GUEST POST BY DORE LOUIS ON SILA LUIS v. U.S.

"You’re not looking for CJA rates are you?"

--Chief Justice Roberts to Howard Srebnick when the CJ was asking how a district court is to determine how much money should be used for a fee.

I was able to travel to D.C. to sit in the Supreme Court and watch Howard make his argument in Luis v. US – a case, which as was made clear during oral argument, has the potential to impact any defendant wishing to retain private counsel.

I had never been to the Supreme Court before, so attending the argument of my former professor was an exciting prospect. The pictures of the building and even video you may have seen do nothing for its grandeur. As you stand at the bottom of the steps looking up at the main entrance, you get a very real sense that you are standing before the “temple of justice” that the architect envisioned. The feeling does not diminish as you move through the different portions of the building to the courtroom.

As a member of the Supreme Court bar, there is a special and much shorter line to wait in to enter the building. It is first come first serve, and there are no “placeholders” permitted. When I arrived at 7:15, I was the fourth lawyer waiting to enter, compared with the 80 or so non-lawyers in a different line. Once you receive your pass, you have time to grab some breakfast in the cafeteria and check your phone. In many ways, the building has the feel of any other courthouse – security, lines, procedures, Marshals, etc., but when you realize the history that the Court has made, and look at the scale and architecture of everything, you know you are in a special place.

After breakfast, it is up to the courtroom – the soaring ceiling containing freezes high above the gallery (which interestingly enough, have tablets representing the Ten Commandments), makes the space seem more intimate than it actually is. However, as it fills with the many people who attend, you begin to appreciate that the room is actually quite large. The first order of business was the moving and swearing in of new bar members. It was particularly touching to see a father make the motion (before all 9 justices) on behalf of his daughter. There were new military lawyers being moved in as well – the sight of their perfect uniforms was quite impressive.

As soon as that was over, argument began. The first case was one involving class actions. It was an interesting contrast with Howard’s case. The point the justices were considering was much narrower; it dealt with the application of prior precedent to FLSA claims and the appropriate use of statistical damages models. Howard’s case on the other hand, dealt with much broader constitutional issues that have the potential to effect anybody charged with a crime. Both arguments were interesting in part because the justices were quite combative with the advocates in pressing their positions.

At its core, the question in Luis v. US is whether or not the government can restrain untainted assets and prevent a person from using them to hire a lawyer, under a theory that the assets could later be used to pay a fine or restitution.

Justice Breyer was openly hostile to the proposition and at one point had a rather testy exchange with the assistant solicitor general arguing the matter, which prompted the ASG to use more snark than I had ever witnessed in an appellate argument – in my view it would have more appropriate for him to have said “let me finish answering your questions please” rather than saying the same thing with sarcasm.

Justice Kennedy and Chief Justice Roberts got the ASG to commit that the government’s position necessitated a view that anybody charged with any crime, at any level – municipal, state or federal – could find their untainted assets frozen after being charged, and thus be unable to hire private counsel, solely for the purpose of paying a potential fine or money judgment in the event they were later convicted.

The proposition clearly did not sit well with a number of the justices. I have zero clue as to how the opinion is going to come down.

One interesting thing was Justice Thomas’s animation. Although true to form, he asked no questions, he was quite active on the bench – making notes, referring to the briefs, and on a few separate occasions, sharing comments and a laugh directly with Justice Breyer.

I highly recommend a visit to the Court to watch oral argument – all the better if it is somebody you know who is making it. It was very cool to see one of us up there fighting on an issue that was so important to his client, but equally so to all of us and our clients.

Two notes – 1 – the gift shop in the building sells books written by the Justices – I found that a bit tacky and odd. In my humble opinion, I think there are more appropriate places for that type of business. 2 – Howard made clear that his efforts were supported by and involved the work of numerous others: Scott Srebnick, Ricardo Bascuas and Joshua Shore were on brief. At the table were Roy Black, Scott Srebnick and Scott Kornspan, and Howard mentioned a ton of additional people who assisted him in preparing for the argument.

How does Chief Justice Roberts assign opinion writing

Adam Liptak has this pretty interesting article about a study done by Professor Richard Lazarus:

Chief Justice Roberts made certain that each justice had almost exactly the same number of majority opinions. His record on this score, Professor Lazarus found, is “unmatched by any prior chief justice.”

But not every opinion is equally desirable. Deciding which cases are most important involves an element of judgment, though close observers of the court’s work will agree on them most of the time. Professor Lazarus relied on charts published each term in The New York Times to identify 85 major cases.

That set of decisions tells a fascinating story about the Roberts court. The chief justice assigned about a third of the big opinions to himself and another third to Justice Anthony M. Kennedy.

The assignments to Justice Kennedy have a distinct purpose, Professor Lazarus wrote: to lock in his vote in close cases.

“One of the easiest ways to reduce the risk of the swing justice swinging the other way is to assign the opinion to that justice, thereby ensuring that the opinion is one he or she will be willing to join, even if the court’s holding may be far narrower as a result,” Professor Lazarus wrote.

After Justice Kennedy, Justice Samuel A. Alito Jr. was next in his share of big cases, with 16 percent. Justice Sonia Sotomayor was alone in getting no majority opinions in major cases.

The study’s most surprising finding concerned Justice Alito, the junior member of the court’s conservative wing, and Justice Antonin Scalia, its senior member.

Justice Scalia joined the court in 1986 and is its longest-serving current member. But he received about the same percentage of assignments in big cases as Justice Alito, who did not arrive until 2006. “Especially given how much seniority plays a systemically important role within the court,” Professor Lazarus wrote, “this is a striking result.”

Justice Alito is apt to write opinions of the sort Chief Justice Roberts prefers, Professor Lazarus wrote: incremental, without rhetorical flourishes, and able to command five votes.

So who will write the Luis case being argued this morning by Howard Srebnick? More on that later.

When should judges retire?

Here's a lengthy AP article about how the 9th Circuit is addressing senility and other such problems among aging judges. From the conclusion:

Richard Carlton, who runs the 9th Circuit's counseling hotline, said he gets a handful of calls a year from judges concerned that a colleague may be impaired.

"A lot of these situations resolve themselves pretty quickly," he said. "It often times turns out to be some kind of physical condition or some new medication somebody's taken, or they're in the process of transitioning from senior status to full retirement."

Over the past five years, the 10th US. Circuit Court of Appeals, which includes Colorado and five other Western states and has its own judicial health program, has addressed at least two complaints that could reflect mental decline.

One accused a senior district judge of falling asleep during a court proceeding.

The judge said a tiring family emergency may have been to blame and indicated that he would reduce his caseload and decline trials and lengthy hearings, according to a 2010 order by the circuit's chief judge.

The second complaint by a judge's former law clerk accused the judge of forgetfulness and erratic, abusive behavior. The judge underwent psychological screening and was cleared of any mental disability, according to a 2014 order by the circuit's chief judge.

The judges and complainants were not identified.

Canby encourages his colleagues to get ahead of any complaints by, like him, voluntarily declining to regularly hear cases at some point. In an article in the 9th Circuit's wellness newsletter, he said impaired judges threaten public confidence in the judicial branch.

"If a great majority of judges are determined to keep on judging until they are no longer mentally able to perform properly, instances of impaired judges still making decisions will multiply," he wrote. "The consequence of such behavior will be an unacceptably high rate of institutional damage."

Falling asleep during a court proceeding? If that's cause for forced retirement, we'd have quite a number of judicial emergencies...

Scalia v. Breyer in criminal case

And Justice Scalia is again supporting the defendant, this time in a statutory construction issue. From Slate:

Tuesday’s big moment, then, arrives when Scalia casts aside the musty canons and tosses a new idea on the table: the rule of lenity, which dictates that an ambiguous criminal law should be resolved in favor of the defendant. After Ann O’Connell, counsel for the government, concedes that “the canons of interpretation don’t get anybody 100 percent of the way there,” Scalia pounces.

“I agree!” he says with a Yoda-like head tilt. “And what I worry about is the rule of lenity. You have these dueling canons, and you have a rule that when the government sends somebody to jail for 10 years, it has to cross sharp corners. It has to dot every i and cross every t. It has to be clear!”

Scalia pauses. From either end of the bench, Justices Sonia Sotomayor and Elena Kagan lean forward to watch him speak. Nino still has a few surprises left in him.

“We’ve been discussing dueling canons and so forth,” he continues. “My goodness! I have no assurance what the right answer is. But I think that somebody could read this and think that it means what the petitioner says it means. And if that’s the case, it seems to me the rule of lenity comes into play. That’s what concerns me most about this case—not the dueling canons.”

Justice Stephen Breyer perks up visibly. Scalia has spent much of his career arguing for canons and textualism and strict constructionism. Breyer has spent most of his career fighting against all that, in favor of more flexible, contextual, practical mode of interpretation. Suddenly, Scalia appears to be joining his team. Breyer decides to see how far he can push his frequent sparring partner.

“So if we are absolutely at equipoise,” Breyer says, “before turning to the rule of lenity, I would like your comment”—he grins slightly—“on my temptation”—his grin becomes a smile—“to say, at least here”—Scalia turns to watch—“that the legislative history helps.”

“I knew you were going to say that!” Scalia roars with a chortle, and the courtroom explodes into laughter. “I knew it!”

Caught in between Scalia and Breyer, Justice Clarence Thomas chuckles, too. Thomas and Scalia, of course, despise legislative history and absolutely refuse to use it. But Breyer boldly presses on, citing a congressional committee report stating that the law in question was designed to enhance a defendant’s penalty “if they had a prior conviction for sexual abuse of a minor.”

“And that’s what the drafter would have been looking at,” Breyer continues, “when working with the staff of the committee when trying to translate general intentions of senators and representatives into actual language. And I think it’s not contrary to popular belief to say that senators and representatives do hire staff to do such things and do not sit there with a pen and pencil thinking, where does the or go?”

Breyer’s thoughtful defense of legislative history receives a verbal middle finger from Scalia.

“You don’t think Congress can leave it to its staff to decide what a statute means, do you?” Scalia asks O’Connell, beaming like a naughty little boy who isn’t really sorry he broke the fine china. “Isn’t legislative power nondelegable?”

The Cal Ripken of the Judiciary...

...is Gerald Tjoflat. From the Daily Report:

When it comes to retirement, federal judges have a pretty good deal.

Assuming they've been on the federal bench for at least 15 years, they can retire when they are 65, keeping their full salary. If they want to stay in the game, they can go on what is called senior status, where they stay on the payroll but with a lesser workload.

Gerald Bard Tjoflat, a judge on the U.S. Court of Appeals for the Eleventh Circuit, was eligible to retire or take senior status 20 years ago. But he is going nowhere, it seems, keeping a full caseload.

At 85, the Gerald Ford appointee is the longest serving, currently active federal judge in the country. Appointed to the district court in 1970 by Richard Nixon, Tjoflat celebrated his 45th anniversary as a federal judge last month. And this month—his wife, Marcia, keeps track, he says—he becomes the only judge to have been in active service on a federal court of appeals for 40 years.

He hardly seems to be slowing down. Though it has been nearly 20 years since he served as the Eleventh Circuit's chief judge, he recently headed up a highly sensitive inquiry into conduct by an Alabama federal judge. He continues to regularly churn out opinions of 40 pages or more.

In a recent interview at the Eleventh Circuit's Atlanta courthouse, as well as some follow-up exchanges, Tjoflat discussed his life and career.
A 'Freakish' Court Appointment

Born and raised in Pittsburgh, Tjoflat attended college at the University of Virginia, where he played college baseball. He even worked out with the Cincinnati Reds for a couple of weeks one summer. But Tjoflat says a desire to keep his education on track, as well as problems with his feet, kept him from going further. Born with club feet, he says, they had to be essentially reconstructed with experimental surgery when he was an infant.

While he was at UVA, his family had moved to Ohio, and he switched to the University of Cincinnati, where he began law school. (He never received an undergraduate degree, he says.) His father was an engineer and patent lawyer. "I went to law school for no other reason than that," says Tjoflat.

The Korean War interrupted Tjoflat's law school studies. Tjoflat says he spent the war in Virginia as a counterintelligence agent, doing investigative work that cemented his decision to pursue a legal career. He returned to Cincinnati but ultimately received his law degree from Duke University in 1957.

Taking an offer from a firm in Jacksonville, Florida, Tjoflat spent about a decade in a general private practice.

He describes his appointment to a state trial court opening as "freakish." The area was dominated by Democrats—but the governor who would fill the post, Claude Kirk, was the first Republican since Reconstruction to hold the office. "I was a registered Republican," says Tjoflat. "You could count 'em on your fingers and toes, really." Plus, he says, Tjoflat's firm had represented an insurance company in which the governor had been involved.

Tjoflat says he figured he wouldn't last once he had to face the voters in a partisan race. "I had told my partners, 'I'll see you in January.'" But no one registered to run against him.

And soon, in October 1970, he was nominated by Nixon to a new seat in the Middle District of Florida and confirmed by the Senate a week later.

"How would you feel if your 10-year prison sentence depended on a dangling modifier?"

That's the question asked by Professor Noah Feldman in this piece:

That's the situation for Avondale Lockhart, whose case was heard Tuesday by the U.S. Supreme Court.

Lockhart was caught in a federal sting and pleaded guilty to one count of possessing child pornography. He had a previous state conviction for attempted rape, a form of sexual abuse.

According to federal law, Lockhart gets a mandatory 10-year minimum sentence for the child pornography if he had a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The crucial words here are “involving a minor.” Lockhart says they apply to the whole sentence. Because his prior conviction was for attempted rape of a woman, not a minor, the law doesn't apply to him. The government says “involving a minor” just refers to the last part of the sentence, “abusive sexual conduct,” not to what came before. It thinks Lockhart should get the 10 years.

The conclusion:

The upshot is that language is fuzzy and imperfect -- and we need a common-sense solution to that problem, not abstract rules. The court may spend a lot of time talking canons, but it shouldn’t. Statutory purpose is the best way to resolve difficult statutory questions. Lockhart shouldn't get the enhancement under the law -- no matter how much you detest his crimes.

Baby steps

The Tampa Tribune has this nice piece about some of the relief people are getting from Obama's new drug laws.  Here's one story:

Isabelita Duran, 57, knows exactly how much time she spent in federal prison for drug trafficking.
“Twenty years, one month and seven days,” she says.
In that time, her oldest brother died of cancer. Other family members also died.
“I had three aunts die of a heart attack while I was in prison,” she says. “My cousin died.”
Her biggest fear was not getting out in time to be with her elderly, ailing mother.
“When my mother was sick in the hospital,” she said, “I couldn’t do nothing for her.”
Thanks to the retroactive changes in federal drug sentences, Duran is now with her mother. She is on home confinement at her mother’s house in Zephyrhills, wearing an ankle monitor until Feb. 3, when she will be released on probation.
“God answered our prayers,” she said. She says she’s profoundly grateful to be released well before the end of her original 35-year sentence.
She has learned her lesson, she says. “You never should take the easy way out,” she says. “If I see somebody in my ex-life (selling drugs), I would tell them don’t do it. In the long run, it’s not going to pay. You’re going to end up in prison, and that fast money is going to go like water. Nothing is worth it. Nothing is worth losing your family for all those years.”
The sentencing change took 10 years off her term for drug trafficking. The rest of the reduction came from good time behind bars and a year off for completing a drug treatment program.
She was originally arrested in 1995 and prosecuted as part of a ring that trafficked large amounts of heroin and cocaine from Puerto Rico to the Orlando area.
“It was a conspiracy to do drugs,” she says. “It was my first time. There was no violence.”
She says people higher up in the organization received much lesser sentences by pleading guilty and cooperating with the prosecution. “I chose not to cooperate with the government,” she says. “I chose to take my rights and go to trial.”
She says she’s not sure what she thinks her sentence should have been, except it shouldn’t have been more than 10 years. “If you don’t learn in 10 years, you will never learn,” she says. “Prison isn’t going to change you.” That has to come from within yourself, she says.
“I learned my lesson. I know I did wrong and I repented of it and I asked forgiveness to the Lord, you know, and I know I did wrong. I know I didn’t deserve so many years.”
She says she did her time in prisons around the country, frequently applying for transfers so she could take advantage of different programs. In a federal medical center in Texas, for example, she had an apprenticeship as a nurse’s assistant. She participated in a drug program in Connecticut.
She also attended a program on changing her ways and had a quality control apprenticeship in an inmate factory that made military cables and radio mounts. She said she obtained her GED degree and took business classes, too.
“I tried to make it a positive, but prison is never good for nobody,” she said. “But I kept thinking positive. I just worked, went to church — God kept me with a sound mind, sound spirit — did exercise.”
She was released Oct. 7 to a halfway house, but they needed her bed, so she was put on home confinement on Oct. 21. She leaves the house to attend mandated programs, such as a life skills class, and to report to her case manager.
After 20 years behind bars, she has trouble with sensory overload. Crossing the street or taking a bus are overwhelming experiences, and she doesn’t know how to use a smartphone.
One of the first things she wanted to do when she got out was eat some traditional Puerto Rican food — roasted pork and arroz con gandules, or rice with pigeon peas.
She said she loved the nurse assistant training, which gave her skills she is using now to care for her mother. She hopes to find employment along those lines when she is able.
How did she get involved in drug trafficking?
“I’m not going to blame anyone because I had a choice,” she says. “I met this man and he introduced me to it. It wasn’t his fault because I should have known better. I grew up in a Christian home with my mom. ... He showed me that kind of life, and just greed.”
Duran stresses she is not blaming the man who introduced her to drug trafficking.
“I needed money, and I got blind and I said, oh well, and I just did it. But I was young and I had a child. I needed to pay rent. I should have known because I have family that had done everything the right way. They got everything the honest way. I learned my lesson and I paid my time.”

How do we stop racial discrimination in jury selection?

The Batson process certainly doesn't work...  SCOTUS will take up the issue this morning.  From USA Today:

The original jury pool for Timothy Foster's 1987 murder trial in Rome, Ga., included 10 blacks among 95 potential jurors. During the selection process, prosecutors highlighted their names, circled the word "black" on their questionnaires and added handy notations such as "B#1" and "B#2."

After more than half the pool was excused for specific reasons, each side was allowed to make a set number of additional strikes — as long as it wasn't because of race or gender. On a sheet they labeled "definite NO's," prosecutors listed the five remaining black prospects on top, and they ranked them in case "it comes down to having to pick one of the black jurors."

Foster, who is black, was swiftly convicted of murdering an elderly white woman. At sentencing, the prosecutor urged the all-white jury to impose death in order to "deter other people out there in the projects" — where 90% of the residents were black.

In a case that would appear to have multiple smoking guns, Foster's conviction and death sentence will go on trial Monday at the Supreme Court — and so, too, the process by which judges consider claims of racial discrimination in jury selection.

The case is important on two levels. If the justices find that Foster's constitutional rights were violated and instruct that he be given a new trial, the ruling could impact the way prosecutors, defense attorneys and trial judges handle jury selection in the future. And because Foster received a death sentence, it could fuel concerns previously voiced by two justices that the death penalty itself may be unconstitutional — in this case because of racial bias.

And for all of you UM haters out there, I give you this to enjoy this Monday morning: