Should the Supreme Court and its Justices be more open?

Well, they couldn't be more secretive according to a new push to open up the Court.  From USA Today:

As in: They don't publicize their schedules. They don't state their conflicts when recusing themselves from cases. They don't put their financial disclosures online. They don't bind themselves to a code of conduct. And they don't let cameras in the courtroom.
"The Supreme Court has taken on a larger role in American life in recent years. With that increased power comes the need for increased accountability," says Gabe Roth, former manager of the Coalition for Court Transparency, which has focused largely on the need for greater video and audio coverage of the court.
The new effort, to be called "Fix the Court," is intended to bring more media and advertising firepower to what has been a diffused effort on the part of liberal, conservative and government watchdog groups concerned about the high court's renowned seclusion.
It opens Wednesday with a six-figure advertising campaign aimed at politically active fans of Fox and MSNBC, as well as online sites. Funding comes from the non-partisan New Venture Fund.
"They told us where we can pray, picked our president, allowed billionaires to buy elections and made choices of life and death," the ad intones. "Nine judges, appointed for life to a court that makes its own rules and has disdain for openness and transparency — the Supreme Court, the most powerful and least accountable branch of government."
The campaign will open with five goals:
•It wants the justices to specify why they recuse themselves from cases, so the public can gauge their potential conflicts of interest.
•It wants annual financial disclosures filed online, with more details about the justices' benefactors.
•It wants them to abide by the same code of conduct that applies to other federal judges.
•It wants advance notice of their public appearances.
•It wants improved media and public access to their courtroom and plaza.
The justices' elusiveness has baffled reporters for years, inspiring outside efforts to track their travels in advance. The latest is a Twitter-based service called "SCOTUS Map" that collates future appearances on a map of the world.
"They're public figures. What they say makes news," Roth says. "They shouldn't be hiding their public appearances."

Meantime, the Court will be deciding whether to hear a case concerning the right to have fish-nibbling pedicures:

A Gilbert spa owner wants the U.S. Supreme Court to rule she has a constitutional right to have fish nibble on her customers’ toes and charge them for that.
Attorney Clint Bolick of the Goldwater Institute said that’s the only path now open to Cindy Vong, owner of La Vie salon, after the Arizona Supreme Court refused last week to consider her plea. That left in place a state Court of Appeal ruling which said the state Board of Cosmetology was legally entitled to stop her from using the fish.
Bolick said the issue is larger than just Vong.
He said it’s one thing for government to impose restrictions designed to protect public health and safety. But Bolick said the lower court ruling, if left undisturbed, allows state officials to ban an entire business practice.
“The issue is really a business’s right to exist,” he said.

My fellow germaphobes, would you put your feet in that water?

He cited a study done by the health protection agency in the United Kingdom.
“There has not been a single documented instance of harm from fish spas in the entire world,” Bolick said. “And that has been confirmed by the U.S. Centers for Disease Control.”
He also said that UK study found the risk to be “miniscule” and can be further reduced by following certain health and safety protocols.
Aune dismissed the UK study, saying that health oversight in Europe is not the same as it is here, with no real place for consumers who had developed infections to complain.
She said Arizona and other states had a problem about a decade ago when contaminated water used for foot baths resulted in ulcers on the legs of customers.
“It was the buildup in the pipes that weren’t getting cleaned out each night and each week,” Aune said.
She said that, questions of whether the fish themselves can transmit disease, the same problems can develop from having the fish in the water. And Aune said there’s really no way to disinfect the water.
“Not without killing the fish,” she said.
“They dirty the water,” Aune continued. “The water could never stay clear.”

Veterans Day

Rumpole has his yearly post up about Veterans Day.  It's a good read.

The courts are closed today, but what about your office?  Seems like most people are working. True?

Is your office closed today, on Veterans day?

Yes, my office is closed when the courts are closed. Yes, my office is closed when the schools are closed. No, my office is open except for holidays like Thanksgiving. No, my office is open when the stock market is open. No, my office is open every day.  

pollcode.com free polls

FDC-Miami holds first Daddy-Daughter Dance

This is both incredible and awfully sad at the same time (via the Miami Herald):

The bureau hosted its inaugural Daddy-Daughter dance to create an enduring memory, one that can carry inmates to the outside world with a different perspective and offer daughters the hope that there will be more such moments. It is part of the bureau’s broader reentry program to reach out to the children and families of offenders and strengthen their bonds, critical for transitioning back home. “You are a key to the success of your father,” Federal Bureau of Prisons Director Charles E. Samuels Jr., told the 20 girls, aged 4 to 18, who had assembled to meet their fathers, all minimum-security, nonviolent offenders.
In a third-floor prison meeting space transformed into a ballroom with a fairytale theme, 13 fathers in suits and ties and tuxedos spent two hours with their girls, this long-held tradition unfolding without the harshness of uniforms and visiting rooms and prison walls. They danced. They swayed. They held tight. They laughed. They cried. And these fathers who have been gone for years remembered the chapters they had missed: birthdays, holidays, first tooth, first crush, first heartbreak.
Some of the girls are so young, they only know a father confined; others are old enough to remember what life was like when their father was home.
“I haven’t been there for so many special moments,” said inmate Michael Rangel, 40, his eyes welling up. The father of three daughters has been in prison almost three years for cargo theft and is scheduled to enter a halfway house in January. “I talk to them and email them all the time, but it’s not the same as being there.”

The whole article is worth a read, and there are some great pictures by Al Diaz at the Herald link.

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?