“Almost nobody knows that James Madison wrote the Constitution, they all think it was Thomas Jefferson … and he was in France!”

That was Justice Gorsuch speaking on the public's lack of knowledge about government and the judiciary. SCOTUSblog has more:

The justice noted that even law clerks who come to his office fail to recognize a portrait of Madison hanging above a fireplace.

Gorsuch spoke passionately about the benefits and importance of an independent judiciary. He said, “as difficult as our times sometimes seem, we are very blessed.” He asked rhetorically, “how many places in the world can you go where you can rest assured that you can have an independent judge decide your case?” Gorsuch singled out North Korea for having an expansive bill of rights that promises its citizens a right to free education, free medical and relaxation. He joked that he would enjoy a right to relaxation, but he argued that those North Korean rights are “not worth the parchment they’re written on because you don’t have judges to enforce them.”

Gorsuch then moved on to the second concern he has noticed during his time as a judge. He listed civility, human decency and kindness as “under assault in our society right now, and in our profession.” He criticized civil litigation specifically for its lack of civility and expressed concerns about civility becoming a bad word or passé. He wrapped up his point by stressing to the audience that people they may disagree with “love this country as much as you do.”

Just last week, Chief Justice Roberts said it wasn't the Court's job to educate the public. But perhaps opening up the Court to cameras would help with Justice Gorsuch's concerns and not at all detract from the Court's role.

11th Circuit affirms conviction where portion of trial occurred without the defendant and her lawyer

The case is U.S. v. Lourdes Garcia. It is the follow up to U.S. v. Roy, where the trial proceeded without the defendant present and was affirmed by the en banc 11th Circuit. Both cases involve the same district judge. Here’s how Garcia starts out, by Judge Marcus:

This is a troubling case. There can be no doubt -- and the government does not contest the point -- that constitutional error occurred. It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to ten minutes in a trial that lasted more than 49 hours violated the defendant’s right to counsel, her right to confront the witnesses arrayed against her, and her right to be present at trial under both the Due Process Clause and Fed. R. Crim. P. 43. The only question is whether Garcia’s convictions should be reversed on account of the error.
We hold that Garcia’s convictions must be affirmed because the errors did not affect Garcia’s substantial rights. There can be no question that Garcia failed to preserve the errors at trial even though she had ample opportunity to do so. She was given every chance to object and to secure some remedial relief from the trial court but expressly declined to act. As a consequence, under well-established law we must review the constitutional violations that occurred for plain error, not for harmlessness beyond a reasonable doubt. What’s more, there is good reason in this case to be punctilious in selecting the proper standard of review. The prejudice analysis is by no means clear-cut and the standard by which we measure it could well make all the difference.

Even though the defendant didn’t object, this is an absurd result. The problem started in Roy where the en banc court found that this wasn’t a structural issue. Hopefully the Supremes take a look.

Rodney Smith appears before Senate committee today

Judge Rodney Smith had his committee hearing today before the Senate.  According to CNN:

The committee considered the nominations of Allison Jones Rushing to become a US Circuit Judge for the Fourth Circuit, Thomas P. Barber and Wendy Williams Berger to become US District Judges for the Middle District of Florida, Corey Landon Maze to become US District Judge for the Northern District of Alabama, Rodney Smith to become US District Judge for the Southern District of Florida and T. Kent Wetherell II to become US District Judge for the Northern District of Florida.

Our other two nominees, Rudy Ruiz and Roy Altman, came out of committee a few months ago and are waiting for their final vote.

"We do not speak for the people; we speak for the Constitution."

That was Chief Justice Roberts last night at the University of Minnesota.  The Star Tribune has the details:

Roberts' advice to lawyers who submit briefs to the court: Keep it short. When he gets a brief shorter than the 50-page limit, Roberts joked that he'll pause, look to see who the lawyer is and say to himself, "Whoa, I like her." Shorter briefs also tend to be better written and focused.

When lawyers come for oral arguments, he urged dispassion: Don't push back against hypotheticals from the justices. That way, he said, the lawyers and justices can figure out the issues together.

Stein asked Roberts why he put a Bob Dylan quote in an opinion: "Was it just to make the opinion more interesting?"

Roberts said, no, but it was to make a point understandable for those who aren't lawyers. The line: "When you have nothing, you've got nothing to lose." He was explaining that to file a lawsuit against someone, you must have something at stake in the fight.

Stein asked Roberts if he heard from Dylan, but the chief justice said no. Roberts, however, did get into a dispute with the New York Times over his polishing the line from Dylan's singing, "When you ain't got nothing."

The audience, packed with dignitaries including former Vice President Walter F. Mondale and the entire state Supreme Court, was warm to Roberts. During the question-and-answer session from college students, he faced inquiries about how he stayed motivated in law school, what he thought of the Socratic method and "what is race?"

“Brett Kavanaugh would not have been treated fairly had he been a defendant in federal criminal court”

That’s the title of my latest op-ed in The Hill.  Please check it out.  Here’s the introduction:

Throughout the confirmation process of Justice Brett Kavanaugh, the President and the GOP have trumpeted how important it is for our society to value the presumption of innocence. Many criminal defense lawyers smiled as they heard conservatives champion this principle.

The sad truth, however, is that if Kavanaugh had been criminally charged in federal court, he would not have been treated so fairly.

Our criminal justice system is set up crush defendants, even innocent ones.

Here are two of the points:

Brett Kavanaugh would not be entitled to witness statements or to take depositions. The discovery process in federal criminal court is a joke. Remember those witnesses called before the grand jury? The defense is not entitled to see their statements until the witness testifies at trial. And if one of the grand jury witnesses does not testify at trial, then the defense is not entitled to review that statement. So too with other statements taken by law enforcement. They aren’t discoverable until after the direct examination of the witness at trial.

Forget about taking those witnesses’ depositions. Depositions do not exist in federal criminal trials, which may make you wonder how Kavanaugh would know what the witnesses were going to say. He wouldn’t, and he would find out at the same time the jury heard it.

***

On appeal, the court of appeals would be required to accept as true the accuser’s claims. If Kavanaugh proceeded to trial and challenged the sufficiency of the evidence, the court of appeals would be obliged to accept the accuser’s claims in the light most favorable to her.

As for the other issues — like disclosure of favorable information or admission of prior bad acts — the appellate court would only reverse if Kavanaugh could show prejudice: that the trial would have ended in a different result absent the mistake.

These standards make it almost impossible to win an appeal after a guilty verdict.

Great FBA event honoring Judge Alan Gold

The Federal Bar Association put on a lovely event last night honoring Judge Gold.  His remarks, as well as George Knox's, were really touching.  Here are some (bad) pictures from the back of the room as Judge Gold began his speech and as Chief Judge Moore swore in the new board of directors:

Justice Sotomayor pinches Justice Gorsuch during oral argument

For real!  During Brenda Bryn's argument yesterday in Stokeling (concerning what amount of force constitutes a violent felony), the following exchange occurred:

JUSTICE SOTOMAYOR: I'm sorry, we used
the example of a tap on the shoulder not being
sufficient force. So can you answer Justice
Alito's hypothetical?
MS. BRYN: Right.
JUSTICE SOTOMAYOR: Is a pinch, an
ordinary pinch -- let's not talk about an
extraordinary -(
Laughter.)
JUSTICE SOTOMAYOR: -- pulling of the
ears that a parent might sometimes do. Let's
talk about just a pinch.
(Laughter.)
JUSTICE SOTOMAYOR: Is that sufficient
force? If we said a tap on the shoulder
couldn't be, why could a pinch be?
MS. BRYN: I -- I think the -- the
answer is looking at the -- the other side of
the equation from what a substantial degree of
force is. And Your Honor mentioned force
capable of -- of causing pain or injury. And I
think the only way to read that explanation of
violent force is as force that's -- a degree of
force that's reasonably expected to cause pain
or injury.
JUSTICE SOTOMAYOR: You've -MS.
BRYN: I don't think a pinch -JUSTICE
SOTOMAYOR: -- you've said the
reasonable -- and I do understand your point,
which is, from personal experience, if you tap
an injured shoulder, it could cause injury.
It's capable of causing physical pain and
injury.
But we said, in the normal course of
circumstances, a tap on the shoulder would not
-- is not capable of producing injury. So -MS.
BRYN: Nor would a pinch.

Although you can't see it in the transcript, Sotomayor pinched Gorsuch where the laughter line occurs.  Pretty funny.

Justice Kavanaugh also asked his first questions:

JUSTICE KAVANAUGH: But -- but,
counsel -- counsel, in Curtis Johnson, you rely
heavily on the general statements of the Court,
but the application of those general statements
was to something very specific: Battery and a
mere tap on the shoulder. And all Curtis
Johnson seemed to hold was that that was
excluded.
So why don't we follow what Curtis
Johnson seemed to do in applying those general
statements to the specific statute at issue
here and why wouldn't that then encompass the
Florida statute, which requires more than, say,
a tap on the shoulder?
MS. BRYN: Because what the Court did
before applying the standard to the statute -to the Florida battery statute was to
definitively construe the words that -
JUSTICE KAVANAUGH: Well, but it -but it's -MS.
BRYN: -- Congress used in the
elements clause.
Go ahead.
JUSTICE KAVANAUGH: But it -- as you
point out, it's -- it's a bit general, those
statements, that language. And so how do we
understand what the Court meant by that? You
look at how it applied it, and it was to a
battery statute, and it was a case where the
government argued that the mere tap on the
shoulder was okay. And the Court said no,
that's not enough. But all it seemed to carve
out was that kind of statute. At least as I
read page 139 of the Curtis Johnson opinion, it
seemed to very carefully distinguish those two
situations.

Well, there ya go.

If you're looking for a good event and a chance to mingle with the local judges, please come to the Federal Bar Association's function tomorrow night at the Four Seasons at 5:30.  Tickets here.  The FBA is honoring Judge Alan Gold, one of the District's heroes.

It's Armed Career Criminal Act day at the Supreme Court

Two criminal cases about the Armed Career Criminal Act greet new Justice Brett Kavanaugh at the Supreme Court this morning. (Our own Brenda Bryn will be arguing one of the cases.) Last night President Trump and Justice Kennedy had the ceremonial swearing in at the White House. All 8 Justices came to support their new "teammate." All of them looked uncomfortable while Trump spoke, except Justice Thomas who "vigorously" clapped throughout.

Looks like the protestors are out this morning before the argument.