“OPR should investigate real prosecutorial misconduct, not Secretary of Labor Alex Acosta”

That’s the title of my latest piece in The Hill.  Below is the introduction, but please click here to read the whole thing:

Prosecutorial misconduct is rampant in the criminal justice system.  From intimidating witnesses, to hiding exculpatory information, to anonymously blogging to influence jurors, to spying on criminal defense attorneys, to knowingly putting on false testimony, all the way to setting up innocent men. It’s seriously depressing.
Just as depressing as the widespread misconduct itself is the fact that nothing is being done about it. Prosecutors are immune from being sued, convictions affected by misconduct routinely get affirmed because courts find that the misconduct was not “prejudicial,” and nothing ultimately happens to the wrongdoers. They generally keep their jobs, without even a smack on the hand.
Although there’s an office assigned to look into prosecutorial misconduct, called the Office of Professional Responsibility (“OPR”), that office almost never takes any action against bad prosecutors and keeps its findings private. OPR is such a joke that it often rejects even the rare judicial finding of prosecutorial misconduct. One study showed that during a three year period, there were 60 cases of serious judicial criticisms or findings of misconduct and yet OPR found no wrongdoing by any of these prosecutors.
Instead of taking action against bad prosecutors, it was just publicly announced that OPR will be investigating Secretary of Labor Alex Acosta for his handling of the Jeffrey Epstein case ten years ago when he was the U.S. Attorney in South Florida. For those of us who care about real prosecutorial misconduct, this news is truly absurd.

SCOTUS vacates CA11 stay of execution

One of the most conservative judges on arguably the most conservative appellate court in the country granted a stay of execution this week because the Muslim inmate was denied his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber. The very next day, an even more conservative Supreme Court lifted the stay and allowed the execution to go forward in a 5-4 decision.

Justice Kagan explains in her dissent:

To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.

SOTU addresses criminal justice reform

Despite all of the partisan clapping/sitting during the State of the Union, there was one nice moment of bipartisanship. It came during the discussion of criminal justice reform. The First Step Act got everyone standing as it was a joint effort. Who would have thought criminal justice reform would be the issue that brought the two sides together? But so much more needs to be done. The United States has more individuals in prison than any other country and more than Russia and China combined. It’s just insane.

Meantime, the President only gets 4 Supreme Court Justices at the SOTU: Roberts, Kagan, Gorsuch, and Kavanaugh.

I don’t think we’ve seen that lineup on a case yet. I wonder if we ever will.

No power or heat at New York federal prison for a week

The New York Times covered this awful story involving no heat during one of the coldest spells every in New York. The prisoners took up banging on the walls and windows.

From the depths of a federal jail on the Brooklyn waterfront, the sound reverberates: a polyrhythmic pounding like a hailstorm on the roof of a shed.

It is the sound of hundreds of men in freezing cells at the Metropolitan Detention Center in Sunset Park, a jail that was virtually without electricity and largely without heat for over a week. With the jail on partial lockdown, inmates have been unable to use phones to call their loved ones, but their percussive banging could be clearly heard to those outside, and to the world beyond.

The inmates bang anything they can — shoes, their fists — against any surface they meet: the walls and windows and bars of the jail that holds them.

Sunday morning, when protesters unfurled a long paper banner across the street from the jail that said “You are heard you are loved,” the inmates banged their approval.

When Catana Yehudah, whose brother Jason Smith is serving a gun possession sentence at the jail, led a chant through a megaphone — “No heat, that’s torture” — the inmates banged louder.

Ms. Yehudah, 50, called for quiet. “Stop banging for one second!” she yelled. The barrage subsided.

“If there is no heat,” she shouted, “bang on the windows!”

The inmates, nearly invisible behind the windows, pounded louder and louder, the fusillade filling the wide empty street.

Some power was finally restored last night, but the heat is still spotty and many cells don't have any heat at all. Let's hope the courts get involved:

Gov. Andrew M. Cuomo called on the federal Department of Justice to determine whether conditions at the jail violated the inmates’ civil rights.

“No one in New York should live in fear that they may freeze to death alone in the dark,” Mr. Cuomo said in a statement. “These allegations are a violation of human decency and dignity. They also raise questions of potential violations of law.”

Federal Bureau of Prisons officials are due in federal court in Manhattan on Tuesday for a hearing ordered by Judge Analisa Torres in response to what she called “disturbing living conditions.”

Lots of discussion re Stone's arrest versus surrender

Here's Sen. Graham raising concerns about not letting Stone self-surrender. (And this is my original piece on it.)

Many have responded that SWAT team arrests is a wide-spread practice and Stone shouldn't be treated differently. But that argument doesn't hold water -- the practice should NOT be widespread. It should not be acceptable to waste resources and risk a dangerous situation where a defendant will voluntarily surrender.

"You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better."

That was 11th Circuit Judge Newsom in United States v. Munksgard, affirming a criminal conviction "reluctantly" and over Judge Tojflat's dissent. Here's Judge Newsom's entertaining opening:

This criminal appeal presents both a surprisingly close question of evidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an interesting statutory-interpretation issue. As to the former, federal law criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to knowingly making false statements in order to obtain bank loans—indeed, four times over. Even so, he contends, the government failed to show beyond a reasonable doubt, as it had to, that the institution he swindled was FDIC-insured. This case presents the (irritatingly familiar) question whether the government presented sufficient evidence to prove that pesky jurisdictional prerequisite. The proof of FDIC insurance here—as in other cases in which we have rapped the government’s knuckles—was hardly overwhelming. And given the ease with which insurance coverage could have been demonstrated—certificate, contract, cancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the standard, and when we view the evidence in the light most favorable to the government, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), we conclude—albeit reluctantly—that the proof was adequate to demonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.

I appreciate the wonderful writing, but here's the thing -- prosecutors won't do better until there are consequences, like a reversal. There are so many appellate doctrines meant to make sure that convictions are affirmed (harmless error, abuse of discretion, and so on) that prosecutors and trial judges have learned to do whatever it takes to get the conviction. They know that there won't be any bruisin'. Judge Tjoflat has it right when he concludes:

The majority goes to great lengths to bail the government out. Nothing in our precedent compels this, and the Constitution doesn’t allow it. Because I would vacate the conviction, I respectfully dissent.

It's time to stop bailing the government out.

Federal Bar Reception tomorrow (Thursday) night

Local Federal Bar Association President David Weinstein sends the following email about this Thursday's event. It's always a good one

There might be a big game of Roman Numeral proportion coming up on Sunday, but this Thursday evening is an even bigger event. The South Florida Chapter of the Federal Bar Association will be hosting its 38th Annual Federal Judicial Reception to honor our federal judges.

Taking place at the Historic Alfred I. Dupont Building in the heart of the 305, there will be no speeches or a sit-down dinner. It’s an opportunity to mingle, network and socialize with the judiciary and your peers.

For more details, click here: https://fba-sdfla.org/event/fbas-38th-annual-federal-judicial-reception/

BOP refuses to give defendants their good-time credit under First Step Act

For many years, there was a debate in the criminal justice community about how much time prisoners should be receiving as good time credit.  Even though they were supposed to be getting 15%, which calculates to 54 days a year, BOP determined that they were only entitled to 47 days a year.  It doesn’t sound like a lot, but when you’re inside, every day matters.

The First Step Act fixed this problem and said that good time credit was actually 54 days a year.  And it even applied it retroactively, so many defendants believed that they would be getting out immediately.  But BOP is refusing to award the 54 days, citing to an error in the way that the statute was drafted.  From Reuters:

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

“It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet.

“The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says.

“While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says.

Apparently the White House is working on a fix to the probematic language in the statute, but this is just absurd. Judges may want to take this into account when sentencing defendants.