More prosecutorial misconduct...

...and yet again, another court finds no consequences.

The numerous instances of prosecutorial misconduct have been well-documented in this district (and around the country). Again and again, there have been no consequences for the prosecutors who have engaged in the misconduct or in the cases in which the misconduct occurred.

Another example is found in this unpublished opinion from the 11th Circuit, United States v. Foster.

In Foster, the district court found that there was insufficient evidence to support the jury’s verdict and granted a post-trial Rule 29 motion because the defendant withdrew from the conspiracy. The 11th Circuit reversed and reinstated the jury’s verdict. In Foster’s second appeal, decided today, the 11th Circuit found quite a bit of prosecutorial misconduct (without naming the prosecutor) in how it cross-examined a defense witness that was central to the withdrawal defense. Nevertheless, the court found that the misconduct was harmless:

On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.

But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient.  So more misconduct and nothing happens.  No consequences for the prosecutor.  And the conviction remains intact.  I understand that people make mistakes and that generally we should give others the benefit of the doubt.  But I wonder how a defense attorney would be treated if he or she did the same thing.  Or better yet, how do judges treat defendants who ask for second chances?  If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on.  Otherwise, it will just keep happening over and over again.

Welcome Back!

It’s been a quiet two weeks in the District, but now it’s back to work. I hope everyone had a happy holiday break.

Let’s start off with the new state prosecutors who have been elected around the country. They haven’t gotten a ton of press but they are making lots of important changes. Here’s a story from St. Louis:

On his second day in office, St. Louis County Prosecutor Wesley Bell fired the veteran assistant prosecutor Kathi Alizadeh, who was primarily responsible for presenting evidence to the grand jury that declined to indict a Ferguson police officer in the 2014 shooting death of Michael Brown.

Bell also issued new policies, such as no longer prosecuting marijuana possession and failure to pay child support cases.

***

The policy changes issued Wednesday included:

• No longer prosecuting marijuana possession cases of fewer than 100 grams. Prosecution of more than 100 grams will be pursued only if evidence suggests the sale or distribution of marijuana. (St. Louis Circuit Attorney Kim Gardner announced in June that possession of fewer than 100 grams would not be prosecuted unless there are aggravating circumstances.)

• Not prosecuting people who fail to pay child support. Current cases will not be dropped, however; they will be on hold. Not seeking to revoke probation solely on the basis of failure to pay child support.

• Not seeking charges against those who fail to pay restitution without a court order establishing someone’s “willful nonpayment” of child support.

• Not requesting cash bail on misdemeanor cases; issuing summonses instead of warrants on class D and E felony cases.

• Not seeking to “overcharge” defendants “to pressure the accused to admit guilt.” Prosecutors are barred from adding more counts to increase the range of punishment or threatening to route cases back to a grand jury if a defendant has exercised his or her pretrial constitutional rights.

• Evaluating a defendant’s “prior conditions of release when there has been a failure to appear on an open case” and not asking for cash bail if there is no evidence someone has tried to elude police or used an alias “in a police encounter.”

• Requiring prosecutors to share “the entire contents” of a criminal case file to the defense except for work product to fulfill Supreme Court rules for disclosing evidence.

• Barring prosecutors from threatening witnesses “in an effort to force them to participate in prosecutions.”

Some really important and positive changes here. Kudos to Bell and the other new District Attorneys around the country implementing change. Here’s to 2019.

Happy New Year from the SDFLA Blog

Best wishes headed into 2019!

It’s been slow going over the break, but the blog will be back in action next week.

Happy new year!

Judge Ungaro rules for BuzzFeed

Details here:

A district court judge ended a two-year battle over the Steele dossier Wednesday, ruling on the side of press freedom and the online news outlet BuzzFeed.

Published in January 2017, the now well-known dossier was a 35-page collection of memos with “unverified, and potentially unverifiable allegations” about President Trump and Russian interference in the 2016 presidential election, according to court filings.

The dossier claimed at one point that Russian Internet entrepreneur Aleksej Gubarev’s companies, Webzilla and XBT Holding, played a role aiding the Russian government’s effort to hack documents from Democratic Party officials.

Gubarev filed a lawsuit in February 2017 alleging his reputation had been damaged by false statements included in the dossier. In addition to BuzzFeed, Gubarev sued its author, former British spy Christopher Steele, who had turned the reports over to researchers working on behalf of Hillary Clinton’s presidential campaign.

On Wednesday, U.S. District Court Judge Ursula Ungaro for the Southern District of Florida held that the dossier dealt with a matter of public concern and reporting the details of an ongoing government investigation was made in the public interest.

“The press acts as the agent of the public, gathering and compiling diffuse information in the public domain. The press also provides the public with the information it needs to exercise oversight of the government and with information concerning the public welfare,” she wrote in the opinion, noting that the “fair report privilege” exists to protect the press in its watchdog efforts.

Roy Black represented BuzzFeed. Here is the order.

In other news, Magistrate Judge Reinhart has this interesting order on pen registers. The intro:

This matter came before the Court on a sealed Application by the Department of Justice,
pursuant to 18 U.S.C. §§ 3122 and 3123, for an order directing a cellular telephone company to
install a pen register and a trap and trace device (collectively "pen-trap devices") on the cellular phone of a person suspected of being involved in violations of the federal money laundering laws ("the Application"). The undersigned rejected the Application because it requested "that the Court order the service provider identified above and any other person or entity whose assistance may facilitate execution of this Order to notify the applicant and the law enforcement agency identified above of any changes relating to the cell phone number, including changes to
subscriber information, and to provide prior notice to the applicant and the law enforcement
agencies identified above before terminating or changing service to the cell phone number." I
write to explain the basis for my finding that the relevant statutes do not authorize the Court to
impose this duty on the cellular telephone company.

Big news on criminal justice reform

The U.S. criminal justice system has been astray for some time now.  Trials are way down (less than 3% of federal cases go to trial, which is absurd).  And incarceration rates are way up.  We lead the world in prison rates in all the bad ways.

There's lots of blame to go around.  From prosecutors, to guidelines, to the trial tax, to judges, to a culture of awfully high sentences.  But the Senate -- on a bipartisan basis -- stepped in today (with a nudge from Trump) and passed what the New York Times is calling the most substantial changes in a generation to federal prison and sentencing laws.  "The First Step Act" is expected to be signed into law shortly.  Some call it "Baby Steps" and it certainly doesn't fix the serious problems in the system.  We still need to stop penalizing defendants after trial and to stop issuing guideline sentences that are not tied to any empirical evidence (like the loss guideline and the drug guideline).  We need prosecutors and probation officers to stop asking for insanely high sentences for everyone except cooperators. And to use some discretion on who and what should be charged. 

Obviously not all prosecutors do this, and there are a lot of well-meaning folks in the system, but there is still a culture of incarceration insanity here and around the country. It needs to change.

The Senate and President Trump should be commended on taking this first, albeit small, step.  Here are some of the changes:

Many of the changes adopted by the Senate and embraced by Mr. Trump are modeled after successful initiatives at the state level intended to reduce the costs and improve the outcomes of the criminal justice system. Congress’s action would not directly affect state prisons, where the majority of the country’s offenders are incarcerated, but proponents believe they could spur more states to change their laws.

Once signed into law, thousands of inmates will be eligible for immediate sentencing reductions and expanded early-release programs. Going forward, the effect will grow as thousands of new offenders receive reduced sentences and enter a changed prison system.

***

Broadly speaking, the First Step Act makes heavy investments in a package of incentives and new programs intended to improve prison conditions and better prepare low-risk prisoners for re-entry into their communities.
By participating in the programs, eligible prisoners can earn time credits to reduce their sentence or enter “prerelease custody,” such as home confinement. In recent weeks, conservative senators and law enforcement groups successfully pushed to limit some violent offenders from eligibility, including fentanyl traffickers.

The legislation would also prohibit the shackling of pregnant inmates and the use of solitary confinement for juveniles in almost all cases. The Bureau of Prisons would be required to place prisoners in facilities close to their homes, if possible.

In all, it includes four changes to federal sentencing laws. One would shorten mandatory minimum sentences for some nonviolent drug offenses, including lowering the mandatory “three strikes” penalty from life in prison to 25 years. Another would provide judges greater liberty to use so-called safety valves to go around mandatory minimums in some cases. The bill would also clarify that the so-called stacking mechanism making it a federal crime to possess a firearm while committing another crime, like a drug offense, should apply only to individuals who have previously been convicted.

Finally, the bill would allow offenders sentenced before a 2010 reduction in the sentencing disparity between crack and powder cocaine to petition for their cases to be re-evaluated. The provision could alter the sentences of several thousand drug offenders serving lengthy sentences for crack-cocaine offenses. That would help many African-American offenders who were disproportionately punished for crack dealing while white drug dealers got off easier for selling powder cocaine.

And here's your President:

America is the greatest Country in the world and my job is to fight for ALL citizens, even those who have made mistakes. Congratulations to the Senate on the bi-partisan passing of a historic Criminal Justice Reform Bill....

— Donald J. Trump (@realDonaldTrump) December 19, 2018

"[My health] is fine [and] my ribs are almost repaired."

That was Justice Ginsburg over the weekend.  That's good news.  More:

Supreme Court Justice Ruth Bader Ginsburg said her ribs are "almost repaired" Saturday after breaking them in a November fall.
Ginsburg reassured a crowd gathered at an event in her honor at the Museum of the City of New York, according to CNN.
"[My health] is fine [and] my ribs are almost repaired," she said.
Ginsburg also said that, as of yesterday, she was able to do her whole workout routine with her personal trainer.
The 85-year-old justice cracked three ribs in a fall at her office on Nov. 7.
However, she was back working in her office and working out just days later.
Ginsburg has not missed a day of oral arguments in her 25 years on the court, despite cracking two ribs in 2012 and surviving two instances of cancer.

After her fall last month, supporters nationwide jokingly offered to donate their ribs to her, highlighting concerns that she may not serve the remaining five years that she promised.

Angela E. Noble named new SDFLA Clerk of Court

The Court's notice is here.

The Judges of the United States District Court, Southern District of Florida, announced today the appointment of Angela E. Noble as Court Administrator ∙ Clerk of Court, effective January 1, 2019. The current appointment occurs after a nation-wide search that culminated in her selection among a broad field of diverse and highly qualified applicants.
Ms. Noble has over 18 years of experience with the U.S. Courts, including serving the last three years as Northern Division Operations Manager. She is a graduate of New York Law School and City University of New York, John Jay College. During her tenure with the Southern District, she previously served as Courtroom Deputy to United States District Judge Donald M. Middlebrooks. She also practiced law as an Assistant Attorney General with the Criminal Appeals and Capital Collateral Division of the state of Florida’s Office of Attorney General in West Palm Beach, Florida, focusing on felony criminal appeals and collateral matters, including federal habeas corpus petitions and civil rights claims.
Ms. Noble has experience in virtually all areas of the Clerk’s Office, including operations/docketing, the Court’s Case Management/Electronic Case Files (CM/ECF) system, and administrative functions. She has served as a trainer and presenter in many Continuing Legal Education sessions and conferences focusing on courtroom technology. Ms. Noble has been a leader in the Operations Department for the Southern District’s Clerk’s Office, and she currently heads the Clerk’s Office’s participation in the District’s tri-agency Leadership Development Program.
The Judges of the Court sincerely appreciate Ms. Noble’s dedication and commitment to the continued success of the Clerk’s Office. They enthusiastically approved the appointment at a regularly scheduled Judges’ Meeting in October, and have expressed their utmost support and confidence in Court Administrator Noble’s abilities to lead the Clerk’s Office over the coming years.

Hackers spoofing 11th Circuit...

Below is the notice from the court. I feel like there’s a joke in there somewhere.

Notice Regarding Spoofed Calls

Wednesday, December 12, 2018
Members of the public have received calls from individuals posing as "agents" working for or with the Eleventh Circuit Court of Appeals. The callers then ask the recipient to pay a monetary fine. While the recipient's caller ID may show that the call comes from the Clerk's Office main phone number (404-335-6100), these calls are "spoofed" and are not from the Court of Appeals. The Eleventh Circuit Court of Appeals does not call members of the public and ask them to pay a fine over the phone. If you receive one of these calls please hang up and contact the FBI Atlanta Field Office at 770-216-3000.