SCOTUS debates Florida death penalty post Ring

I'm sure it was more interesting than the snoozer of a debate last night in which the Supreme Court didn't come up.

The DP case before the Supreme Court was Hurst v. Florida. SCOTUSBlog has coverage of the interesting oral argument:

The case is about a brutal murder in a fast-food restaurant in Pensacola, but it reaches the Court as a clear-cut test of what the Justices had in mind in the 2002 decision in Ring v. Arizona. That ruling seemingly enhanced the role of the jury in capital punishment cases, assigning them the crucial task of deciding the facts that make a person accused of murder eligible to be put to death.

The Florida Supreme Court has taken the position that the Ring decision does not even apply to its death penalty system — a position that its lawyer — state Solicitor General Allen Winsor — did not repeat on Tuesday, even as he argued that the system fully satisfies that ruling. It would be Winsor who would, before the hearing ended, face the hardest questions about moral responsibility.

Hurst’s lawyer, Washington, D.C., attorney Seth P. Waxman (a former U.S. Solicitor General), left no doubt from the outset that he was aiming to put Winsor on the defensive on the jury question. “Under Florida law,” he began, “Timothy Lee Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.”

Under Florida law, no one can be put to death unless there is a finding of one “aggravating factor” — usually, some fact about the crime or the way it was committed that would justify the ultimate penalty. The jury, Waxman noted, only offers an advisory opinion to the judge about such factors, and then suggests either life or death.

Waxman quoted from Florida law, noting that the judge makes the crucial finding of aggravating factors “independently, and, quote, ‘notwithstanding the jury’s recommendation as to sentence.'” For most of his argument, he never strayed far from that point or from his secondary point that Florida is the only state to do it in that way. The Justices, as usual, tried a few hypotheticals to test the way the Florida arrangement actually works, but the sidelining of the jury was almost always a part of Waxman’s answers.

From the moment that Florida’s Winsor took the lectern, arguing at first that his state’s system was constitutional before and after Ring v. Arizona, he was almost constantly bombarded with probing questions about what juries actually did under that system. Justice Sonia Sotomayor was perhaps the most aggressive questioner.

Winsor sought to show that the task given to Florida juries was a serious one, but the questions from the bench continued to suggest that, no matter what the jury did or recommended, it could be overridden by the final choices that are assigned to the judge. At some points, it appeared that the state’s lawyer was making at least some concessions that part of the system would not satisfy the Ring precedent.

Some light reading for those working on Columbus day

1. Diveroli v. U.S. starts this way (per Judge W. Pryor):

Efraim Diveroli’s story is so outlandish that it has inspired an article in Rolling Stone, a book, and a forthcoming comedy film. See Guy Lawson, How Two Stoner Kids from Miami Beach Became Big-Time Arms Dealers—Until the Pentagon Turned on Them, Rolling Stone, Mar. 31, 2011, at 52; Guy Lawson, Arms and the Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History (2015); Borys Kit, Jonah Hill to Star in Crime Comedy ‘Arms and the Dudes,’ The Hollywood Reporter (Dec. 3, 2014, 4:56 PM), http://www.hollywoodreporter.com/news/jonah-hill-star-crime-comedy-753760. By age 21, Diveroli started his own company, became an international arms dealer, and won a $298 million contract with the United States Army to provide ammunition to Afghanistan. But his meteoric rise would not last. The contract prohibited Diveroli’s company, AEY, from acquiring ammunition from Chinese manufacturers. When Diveroli learned that his primary supplier obtained its ammunition from China, he and his cohorts concealed the origin of the ammunition and falsely attested that it was from Albania. A grand jury indicted Diveroli, AEY, and his coconspirators on 85 counts of major fraud, wire fraud, and conspiracy to commit fraud. After Diveroli’s attorney advised his client about the charges and estimated that he faced a sentence of 168 to 210 months if convicted, Diveroli pleaded guilty to one count of conspiracy for which the district court sentenced him to 48 months of imprisonment.
Diveroli moved to vacate his sentence, 28 U.S.C. § 2255, on the ground that his attorney miscalculated his potential sentencing exposure, which Diveroli argues was only 70 to 87 months. Diveroli argues that he would have proceeded to trial but for his counsel’s error. The district court denied his motion without an evidentiary hearing. Because the record establishes that Diveroli faced overwhelming evidence of guilt and had no viable defenses, we affirm.

2. If you are interested in the "rarely charged" crime of misprision of a felony, there is a lot to be said about it here (with a lengthy concurrence by Judge Martin). The background:

The misprision charge brought against Brantley stems from tragic events that occurred on June 29, 2010. Brantley was pulled over in a routine traffic stop. Brantley’s boyfriend, convicted felon Dontae Morris, was a passenger in her car. Upon questioning by the police, he emerged from the car and shot and killed two officers. He then fled on foot as Brantley sped away. Within minutes, Brantley spoke with Morris on a cell phone, and thereafter hid the car and exchanged texts with Morris. The traffic stop itself -- including the shootings -- was recorded by the dashboard video camera in a police car. The video was played for the jury.
At trial, the jury ultimately found that Brantley knew about a federal felony (her convicted-felon boyfriend’s possession of the firearm which he used to shoot the officers), did not report that crime to the authorities, and, in the aftermath of the murders, took affirmative steps to conceal Morris’s felony from the authorities.

3. Or if you are really desperate, you can check out my op-ed in the Jamaican Gleaner about the juror misconduct in Buju Banton's case. The conclusion:

US District Judge James S. Moody, rightfully outraged that a juror would disregard his instructions, found Wright guilty of criminal contempt and even ordered her to write a report about the cost of Buju's expensive six-day trial.

Although Wright will never get to fulfil her dream of being a professional juror, she will get to move on with her life. She won't have to do one day in jail. Buju, on the other hand, isn't set to be released from federal prison until 2019. Our system failed him.

The Times, They Are A Changin

That's the Bob Dylan song that Justice Scalia sang to Justice Ginsburg after the same-sex marriage case was decided. I'm not kidding.

Former AUSA, current Broward state judge resigns

The Sun-Sentinel has all of the details:

Broward Circuit Judge Lynn Rosenthal, who was facing a disciplinary hearing over her conduct following her arrest on a DUI charge last year, has resigned effective Oct. 31.

Her decision was confirmed on the same day the Judicial Qualifications Commission (JQC) announced a schedule of hearings in her misconduct case, which are now likely to be canceled.

"She called me and told me she's chosen to resign, effective the end of this month," said Broward Chief Administrative Judge Peter Weinstein. "This gives us enough time to decide who will replace her in her division."

Rosenthal has mostly handled foreclosures since her arrest on May 27, 2014. On that morning, Rosenthal arrived outside the courthouse showing signs of being impaired. She sideswiped a parked patrol car and repeatedly drove into the gate of the judicial parking lot between the courthouse and the Broward Main Jail.

According to police reports, she told investigators that she had taken an accidental overdose of the prescription sleep aid Ambien the night before. A breath test showed she was not under the influence of alcohol, but Rosenthal refused to submit to a blood or urine test that would have indicated whether she was affected by any other drug.

Prosecutors said there was a bottle of Xanax in her car.

During a JQC investigation that followed, Rosenthal admitted that she had recorded a video using her cellphone as she was driving to work. The video, police said, showed her driving erratically on Interstate 595. Rosenthal's husband deleted the video after police had seen it.

The JAABlog broke the story.

Narcos are still cooking

And shipping... here, in coffee (via New Times):

Officers were screening the package when they decided to send it through an x-ray. Something seemed funny, and officers found odd clumps in the coffee grounds. Further testing revealed those clumps were in fact cocaine — 4.1 pounds of it.

The shipment was being sent from Peru to an address in New Jersey.

“We’re extremely proud of our CBP officers and their ability to detect and seize narcotics,” Miami International Airport port director Christopher Maston said in a statement. "They remain dedicated to protecting the American people from dangerous drugs.”

Smugglers often try all sorts of crazy ways to sneak cocaine through customs at the airport. In August, CBP reported it had found 80 pounds of cocaine and heroin hidden in shipments of flowers traveling from Colombia and Ecuador since January 2014. CBP claims it seizes more than 10,000 pounds of drugs daily throughout its operations in the U.S.

Are you guys watching Narcos on Netflix? It's really good.

By the way, if you haven't seen Marc Caputo's daily "Florida Playbook" on Politico, you should check it out. It's fantastic.

SCOTUS changes rules on "line-standers" and tries to improve "link-rot"

Here's the statement by the Court. SCOTUSBlog has more:

The Supreme Court, changing some of its procedures with Monday’s opening of a new Term, announced that lawyers who plan to attend oral argument sessions can no longer hire “line standers” to hold their places. This is now a do-it-yourself opportunity, the Court said in a statement outlining several changes.

Long lines usually form outside the Court building only when a high-profile case is scheduled, with heavy demand for the limited seating in the courtroom. The new policy apparently does not affect public lines. The Court did not explain the new policy for attorneys.

Other changes announced on Monday included making revisions to a published opinion of the Court more visible and a new effort to keep Internet links that appear within Court opinions from disappearing — what the Court indelicately calls “link rot.”

First Monday in October

The Justices are back to work. I wonder if they had Sunday night blues...

Anyway, here's the first order of the Term. Nothing really interesting except that the Court denied cert in an important insider trading case (More on that here).

The USA Today has a good article previewing the Term:

The Supreme Court embarks on a new term Monday that would make Yogi Berra proud: It truly is déjà vu all over again.

The justices will rule on affirmative action for the third time in four years. They will rule on public employee union fees for the third time in five years. They will deliver verdicts on class-action lawsuits and death penalty appeals, as they do virtually every year.

Before the term is out next June, they likely will consider the Affordable Care Act's so-called "contraceptive mandate" for the second time in three years and update what they meant a generation ago in ruling that states could not place an "undue burden" on women seeking abortions.

"It's kind of a term of sequels," says John Elwood, an appellate lawyer who argues frequently before the court. "There are many cases or questions presented from past terms ... that weren't decided the first time, and they're back now to be answered, hopefully, this upcoming term."

Other issues that could reach the court this term or next include President Obama's effort to shield millions of illegal immigrants from deportation, challenges to voter-identification laws and other restrictions, and efforts by merchants such as bakers and florists to turn down same-sex weddings.

So far, the cases granted for oral argument this fall point the court led by Chief Justice John Roberts back in a conservative direction after a year heralded by liberals — for the landmark gay marriage and Obamacare rulings as well as others on housing and employment discrimination, judicial fundraising, and the way legislative and congressional districts are drawn.

Interesting interstate commerce case before the Supreme Court

Cert was granted in Taylor v. United States — Whether, in a case under the Hobbs Act, the government must prove that robbery of a drug dealer does actually affect interstate commerce.

From Courthouse News:

David Anthony Taylor was indicted on July 26, 2012, on multiple charges of affecting interstate commerce when he robbed a drug dealer, identified in court documents as Whitney Lynch, of marijuana, drug proceeds and a cellphone in August 2009.
At the time, the documents said, Taylor was a member of the "Southwest Goonz," a gang that specialized in robbing drug dealers, who in knew both kept drugs and drug proceeds in their homes, and, because of their activities, would be reluctant to report the robberies to the police.
Taylor's first trial resulted in a hung jury. But a second jury convicted him on July 25, 2013, and he was sentenced to 28 years in prison, three years supervised release and a $1,000 fine.
Taylor appealed, contending both that the government failed to introduce sufficient evidence to establish that his robberies affected interstate commerce, and that the district court erred by preventing him from showing that the particular drugs he tried to steal did not affect interstate commerce.
But the Fourth Circuit held that because drug dealing in the aggregate necessarily affects interstate commerce, the government was simply required to prove that Taylor deplete or attempted to deplete the assets of such an operation.
It also held that "sufficient evidence was adduced at trial for a rational jury to find that Whorley was a drug dealer and that Taylor depleted or attempted to deplete his assets during the August 27 robbery."
"This is not to imply that the reach of the Hobbs Act is without limits," the Fourth Circuit said. "All robberies are disruptive, but not every disruption is an obstruction of commerce."
The court noted that the Sixth Circuit has held that the jurisdictional element of the Hobbs Act was not satisfied when the defendant stood convicted of robbing "private citizens in a private residence" of money, some of which just happened to "belong to a restaurant doing business in interstate commerce."