Should the word limit in appellate briefs be reduced?

There's a proposal to reduce the word limit from 14,000 to 12,500, and a lot of people aren't happy about it.

Here is the intro from Howard Bashman's (from How Appealing) comment against the rule:

The observation “if it ain’t broke, don’t fix it” properly appears to
inform this Committee’s approach to amending the Federal Rules of
Appellate Procedure. As the Committee’s draft minutes from its April 2014
meeting reflect, “Mr. Letter suggested [that] traditionally the Rules
Committees do not amend a rule unless there is a very good reason to do
so.”
I am submitting this public comment because in my view “a very
good reason” does not exist for reducing the FRAP principal brief word
count limit from 14,000 words to 12,500 words, nor should any of the
corresponding briefing word limits be reduced by that ratio.
As members of the Committee are aware, in addition to my own
appellate practice, I devote a substantial amount of my time to drawing
public attention to the very best examples of appellate advocacy. In my
own writings, both on my widely read appellate blog and in my monthly
columns published in The Legal Intelligencer, I have repeatedly urged
attorneys who brief and argue appeals to strive for concision and to pursue
the fewest and strongest issues possible.

Judge Pryor writes the majority opinion and the concurrence...

...in United States v. Kopp. His concurrence starts: "Not surprisingly, I concur in full..."

Anthony Bosch to be sentenced today (UPDATED WITH SENTENCE)

UPDATE -- BOSCH RECEIVED 4 YEARS AND REMANDED. NO SELF SURRENDER.

As soon as I hear something, I will post Judge Gayles' sentence of Bosch.  Here's the Herald's preview article:

Anthony Bosch, the fake doctor who sold illegal muscle-building steroids to Major League Baseball stars and high school athletes, is hoping for a slight break on his prison sentence Tuesday when he faces a Miami federal judge.
How much? Six months.
If U.S. District Judge Darrin Gayles goes for it, the convicted 51-year-old Coral Gables steroid dealer could receive roughly 3 1/2 years in prison. Bosch, who has been free on bond while receiving treatment for his cocaine addiction, pleaded guilty to a single distribution-conspiracy charge in October.
Under federal sentencing guidelines, he faces between 41 months and 51 months in prison. At this point, prosecutors have agreed to recommend the lower end. Bosch’s defense lawyer is seeking even less.

RIP Irwin Block

He was a South Florida legend.  The Justice Building Blog has a great post about Mr. Block here, including this memorial from Judge Kevin Emas:

Irwin Block was old school. 87 years old and still going to work. He loved the law. He loved being a lawyer. He loved being a trial lawyer. And make no mistake about it. Irwin was not a litigator. He was a trial lawyer. And he was extraordinary in trial. Even opposing counsel in a trial would sometimes find themselves becoming spectators, watching with admiration as Irwin held the witness and the jury in the palm of his hand.

Many of you know that Irwin Block (together with Phil Hubbart) represented Freddie Pitts and Wilbert Lee, two black men charged with murder in St. Joe, Florida in 1963. As a result of the efforts of Irwin and Phil, and those of Pulitzer-Prize winning journalist Gene Miller, Pitts and Lee were pardoned after twelve years on death row for murders they did not commit.

Irwin Block was involved in many high-profile cases over the course of his exceptional career. But for all his talents as a trial lawyer, Irwin was a humble man. He never sought the limelight, and bristled at the notion that he should ever be honored for just doing his job. But honored he was, including the American Jewish Congress’ Judge Learned Hand Award, History Miami's Legal Legend Award, and the DCBA’s David W. Dyer Professionalism Award.

Irwin was more interested in fighting for clients than fighting for causes. Old school indeed. He taught me much about being a trial lawyer. I’ll never forget his cardinal rule: “You can’t always outsmart the other side. But you can always out-prepare them.” As good as he was in trial, he was even better in pretrial strategy, motions and deposition. He won hundreds of cases that would never see the light of a courtroom because of the damage he had done in deposition and pretrial motions. Irwin left a legacy of excellence. Each of us who knew him, who worked for him, who worked with him, who learned from him, has a profound respect that is difficult to explain in words. But here’s just one example: Nearly every lawyer who worked with him, even after leaving the firm and establishing their own successful practice, would continue to call him Mr. Block when they saw him. They felt it somehow disrespectful to call him anything else. (I must confess that my first draft referred to him only as Mr. Block. I hope he will forgive this final version.)

I’m not just a better lawyer for having known Mr. Block. I’m a better person for having known Mr. Block.

Here's the Herald obit.


The New York Times has an editorial today about how to stop prosecutorial abuse.  Mr. Block would have appreciated it.

"We write to express our dismay and outrage over measures taken by the Obama Administration ot facilitate the artificial insemination of Cuban national Adriana Perez, wife of convicted Cuban spy Gerardo Hernandez."

That was Ileana Ros-Lehtenin and Bob Goodlatte in a letter to Charles Samuels, the Director of the Bureau of Prisons.

Ah, the spirit of Valentine's Day! 

H/T Marc Caputo.

Should jurors have a say in sentencing defendants?

I think the answer should definitely be yes. Check out what this federal judge did. I love it:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge.

The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer.

Why not find out what jurors think of what a reasonable sentence is?

You know you've made it when Jon Stewart makes fun of you

Forward to the 4:45 mark to see Mark Eiglarsh.

In other news, we may be getting close to impeachment proceedings for Judge Fuller:

The House committee responsible for judicial impeachments has asked for a budget increase in case it needs to initiate proceedings against U.S. District Judge Mark Fuller of Alabama, who has been charged with battery.

Rep. Bob Goodlatte, R-Virginia, chairman of the House Judiciary Committee, said this week that the committee may need the extra money to establish an impeachment task force, hire lawyers and conduct an investigation.

Although impeaching Fuller is only a possibility — his colleagues on the federal bench could decide not to recommend that option, or Fuller could resign — the budget request signals Congress is taking steps to prepare for what historically has been a rare but lengthy process.

“We are closely monitoring the recent arrest and ongoing prosecution” of Fuller, Goodlatte told the House Administration Committee on Wednesday.

Joining Goodlatte in presenting the budget request was the panel’s top Democrat, Rep. John Conyers of Michigan.

Fuller, a federal judge in Montgomery since 2002, was charged with misdemeanor battery after an August incident involving his then-wife in an Atlanta hotel room. If he successfully completes a pretrial diversion program of domestic violence counseling and drug and alcohol screenings, his criminal record will be wiped clean.

A five-member panel of federal judges is investigating to decide whether further disciplinary action is needed. If Fuller’s colleagues recommend he be impeached, the process would start at the House Judiciary Committee.

Has the Supreme Court tipped its hand on gay marriage?

Yes, according to Adam Liptak:

The Supreme Court’s decision on Monday not to delay same-sex marriage in Alabama offered the strongest signal yet that gay rights advocates are likely to prevail in coming months in their decades-long quest to establish a nationwide constitutional right to same-sex marriage.

The court's decision came with a blistering dissent from Justice Clarence Thomas, who criticized his fellow justices for looking “the other way” as another federal court pushes aside state laws, rather than taking the customary course of leaving the laws in place until the court addresses larger constitutional issues.

Since October, when the Supreme Court refused to hear appeals from rulings allowing same-sex marriages in five states, it has denied requests to stay orders requiring other states to let gay and lesbian couples marry. Largely as a consequence of the court’s inaction, the number of states with same-sex marriage expanded to 37 from 19, along with the District of Columbia, in just four months.

Last month, the court agreed to hear four same-sex marriage cases. They will be argued in April and probably decided in late June.

In dissenting from the unsigned order in the Alabama case on Monday, Justice Thomas, joined by Justice Antonin Scalia, suggested that the court was poised to establish a constitutional right to same-sex marriage, a question the court ducked in a pair of decisions in 2013.

Justice Thomas accused the majority of an “indecorous” and “cavalier” attitude in refusing to maintain the status quo in Alabama at least until the Supreme Court issues its decision in the four pending cases.