over the Christmas holidays and still lives under a three-year supervised release program. When Sandy's sister died earlier this year, he quips, "It took an act of Congress for me to bury her in Ohio."

Bill Shepherd of Holland & Knight has written an amicus brief for NACDL supporting Yates.

"As Kim Kardashian is with her husband, I'm not going to keep you long."

That was Chief Judge Ed Carnes today at Robin Rosenbaum's investiture. It was a great event with lots of good speeches.  Judge Carnes also invoked the song "Don't Rock the Boat Baby" in describing the importance of collegiality on the 11th Circuit.



Judge Stanley Marcus (who has known Judge Rosenbaum since she was his law clerk) gave a very funny talk, telling numerous jokes, which had the audience laughing out loud.  He started out by saying that since this was the third investiture that he was speaking at for Judge Rosenbaum, he felt a little like Zsa Zsa Gabor's 8th husband: he knew what was expected of him, but he wasn't sure how to make it different.



In response, Judge Rosenbaum said: "If you've enjoyed the entertainment, they'll be playing again next week in Las Vegas."  Then she invoked Talking Heads, "Once in a Lifetime."



Very fun event.



Here are some pictures:

Here is Judge Marcus swearing in Judge Rosenbaum.

How would you like this jury:

And here are 11 of the 12 active judges on the 11th Circuit, plus two senior judges:

Big unpublished opinion from the 11th Circuit reversing because of a judge's refusal to ask voir dire questions related to sexual preference prejudices

Judge Martin issued this 2-1 opinion in United States v. Bates, holding that it was reversible error not to ask potential jurors about their biases against "men who have sex with men." Northern District of Florida Judge Robert Hinkle dissented while Judge Richard Eaton from the Court of International Trade joined Judge Martin.  Even though the emergency order allowing two visiting judges has been lifted, its revocation only applies going forward, so it does not affect this opinion.

From the intro:

Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr. Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.

From the end of the opinion:

The government cannot carry its burden to show that this error was harmless. If Mr. Bates is to be convicted, we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high. His convictions must therefore be vacated, and we remand this case for further proceedings.

 The court was also concerned with the amount of time the defense was given to prepare:

Although we do not decide Mr. Bates’s argument that the District Court abused its discretion by denying his motions to continue trial, on remand the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense. Two circumstances of this case raise concern that Mr. Bates was not afforded the time or resources necessary to prepare an adequate defense during his first trial. First, there was a delay of several months in getting approval for funds for an expert. ...
Second, we are concerned that Mr. Bates did not have enough time to prepare his defense, given that the focus of his prosecution shifted abruptly before trial. Mr. Bates was originally charged on August 23, 2012 in a two count indictment that included only one specific date on which child pornography was allegedly distributed, and gave a range of dates spanning sixteen months over which child pornography was allegedly downloaded or accessed. On February 14, 2013, just two weeks before trial, the government superseded on the indictment, increasing the number of counts to eighteen and highlighting much more detailed information about the dates and times child pornography was downloaded, accessed, and distributed. One week after that, the government disclosed a lengthy supplementary expert report, which was also more detailed than anything Mr. Bates had gotten from the government to that point. Given these late shifts in the focus of Mr. Bates’s prosecution, and the technical nature of the evidence the government presented, we are concerned that he did not have enough time to adequately defend himself during his first trial. See United States v. Verderame, 51 F.3d 249, 250–52 (11th Cir. 1995). If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.