Back at it

Hope everyone had a nice and relaxing weekend. We’re nearing the end of the Supreme Court Term, with lots of big and interesting decisions left (like Carpenter). In the meantime, check out this NYT article about a study of Republican vs. Democratic judges. The GOP judges are tougher on black defendants but more lenient with women:

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.

“Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared with Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”

The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

Douglas A. Berman, an authority on sentencing law at Ohio State University, said the study contained “amazing new empirical research.”

11th Circuit laments inability to address Brady violations; asks for en banc review; UPDATED — 11th also decides important border search issue of cell phones, noting circuit conflict

This entire Judge Rosenbaum opinion (Scott v. U.S.) is worth reading.  The intro goes like this:

Prosecutors are “servant[s] of the law” and should “prosecute with earnestness and vigor.” Berger v. United States, 295 U.S. 78, 88 (1935). But though the prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Id.

More than fifty years ago, Brady v. Maryland, 373 U.S. 83, 87 (1963), established that a prosecutor’s suppression of material evidence favorable to the accused amounts to a foul blow. An actionable Brady violation—where the government withholds evidence that reasonably probably changes the outcome of a defendant’s trial—deprives the defendant of a fundamentally fair trial. Yet because of the nature of a Brady violation, a defendant, through no fault of his own, may not learn that such a violation even occurred until years after his conviction has become final and he has already filed a motion for post-conviction relief concerning other matters.
Meanwhile, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes limitations on post-conviction relief a prisoner may obtain. This case examines whether under those limitations, a Brady claim can ever be cognizable in a second-in-time post-conviction motion under 28 U.S.C. § 2255 if it does not meet the criteria under the statute’s “gatekeeping” provision, 28 U.S.C. § 2255(h). And that presents a question of first impression in this Circuit.

But that the case involves an issue of first impression does not necessarily mean we are writing on a clean slate. As it turns out, our Circuit has already written all over this slate. Indeed, we decided this issue’s fraternal twin—whether a Brady claim can ever be cognizable in a second-in-time 28 U.S.C. § 2254 petition if it does not meet any of the criteria under 28 U.S.C. § 2244(b)(3)(A)—in Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257 (11th Cir. 2009). Because we cannot distinguish Tompkins’s reasoning from the facts or law at issue here, our Circuit’s prior-precedent rule binds us to apply Tompkins’s rule: a second-in-time collateral motion based on a newly revealed Brady violation is not cognizable if it does not satisfy one of AEDPA’s gatekeeping criteria for second-or-successive motions.
Though we have great respect for our colleagues, we think Tompkins got it wrong: Tompkins’s rule eliminates the sole fair opportunity for these petitioners to obtain relief. In our view, Supreme Court precedent, the nature of the right at stake here (the right to a fundamentally fair trial), and the Suspension Clause of the U.S. Constitution, Art. I, § 9, cl. 2, do not allow this. Instead, they require the conclusion that a second-in-time collateral claim based on a newly revealed actionable Brady violation is not second-or-successive for purposes of AEDPA. Consequently, such a claim is cognizable, regardless of whether it meets AEDPA’s second-or-successive gatekeeping criteria.

Petitioner-Appellant Gino Scott’s Brady claim may or may not be an actionable Brady violation. But we think that the district court in the first instance should have the chance to address that question by determining whether Scott’s Brady claim is, in fact, actionable—a question the district court never had reason to reach. Tompkins’s rule precludes this from happening because it prohibits second- in-time collateral petitions based on all types of Brady claims—actionable and inactionable, alike—simply because they are Brady claims.

Establishing the correct rule and framework for determining whether any particular second-in-time collateral motion based on a Brady claim is cognizable is critically important to maintaining the integrity of our judicial system. No conviction resulting from a fundamentally unfair trial should be permitted to stand.1 And when a petitioner could not have reasonably been expected to discover an actionable Brady violation before filing his first federal collateral- review motion, precluding the filing of a second-in-time petition addressing the newly discovered violation is doubly wrong. It rewards the government for its unfair prosecution and condemns the petitioner for a crime that a jury in a fair trial may well have acquitted him of. This not only corrodes faith in our system of justice, but it undermines justice itself, and it cannot be allowed. So we urge the Court to rehear this case en banc to establish the rule that our Constitution and Supreme Court precedent require.

1. See generally Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 279-80 (2007) (collecting studies finding alarming rates of Brady violations resulting in criminal convictions).

UPDATE — It’s important decision day at the 11th Circuit. On the other end of the spectrum, Judge William Pryor writes this opinion in U.S. v. Toucet, holding that no reasonable suspicion is required to search a cell phone at the border. Pryor acknowledges that his opinion conflicts with the 4th and 9th Circuits on this issue. Looks like it will be headed up to the Supreme Court as the next big case dealing with cell phones. Meantime, we are still waiting for Carpenter.

Do you like Gorsuch's writing style?

There has been quite a bit made of Justice Gorsuch's writing style (many do not like it). He wrote two opinions today, and even in a pretty straight-forward opinion sending a case back to the lower courts to address some open questions, he writes with quite a unique style:

The dissent is displeased with our decision on this score, but a contradiction lies at the heart of its critique. First, the dissent assures us that the immovable property exception applies with irresistible force—nothing more than a matter of “hornbook law.” Post, at 3–10 (opinion of THOMAS, J.). But then, the dissent claims that allowing the Washington Supreme Court to address that exception is a “grave” decision that “casts uncertainty” over the law and leaves lower courts with insufficient “guidance.” Post, at 3, 13–14. Both cannot be true. If the immovable property exception presents such an easy question, then it’s hard to see what terrible things could happen if we allow state court colleagues are no less versed than we in “hornbook law,” and we are confident they can and will faithfully apply it. And what if, instead, the question turns out to be more complicated than the dissent promises? In that case the virtues of inviting full adversarial testing will have proved themselves once again. Either way, we remain sanguine about the consequences.

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The Vetting Room's take on 11th Circuit Nominee Britt Grant

President Trump has nominated Georgia Justice Britt Grant to the 11th Circuit.  The Vetting Room has a very informative and lengthy post about Grant.  Here's the intro:

Justice Britt C. Grant is President Trump’s third nominee to the Eleventh Circuit. Like Trump’s first nominee, Kevin Newsom, Grant is a former state solicitor general (Grant of Georgia, Newsom of Alabama). Like Trump’s second nominee, Lisa Branch, Grant worked as a BigLaw commercial litigator and subsequently served as a state appeals courts judge (Grant of the Supreme Court of Georgia, Branch of the Georgia Court of Appeals). Like both Newsom and Branch, Grant is a longtime member of the Federalist Society. Although Grant–if confirmed–will be replacing an Obama appointee, Julie Carnes, the replacement will not likely have an immediate effect on the ideological balance of the court because Carnes herself most frequently votes in divided cases with her more conservative colleagues (as did the judge that Lisa Branch replaced, Frank Hull).

In other news, longtime federal prosecutor Dick Gregorie is retiring. The Herald looks at his career here.

Eleventh Circuit orders en banc hearing on whether “the risk of force clause in 18 U.S.C. sec. 924(c)(3)(B) is unconstitutionally vague in light of Sessions v. Dimaya?”

The original 11th Circuit ruling by Judge Hull (joined by W. Pryor and Tjoflat) is here (U.S. v. Ovalles).

The letter listing the issues before the en banc court is here:

1. Is the risk of force clause in 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague in the light of Sessions v. Dimaya, 138 S.Ct. 2014 (2018)?
2. Should this Court overrule United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir. 2013), insofar as it requires applying the categorical approach to determine whether an offense constitutes a “crime of violence” under § 924(c)(3)?

More on Trump's judicial appointments (UPDATED WITH SUPREME COURT RULINGS)

UPDATE.  A bunch of SCOTUS decisions this morning, including the gambling and rental car cases.  Still no Carpenter.   

The Congressional Research Service covers the statistics here.  This is the summary intro:

This report, in light of continued Senate interest in the judicial confirmation process during a President’s first year in office, provides statistics related to the nomination and confirmation of U.S. circuit and district court nominees during the first year of the Trump presidency (as well as during the first year of each of his three immediate predecessors—Presidents Barack Obama, George W. Bush, and Bill Clinton).

Some of the report’s findings regarding circuit court nominations include the following:

 The number of U.S. circuit court vacancies decreased by 1, from 17 to 16, during the first year of the Trump presidency. The percentage of circuit court judgeships that were vacant decreased from 9.5% to 8.9%.
 During his first year in office, President Trump nominated 19 individuals to U.S. circuit court judgeships, of whom 12 (or 63%) were also confirmed during the first year of his presidency.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 15 (79%) were men and 4 (21%) were women.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 17 (89%) were white and 2 (11%) were Asian American.
 The average age of President Trump’s first-year circuit court nominees was 49.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 16 (84%) received a rating of well qualified from the American Bar Association, 2 (11%) received a rating of qualified, and 1 (5%) received a rating of not qualified.
 The average length of time from nomination to confirmation for President Trump’s first-year circuit and district court nominees (combined) was 115 days, or approximately 3.8 months.
 Each of the circuit court nominees confirmed during President Trump’s first year in office was confirmed by roll call vote (and none by unanimous consent or voice vote).
 Of the 12 circuit court nominees confirmed during President Trump’s first year in office, 11 received more than 20 nay votes at the time of confirmation (and of the 11, 9 received more than 40 nay votes).

Some of the report’s findings regarding district court nominations include the following:

 The number of U.S. district court vacancies increased by 38, from 86 to 124, during the first year of the Trump presidency. The percentage of district court judgeships that were vacant increased from 12.8% to 18.4%.
 During his first year in office, President Trump nominated 49 individuals to U.S. district court judgeships, of whom 6 (12%) were also confirmed during the first year of his presidency.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 37 (76%) were men and 12 (24%) were women.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 45 (92%) were white, 2 (4%) were Asian American, 1 (2%) was African American, and 1 (2%) was Hispanic.
The average age of President Trump’s first-year district court nominees was 51.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 26 (53%) received a rating of well qualified, 20 (41%) received a rating of qualified, and 3 (6%) received a rating of not qualified from the American Bar Association.
 Each of the district court nominees confirmed during President Trump’s first year in office was confirmed by roll call vote (and none by unanimous consent or voice vote).
 Of the six district court nominees confirmed during President Trump’s first year in office, two received more than five nay votes.

"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.