"He’d have had a fairer shake in a tribunal run by marsupials."

Ouch.  That was Judge Kozinski dissenting in Alvarez v. Tracy:

When we take the judicial oath of office, we swear to
“administer justice without respect to persons, and do equal
right to the poor and to the rich . . . .” 28 U.S.C. § 453. I
understand this to mean that we must not merely be impartial,
but must appear to be impartial to a disinterested observer.
Today we do not live up to this solemn responsibility.
Relying on a ground not raised by either party here or in the
district court, we refuse to consider petitioner’s serious and,
in my opinion, meritorious claims. This is only the latest
indignity inflicted on a criminal defendant who, despite
having a seventh-grade education, was forced to defend
himself at trial; although having the right to a jury, was never
told that he had to ask for one; and who was therefore
convicted and sentenced to eight years in prison in a bench
trial where neither the prosecution nor the judge lifted a
finger to bring the accusing witness into court. He’d have
had a fairer shake in a tribunal run by marsupials.
I am troubled by the disparate way we treat the parties.
Alvarez and the Community both failed to raise legal issues
at the proper time and in the proper manner. Alvarez failed
to raise his jury trial and confrontation claims by way of a
direct appeal within the tribal court; the Community failed to
raise an exhaustion defense in district court. The Community
committed an additional default by also failing to raise this
issue on appeal—something we’ve repeatedly held is an
independently sufficient basis for declining to address it.

I also like this passage:

I have read the opinion many times and disagree with
pretty much everything in it, including the numerals and
punctuation. I explain why in the pages that follow, but first
I pose a more basic question: How can a court committed to
justice, as our court surely is, reach a result in which the
litigant who can afford a lawyer is forgiven its multiple
defaults while the poor, uneducated, un-counseled petitioner
has his feet held to the fire? I attribute no ill will or improper
motive to my excellent colleagues. They are fair, honorable
and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See,
e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123
(9th Cir. 2010) (Kozinski, C.J., dissenting from denial of
rehearing en banc). I can find no justification for showing
such solicitude for the overdog while giving the underdog the
back of the hand.

“What about the language at pages 54 to 55 of the Petitioner’s brief? You know, ‘Dada make a nice bed for mommy at the bottom of the lake’”

That was Chief Judge Roberts last week during the oral argument on the Facebook case....

Snitching ain't easy

The Herald covers this Medicare case this morning.  The dirty little secret in this District is that Medicare cases are mostly just snitch cases.  This one may lead to a brother testifying against family:

Because the FBI has been unable to locate Jorge Perez, the younger brother’s former defense attorney suggested in federal court that he was being indicted solely to lure the accused fugitive ringleader to the United States.

Eduardo Perez’s original attorney, Douglas Williams, called the case “a zealous indictment of a younger brother that may to some extent be part of a calculation ... to suggest to his older brother that ... he’s going to be creating problems for baby brother. ... That’s what this case is all about.”

Now the baby brother, with his plea agreement to cooperate with U.S. Attorney’s Office, could turn on his older brother. Eduardo Perez’s deal holds him responsible for laundering only between $1 million and $2.5 million, a range that would limit his prison time to a maximum six years. He had faced up to 20 years in prison on the single money-laundering conspiracy plea.

But as part of the deal, Eduardo Perez has agreed to testify before a grand jury or at trial, if the prosecutor asks. That means that if his older brother, Jorge Perez, is ever captured and brought to court in Miami, the younger brother could be a key witness against him.

Eduardo Perez’s current defense attorney, Gustavo Lage, said his testimony is a possibility, but noted that the deal does not specifically require his taking the witness stand against the older brother.

“The cooperation agreement is standard boilerplate language, so that may or may not come to pass depending on what happens between now and even after his sentencing [in January],” Lage said Friday. “So far, no request has been made.”

Yesterday was ACLU day at the 11th Circuit

Two big wins for the ACLU yesterday on drug testing and gay marriage, which means 1) no more unlimited drug testing on those applying for temporary assistance and 2) gay marriage to start in Florida on January 5.

1.  Lebron v. DCF, per Judge Marcus:

A Florida statute mandates suspicionless drug testing of all applicants seeking Temporary Assistance for Needy Families (“TANF”) benefits. See Fla. Stat. § 414.0652. Luis Lebron sued the Secretary of the Florida Department of Children and Families (the “State”), claiming that the statute violates the Fourth Amendment’s prohibition against unreasonable searches and seizures, applied against the states through the Fourteenth Amendment. After we affirmed the entry of a preliminary injunction barring the application of the statute against Lebron, the State halted the drug-testing program. See Lebron v. Sec’y, Fla. Dep’t of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement.
We affirm. On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve “surpassing safety interests,” Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 634 (1989), or “close supervision of school children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

2.  Brennan v. Armstrong, per curiam (Hull Wilson, Jordan): 

In November 18, 2014, the Appellants in the above appeals, the Secretary of the Florida Department of Health, the Secretary of the Florida Department of Management Services, and the Clerk of Court of Washington County (collectively, Appellants), jointly filed a Motion to Extend Stay of Preliminary Injunctions Pending Appeal and for Expedited Treatment of This Motion (the Motion). Appellees James Domer Brenner, et al., and Appellees Sloan Grimsley, et al., filed separate responses in opposition to the Motion. Appellants’ request for expedited review of the Motion is granted. Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued  by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion. The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.

What's going on with the 11th Circuit's Fuller investigation?

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) sent a letter to Chief Judge Ed Carnes and Judge Tjoflat regarding Judge Mark Fuller in Atlanta, Georgia.  Here's the text of the letter:

Dear Chief Judge Carnes and Judge Tjoflat:
We write regarding the arrest and ongoing prosecution of Middle District of Alabama Judge Mark E. Fuller in Atlanta, Georgia, which is pending before the State Court of Fulton County, Georgia. The allegations against Judge Fuller raise serious, substantial and troubling questions that have been the focus of constant attention and close monitoring by the Committee on the Judiciary since August 2014 when reports first appeared of his arrest for a violation of state criminal law.
In writing, we note the following undisputed facts:
·         Judge Fuller has reportedly entered into a pretrial diversion program that requires him to, inter alia, successfully complete domestic violence counseling;
·         James P. Gerstenlauer, the Circuit Executive of the Eleventh Judicial Circuit, published an announcement on August 12, 2014 that stated “all legal matters” then assigned to Judge Fuller, would be reassigned to other judges;
·         The Acting Chief Judge of the Eleventh Circuit subsequently appointed a Special Committee to investigate Judge Fuller’s actions in connection with the filing of state misdemeanor battery charges in August 2014;
·         The Special Committee’s statutory authority and obligations derive from section 353 of title 28, United States Code, which includes a requirement that the Special Committee, “expeditiously file a comprehensive written report … with the judicial council of the circuit” after completion of “an investigation as extensive as it considers necessary;” and
·         Judge Gerald Tjoflat has reportedly been appointed Acting Chief Judge for purposes of coordinating the Special Committee’s investigation and providing recommendations to the judicial council of the circuit in this matter.
Article I, Section 2 of the Constitution provides the House of Representatives with the “sole Power of Impeachment.” That power is initiated by and overseen by the Committee on the Judiciary. The public has a strong and abiding interest in the proper resolution of credible allegations of misconduct involving a federal judge as expeditiously as possible and in accordance with principles of due process. In furtherance of these interests, the Congress has prescribed statutory procedures that anticipate the initial investigation by the judiciary of credible allegations of serious judicial misconduct. These statutes supplement but do not supplant congressional autonomy and authority.
In recognition of the explicit statutory requirement that a Special Committee, once appointed, “expeditiously file a comprehensive written report” after the completion of its “investigation,” we write to request that you provide us with an update on the status of the ongoing investigation and the anticipated timeline for completion of the required comprehensive written report to the circuit’s judicial council.

Tuesday news and notes

• Although the Supreme Court didn't grant cert on this S.D. Fla. case, it's a pretty big attack of the 11th Circuit's waiver rule. Justices Kennedy and Sotomayor would have granted cert and Justice Kagan, joined by Ginsburg and Breyer, had this to say about the 11th Circuit's rule -- that issues not raised in the initial brief are waived, even if the defendant tries to file a supplemental brief based on a new Supreme Court case decided before the government even response:

And as the above citations show, the circuit courts—once again, bar the Eleventh—have routinely followed that practice in the wake of Descamps.
There is good reason for this near-unanimity. When a new claim is based on an intervening Supreme Court decision—as Joseph’s is on Descamps—the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance. Relying on that misprediction alone to deny relief to an appellant like Joseph while granting it to the defendant in Descamps ill fits with the principle, animating our criminal retroactivity law, of “treating similarly situated defendants the same.” Griffith v. Kentucky, 479 U. S. 314, 323, 328 (1987) (holding that new rules “appl[y] retroactively to all cases . . . pending on direct review”). And indeed, insisting on preservation of claims in this context forces every appellant to raise “claims that are squarely foreclosed by circuitand [even] Supreme Court precedent on the off chance that [a new] decision will make them suddenly viable.” Vanorden, 414 F. 3d, at 1324 (Tjoflat, J., specially concurring). That is an odd result for a procedural rule designed in part to promote judicial economy.
Perhaps for such reasons, even the Eleventh Circuitdoes not apply its default rule consistently when this Court hands down a new decision. Sometimes, as here, the court views its rule as pertaining “uniformly and equally to all cases,” so that a panel becomes simply “un-able to entertain” any claim not raised in an initial brief. United States v. Bordon, 421 F. 3d 1202, 1206, n. 1 (2005). But other times, the court abandons the rule without explanation—including, at least twice, for Descamps claims. See, e.g., United States v. Ramirez-Flores, 743 F. 3d 816, 820 (2014) (addressing a Descamps claim raised “for the first time at oral argument”); United States v. Estrella, 758 F. 3d 1239 (2014) (addressing a Descampsclaim raised first in a Rule 28(j) letter after all briefs were filed); United States v. Levy, 379 F. 3d 1241, 1244–1245 (2004) (per curiam) (acknowledging “a few decisions wherethis Court apparently considered a new issue raised in a supplemental brief ”). Thus, criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between theEleventh Circuit and every other court of appeals.
I nonetheless agree with the Court’s decision today to deny certiorari. We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a “reasoned exercise[ ]” of its authority. Ortega-Rodriguez, 507 U. S., at 244.

•  The University of Miami Law Review will be hosting Justice Stevens and Miami State Attorney Kathy Rundle.  Here's the summary: The University of Miami Law Review Symposium, entitled “Criminalized Justice: Consequences of Punitive Policy,” will take a critical look at how our nation’s laws have been increasingly criminalized over the past 30 years, the negative consequences of this criminalization, and recent positive developments. We will explore this topic through a variety of subjects, including immigration, homelessness, sentencing policy, and race and social class. The Symposium will feature Keynote Speakers Supreme Court Justice John Paul Stevens and Miami-Dade State Attorney Katherine Fernandez Rundle. The Symposium is scheduled for Friday, February 6, 2015 and Saturday, February 7, 2015 on the University of Miami campus in Coral Gables, Florida.

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

That was Anthony Elonis on Facebook talking about his wife.  He got convicted for making threats over the internet and was sentenced to 3 years in federal prison.  This morning, the Supreme Court will hear his case.  From the AP:

The case has drawn widespread attention from free-speech advocates who say comments on Facebook, Twitter and other social media can be hasty, impulsive and easily misinterpreted. They point out that a message on Facebook intended for a small group could be taken out of context when viewed by a wider audience.
"A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed," said a brief from the American Civil Liberties Union and other groups.
But so far, most lower courts have rejected that view, ruling that a "true threat" depends on how an objective person perceives the message.
For more than four decades, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has been careful to distinguish threats from protected speech such as "political hyperbole" or "unpleasantly sharp attacks."
Elonis claims he was depressed and that his online posts under the pseudonym "Tone Dougie" were a way to vent his frustration after his wife left him and he lost his job working at an amusement park. His lawyers say the posts were heavily influenced by rap star Eminem, who has also fantasized in songs about killing his ex-wife.
But Elonis' wife testified that the comments made her fear for her life.
After she obtained a protective order against him, Elonis wrote a lengthy post mocking court proceedings: "Did you know that it's illegal for me to say I want to kill my wife?"
A female FBI agent later visited Elonis at home to ask him about the postings. Elonis took to Facebook again: "Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat."
Elonis was convicted of making threats of violence and sentenced to nearly four years in federal prison. A federal appeals court rejected his claim that his comments were protected by the First Amendment.
The Obama administration says requiring proof that a speaker intended to be threatening would undermine the law's protective purpose. In its brief to the court, the Justice Department argued that no matter what someone believes about his comments, it does not lessen the fear and anxiety they might cause for other people.
"The First Amendment does not require that a person be permitted to inflict those harms based on an unreasonable subjective belief that his words do not mean what they say," government lawyers said.
The National Center for Victims of Crime, which submitted a brief supporting the government, said judging threats based on the speaker's intent would make stalking crimes even more difficult to prosecute.
"Victims of stalking are financially, emotionally and socially burdened by the crime regardless of the subjective intent of the speaker," the organization said.

I posted earlier about Judge Rakoff's article about innocent people pleading guilty.  There's an interesting exchange between Judge Baylson and Judge Rakoff in the New York Review of Books.  Baylson concludes:

No judge wants to see an innocent person prosecuted, convicted, or sent to prison. A criminal justice system must ensure that fundamental principle. Pretending that plea bargains or sentencing guidelines have led to the imprisonment of the innocent is not just incorrect, but impugns the honesty of prosecutors and the diligence of judges.

 And Rakoff's intro from his reply:

Barely a month goes by without someone who pled guilty being exonerated and released from prison. For example, the National Registry of Exonerations recently established by the University of Michigan Law School currently lists 162 such persons, or nearly 11 percent of the 1,476 post-conviction exonerations that have been publicly reported since 1989. If Judge Baylson’s views of the current system were correct, these figures would be zero. Instead, they are just the tip of the iceberg.

To say, as Judge Baylson does, that “most” defendants who plead guilty are in fact guilty simply dodges the issue of how many innocent people are being coerced into pleading guilty by the potential for draconian sentences effectively controlled by the prosecutor. And it is ironic that Judge Baylson should seek to justify federal prosecutors’ prior policy of charging the most serious provable crime as “truth in charging” when, as the Aaron Swartz case mentioned by his father and described below illustrates, the policy often has served not as a reflection of what everyone understood was the true nature of the alleged crime, but as a device to help extract a guilty plea to a lesser offense. Indeed, it was partly this effect that led the current attorney general to abandon the policy, stating that in many cases such a policy was not “appropriate.”

This is an important point:

Judge Baylson suggests both that the defendant has a strong weapon in the form of the presumption of innocence and that the prosecutor has a high burden of proof. But this suggestion really only comes into play if the defendant is willing to take the risk of going to trial and likely suffering a huge sentence if he loses. At the plea bargain stage, moreover, the prosecutor not only credits the un-cross-examined evidence received from his police force but also knows that, since 97 percent of the cases will be resolved by pleas, the prosecutor’s own risk of losing is minimal.

Happy Turkey Day

Hope everyone has a wonderful Thanksgiving.

If you are working today and need a break, check out Judge Martin's 20-page dissent from an en banc denial (another example of no rehearing where the government won).

Or if you want a more fun read, the Miami Herald covered Judge Cooke's book club:

Marcia Cooke, a U.S. district court judge, recalls a Sunday Book Brunch Bunch meeting in which the members met for brunch and stayed past dinnertime.
“We ended up ordering brunch and dinner that time,” she said.
The group of women, which includes an editor, an Urban League of Broward director and an acquisitions manager, meets once a month at different brunch spots to have a book discussion and girl talk.
“These are nice, intelligent, accomplished women who know a lot about literature, education and the community,” said Khamisi Grace, director of programs at the Urban League. “It’s a powerful thing.”
Grace doesn’t always finish the books and doesn’t feel pressured to. She likes having the freedom to admit when she didn’t like a book and debate with other members.
“The best conversations are on books people are in disagreement about,” she said.
When Grace would choose a book for herself, she never used to go with books that had heavy themes. No longer.
“To me, reading is supposed to be a relaxing thing, like watching TV,’’ she said. “I think the books you pick for a book club are different from the books you would pick for yourself because they launch a discussion in a different kind of way.’’
Sandra Seals, an acquisitions manager, said she would have never picked up Fever by Mary Beth Keane, a novel about the first healthy carrier of Typhoid Fever in America.
The group reads anything and everything, but tries to avoid books that depict harm to animals and children. Last month was the exception. They read We Need to Talk About Kevin by Lionel Shriver, about a fictional school massacre and a mother’s attempt to come to terms with the murders her teenage son committed.
“The book was intense,” Cooke said.

Read more here: http://www.miamiherald.com/entertainment/books/miami-book-fair-international/article4060227.html#storylink=cpy