"Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable."

That's a quote from this Cato Institute article on prosecutorial misconduct.  This is one of the dirty little secrets of the criminal justice system.  Nothing happens when prosecutors withhold Brady...

Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable. Internal discipline does little to nothing, criminal prosecutions are incredibly rare, and — thanks to the Supreme Court’s invention of the doctrine of absolute immunity — prosecutors can never be held civilly liable, even for the most egregious, willful misconduct. This is all the more troubling because prosecutors wield enormous power in our criminal justice system, especially given the immense leverage they can bring to bear on defendants to coerce them into accepting pleas. In light of this background, it is crucial for the SJC to issue broad relief — in particular, to issue standing orders that compel pre-plea compliance with the disclosure obligations of Brady v. Maryland, and that provide for meaningful discipline and sanctions if prosecutors fail to meet these obligations.

One major problem is that there is absolutely no deterrence at all, either to prosecutors themselves for the misconduct (if you ask OPR, there has never been an intentional case and nothing even happens even when a judge finds misconduct) or to the cases when misconduct occurs (because the prejudice standard is made to be impossible). Why don’t all prosecutors have open-file, turn over witness statements and grand jury testimony, etc. It’s not because of concerns of witness safety (when is the last time something happened to a witness?); it’s because of the desire to win. The same thing for bail— why ask for detention... not because of any real fear that the defendant will run (that happens in a statistically insignificant number of cases); it’s for a desire to win. The same for arguing for monster sentences after trial. It’s done to convince people to plead. These incentives cause huge problems. 

It's not a surprise that the U.S. has the largest incarceration rate in the world.  The criminal justice system needs to be revamped to address these issues.  Until that time, we need judges to step up -- order disclosure of material (and not just say that the prosecutors know what their obligations are); grant bail (and not detain so many presumed innocent defendants); give reasonable sentences even after trial (so that the risks of trial don't result in 97.5% of cases pleading out, which means that innocent people are pleading).  And on and on.  Please excuse the rant.

Slow SDFLA

Not much going on in the District right now.  Seems pretty quiet.  Last week was the 11th Circuit conference, and Clarence Thomas gave the keynote address.

This Bloomberg article discusses how Justice's personalities come through in Opinions Related to Orders (ORTOs):

The U.S. Supreme Court’s “opinions related to orders” get less attention than their merits opinions, but they give courtwatchers clues about the justices who write them.

Merits opinions set a binding rule for the entire country to follow. Opinions related to orders—ORTOs—are often the thoughts of one justice on a case the court has decided not to take up.

The justices vary quite a bit in how often they write opinions related to orders, Bloomberg Law analysis shows. Since October 2011, Justice Sonia Sotomayor has written 31 opinions related to orders. Justice Anthony M. Kennedy has written none.

“I think it isn’t surprising that there’s some variation between the Justices,” Daniel Epps, a former clerk for Kennedy, told Bloomberg Law. “But I think it is a bit surprising just how much variance there is.”

Interestingly, although Thomas doesn't speak at oral arguments, he comes in second with 24 ORTOs. 

Trump judges

USA Today has a lengthy and interesting story about the judges that Trump has appointed "flexing their muscles."  It starts by saying that their rulings have mostly been conservative (shocker!):

Nearly a year after the first of them won Senate confirmation, 15 nominees have made their way to federal appeals courts, representing perhaps Trump's most significant achievement in his 15 months as president. A dozen more are in the pipeline.

While it's too soon to detect a definitive trend, Trump's judges are making their presence felt through the weight of their votes and the style of their rhetoric.

Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit led the way last May and has amassed the largest body of work so far. He helped uphold Ohio's method of lethal injection as well as a Michigan county's practice of opening government meetings with Christian prayers.

Judge James Ho, a more recent addition to the 5th Circuit Court of Appeals, dissented from its refusal to reconsider a challenge to strict campaign contribution limits in Austin, Texas, that he said violate the First Amendment.

Judge Amy Coney Barrett of the 7th Circuit Court of Appeals helped block the U.S. Equal Employment Opportunity Commission's attempt to stop an employer from transferring Chicago-area employees based on their race or ethnicity.

Three judges named by Trump to the 8th Circuit Court of Appeals — Ralph Erickson, Steven Grasz and David Stras — joined in its refusal to reconsider a Missouri inmate's plea to change his method of execution because a rare health condition could make lethal injection too painful. The Supreme Court nevertheless agreed to hear the case next fall.

But then the article explains that it's not always so clear that the judges are going to rule as predicted, and uses an example from the 11th Circuit:

Judge Kevin Newsom of the 11th Circuit joined a three-judge panel's unanimous ruling that an Alabama police department's demotion of a female officer seeking to breastfeed her newborn child was discriminatory. The panel said its holding "will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences."

There is no question that Trump, unlike Obama during his presidency, is focused on judicial appointees:

Since coming to office, Trump has nominated more than 100 federal judges, and the Senate has confirmed 33. Another 12 circuit court nominees and 58 district court nominees are in the pipeline. The speed and efficiency of the process far outpaces past Democratic and Republican administrations.

It helped that Trump inherited more than 100 lower court vacancies, and that Senate Democrats in 2013 changed that body's rules to block Republicans from bottling up nominations with just 41 votes. Now Republicans are in the majority — barely — and have been united on the president's appeals court choices.

Conservatives have hailed them for their relative youth — Gorsuch is 50, and the 15 appeals court judges average 49 — and their adherence to the Constitution. Four of them clerked for the Supreme Court's most conservative justice, Clarence Thomas. Nearly all are white; four are women. 

Included among them are several already being touted by conservatives as potential Supreme Court nominees, including Barrett and Thapar, who is Indian American.

Mary Barzee Flores to challenge Mario Diaz-Balart

And Mary (former Assistant Federal Public Defender and former Obama District Court nominee) came out swinging.  According to Marc Caputo from Politico, who broke the story:

“I’m confident that Mario Diaz-Balart can, should and will be beat this fall. And I’m going to beat him,” Barzee Flores told POLITICO.

“Diaz-Balart has voted repeatedly to rip away Floridians’ health care coverage. He has voted repeatedly with the [National Rifle Association], while taking more of their campaign cash than any other Florida congressman in the last 20 years,” she said. “He denies science even as rising sea levels directly threaten our community. He pays lip service to DREAMers while the Trump administration tears apart families.”

Barzee Flores’ decision to run in Florida’s 25th Congressional District was made at the urging of the Democratic Congressional Campaign Committee, the abortion rights group EMILY’s List and Florida Democrats. None wanted to see Diaz-Balart again escape an election cycle without a major Democratic challenger. All three pledged to financially back her.

News & Notes (UPDATED with Esteban Santiago death penalty decision)

1.  Judge Robin Rosenberg wrote this op-ed about civility and law-day:

For our part, in the judicial branch, federal judges in the Southern District of Florida over the past six months have brought into our courtrooms more than 500 high school and college students to give them exposure to, and experience with civil discourse and decision-making practices that are not only legal skills but critical life skills.
Federal judges in West Palm Beach, Fort Pierce, Miami and Fort Lauderdale are the first to launch the program as part of a national civility and decision-making initiative that in Florida we call Teen Discourse and Decisions — TD-Squared (TD²). Volunteer attorneys, including members of local Federal Bar Association chapters, assist the presiding judge in guiding participants through a high-stakes case involving a peer caught up in a fictional but relatable scenario. Students use civil discourse skills during their jury deliberations to come to a verdict.
To prepare for the deliberations, the student jurors commit to ground rules for relating respectfully while working through the issues. However, they quickly learn that civility doesn’t mean the process is devoid of emotion. On the contrary, reason is powered by passions deeply felt but constructively channeled. Through this program and many life experiences as a judge, a lawyer and a mother, I have found that, even when emotions run high, young people have an innate sense of fair play. They understand, even when they fall short, that passion isn’t a license to be disrespectful to others.
I was moved to see how this philosophy came through in a commentary piece my 16-year-old son wrote for his high school newspaper. The title of his editorial is “Challenging Ideas, Not People.” In it, he reminded us that “we must find a way to have our voices heard and stand up for what we believe in, but not in a way that aims to threaten and embarrass others.” That mentality is at the heart of civil discourse. It is a frame of mind that sets the stage for listening to and engaging with others about strongly held beliefs – even when we passionately disagree with their ideas or believe they are wrong.
It is a frame of mind that sets the stage for listening, engaging, and accepting the strongly held beliefs of others – even when we passionately disagree with their ideas or believe they are wrong.

2.  President Trump took the opposite tact and criticized district judges on law-day:

Trump's Law Day proclamation includes criticism of courts for "rulings that exceed traditional limits on the judicial power" pic.twitter.com/W3LcBnKAsv

— Zoe Tillman (@ZoeTillman) April 30, 2018

3.  The feds have charged a juvenile detention officer.  From the AP:

An officer at a South Florida juvenile detention center was arrested Monday on federal civil rights charges after a 17-year-old died in a beating by other inmates that was allegedly encouraged by the officer using a bounty and reward system.

An indictment unsealed Monday accuses Antwan Lenard Johnson, 35, of conspiracy and deprivation of the teenager's rights under color of law. Johnson had an initial court hearing Monday but did not enter a plea. His lawyer declined comment.

The indictment claims Johnson used bounties and rewards so inmates at the Miami-Dade Regional Juvenile Detention Center would use violence to punish bad behavior by other inmates. The 17-year-old who died was identified only as "E.R." in court documents but a Department of Juvenile Justice statement identified him as Elord Revolte.

Prosecutors said Revolte was fatally assaulted by other juveniles in August 2015 because of unspecified "statements and behavior" that challenged Johnson's authority. The inmate rewards included extra recreation time, such as watching more television, and snacks.

UPDATED 4. It appears that the feds and Esteban Santiago (the FLL shooter) have reached an agreement that he will plead guilty (and receive a life sentence) in exchange for the government not seeking the death penalty.

11th Circuit in 2-1 decision saves Rick Scott on clemency decision for now (with UPDATE on make-up of 11th Circuit)

Last week, Judge Marcus wrote this opinion (joined by William Pryor) backing Gov. Scott on the process for convicted felons who have served their time to be re-enfranchised. Judge Beverly Martin dissented. The AP summarizes here:

With time running out, a federal appeals court late Wednesday sided with Florida in an escalating battle over the state’s process for restoring voting rights for former prisoners.

U.S. District Judge Mark Walker had given Florida until Thursday to create a new process after ruling in February that the state’s current system is unconstitutional and arbitrary, with decisions possibly swayed by politics and racial factors.

But a three judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals blocked Walker’s ruling while it considers an appeal from Gov. Rick Scott and other Florida Republican officials.
***
Walker’s ruling had kept the ban intact, but he had challenged the current system that requires a former prisoner to wait between five and seven years before they can even ask to have their voting rights back. The governor and the three elected Cabinet members then decide each request individually, subject to the governor’s unilateral veto.

It wasn’t always this way. Shortly after taking office in 2007, then-Republican Gov. Charlie Crist convinced two of the state’s three Cabinet members to approve rules allowing the parole commission to restore voting rights for nonviolent felons without hearings, and ultimately more than 100,000 felons were allowed to vote again.

Scott and state officials changed the process in 2011, and since then fewer than 3,000 have had their rights restored. The governor has defended the change, saying that former prisoners should have to demonstrate they can remain out of trouble before their voting rights are returned.

Last year, however, a group of former prisoners who had their applications turned down sued the state.

In its split ruling, the federal appeals court concluded that Florida has a good chance of prevailing in its appeal and questioned Walker’s decision to order the state put in place a new process. U.S. Circuit Judge Stanley Marcus wrote that there should not be a “rushed decision-making process created on an artificial deadline.”

“There is wisdom in preserving the status quo ante until a panel of this court, on an expedited basis, has had an opportunity on full briefing to come to grips with the many constitutional and equitable issues that have been raised,” Marcus wrote.

UPDATE -- A few readers have emailed me expressing surprise that with this panel, Marcus ended up siding with Gov. Scott.  But that's really no surprise.  Former President Bill Clinton appointed 4 judges to the 11th Circuit -- Rosemary Barkett, Frank Hull, Stanley Marcus, and Charles Wilson.  Marcus and Hull have been two of the most conservative members of the Court since that time (over 20 years).  Judge Hull just took senior status, and Judge Barkett no longer serves on the Court, so that leaves Charles Wilson and Stanley Marcus as two members of the "old" guard.

There are 12 active members of the 11th Circuit:

Chief Judge Ed Carnes (Bush)
Gerald Tjoflat (Ford)
Stanley Marcus (Clinton)
Charles Wilson (Clinton)
William Pryor (Bush)
Beverly Martin (Obama)
Adalberto Jordan (Obama)
Robin Rosenbaum (Obama)
Julie Carnes (Obama, taking senior status in June; Trump has nominated Britt Grant)
Jill Pryor (Obama)
Kevin Newsom (Trump)
Elizabeth Branch (Trump)

So that makes 6 Republican appointments (including Grant) and 6 Democratic appointments. But practitioners know that the 6 Dem appointments are not all "liberal" leaning.  And some of them, like Marcus, are extremely conservative, especially on criminal justice issues.  It's too early to tell how the Trump appointees are going to line up.

RIP Alan Ross

Damn, this is a really sad one. Alan Ross passed away last night after battling pancreaticcancer. He was a really good guy. Here are the funeral arrangements:

Funeral Sunday 3:15pm
Star of David Memorial Gardens Cemetery and Funeral Chapel
7701 Bailey Road
North Lauderdale, FL 33068
Shiva immediately following at the home of Adam & Jessica Ross
10292 Sweet Bay Manor
Parkland, FL 33076

BREAKING -- President Trump nominates three to SDFLA bench

Congratulations to Roy Altman, Rudy Ruiz, and Rodney Smith for being officially nominated to the U.S. District Bench for the Southern District of Florida. Here is the White House press release:

If confirmed, Roy K. Altman of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Roy Altman is a partner at Podhurst Orseck P.A., where his practice has focused on aviation and commercial litigation since 2014. Before entering private practice, Mr. Altman served for six years as an Assistant United States Attorney for the Southern District of Florida, where he prosecuted hundreds of cases covering the full range of Federal criminal conduct. Over this period, Mr. Altman tried more than 20 cases to jury verdict and argued several of these before the U.S. Court of Appeals for the Eleventh Circuit. During his service as a Federal prosecutor, Mr. Altman won a number of awards including the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Team” in United States v. Mentor (first-degree murder), the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Performance” in United States v. Flanders (human trafficking), the Federal Bar Association Young Federal Lawyer Award (one of five attorneys under 37 nationwide), and the “Federal Prosecutor of the Year” award from the Miami-Dade County Association of Chiefs of Police and the Law Enforcement Officers Charitable Foundation. Upon graduation from law school, Mr. Altman served as a law clerk to Miami-based Circuit Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Altman earned his B.A., cum laude, from Columbia University, where he played baseball and football, and his J.D. from Yale Law School, where he served as the projects editor of the Yale Law Journal.

If confirmed, Rodolfo “Rudy” Ruiz II of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rudy Ruiz currently serves as a Circuit Judge in the Eleventh Judicial Circuit of Florida since his appointment by the Governor in 2014. As a Circuit Judge, Judge Ruiz has presided over both civil and criminal divisions. He previously served for two years as a County Court Judge in the Eleventh Judicial Circuit, where he handled a full range of civil and criminal cases. Before ascending to the bench, Judge Ruiz served for three years as an Assistant County Attorney in the Miami-Dade County Attorney’s Office, where he handled a wide range of civil defense matters in Federal and State court at both trial and appellate levels. Before joining the County Attorney’s Office, Judge Ruiz practiced corporate law in the Miami office of White & Case LLP. Upon graduation from law school, Judge Ruiz served as a law clerk to Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida. Judge Ruiz earned his B.S. from Duke University and his J.D. from Georgetown University, where he was an articles editor of the American Criminal Law Review.

If confirmed, Rodney Smith of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rodney Smith serves as a Circuit Judge in the civil and felony criminal divisions of the Eleventh Judicial Circuit, where he has served since his appointment by the Governor in 2012. In this capacity, he also serves as co-chair of the Diversity Committee of the Florida Conference of Circuit Judges. He previously served for four years as a Miami-Dade County Court Judge of the Eleventh Judicial Circuit, where he handled both civil and criminal cases. Before ascending to the bench, Judge Smith served as a senior assistant city attorney in the Office of the City Attorney for Miami Beach, where he handled a broad range of civil defense matters. Before joining the City Attorney’s office, Judge Smith practiced insurance defense law at a number of private Miami firms. Upon graduation from law school, Judge Smith served for four years as an Assistant State Attorney in the Miami-Dade County State Attorney’s Office. Judge Smith earned his B.S., cum laude, from Florida Agricultural and Mechanical University, and his J.D., cum laude, from the Michigan State University College of Law.

This still leaves two open spots on the court. No word on whether the JNC will forward new names or whether the White House is going to pick different people.