Unpublished, yet enbancworthy?

A few months ago we wrote about an Eleventh Circuit unpublished decision affirming a major upward variance for a relatively minor crime (though committed by a defendant with a lengthy criminal history). The panel’s decision not to publish the decision seemed “unusual,” and we suggested that, because it was unpublished, “the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts.”

Perhaps that view was overstated. Last week Fifth Circuit Judge Jerry E. Smith, joined by three of his colleagues, dissented from the denial of rehearing en banc of an unpublished decision reversing a district court’s denial of habeas relief. To Judge Smith, the “panel majority’s obvious error cries out for correction.” In his view, the “opinion is enbancworthy because, even though unpublished, it infects our entire habeas jurisprudence.”

The defendant’s lawyers in the Eleventh Circuit case filed a petition for rehearing en banc. Today, however, the petition was denied in a one-line order. It simply wasn’t enbancworthy.

***

In related news, the Eleventh Circuit last week affirmed the conviction and sentence of a former Rothstein Rosenfeldt Adler lawyer for her role in the Ponzi scheme. In affirming her 5-year sentence, Judge Linn, sitting by designation and writing for the court, ended the (unpublished) opinion this way:

The district court’s sentence of 60 months is also substantively reasonable. In this case, had there been no loss, the parties agree that the guidelines suggested a sentence of 8–14 months. The problem for Kitterman is that the guidelines are intended for normal cases and, for a number of reasons, her case is anything but. First, Kitterman impersonated an official of the Florida Bar. Second, as the district court explained, this case will put people on notice that if “they do a fraud, and at the time they do it, they don’t appreciate the consequences of that fraud, there will be consequences if they are apprehended.” Third, while it is perhaps impossible to estimate what value Kitterman ascribed to the Bar complaints, the district court was correct that “it would blatantly be wrong to say [the intended loss] had no value.” Thus, a zero loss here does not, as might normally be the case, suggest that Kitterman’s intent was less pernicious. Fourth, this case is unusual because, as the district court noted, Kitterman was a lawyer and should have appreciated that “what [she was] doing is wrong.” Fifth, Kitterman’s sentence is also justified by the fact that Steven Caputi—who posed as a banker to deceive investors but who also did not know about the Rothstein Ponzi scheme—received a similar sentence of five years. Finally, Kitterman’s sentence is significantly below the total statutory maximum of 60 years imprisonment for the three wire fraud convictions.

Are criminal trials fair?

Judge Kozinski says no way in this really interesting read from the Georgetown Annual Review of Criminal Procedure.  His main points, as summarized by Business Insider:

1. Eyewitnesses are highly reliable

Eyewitnesses are highly unreliable, especially when the witness and perpetrator are of different races, or when witnesses are asked to recall a situation in which they were under the stress of violent crime or catastrophe, Kozinski writes. Mistaken eyewitness testimony was a factor in one-third of all wrongful conviction cases, according to his article.
Jed Rakoff, another well-known federal judge, made the same point in a Washington Post op-ed this year.

2. Fingerprint evidence is foolproof

Kozinski says prints left in the field are often smudged and incomplete — making them difficult to identify. He adds that when tested by more rigorous scientific methods, fingerprint examiners have a significant error rate.
The National Academies of Sciences has also said the work of fingerprint examiners can be flawed. 

3. Other types of forensic evidence are scientifically proven and therefore infallible

Aside from DNA evidence, Kozinski says what is true about fingerprint evidence is doubly true about bloodstain-pattern identification, foot- and tire-print identification, and ballistics.
"Some fields of forensic expertise are built on nothing but guesswork and false common sense," Kozinski writes. 
Recently, the Justice Department exposed major problems with microscopic hair testing in criminal cases. 

4. DNA evidence is infallible

Kozinski says the integrity of DNA evidence is often compromised during the collection, preservation, and testing process, and that DNA examiners are not always competent and honest.
As Mother Jones noted in April, "Real-life crime labs are a total mess."

5. Human memories are reliable

Kozinski, citing a study by cognitive psychologist Elizabeth Loftus, believes the mind not only distorts and embellishes memories, but that external factors affect how memories are recalled and described. 
In an interview with Slate, Loftus acknowledged that we're all capable of fabricating memories. 
"We all have memories that are malleable and susceptible to being contaminated or supplemented in some way," Loftus told Slate. 

6. Confessions are infallible because innocent people never confess

Kozinski has found that innocent people confess surprisingly often, due to a variety of factors including interrogation tactics, Stockholm syndrome, emotional or financial exhaustion, family considerations, and general feeble-mindedness. 
As The New Yorker has reported, police can also produce false confessions by using a certain interrogation technique. 

7. Juries follow instructions

Kozinski claims courts know very little of what juries do when they decide cases. Courts have no way of knowing whether juries follow instructions or even whether they understand them, according to Kozinski. 
"We have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases," Kozinski writes.

8. Prosecutors play fair

Kozinski believes prosecutors often fail to turn over evidence that could be favorable to the defense, known as exculpatory evidence. In a case called Brady v. Maryland, the Supreme Court ruled that prosecutors have to turn over that evidence. But Kozinski claims there's an "epidemic" of Brady violations in America. 

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt

In reality, Kozinski writes, the defendant is often at a disadvantage because prosecutors have the chance to argue their case before the defense during a trial.
That's troubling because of psychological evidence showing that "whoever makes the first assertion about something has a large advantage over everyone who denies it later," according to Kozinski.

10. Police are objective in their investigations

Kozinski says police have the opportunity to alter or remove evidence, influence witnesses, extract confessions, and more or less lead an investigation in such a way that they can stack the deck against somebody they believe should be convicted.
"There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence," Kozinski writes. 

11. Guilty pleas are conclusive proof of guilt

Kozinski has found that when a defendant believes an outcome is highly uncertain or stacked against them, they might cave and enter a guilty plea to a lesser charge so that they can still salvage a part of their life.
Judge Jed Rakoff has also lamented the fact that 97% of federal criminal defendants plead guilty if their cases aren't dismissed. 

12. Long sentences deter crime

America has 716 prisoners for every 100,000 people — the most of any country in the world, Kozinski notes. America also has much longer sentences than other countries for comparable crimes. Kozinski points out that a burglary charge in the US warrants an average of 16 months in prison, compared with five months in Canada and seven months in England.
"As with much else in the law, the connection between punishment and deterrence remains mysterious," Kozinski writes. "We make our decisions based on faith."

Meantime, there are a bunch of criminal trials starting this summer, which are expected to last over a month.  One just started before Judge Martinez, so if you are looking for something for your interns to do... send them over to watch a federal trial!

Happy 10th Birthday to the Blog!

The Southern District of Florida Blog shares its birthday with the U S of A.  The blog turns 10 this year.  And America is 239, not 2015.

The very first post 10 years ago asked for President Bush to appoint a Floridian to the Supreme Court.  Although the Court did get its first Hispanic jurist, it did not get a Floridian.  Hopefully one day soon!

Since then, the blog has had 2835 posts and more than 2 million views.

Thanks to all of my tipsters and readers.  It's been a fun 10 years.

--David

New Article on the Eleventh Circuit's State of Emergency

Section 46(b) of Title 28 of the U.S. Code states that appeals may be heard and determined "by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, ... unless the chief judge of that court certifies that there is an emergency." By General Order No. 41, the Eleventh Circuit was for the better part of 2014 certified to be in an emergency state. South Florida appellate lawyer Andrew L. Adler, who clerked for two judges of the Eleventh Circuit, wrote about this in his scholarly article Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts of Appeals, which was recently published in the Journal of Appellate Practice and Process.

Here's the introduction:

At the end of 2013, the chief judge of the Eleventh Circuit declared a state of emergency, exempting the court from the requirement in 28 U.S.C. §46(b) that each of its panels include a majority of Eleventh Circuit judges. As would later become clear, the emergency arose from multiple vacancies on the court, which exacerbated the effect of its heavy per-judge caseload. Throughout 2014, emergency panels consisting of one Eleventh Circuit judge and two visiting judges resolved over one hundred appeals. 

In a petition for rehearing filed in one such case, an unsuccessful appellant challenged the validity of the emergency panel. Rather than resolving the petition summarily, the emergency panel instead published a precedential opinion upholding the certified emergency. Although other circuits have certified section 46(b) emergencies based on the vacancy-caseload combination, the Eleventh Circuit's opinion is the first federal appellate decision addressing a challenge to such an emergency. Because extended vacancies and heavy caseloads are likely to persist, that opinion invites new scrutiny of the emergency exception to section 46(b)'s majority requirement. This article begins that undertaking.

Adler defends Chief Judge Carnes's application of the emergency exception.

If you're interested in the Eleventh Circuit -- or in the federal courts of appeals in general -- do check out Adler's well written and thoroughly researched article.

Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts of Appeals

“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.”

That's Judge Kozinski in this article calling for criminal justice reform:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.
If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate. *** The U.S. Justice Department seems ready enough to pursue charges of civil rights violations in cases where police have engaged in physical violence, but far more reluctant to pursue misbehaving prosecutors.

And from the East Coast, you have Judge Gertner saying her sentences during 17 years on the bench were unfair and immoral:

Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories––to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”
No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.

And yet, nothing seems to be happening with reform....  Same old, same old.

But, we may have a new Broward courthouse:

Florida's most conservative and liberal members of Congress joined forces Tuesday in calling for more federal spending — for projects in the state.
Led by U.S. Reps. Lois Frankel, a Democrat who represents Broward and Palm Beach counties, and Jeff Miller, a Republican who represents part of the Florida Panhandle, half the state's congressional delegation wrote the administrator of the agency in charge of federal buildings that Fort Lauderdale and Pensacola need new federal courthouses.

The letter to the General Services Administration, signed by 13 of the state's 27 representatives, declared an "urgent need" for new buildings, citing "substandard conditions" that "hinder the efficient administration of justice."

Federal judges, and the lawyers who appear before them, have been complaining for years about the courthouse at Broward Boulevard and Northeast Third Avenue in Fort Lauderdale. The development community in Fort Lauderdale has urged a new courthouse as has Mayor Jack Seiler, a lawyer. Cost of a new Fort Lauderdale courthouse has been estimated at $250 million.

I'm gonna miss Jon Stewart:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Sick burn by Justice Scalia. He came out on the completely wrong side of this, but at least his writing is entertaining (and at least he wrote the other opinion that day striking the ACCA residual clause; that's more than you can say for Alito, who is entirely predictable and political, and a boring writer.).

Perhaps you'd like to see you own name in a Scalia insult... well, click here for your Scalia insult.

Meantime, it's the last day of the Term today.  Pretty anticlimactic. Go to SCOTUSblog at 10am to see the final 3 opinions.

In the meantime, here's your Monday morning moment of zen:

Pointing a laser pointer at a plane... (TWO UPDATES)

... got this dude 14 years.  14 YEARS!!

Thankfully, the 9th Circuit vacated one of the convictions, so he'll get resentenced.  From the opinion:

There ought to be a law against shining a laser pointer at
an aircraft. In fact, there is, and it’s punishable by up to five
years in prison, as appellant Sergio Rodriguez discovered for
himself. Rodriguez, his girlfriend, and their kids were fooling
around with a laser pointer one summer evening in the
courtyard of their apartment complex – trying to see just how
far it could go – and they shined it at overflying helicopters.
Rodriguez was convicted of Aiming a Laser Pointer at an
Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced
to the maximum sentence: five years in prison. Rodriguez
does not challenge that conviction.
He also was convicted of another crime stemming from
the same conduct – Attempting to Interfere with the Safe
Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5)
and (8). That crime requires proof of a willful attempt to
interfere with the operator of an aircraft, with either the intent
to endanger others or reckless disregard for human life.
Rodriguez was charged with and found guilty of the reckless
variety, and for that offense, was sentenced to fourteen years
in prison.
The evidence clearly shows that Rodriguez was rightfully
convicted of aiming the laser pointer at a helicopter (§ 39A).
However, there is insufficient evidence that he willfully
attempted to interfere with the safe flight of the helicopter
(§ 32(a)(5)). Rather, the evidence showed that he was
attempting to see how far his laser would go at night – a
stupid thing to do, yes, but there is no evidence that he was
trying to interfere with the pilot. Section 39A is designed for
knuckleheads like him. On the other hand, 18 U.S.C.
§ 32(a)(5) is designed for both the Osama bin Ladens of the
world – people trying to bring down a plane, intending to
cause harm – and those who are aware that their actions are
dangerous and could harm others, but just don’t care. The
failure to recognize this distinction is to fail to appreciate that
Congress saw fit to create two different crimes, one more
serious than the other, for two different types of offenders.

Meantime, another Judge Moore sentence is at the center of an 11th Circuit opinion.  The court says there was a procedural error:

Juan Gutierrez (“Defendant”) appeals his 72-month sentence of imprisonment, imposed for violating conditions of his supervised release in three separate cases. Defendant argues that his sentence was procedurally unreasonable because the district court improperly considered alleged criminal conduct by Defendant that had not been proved. Defendant also argues that his sentence was substantively unreasonable because the district court abused its discretion in weighing the factors under 18 U.S.C. §§ 3583(e) and 3553(a).
Upon careful review of the record and the parties’ briefs, we conclude that, in imposing sentence, the district court committed procedural error by largely relying on alleged criminal conduct by Defendant that the latter argued had not been proved by a preponderance of the evidence, and that the court did so after having stated that it would not consider this conduct. We therefore VACATE Defendant’s sentence and REMAND for a new sentencing hearing on Defendant’s revocation proceeding.

 The opinion ends this way:

Because we conclude that the court committed a procedural error, we do not reach the question whether the court’s sentence would have been substantively reasonable had Defendant been properly proved to have engaged in new smuggling activity. We therefore remand for a new sentencing hearing at which the district court shall allow Defendant the opportunity to contest any information that the court is considering as a sentencing factor and at which the court shall consider only such conduct as is proved by a preponderance of reliable evidence.

Hmmmm. Where have I heard that before? Any bets on whether the sentence will be any different on remand?

UPDATE -- Big decisions by SCOTUS today, including healthcare.  Interestingly, Scalia uses "SCOTUS" in his dissent... first time that expression has been used in a Supreme Court opinion.  He says that Obamacare should be called SCOTUScare...  All kinds of funny memes on the internet about the opinion.  Here's one:






SECOND UPDATE -- Another sentencing reversal by the same panel with the same district judge here.

THIRD UPDATE -- And the same lawyer won both cases -- Richard Klugh.  Congrats!

Third Circuit issues incredible order:

This doesn't involve our district or circuit, but I find this order by Third Circuit Judge Theodore McKee absolutely fascinating (h/t How Appealing):

The Court would have granted Petitioners a stay of removal, but was informed that Petitioners were removed earlier today. The government is hereby ordered to use its best efforts to intercept Petitioners when they land tonight in Guatemala City and to return Petitioners to the United States immediately. If the government is unable to intercept Petitioners at the airport, they must locate Petitioners in Guatemala and return them to the United States as quickly as possible. Upon their return, Petitioners are granted a stay of removal pending disposition of their petition for review. If, upon contact, Petitioners inform the government that they do not want to return to the United States, the government shall secure a written memorialization to that effect -- even if that writing is in Spanish.

The only thing that would have made it better is if he would have ordered the return flight to be first class.