Jordan v. Pryor

It's a pretty interesting debate, both in terms of style and substance, in this habeas case between Judges Jordan and Pryor.  Jordan ends up in the majority with a the vote of a visiting judge.  This angers Judge Pryor even though it usually happens in the reverse.  He starts his dissent this way:

Ace Patterson—a child rapist, kidnapper, and burglar—won the habeas lottery today. The majority gives him a second chance to collaterally attack his convictions in federal court, seventeen years after his trial and nine years after he filed his first federal petition for a writ of habeas corpus. Most state prisoners are not so lucky, as the Antiterrorism and Effective Death Penalty Act prohibits the filing of a “second or successive” petition for a writ of habeas corpus. 28 U.S.C. § 2244(b). But Patterson is luckier still. In a sleight of hand, the majority rules that a 2009 order sparing him from chemical castration—an unopposed order that benefited Patterson—somehow hit the reset button on his ability to obtain federal habeas relief, even though the 2009 order is not “the judgment authorizing [Patterson’s] confinement” and is irrelevant for purposes of the bar on second or successive petitions. *** The clear text of the statute makes “the judgment of a State court” that holds the prisoner “in custody” the judgment that matters for our collateral review. 28 U.S.C. § 2254(b)(1). And for good reason. Patterson, after all, does not object to anything in the 2009 order that spared him from chemical castration or allege that the removal of chemical castration somehow violated his federal constitutional rights. He instead seeks to collaterally attack the judgment of convictions  entered against him in 1998—a judgment he has already collaterally attacked once in federal court and four times in state court. And the majority lets him do it. Because that ruling is wrong in every way, I dissent.

Even though it's easy to disagree with his decision, you gotta give it to Judge Pryor -- he is a gifted writer.  Here's some more, this time from the conclusion:

When it comes to federal habeas petitions, the more is not the merrier. Relaxing the bar on second or successive petitions will “prejudice the occasional meritorious application” for a writ of habeas corpus by “bur[ying] [it] in a flood of worthless ones.” McCleskey, 499 U.S. at 492, 111 S. Ct. at 1469 (quoting Brown v. Allen, 344 U.S. 443, 537, 73 S. Ct. 397, 425 (1953) (Jackson, J., concurring in the result)). Despite the best efforts of Congress to prevent that “flood,” the majority is praying for rain. This case is not hard. And nobody should be fooled by the majority’s atextual decision. After seventeen years of repeated and often frivolous attempts to overturn his convictions, Patterson is being given another go-round based on an order issued in 2009 that both the State of Florida and the guardian ad litem thought was meaningless. That order does not authorize his confinement, and he does not allege that it violates his constitutional rights. Nor should he: the 2009 order gave him all of the relief that he requested. Today’s decision is gimmickry that will require the State of Florida to defend a child rapist’s convictions for the umpteenth time and will threaten a twenty-six-year-old woman to relive the horror of his monstrous crimes.

I dissent.

Judge Jordan goes for the even-tempered approach, expressing his disappointment in the anger from Judge Pryor's opinion, calling him out by name over and over again:

We respect the passionate dissenting views of our colleague, Judge William Pryor. Yet we suspect that Judge Pryor’s real disagreement is with Magwood and our prior decision in Insignares.

***

Finally, to the extent that Judge Pryor is suggesting that we are in some way trying to undermine AEDPA, such an accusation is as disappointing as it is wrong. As the Seventh Circuit recently noted, see Kramer v. United States, 797 F.3d 493, 502 (7th Cir. 2015), reasonable jurists can disagree about what constitutes a new judgment under Magwood. We have tried to faithfully apply AEDPA and Magwood in light of binding circuit precedent, and that binding circuit precedent is Insignares. We believe we have  accomplished that task, Judge Pryor’s protests notwithstanding.

And the visiting judge, District Judge Haikala, calls out Judge Pryor on his appeal to emotions.  Her concurrence begins like this:

Judge Pryor and Judge Jordan have prepared thorough opinions in this case. I have studied both opinions. I agree with Judge Pryor that this case is not hard. I agree with Judge Jordan’s analysis of the issue presented to the Court. Like Judge Jordan, I conclude that the rationale of Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273 (11th Cir. 2014), requires reversal. I write separately to address a few points in Judge Pryor’s opinion. In his opinion, Judge Pryor describes Mr. Patterson’s reprehensible criminal behavior. Minority Op. at 2-3. There is no doubt that the conduct that gave rise to Mr. Patterson’s conviction and sentence is heinous, but that conduct has no bearing
upon the legal standard that governs the issue before the Court. As the United States Supreme Court wrote in Chessman v. Teets: “On many occasions this Court has found it necessary to say that the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution.” 354 U.S. 156, 165 (1957). 

"will do anything to stay at the trough"

That was one of Donald Trump's recent tweets about Jeb!.  The New York Times has compiled this entertaining list of all of his "insult" tweets.  Enjoy.

Meantime, in Broward, there was sex [allegedly] in the jail between a lawyer and a client.  The Sun-Sentinel has the details.

And today's moment of zen comes from the Pac-10 where Michael Phelps distracted a college basketball player shooting a free throw...  watch the video here.

Can a bankruptcy judge order the marshals to arrest a lawyer?

There is some debate about whether a non-article III judge has that power.  But in any case, the answer is certainly NO after a district judge has issued a stay of the order.  Julie Kay has the very interesting story here:

Palm Beach bankruptcy lawyer Tina Talarchyk said she was getting ready to drive her twin girls to school Tuesday when federal marshals showed up to arrest her on a civil contempt order.
Talarchyk said she persuaded the marshals that an arrest order issued last week by U.S. Bankruptcy Judge John Olson was stayed U.S. District Judge Marcia Cooke in Miami pending appeal. She said the marshals left after getting new instructions.
"I think Judge Olson overreached when he entered an incarceration order without due process of having an evidentiary hearing," Talarchyk said in an interview. "I am shocked that after Judge Cooke entered her order that Judge Olson continued to personally reach out to the marshals to have me apprehended. I think it shows he lacked impartiality. The fact that it happened with my children in the car was traumatizing."
Olson held the Talarchyk Firm partner in contempt of court, suspended her from practicing in bankruptcy court and ordered her to be detained until she paid $10,949 into a client trust account. She insists she paid the money and doesn't owe her client anything.
Cooke issued an emergency stay of Olson's order Thursday after Talarchyk appealed, so Talarchyk and her lawyer are baffled about why the marshals showed up.

Be careful what you ask for

See, e.g., this prosecution of two abortion opponents who had asked for an investigation of Planned Parenthood:

A grand jury here that was investigating accusations of misconduct against Planned Parenthood has instead indicted two abortion opponents who made undercover videos of the organization.

Prosecutors in Harris County said one of the leaders of the Center for Medical Progress — an anti-abortion group that made secretly recorded videos purporting to show Planned Parenthood officials trying to illegally profit from the sale of fetal tissue — had been indicted on a charge of tampering with a governmental record, a felony, and on a misdemeanor charge related to purchasing human organs.

That leader, David R. Daleiden, 27, the director of the center, had posed as a biotechnology representative to infiltrate Planned Parenthood affiliates and surreptitiously record his efforts to procure tissue for research. Another center employee, Sandra S. Merritt, 62, was indicted on a felony charge of tampering with a governmental record.

The record-tampering charges accused Mr. Daleiden and Ms. Merritt of making and presenting fake California driver’s licenses, with the intent to defraud, for their April meeting at Planned Parenthood in Houston.

And congrats to the Canes last night for crushing Duke at home.  

SCOTUS decides jury instruction issue

What happens when the jury is instructed on a higher level of proof than is required by the law?  Does the prosecutor need to meet that higher burden or not?  Justice Thomas, for a unanimous Court, said the prosecution does not need to meet the higher standard, even though the jury instructions so stated.  From Law360:

The U.S. Supreme Court held Monday that a shipping executive sentenced to five years in prison for hacking his former employer can’t parlay erroneous jury instructions into an acquittal, rejecting his claim that those instructions meant the federal government had to meet a higher burden of proof than required by law.

In a unanimous decision, the high court rejected former Exel Transportation Services Inc. CEO Michael Musacchio’s claim that prosecutors had to abide by the incorrect instructions, which stated that a guilty verdict rested on two prongs of the Computer Fraud and Abuse Act rather than just one.

U.S. Supreme Court Justice Clarence Thomas wrote the opinion, which held that the executive had to held accountable to the letter of the law, not faulty instructions.

“The government’s failure to introduce evidence of an additional element does not implicate these principles, and its failure to object to a heightened jury instruction does not affect sufficiency review,” the court said. “Because Musacchio does not dispute that he was properly charged with conspiracy to obtain unauthorized access or that the evidence was sufficient to convict him of the charged crime, the Fifth Circuit correctly rejected his sufficiency challenge.”

Musacchio left Exel in 2004 to start his own shipping company, Total Transportation Services Inc., but a forensics firm hired by Exel hired discovered that Musacchio had accessed confidential information after he left, according to court filings.

Exel settled its civil claims against its ex-CEO for $10 million, but the federal government then indicted Musacchio in 2010, leading to a Texas federal jury’s guilty verdict against Musacchio three years later.

The jury convicted him on three counts under the CFAA, but part of its instructions stated that a conviction rested on proof that he made unauthorized access to Exel’s information “and” that he exceeded his authorized access.

Musacchio appealed to the Fifth Circuit, arguing that the government didn’t provide evidence sufficient to satisfy both prongs, but the court of appeals affirmed, stating that the substitution of “and” for “or” was an “obvious clerical error.”

After the Supreme Court agreed in June to review the Fifth Circuit’s decision, Musacchio said the jurors didn’t know the instructions they received were wrong and convicted him without enough proof to meet the standard they believed to be correct.

On Monday, the Supreme Court also rejected Musacchio’s attempt to show that the government’s allegations were barred by a five-year statute of limitations, finding that he could not raise that defense for the first time on appeal.

“When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment,” Justice Thomas wrote. “When a defendant does not press the defense, then, there is no error for an appellate court to correct—and certainly no plain error.”

And here's your Monday Moment of Zen:

Another PD Not Guilty

What a way to start the year for the FPD's office.  This one is out of West Palm and the lawyer was Peter Birch.  From Paula McMahon:

Jurors deliberated less than 10 hours over two days before finding a Palm Beach sheriff's corrections deputy not guilty of federal charges he violated jail inmates' rights and falsified a record to obstruct an FBI investigation.
William D. Wheeler, 46, was acquitted of three charges after a two-week trial in federal court in West Palm Beach.
"We are very grateful for the jury's verdict and Deputy Wheeler is very happy to put this behind him and hopefully get back to work at the Sheriff's Office as soon as possible," said Assistant Federal Public Defender Peter Birch, Wheeler's lawyer.
Phone messages left for Wheeler were not immediately returned.
Wheeler has been on administrative leave without pay since he was indicted in February. The corrections deputy was receiving a salary of $88,980 a year when he was removed from his position.
Wheeler was accused of using excessive force against two inmates, Joreel Sine and Jermaine Smith, in September and October 2013 while they were locked up in the Palm Beach Sheriff's jail system.
Smith, 22, is serving 10 years in state prison for carjacking, records show. Sine's whereabouts were unclear.Federal prosecutors did not call either of the inmates to testify in Wheeler's trial but security video of both incidents was shown to the jury, according to court records.
Wheeler testified in his defense that he used an appropriate level of force to prevent one inmate from spitting at him and that he did not cause the other inmate to bang his head against a door.

UPDATE -- I've been informed that the PDs also had two other wins this month: Bob Adler got a NG in a mortgage fraud case and Fletcher Peacock got one in a gun case.

"Worse than Death"

That's the name of this article about solitary confinement by Judge Alex Kozinski.  The intro:

For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay?1 What about a firing squad?2 How about life sentences for pirates3 or drug possessors4 or people who pass rubber checks?5 But we hear remarkably little about what may be the most severe punishment of all: solitary confinement. Lurking in the shadows of the conversation about inhumane punishments are some 100,000 souls who spend 23 hours a day alone in a cell the size of a parking space. In a world where making a rap video can earn you three years in the box,6 we should all be asking more questions about how prisoners get into solitary confinement, what “life” is like once they get there, and how they can get out.

The Liman Program’s Time-In-Cell Report begins this important conversation. The Report’s shuddersome findings confirm what I have long suspected: Solitary confinement is just as bad as the death penalty, if not worse.

There is a growing consensus that criminal justice reform is desperately needed.7 The difficult question is how best to allocate the scarce resources of lawyers, activists, and academics. I argue here that society should shift some resources and attention away from the death penalty and towards the problem of solitary confinement. If such a shift is not made, death penalty abolitionists may succeed in their campaign only to discover that they have won a Pyrrhic victory. Sending hardened criminals from death row to solitary confinement is no triumph. It merely swaps one type of death for another.

Meanwhile, the Washington Post has a piece about innocent people pleading guilty:

The presumption of innocence helps to combat prejudice and prejudging in the U.S. criminal justice system. But because plea bargains have supplanted trials in our criminal justice system, that presumption does not apply to most cases in the United States.
Prejudice against the accused is quite common. Consider your own experience: If you see that a police car has pulled a driver over to the side of a highway, what do you make of the situation? Most people probably think to themselves, “Hmm, that driver was probably caught speeding.” Similarly, if you heard that one of your neighbors had been arrested, you would likely say to yourself, “I wonder what crime he committed.” It is a common reaction to presume that the authorities had a good reason to detain or arrest someone.
To protect the innocent, however, the law demands that incriminating evidence be presented in court. The Constitution says every person accused of a crime has the right to an impartial jury trial. If the jury is persuaded that a person is guilty, then that person can lose his liberty and be punished. That is a sensible procedure for a just system, and it is why Americans have taken pride in our Bill of Rights.
Unfortunately, the system that is described by our school teachers and that Americans see on television and in the movies is now defunct. Jury trials are now rare events in the United States. In fact, about 95 percent of the cases moving through the system will not go to trial. The overwhelming majority of cases will be resolved by plea bargains.

 While the drumbeat of criminal justice reform is getting louder, many in the GOP are opposing commonsense measures.  

"How about the rest of us? Right-wingin', bitter-clingin', proud clingers of our guns, our God, and our religions and our Constitution. Tell us that we're not red enough? Yeah, coming from the establishment."

That was Sarah Palin yesterday endorsing The Donald.  There are so many good quotes.  More here.

Meantime, the Republicans are duking it out over sentencing reform.  Politico covers the story:

Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.
Criminal justice legislation is backed by the two top vote-counters of each party in the Senate and a powerful right-left coalition. It was bolstered by a presidential shout-out in the State of the Union last week. Passing a bill would advance McConnell’s favorite narrative — that the Senate is working again.

But loosening some mandatory minimum sentences is still a toxic suggestion among a vocal segment of the GOP, criticism that the presidential primary could amplify. Some backers of the bill fret that Sen. Ted Cruz, who’s vaulted into the top tier in the GOP presidential primary, might seize on the issue ahead of the Iowa caucuses. The Texas Republican has warned that a bill pending in the Senate could release violent criminals into the streets.
Still, backers are pressing ahead. Sen. John Cornyn (R-Texas), McConnell’s top deputy, has lobbied the majority leader to take up the proposal early this year. Backers say the Senate has to move on criminal justice reform quickly, perhaps as soon as next month, for the measure to have any hope of reaching President Barack Obama’s desk.