Gorsuch and Sotomayor channel Justice Scalia

From ScotusBlog:

But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

Sotomayor joined Gorsuch’s dissent from the denial of review in Stuart v. Alabama. The defendant in the case, Vanessa Stuart (who has since changed her name to Vanessa American Horse), was charged with driving under the influence and criminally negligent homicide after she rear-ended Tiffany Howell’s car, causing Howell to strike a tree and die.

At Stuart’s trial, prosecutors introduced lab reports as evidence of Stuart’s blood alcohol level. But they did not ask the scientist who signed the lab report to testify. And that omission, Stuart contended, was inconsistent with Bullcoming v. New Mexico, in which the Supreme Court held that introducing a lab report at trial without testimony from the person who prepared the report violates the Sixth Amendment’s confrontation clause, which gives a defendant the right “to be confronted with the witnesses against him.”

The justices turned down Stuart today, over a four-page dissent from Gorsuch, who began by noting that because “cross-examination may be the greatest legal engine ever invented for the discovery of truth, the Constitution promises every person accused of a crime the right to confront his accusers.” “That promise,” Gorsuch continued, “was broken here.”

Gorsuch went on to explain that, although the state court’s errors in Stuart’s case were in his view obvious, they were also understandable, because the Supreme Court’s opinions on the confrontation clause – and in particular a 2012 case in which no rule was able to garner a majority of the votes – “have sown confusion.” He (and Sotomayor) would have granted review to clarify some of the issues surrounding cases like Stuart’s.

In other news, Willie Falcon was deported... but not to Cuba.  He was sent to the DR.  From the Miami Herald:

One of South Florida’s most infamous cocaine cowboys — Willie Falcon — has been deported to the Dominican Republic after his bid to stay in the United States failed following his 20-year prison sentence on a drug-related money-laundering conviction.

Falcon, 62, was deported earlier this month because he was a convicted felon without U.S. citizenship. He had been held in Louisiana since June 2017 by immigration authorities who at first sought to deport him to his native Cuba.

But Falcon, who recently lost his final federal court appeal to block his deportation, won’t be sent to Cuba as he and his Miami family members initially feared, according to federal officials. The Dominican Republic government agreed to accept Falcon as a resident.

Monday news and notes

1.  Donald Trump made a joke about Justice Scalia’s wife being busy. Via USA Today:

Amid introducing the awardees of the nation's highest civilian honor, some online noticed the president seemed to include a joke about Scalia's virility.

Trump welcomed Scalia's wife, Maureen, and their nine children who attended the White House ceremony. After reading the names of each of the nine children, Trump seemed to slip in a joke about the couple's sex life.

"You were very busy. Wow," the president said, causing those in the room to chuckle. "Wow. I always knew I liked him."

2.  Stephen Colbert interviews Justice Sotomayor. Here it is on YouTube.

3.  Trump’s nominee to fill Justice Kavanaugh’s spot on the D.C. Circuit is a defender of dwarf tossing.  From MotherJones:  “Add to that list Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the powerful DC Circuit, who has written at least two law review articles and a blog post in which she defended dwarf-tossing.”

4.   The Florida Supreme Court says that judges and lawyers can be Facebook friends.  Here’s the Law.com article.

D’oh! Cut and paste job goes bad... charges against Assange revealed in unrelated court filing.

The Washington Post has the story, which is every lawyer’s nightmare when they hit the file button on cm/ecf:

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.
The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”
Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

Joshua Stueve, a spokesman for the U.S. attorney’s office in the Eastern District of Virginia, said, “The court filing was made in error. That was not the intended name for this filing.”

Miami AUSA opens in El Chapo case

It’s AUSA Adam Fels for the prosecution.  He opened this way: “Money, drugs, murder and a vast global narcotics trafficking organization — that is what this case is about, and that is what the evidence in this case will prove.”  More from the NY Post:

Opening statements finally began Tuesday in the trial for Joaquin “El Chapo” Guzman — with prosecutors describing some of the notorious accused drug lord’s most heinous acts for jurors, along with his weapons of choice.

“Some of his favorites include a diamond-encrusted handgun with his initials on it and a gold-plated AK-47,” said federal prosecutor Adam Fels.

He recounted how Guzman allegedly ordered hits on his own loved ones and used a small private army — consisting of hundreds of men “armed with assault rifles” — to take out his rivals.

For the defense:

Guzman’s defense team, meanwhile, claimed during its opening statements that prosecutors were trying to use him as a “scapegoat.”

“There’s another side to this story, an uglier side,” said attorney Jeffrey Lichtman. “This is a case that will require you to throw out much of what you were taught.”

According to Lichtman, the real criminal mastermind is Ismael “El Mayo” Zambada — current leader of the infamous Sinaloa Cartel. The lawyer described the 70-year-old former poppy-field worker as “the biggest drug trafficker in Mexico.”

Chuck Grassley and George Will (and lots of other GOPers) think we need sentencing reform

Here’s The NY Times on Grassley’s push for federal sentencing reform, which now has a real shot of passing:

A bipartisan group of senators has reached a deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.

The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

George Will has this piece, which addresses a state sentence of life for a juvenile:

Parents who have raised sons understand that civilization’s primary task is to civilize adolescent males, a task that is difficult for many reasons, some of which neuroscience explains. The part of the brain that stimulates anger and aggression is larger in males than in females (for evolutionary, meaning adaptive, reasons). And the part that restrains anger is smaller in males. The Supreme Court has noted that adolescent brain anatomy can cause “transient rashness, proclivity for risk, and inability to assess consequences,” thereby diminishing “moral culpability” and, more important, enhancing “the prospect that, as the years go by,” offenders’ “deficiencies will be reformed.” Hence “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’ ”

Judges are supposed to be a check on the executive branch. I really don’t understand why sentences aren’t much lower. So many judges have become accustomed to just following the prosecutor/probation officer/sentencing guidelines, that we have one of the highest incarceration rates in the world. It’s absurd. It will be interesting to see how the new crop of Trump judges sentence defendants, especially non-violent first time offenders.

Will Alex Acosta be named Attorney General?

Marc Caputo floats the idea here:

WHAT ABOUT ACOSTA? — It’s well-known that President Donald Trump prizes loyalty and loves guys with Harvard degrees. By those standards, Alex Acosta fits the bill for attorney general. Acosta has also already survived Senate confirmation, too, and serves as Trump’s only Hispanic secretary, for labor. A son of Cuban exiles, Acosta has prosecutorial experience, having served as the U.S. Attorney for the Southern District of Florida before becoming dean of Florida International University. One possible blemish on Acosta’s record: His decision to give accused pedophile billionaire Jeffrey Epstein what many saw as a sweetheart deal.

Acosta would be a fantastic choice.

Also listed in the short list is Pam Bondi.

Election impact on SDFLA

With the Republicans picking up seats in the Senate and Rick Scott flipping Florida to a two-GOP Senate state, it will be that much easier for Trump to push his judiciary picks.  The three pending district court judges should be confirmed shortly.  And it will be interesting to see how quickly those two open seats get nominees.

Florida amended its constitution to allow for restoration of felon voting rights.  Republicans aren't happy about that one and are promising litigation. But that will likely be in state court. 

Two House seats in the SDFLA flipped blue (Shalala and Mucarsel-Powell).  Barzee-Flores couldn't flip the third seat though.

In non-election news, here's a federal judge who allowed jury nullification arguments in a child porn prosecution:

"This is a shocking case. This is a case that calls for jury nullification."
Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge—District Judge Stefan R. Underhill of the District of Connecticut—and he spoke in court about a case over which he presided.
The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce." And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.
That draconian sentence—independent of what was in store in the entirely separate state trial for sex with a minor—was too much for Judge Underhill. "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court. "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."
Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that. I don't feel I'm required to preclude that. And I think justice requires that I permit that."
The judge's appeal to jury nullification as a remedy for runaway prosecution didn't come out of the blue. Defense counsel and prosecutors had already sparred over the case's rather tenuous connection to interstate commerce, by which the federal government claimed jurisdiction.
"Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the statute," Judge Underhill noted in surprise. They also tussled over the extent to which jurors should be informed of the long years in prison that awaited Manzano upon conviction.
"Juries exist for a reason," Pattis argued in court. "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof. And in certain trials in our history, juries have done more than that. They've said the law is wrong, and we, the people, say it's wrong."
In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."

I'm not sure why the judge did not just Rule 29 the case after the government rested.  There's no appeal and it's a way for the judiciary to check the executive on absurd prosecutions.

El Chapo trial expected to last 4 months

So absurd.

No trial should last that long.

It's not fair to the jurors.

If the prosecutors can't prove that case in 2-3 weeks, then something is wrong.

Here's Reuters with the background:

U.S. prosecutors say that as the head of the Sinaloa Cartel since 2003, Guzman directed the movement of multi-ton shipments of drugs including heroin, cocaine, marijuana and methamphetamine across borders and into the United States. If convicted, Guzman faces life in prison.

According to court filings, prosecution witnesses will include former Sinaloa Cartel members and others involved in the drug trade who are now cooperating with the U.S. government. Prosecutors have so far avoided naming the witnesses, saying that doing so would put them in danger. Some are expected to testify under aliases.

Although the charges in the case all relate to drug trafficking, prosecutors are also expected to introduce evidence that Guzman was involved in multiple murder plots in the course of his career, including in wars with rival cartels.

Guzman’s lawyers have so far given few hints about their planned defense. Eduardo Balarezo, one of the lawyers, said in a court filing that he will seek to prove that Guzman was merely a “lieutenant,” acting at the direction of others.

For a local case in the news, the WSJ covers the Andres Arias extradition appeal here. (Disclosure: I am handling that appeal with Professor Ricardo Bascuas). The title of the piece is: Will the U.S. Extradite an Innocent Man?

If Secretary of State Mike Pompeo doesn’t get involved, an innocent man with young children could end up serving a 17-year sentence in a Colombian prison for a crime he didn’t commit.

Forget that murderers in Colombia don’t get 17 years. Forget too that the Arias criminal case was heard only by a politicized Colombian Supreme Court with no chance for appeal—a violation of international human-rights law.

The crux of this matter rests on whether Washington has an extradition treaty with Bogotá. The countries signed one in 1979 but, as the Colombian Supreme Court has said, Colombia never ratified it.

President Santos refused to extradite multiple suspects wanted by the U.S., citing the lack of a treaty. One was Venezuelan drug kingpin Walid Makled, who Colombia captured in 2011 but sent to Venezuela where his secrets would be kept. Mr. Santos said he had no choice but “to comply with the Constitution and with the laws,” adding “we have an extradition agreement with Venezuela, not with the United States.”

Former Colombian President Álvaro Uribe also has stated, in a sworn affidavit presented in court, that there’s no treaty. Colombia uses domestic law to send suspects to the U.S.

In a motion for a stay of extradition pending appeal filed Tuesday in the 11th Circuit Court of Appeals in Atlanta, Mr. Arias’s lawyers argued the point again. “The legality of the order sought to be stayed depends on whether a Treaty that Colombia insists it never ratified and never observes is in force. The Treaty itself states” in article 21(1) “that it is ‘subject to ratification.’ ”