NY Times covers “Testilying”

The NY Times has a nice piece about testilying — police officers lying under oath — in New York courts.  It’s been a problem for a long time across the county.

Officer Nector Martinez took the witness stand in a Bronx courtroom on Oct. 10, 2017, and swore to tell the truth, the whole truth, and nothing but the truth, so help him God.

There had been a shooting, Officer Martinez testified, and he wanted to search a nearby apartment for evidence. A woman stood in the doorway, carrying a laundry bag. Officer Martinez said she set the bag down “in the middle of the doorway” — directly in his path. “I picked it up to move it out of the way so we could get in.”

The laundry bag felt heavy. When he put it down, he said, he heard a “clunk, a thud.”

What might be inside?

Officer Martinez tapped the bag with his foot and felt something hard, he testified. He opened the bag, leading to the discovery of a Ruger 9-millimeter handgun and the arrest of the woman.

But a hallway surveillance camera captured the true story: There’s no laundry bag or gun in sight as Officer Martinez and other investigators question the woman in the doorway and then stride into the apartment. Inside, they did find a gun, but little to link it to the woman, Kimberly Thomas. Still, had the camera not captured the hallway scene, Officer Martinez’s testimony might well have sent her to prison.

When Ms. Thomas’s lawyer sought to play the video in court, prosecutors in the Bronx dropped the case. Then the court sealed the case file, hiding from view a problem so old and persistent that the criminal justice system sometimes responds with little more than a shrug: false testimony by the police.

Here’s an old post from this blog about the problem:

Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense: 

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS. 

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV.  

Those are interesting concepts, but the following 4 statements will encourage more discussion: 

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS. 

VII. ALL JUDGES ARE AWARE OF RULE VI. 

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING 

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 
There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.
What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor.  
--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).    
--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid.  
--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.       
--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

Congrats to Bruce Reinhart and Carolyn Bell

Bruce Reinhart was sworn in as our newest magistrate this week.
And Gov. Scott named Carolyn Bell to the circuit bench in Palm Beach County.
When is the last time a married couple both became judges in one week?
Here are some pictures from Reinhart's swearing-in:

CA11: No right to privacy in cell phones at border

A battle of the Pryors.

The 11th Circuit held today in a short 7 page opinion, per Judge William Pryor and joined by a visiting judge, that there is no expectation of privacy to a cell phone searched at the border:

This appeal presents the issue whether warrantless forensic searches of two cell phones at the border violated the Fourth Amendment. U.S. Const. amend IV. Hernando Javier Vergara appeals the denial of his motion to suppress evidence found on two cell phones that he carried on a cruise from Cozumel, Mexico to Tampa, Florida. He argues that the recent decision of the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014)—that the search-incident-to-arrest exception to the warrant requirement does not apply to searches of cell phones—should govern this appeal. But we disagree. The forensic searches of Vergara’s cell phones occurred at the border, not as searches incident to arrest, and border searches never require a warrant or probable cause. At most, border searches require reasonable suspicion, but Vergara has not argued that the agents lacked reasonable suspicion to conduct a forensic search of his phones. We affirm.

  Judge Jill Pryor dissented:

In this case we decide for the first time whether a warrantless forensic search of a cell phone at the United States border comports with the Fourth Amendment. To determine whether a law enforcement practice is constitutional, courts must balance its promotion of legitimate government interests against its intrusion on an individual’s Fourth Amendment rights. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Here, we weigh the government’s interest in conducting warrantless forensic cell phone searches at the border with Hernando Vergara’s privacy interest in his cellular devices and the data they contain.
The majority opinion concludes that this balance weighs heavily in the government’s favor because the searches occurred at the border. I agree with the majority that the government’s interest in protecting the nation is at its peak at the border, but I disagree with the majority’s dismissal of the significant privacy interests implicated in cell phone searches, as articulated by the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014). Because Riley did not involve a border search, I acknowledge that I can, at best, attempt to predict how the Supreme Court would balance the interests here. But my weighing of the government’s heightened interest at the border with Vergara’s privacy interest in his cell phones leads me to a result different than the majority’s. I respectfully dissent because, in my view, a forensic search of a cell phone at the border requires a warrant supported by probable cause.

News & Notes

1.  It's tourney time.  So lots of "sick" lawyers will be staying home today and tomorrow.

2.  Notorious RBG is 85.  Happy birthday.

3.  RIP Stephen Hawking.  "I have noticed even people who claim everything is predestined, and that we can do nothing to change it, look before they cross the road."

4.  RIP Toys R Us.

I don't wanna grow up, I'm a Toys R Us kid
they got a million toys at Toys R us that I can play with
I don't wanna grow up, I'm a Toys R Us kid
they got the best for so much less, it'll really flip your lid
From bikes to trains to video games
it's the biggest toy store there is (gee whiz!)
I don't wanna grow up, cause maybe if I did
I couldn't be a Toys R Us kid
more games, more toys, oh boy!
I wanna be a Toys R Us kid

Should prosecutors be guided or unguided in their pursuit of a defendant?

Should prosecutors be “guided” or “unguided” in their pursuit of a defendant?

I thought it was interesting that Deputy Attorney General Rod Rosenstein defended Special Counsel Robert Mueller by saying he was a “guided missile.”  One criticism of a “special counsel” is that they are “guided” to investigate a particular person.  That was the criticism of Ken Starr when he was guided into the Clintons.  And that may be the criticism of Mueller, especially now that he is questioning witnesses about Stormy Daniels.

Meantime, here in Florida, what will happen with the Florida Supreme Court if Rick Scott runs against Bill Nelson for that Senate seat.  Here’s the AP:

Here’s the problem: If Scott, a Republican, is elected to replace Democratic U.S. Sen. Bill Nelson, he could be forced to step down nearly a week before his term is scheduled to end. That’s because Congress — at least for now — is scheduled to start its 2019 term on Jan. 3 — before a new governor is sworn into office on Jan. 8.

On paper, and looking back at history, that doesn’t seem like a big deal. Three decades ago, then-Gov. Bob Graham left office early because he was elected to the U.S. Senate.

But an early departure by Scott could complicate a brewing legal fight over the makeup of Florida’s Supreme Court. Scott plans to appoint three new justices on his final day in office. If he leaves early, he could lose his window to do that — although his immediate replacement, Lt. Gov. Carlos Lopez-Cantera, also a Republican, could appoint similar candidates.

John Grisham on wrongful convictions in our criminal justice system

This is a good op-ed by Grisham outlining why we have so many wrongful convictions:

It is too easy to convict an innocent person.

The rate of wrongful convictions in the United States is estimated to be somewhere between 2% to 10%. That may sound low, but when applied to a prison population of 2.3 million, the numbers become staggering. Can there really be 46,000 to 230,000 innocent people locked away? Those of us who are involved in exoneration work firmly believe so.

Millions of defendants are processed through our courts each year. It's nearly impossible to determine how many of them are actually innocent once they've been convicted. There are few resources for examining the cases and backgrounds of those claiming to be wrongfully convicted.

Once an innocent person is convicted, it is next to impossible to get them out of prison. Over the past 25 years, the Innocence Project, where I serve on the board of directors, has secured through DNA testing the release of 349 innocent men and women, 20 of whom had been sent to death row. All told, there have been more than 2,000 exonerations, including 200 from death row, in the U.S. during that same period. But we've only scratched the surface.

In the federal system many innocent people are forced to plead guilty because of the risks of going to trial. Go to trial in the federal system and often times you are looking at more than 10 years in prison, at best. Plead and you get cut that exposure way way down. Other districts are starting to lessen the trial penalty. Martin Shkreli was just sentenced to 7 years even though prosecutors said his guidelines after trial were 15+ years. Many will say that 7 years was too low. Others will say that 7 years is a lot for a first-time non-violent offender. Regardless of what side you come out on, we should all agree that going to trial should not result in a upward risk of 3 or 4 times or more the sentence you'd receive for pleading guilty.

News and notes

1. High school students are making change. They beat the NRA in the Florida Legislature with these gun control measures now on Gov. Scott's desk.  It's really incredible and inspiring to watch these energized kids do their thing.  I'm hoping some of them become criminal defense lawyers.

2.  Justice Kagan discusses her time clerking for Justice Marshall.  Here's one story: Kagan recalled how Marshall judged the fairness of death penalty trials. “I remember once he said to us that when a jury brought back a sentence of life imprisonment, that’s when he absolutely knew that the guy was innocent.”

3. It's a stormy time in the White House.  Stormy will be in the Southern District of Florida this weekend.  Not for her lawsuit.  Just a performance.  And no, she won't be auctioning off the dress...

4. RBG, the movie, is coming out soon.  Here's the trailer:

Good luck to Judge Jerald Bagley

Judge Jerald Bagley was a state circuit judge for many years in Miami and was a finalist to be a federal judge on 3 different occasions.  I wish he would have gotten it.  He's a great person and would have been an excellent federal judge.  He will be a great mediator in his new business.  The DBR covers his new gig here:

His new venture, J. Bagley Mediation Services, launches April 1 in Miami.

***

“I’m trying to go out with very little fanfare,” Bagley said Monday in a telephone interview. “I just tried to do my job — the good work that many of my colleagues do. … Serving the public is good enough for me, and I’m proud to have spent the last 35 years doing so.”

The longtime prosecutor served in the juvenile and felony divisions of the state attorney’s office before rising to the circuit bench in 1995. His ran unopposed in 2014, winning a six-year term that was set to expire in January 2021.

“I am very thankful for the privilege and honor of serving 23 years as a circuit judge, working alongside so many excellent colleagues and support and administrative staff,” he wrote in a Jan. 29 retirement letter to Gov. Rick Scott. “I retire knowing that I have given much but received more from so many opportunities gained from my previous position as an assistant state attorney and currently as a circuit judge.”