Still no cameras in the Supreme Court

You can film the cops on the street, but you can't watch a Supreme Court argument.  Something is wrong there.  The 3rd Circuit ruled last week that you have a constitutional right to record the police on the street.  From the AP:

A federal appeals court in Philadelphia has joined five other circuits in finding that citizens have a First Amendment right to videotape police in public.

The U.S. 3rd Circuit on Friday joined what it called the "growing consensus" that the public can photograph or record police without retaliation.

U.S. Judge Thomas L. Ambro stressed that the U.S. Constitution grants citizens the right to "information about how our public servants operate in public."

He acknowledged the pressure faced by police but said bystander recordings since at least the Rodney King beating by Los Angeles police in 1991 have both "exposed police misconduct and exonerated officers from errant charges." Such recordings, he said, provide different perspectives than the images captured by police dashboard and body cameras.

Cellphone recordings in the years since King's violent arrest was videotaped by a bystander have repeatedly captured shootings of motorists, suspects and others by police, fueling a national conversation around policing and minority communities, activists say.

"There's just no question in 2017 that the right to record the police is part of the liberty protected by the First Amendment, even more so now that smartphones are as ubiquitous as they are," said Molly Tack-Hooper, a staff attorney with the American Civil Liberties Union of Pennsylvania who argued the case. "A huge percentage of the country walks around with technology in their pocket that enables them to deter police misconduct by merely holding up a smartphone ... and distributing those recordings at the touch of a button."

Each federal appeals court that has weighed the issue has found it unconstitutional for police to interfere with such public recordings, Ambro said. The technology allows bystanders to complement traditional press accounts of how police use their power, he said.

Supreme Court Justices are public servants as well. We should get a chance to see how they operate in court.

Should judges be able to reject plea deals?

Should judges be able to reject plea deals?  That's the question raised in this case where "a federal judge in West Virginia has rejected a plea deal for a man accused of dealing heroin and fentanyl, arguing that 'the secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.'" From the Washington Post:

In his 28-page ruling, the district judge for the southern district of West Virginia, Joseph R. Goodwin, notes the severity of the opiate epidemic in West Virginia, calling the state “ground zero” in a crisis that amounts to “a cancer that has grown and metastasized in the body politic of the United States.”

He argues that given this context, “the bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.”

The judge makes a compelling case about needing more trials:

Plea bargains have become so widespread in part because of a perception that they place a lighter load on an overburdened criminal justice system.

But Goodwin argues that this perception is outdated. The judge draws on federal data sources to illustrate that federal criminal trials have fallen precipitously even as the number of U.S. attorneys has grown dramatically.

“In [fiscal year] 1973,” he writes, “each federal prosecutor handled over eight criminal trials on average. By [fiscal year] 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.”

Even though the system desperately needs more trials, it strikes me as wrong and dangerous to reject plea deals on an individual basis to accomplish this goal.  Rejecting plea deals on an individual basis will unfairly harm particular defendants, especially if that defendant will get a higher sentence should he lose the trial.

So, I think there are lots of ways judges can accomplish more trials.  For example, give more variances after trial.  Explain to defendants that there will not be a trial tax for going to trial.  Hold prosecutors' feet to the fire for discovery and other violations so that they don't think that they can get away with everything.  Enforce violations by excluding evidence.  Appellate courts need to have a more limited view of harmless error in the few cases that do go to trial.  There's a lot more to be said here.

Yes, more trials, but not this way.

Happy 12th Birthday to the Southern District of Florida Blog

Happy 12th Birthday to the Southern District of Florida Blog!

Twelve years ago in 2005, on the July 4 weekend, I started this blog and it's been a fun run of over 3,200 posts and over 5 million page views.

To put the 12 years in perspective:

The Wilkie Ferguson courthouse was not yet open.
Judge Zloch was Chief Judge of the District.
Mel Martinez was one of our Senators.
Alex Acosta had just been named Acting U.S. Attorney.
The Supreme Court had five different Justices than today: Rehnquist, Scalia, Stevens, Souter and O'Connor.
There was no Twitter.
My firm had one lawyer, me (it now has 5).
I had one daughter (I now have 3).
My commute was 20 minutes (it's now 45).
We still don't have a Floridian serving on the Supreme Court, which was the very first post!

Thanks again to all of you for reading and for the tips.  I still very much enjoy keeping tabs on the most interesting and exciting District in the country.

Top anticorruption prosecutor in Colombia arrested for ...

The top anticorruption prosecutor in Colombia was arrested for ...

you guessed it, corruption.

And of course there is Miami connection.  From the NY Times:

Colombia’s top anticorruption prosecutor was arrested Tuesday in his country’s capital after Drug Enforcement Administration agents in Miami said they had recorded him in South Florida at meetings where a former Colombian governor was asked to pay bribes in exchange for favorable treatment and names of witnesses.

The arrest is a blow to Colombia’s president, Juan Manuel Santos, whose conservative critics have accused his administration of mismanagement. In April, more than 10,000 people took to the streets to protest what many say is widespread graft.

The prosecutor ensnared in the latest case, Luis Gustavo Moreno Rivera, 35, is the director of the anticorruption unit of the attorney general’s office in Colombia. Mr. Moreno was under scrutiny by federal investigators in the United States because of accusations that he planned to seek a bribe from a criminal defendant while in Miami this month to deliver an anticorruption presentation to the Internal Revenue Service.

“With indignation and profound institutional pain,” the Colombian attorney general’s office said Tuesday, Mr. Moreno was held after Interpol issued a red notice “for conduct that seriously damages our institutional integrity.”

Meet your newest Magistrate Judge

Congrats to Shaniek Maynard, who was sworn in this week as our newest Magistrate Judge.  She will be stationed in Ft. Pierce.

(The blog first reported on the District's choice back in March).

Last day of the Term

This is a really funny note from Justice Rehnquist to Justice Marshall, expressing end-of-school-itis.  Today is the last day of the Term, and you can get all of your news at SCOTUSblog.

Funny Things Happen At Trial

Last week, the Supreme Court gave permanent resident Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, leading to Lee's deportation.  The twist here is that Lee's chances to win at trial were almost nil and therefore, he would get deported anyway.  So can a lawyer be ineffective for telling a defendant to plead guilty where the proof of guilt is overwhelming?

Chief Justice John Roberts, in his opinion for the court, said yes and explained that pleading guilty was a certain deportation and going to trial was an "almost" certain deportation.  Had Lee known this, he would have opted for trial even in the face of overwhelming odds.  I particularly liked NACDL's* amicus (available here), which explains that "funny things happen" at trial:

For all types of litigants, “there is no such thing as a sure winner . . . at trial” and “juries are inherently unpredictable.” Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 739–40 (N.D. Ill. 2014). Taking a case to trial may be more than just a “Hail Mary.” See Pet’r Br. at 30. Instead, it is a key part of criminal procedure that has nothing to do with “whimsy” or “caprice,” and everything to do with putting the government to its proof. Strickland v. Washington, 466 U.S. 668, 695 (1984).
Funny things happen on the way to, and at, the forum.12 The annals of criminal law are replete with unexpected developments and shocking results in the courtroom. A variety of factors influence a jury ver- dict, or a non-verdict. Trial practices affect trial out- comes. For example, juror note taking practices, the jury’s ability to ask the witnesses questions, the jury’s opportunity to discuss evidence before delibera- tion, jury instructions, juror sequestration, and the length of the deliberations may affect the outcome of a trial. Paula L. Hannaford-Agor, When all eyes are watching: Trial characteristics and practices in noto- rious trials, 91 Judicature 197, 200 (2008). Mr. Lee may reasonably weigh these factors, as well as those that affect a hung jury, against accepting his plea bargain. See Paula Hannaford-Agor et al., Why Do Hung Juries Hang? 251 Nat’l Inst. Justice J. 25, 26– 27 (July 2004). Many factors influence a hung jury, separate from jury nullification—the quality of the evidence, the degree to which jurors believe that the law they are instructed to apply is fair, and the jury deliberation process. Id. For example, a survey in the early 2000s revealed “39 percent of potential white jurors and 50 percent of potential black jurors would be ’very willing’ or ‘mostly willing’ to acquit, despite evidence of guilt, in a first-time, nonviolent drug pos- session case.” DeBartolo, 790 F.3d at 779 (citing Lawrence D. Bobo and Victor Thompson, “Racialized Mass Incarceration: Poverty, Prejudice, and Punishment,” in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010) (Fig. 12.9)).
 

*Full disclosure -- I am on NACDL's Supreme Court amicus committee, but did not participate in this brief.

Implicit Bias

One of the dirty little secrets of the criminal justice system is implicit bias.  This article by the Marshall Project shows what one district court is doing about the problem:

There’s something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named “Jury Lounge.” But in one federal district, the customary civics lessons for jurors have been given a twist to alert them to the hidden biases they might bring into the courtroom.
The source is a 10-minute video — believed to be the first of its kind — that since March has been shown to every prospective juror in the two federal courthouses, in Seattle and Tacoma, that serve the U.S. District Court for the Western District of Washington.
The video — which cost the court $15,000 to make — complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district’s U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffrey Robinson, an attorney for the American Civil Liberties Union who started his career as a criminal defense lawyer.
“You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam,” Robinson says in the video, describing examples of conscious — or explicit — bias. “Today, though,” he says, speaking slowly and looking directly into the camera, “I want to talk to you about unconscious bias: something we all have, simply because we’re human.”

Here's the video:



Will our District employ such a video?

Judge Milton Hirsch's Constitutional Calendar has this entry today:

On June 22, 1933, in the Limestone County, Alabama, Courthouse, Judge James Edwin Horton did one of the bravest and most principled things a judge can do.

Judge Horton had presided over the trial of Haywood Patterson, one of the "Scottsboro Boys." Patterson was a young black man charged in connection with the rape of two white women; and although it was perfectly obvious that there was no real evidence against him, he had been convicted with a recommendation for death. Horton had been cautioned by an emissary from the state capitol that if he were to grant the defense motion to set aside the verdict and order a new trial, there would be no chance of his being re-elected. "What does that have to do with the case?" he replied.

On that warm day in June, Judge Horton read aloud in open court every word of his order. It took over an hour. The defense motions were granted.

As he knew he would be, Horton was defeated overwhelmingly in 1934, and never served as a judge again. Haywood Patterson was re-tried in a case presided over by Judge William Callahan, who instructed the jury, inter alia, that if there was evidence of intercourse between a white woman and a black man, the intercourse was presumed as a matter of law to be rape.

If you'd like to be added to Judge Hirsch's email list, contact him at milton.hirsch@gmail.com