"A small next step for criminal justice reform: Fix good time credit"

That's the title of my piece this week in The Hill.  Please click through and let me know your thoughts.  Here's the intro:

Both sides of the aisle have rightfully come together on criminal justice reform, including passing the First Step Act. The New York Times said this signature legislation addressing unfairness in the criminal justice system involved some of “the most significant changes to the criminal justice system in a generation.” Both sides also agree, however, that a lot still needs to be done to address a system that incarcerates more people than Russia and China.

The current federal system awards good time credit — 15 percent — for all prisoners who behave. That means for every year done in prison, you receive 54 days off in good time credit.

For a long time, the Bureau of Prisons only gave 47 days of credit, but the First Step Act told BOP that 15 percent was really 15 percent and prisoners should get the full 54 days. Even with this directive, BOP has refused to give this credit, saying that there is an error in the statute, and has asked for Congress to reiterate that it really wants the 54 days of credit applied. This is completely absurd, and both parties agree that this should be fixed immediately. In addition to fixing the 54-day issue, there is one additional modest (and hopefully non-controversial) proposal that should be included.

As it stands, federal prisoners only receive good time credit if they are sentenced to more than a year of prison. That means that if you are sentenced to a year and a day, you will receive 15 percent off with good time and serve about 10 months; however, if you receive a sentence of exactly one year in prison, no such good time credit will be applied, and you will serve that year day for day. That means that the prisoner who receives a longer sentence of a year and a day will serve less time than someone who is sentenced to a year or 11 months. It makes no sense.

El Chapo may get a new trial

Vice News drops this bombshell of an interview with a juror who said that the jury followed the media even though they had instructions not to.  This is big news:

For the first time since the trial of Joaquín “El Chapo” Guzmán ended on Feb. 12, a member of the jury has described what it was like be part of the historic case.

In an exclusive interview with VICE News, the juror claimed that at least five fellow jurors violated the judge’s orders by following the case in the media during the trial. The juror also shared details of the deliberations, the extraordinary security precautions that were in place, and the jury’s views on Chapo, his lawyers, the prosecution, and several key witnesses.

The juror requested anonymity “for obvious reasons” and declined to provide a real name, noting that the jurors didn’t even share their identities with one another. They did form friendships, though, and referred to one another by their numbers or used nicknames based on tastes and personalities. The cast included Crash, Pookie, Doc, Mountain Dew, Hennessy, Starbucks, Aruba, TJ, 666, FeFe, and Loco.

“We were saying how we should have our own reality TV show, like ‘The Jurors on MTV’ or something like that,” the juror said.

The juror reached out to VICE News via email a day after the guilty verdict came down, and we spoke for nearly two hours on a video chat the following day. The 12 jurors and six alternates were anonymous under orders from the judge, and cameras were strictly forbidden inside the courtroom. But they sat in open court for all 44 days of the trial, their faces plainly visible to Chapo and anyone from the press or public who chose to attend.

I was a regular at the trial, and I recognized the juror from my time in the courtroom. The juror shared detailed notes taken during the trial, which were kept against the instructions of the court. Information from the jury selection process provided further corroboration about the juror’s role in the case.

***

Part of my coverage of the trial included sharing news, analysis, and observations from the courtroom on Twitter. The juror said they routinely checked my personal Twitter feed and tweets from other journalists. “We would constantly go to your media, your Twitter… I personally and some other jurors that I knew,” the juror said.

The juror reached out to another juror at the request of VICE News but said nobody else wanted to speak on the record. VICE News agreed to withhold personal details at the juror’s request. To further protect the juror’s identity, gender-neutral “they” pronouns are used throughout this story, and VICE News is not disclosing whether the juror was an alternate or one of the 12 people involved in deliberations.

Judge Cogan informed the jurors after the verdict was handed down that they are allowed to speak to the media, though he cautioned them against it. No other jurors have spoken out publicly, and because they are anonymous and not reachable for comment, parts of this juror’s account could not be independently verified.

If multiple jurors were indeed reading about the case in the media, Chapo’s defense team could seek a new trial.

“Obviously we're deeply concerned that the jury may have utterly ignored the judge's daily admonitions against reviewing the unprecedented press in the case,” said defense attorney Jeffrey Lichtman, who also noted concern that jurors may have seen “prejudicial, uncorroborated and inadmissible allegations” about Chapo during the trial. “Above all, Joaquin Guzman deserved a fair trial.”

Judge Moreno terminates Pottinger agreement

That's the famous agreement protecting the homeless in Miami entered over 20 years ago, named after the lead plaintiff Michael Pottinger.  Judge Moreno held an evidentiary hearing and wrote this 40-page order saying the agreement was no longer necessary.

Here is the conclusion:

Heroes for the Homeless

Although the Plaintiffs have opposed the termination of this agreement, in a very real sense, they are the victors. Their lawsuit, and the work of their excellent and capable counsel,under the guidance of the Americans Civil Liberties Union and the Florida Justice Institute,engendered a revolution in this community as to the treatment and care of persons experiencing homelessness. Twenty years ago, the undersigned could not have predicted the myriad of services made possible by the efforts of the Homeless Trust and Mr. Ronald L. Book. The Court could not have envisioned the dedication of people, like Dr. Pedro Joe Greer and Dr. Edward Suarez, who have taken medicine to the streets of Miami to help people and gain their trust to improve their care. The lifetime of work by Camillus CEO Hilda Fernandez is commendable as he has worked in a variety of roles to assist the homeless and better their lives in a truly compassionate way. The work of Constance Collins at the Lotus House has also contributed to aiding homeless women and children and helped them find solutions to homelessness. lt goes without saying that this community owes a debt of gratitude to Judge Steve Leifman, who has implemented sustainable programs to help the mentally ill, which will continue to improve their circumstances. Sim ply put, Judge Atkins would be proud of the results.

Accordingly, it is ADJUDGED that the Court terminates the Consent Decree and denies the motion to hold the City of Miami in contempt

The New Times covers it here:

One of the nation's landmark homeless-protection laws is now gone.
Since May 2018, the City of Miami has been trying to invalidate a 1998 legal decision that prevented city cops from arresting homeless people for living their lives outside. The so-called Pottinger Agreement, named for homeless Miamian Michael Pottinger, prevented police from, say, arresting homeless people for sleeping outside or placing their items on the sidewalk.
Even with those protections in place, the American Civil Liberties Union of Florida said Miami cops were blatantly harassing the homeless — including spraying them with power washers and arresting a woman who was in dire need of medical care and likely died due to the detainment. The ACLU also argued the City of Miami was trying to terminate the agreement as a way to sweep homeless residents out of the rapidly gentrifying downtown area.
But U.S. District Judge Federico Moreno today terminated the Pottinger consent decree. The ACLU had filed a competing motion to hold the city in contempt of the Pottinger Agreement, but Moreno threw it out.

Jeff Sloman writes op-ed in support of Alex Acosta

The Herald published it here.

It starts this way:

By now, you have probably formed some views on the Jeffrey Epstein case. You are, like me, repulsed by Epstein’s conduct. You probably also believe, as I do now that more facts have emerged, that Epstein deserved harsher punishment than he ended up getting. No one will argue seriously against these views.

But based on the Miami Herald’s “Perversion of Justice” series and the ensuing news coverage, you may also believe that well-connected lawyers corrupted now-Secretary of Labor and then-U.S. Attorney Alex Acosta and his team into giving Epstein a sweetheart deal. They did not. I would know. I was there.

The trial tax and Paul Manafort

I wrote an op-ed in The Hill this morning addressing the absurd trial penalty we have in our country.  Below is the introduction.  Please check it out and let me know your thoughts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

(UPDATED) "About 20 years ago now, an insightful (and hilarious) lawyer friend of mine said to me—and because this is a family show, I’ll clean it up a bit—“Not everything that s[tink]s violates the Constitution.” If ever a case proved the truth of that little nugget, this is it."

That's Judge Kevin Newsom in this concurring opinion.  I really like this new style of accessible (and fun) writing.  You see it with Kagan on the Supreme Court and with some of the younger judges on the 11th Circuit like Rosenbaum and Newsom. 

UPDATE -- On Friday afternoon, Judge Newsom wrote this concurring and dissenting opinion in U.S. v. Caniff.  It starts this way:

 If forced to choose a favorite movie, I’d have to go with A Man for All Seasons, which chronicles Sir Thomas More’s heroic, principled-to-the-death stand against King Henry VIII’s effort to procure a divorce from Catherine of Aragon—and in the process anoint himself the head of his own newly-formed church. (Christopher Nolan’s Inception runs a close second, for sheer mind-blowing awesomeness, but I digress . . . .) My favorite scene from my favorite movie: a testy dialogue between More and his son-in-law-to-be, the ever-zealous Richard Roper. Roper, anxious that the opportunistic hanger-on Richard Rich intends to double-cross More, who was then serving as the Lord Chancellor of England, pleads (along with More’s wife and daughter) to have Rich arrested on the ground that he’s “bad”—to which More responds, impassively, “There’s no law against that.” To the objection that while they go on “talk[ing],” Rich has “gone,” More rejoins, more emphatically: “And go he should even if he were the Devil himself until he broke the law.” Then, this gem—

Roper: So, now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

* * *

I knew this day would come—eventually, I’d have to hold my nose and cast (and then explain) a vote that I found utterly nauseating. Well, here we are. I couldn’t agree more with the majority—and the staffer-drafters of H.R. Rep. No. 99-910, whoever they were—that “[o]f all the crimes known to our society, perhaps none is more revolting than the sexual exploitation of children, particularly for the purposes of child pornography.” Maj. Op. at 16. And happily for me, Congress has given prosecutors plenty of ammunition to try, convict, and sentence the purveyors and consumers of child porn. But, I respectfully submit, the majority’s construction of 18 U.S.C. § 2251(d)(1)—to hold that when Caniff sent a private, person-to-person text message requesting explicit photos he “ma[de]” a “notice” for them—stretches that particular provision beyond the breaking point.
To be clear, I’m not suggesting that Caniff is the “Devil himself” (although the crimes of which he has been convicted are most assuredly devilish). Nor am I any way intimating that the majority’s construction of § 2251(d)(1) is tantamount to “cut[ting] down every law in [America]”—the majority’s interpretation is plausible, even if (I think) incorrect. And I am most certainly not casting myself in the role of the inimitable More. I’m simply saying that as badly as I’d like to get Caniff—to see him rung up on every count of the indictment—my job is to take the law as I find it, and however regrettable it may be to me, I cannot conclude that § 2251(d)(1) reaches Caniff’s conduct here.

One huge trial in the books; another one just started

The El Chapo jury just came back with a guilty verdict.

Meantime, opening statements were held this morning in the Esformes case before Judge Scola.  Via the AP:

A Florida health care executive used bribery, kickbacks and false paperwork in a $1 billion effort to fleece Medicare and Medicaid, one of the biggest such cases in U.S. history, a federal prosecutor told jurors Tuesday.

But an attorney for 50-year-old Philip Esformes told jurors as trial began in Miami that he was no criminal but a driven businessman who legitimately operated more than 20 nursing homes and assisted living facilities in Florida.

The opening statements kicked off a trial expected to last about eight weeks. Esformes faces decades in prison if convicted because of the scope of the alleged fraud committed between 2006 and 2016. There are also allegations that he bribed a college basketball coach in an effort to get one of his sons on the team.

Assistant U.S. Attorney Elizabeth Young told the jury the fraud involved four steps: bribing doctors to refer patients to Esformes’ facilities, moving them to other facilities when their Medicare eligibility at the first place expired, selling access to patients to others so they could also defraud the government programs, and then starting the process again.

“I happened over and over and over again,” Young said. “Rinse and repeat. And it happened for 10 years.”

Prosecutors say the Esformes network and co-conspirators falsely billed Medicare alone for $1 billion during the scheme, of which about $500 million was paid. Much of the evidence relies on audio recordings between Esformes and two co-conspirators who were secretly cooperating with the FBI and have previously pleaded guilty, Young said.

“He was the mastermind. He made this happen. The evidence will show he was involved every step of the way,” Young said.

Esformes attorney Roy Black, however, told jurors they should be skeptical of the motivations and backgrounds of many government witnesses, including convicted co-conspirators Gabriel and Guillermo Delgado.

“They have stacked their case with con artists, liars, fraudsters and even drug traffickers,” Black said. “We will try to expose all that we can.”

“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.