Will the Dems address federal judges in tonight's debate?

Trump has placed an emphasis on remaking the federal judiciary and he has been extremely successful. Obama (and Clinton) never had such an emphasis. And the Democratic candidates so far have barely mentioned the judiciary in their campaigns and debates. Hopefully it will be discussed tonight.

Others, however, have been pressing for a new narrative on judging. Clark Neily of Cato has called for a moratorium on appointing prosecutors to the bench.

Given the government’s vast resources, nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice. To further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

It is perfectly understandable that current government officials wish to stock the courts with former government advocates. But it’s a bad deal for the rest of us and a doubtful way to ensure equal justice under law.

And Demand Justice has put out its own Supreme Court shortlist (as Trump did when he was a candidate) since no Dem has done so. There are no Floridians on the list, and it's not a realistic list in my view (with only 2 Circuit judges), but it's a conversation starter.

Kudos to Judge Scola for being compassionate

It’s not every day that a federal judge is compassionate. But Judge Scola deserves a lot of credit today for releasing 84-year old Hafiz Khan, who is dying. The federal public defender’s office filed the motion for Khan, which received very strong opposition from the U.S. Attorney’s Office. From the Miami Herald:

“I do find that his demise is imminent, and he can no longer speak and does not pose a danger to the community,” Scola said Friday, after holding three hearings this week on the Khan family’s petition.
***
Earlier this week, a prison doctor testified that Khan has a host of dire health issues and could die within weeks. But he also said he may be too weak to be moved from the prison medical facility, let alone to Miami. Scola, the judge, raised concerns about the logistics of transferring Khan because of his fragile state.

The family, with the help of Federal Public Defender Michael Caruso and colleague Sowmya Bharathi, found a solution that satisfied the judge’s concern: a hospice center in Raleigh that could accommodate Khan on Friday.

“No one wants him released without proper medical care available,” Bharathi said, adding that Khan’s family had the finances to pay for his ambulance transfer to the Raleigh facility and the daily hospice care.

The judge said that because of Khan’s rapidly deteriorating health and inability to speak, he believed the defendant would be unable to spread any possible propaganda to incite the Taliban to take violent action against Americans — evidence that surfaced during his 2013 terrorism trial in Miami.

“Mr. Khan’s danger was his ability to speak and influence other people,” said Scola, who in his order prohibited Khan from any access to a telephone, computer or the internet. He also limited his visitors at the Raleigh hospice facility to immediate family members.

CA11 issues interesting opinion on experts

There are 3 opinions in this lengthy case, with the majority written by visiting district judge Lewis Kaplan, a concurrence by Julie Carnes, and a dissent by Tjoflat.

Of note is that many practitioners think that the criminal discovery rules require less disclosure from prosecutors on experts than the civil case counterparts. But Tjoflat explains that that understanding is wrong. Prosecutors must make real expert disclosures or risk full reversal:

In closing, to understand just how significantly Mentor has been wronged today, consider what we would do if this case were criminal rather than civil. Under Federal Rule of Criminal Procedure 16(a)(1)(G), the government has a duty to “give to the defendant a written summary of any [expert] testimony that the government intends to use.” Fed. R. Crim. P. 16(a)(1)(G). The government’s summary must include the expert witness’s “opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Id. As with the Civil Rules, the government has the continuing duty to inform the defendant of changes to the expert’s opinion. Id. 16(c). And, like Civil Rule 37(c), Criminal Rule 16 empowers the district court to “prohibit [a non-compliant] party from introducing
the undisclosed evidence.” Id. 16(d)(2)(C).

Now imagine this were a criminal trial. The government identifies Dr. Porter as an expert witness. Mentor obtains Dr. Porter’s summary, deposes Dr. Porter and—based on the information obtained—builds its defense. All seems to go as planned until, mid-trial, Dr. Porter changes his tune in a way that prejudices Mentor. Moreover, the circumstances of the reversal indicate that the government induced Dr. Porter to change his opinion. Mentor moves for a mistrial citing the
prejudicial and deliberate Rule 16 violation. The district judge denies Mentor’s motion, and Mentor appeals. Now the case is before our Court. What result?

Reversal. See United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (“[W]here it is apparent . . . that the defense strategy may have been determined by the failure to disclose, there should be a new trial.” (citation omitted) (second and third alterations omitted)). Reversal, and perhaps—because of the violation’s deliberateness—a citation of criminal contempt for the prosecution. But over on the civil side—with the same degree of prejudice and the
same degree of deliberateness—we inadvertently reward this behavior.

Why is that? Why do we tolerate in a civil case the same kind of behavior that would require reversal in a criminal case? It seems that we have two standards of ethics and professionalism—one for criminal cases, and another, significantly more lenient standard for civil cases. Lawyers do without a hint of shame in a civil case what they would never think to do in a criminal one. This bifurcated sense of what ethics and professionalism require of the bar is sadly nothing new. But what is new—and what is made worse by today’s majority opinion—is the extent to which we will let civil lawyers get away with behavior that would be unthinkable in a criminal trial.

“We’re addicted to jail.”

That’s the title to my latest in The Hill.  Please take a look.  Here’s a snippet:

We issue jail sentences like candy, to address every known problem that we have. Drug problem — jail. Using your family member’s address to get your child into a better school — jail. Paying college athletes — jail. The United States jails more people than any other country in the world. We have higher incarceration rates than Russia, Iran, and Iraq — by a lot. We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States. 82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail. This is not how it should be.

The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?

First Monday in October

The Term starts off with two exciting criminal law cases:

1. First up is Kahler v. Kansas: “Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.”  Amy Howe of SCOTUSblog has a nice write up here.  A snippet:

Under Kansas law, Kahler could not argue that he was insane as a defense to the charges. In 1995, Kansas had replaced the insanity defense with a new law that allows a defendant to argue that, because of mental illness, he could not have intended to commit the crime but makes clear that mental illness “is not otherwise a defense.” The law was a response to several high-profile criminal cases, including the attempted assassination of President Ronald Reagan by John Hinckley, who was found not guilty by reason of insanity. The trial court instructed the jurors in Kahler’s trial that they could only consider Kahler’s mental illness as part of determining whether he intended to kill his victims. The jury found him guilty and sentenced him to death.
The Kansas Supreme Court upheld Kahler’s death sentence, rejecting his argument that the failure to allow him to raise an insanity defense violated the Constitution. The U.S. Supreme Court agreed to hear the case in March.
In his brief on the merits, Kahler contends that it has long been established that a mentally ill person who commits a crime without understanding that his actions are wrong is not morally responsible for those actions and therefore should not be held criminally responsible. The importance of this rule, he suggests, can be seen in the fact that, until 1979, every jurisdiction in the United States allowed an insanity defense. Today, he continues, 45 states, the federal government, the U.S. military and the District of Columbia all allow a mentally ill defendant to assert an insanity defense.
But under Kansas law, Kahler argues, it doesn’t matter whether an insane defendant understands that what he is doing is wrong. The only question is whether he intended to commit the crime, which is a much lower bar. Therefore, Kahler posits, “so long as a defendant intentionally kills another human being—even if he delusionally believes the devil told him to do it, or that the victim was an enemy soldier trying to kill him,” he can be convicted of murder even if he is insane. Such an approach is not the equivalent of offering an insanity defense, Kahler maintains. Rather, he predicts, the state’s rule will “shrink the class of defendants who might be acquitted as a result of mental disease or defect almost to the vanishing point.”
Removing such a fundamental principle from the criminal justice system, Kahler maintains, violates the 14th Amendment’s due process clause, which was enacted to protect exactly these kinds of basic principles. Kansas’ rule also violates the Eighth Amendment’s ban on cruel and unusual punishment because, “by convicting and punishing people who are not blameworthy, cannot be deterred, and require incapacitation and rehabilitation that the criminal justice system cannot provide,” it doesn’t advance any of the justifications for punishment – such as deterrence or retribution. Indeed, Kahler notes, at the time the Eighth Amendment was adopted, it was widely regarded as cruel and unusual to impose criminal punishments on the insane.
Kahler acknowledges that the Supreme Court normally gives the states a fair amount of latitude in how they structure their criminal justice systems, and he concedes that states can “tweak” a baseline standard that hinges on whether the defendant knows that his actions were wrong. States can also require defendants to show that they are insane, perhaps even beyond a reasonable doubt, but they can’t get rid of the insanity defense altogether.
Kansas frames the issue very differently, telling the justices that the state has simply “redefined,” rather than “abolished” the insanity defense. Although a defendant cannot raise insanity as an affirmative defense to accusations of a crime, the jury can still consider evidence of mental illness in determining whether the defendant could have intended to commit the crime.

2.  Second up is Ramos v. Louisiana, which addresses “whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.”  Amy Howe again:

In Ramos’ case, the justices are not writing on a blank slate. Nearly 50 years ago, in Apodaca v. Oregon, the court ruled that the Sixth Amendment guarantees a right to a unanimous jury, but that such a right does not extend to defendants in state trials. The justices were deeply divided. Four justices would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four others would have ruled that the Sixth Amendment establishes a right to a unanimous jury that applies in both state and federal courts. That left Justice Lewis Powell, who believed that the Sixth Amendment requires a unanimous jury for federal criminal trials, but not for state trials, as the controlling vote.
In his brief on the merits, Ramos starts with the threshold question of whether the Sixth Amendment’s jury trial clause requires a unanimous verdict at all. He argues that the answer is yes: The Sixth Amendment, he contends, guarantees a defendant in a criminal case a “trial, by an impartial jury,” which the Supreme Court has consistently interpreted as requiring a unanimous jury verdict before a defendant can be convicted of a crime. This includes the court’s 1972 decision in Apodaca, he continues, in which “a majority of the Court agreed yet again that the Sixth Amendment requires jury unanimity to convict.”
The history and purposes of the jury trial clause also make clear that a unanimous verdict is required to convict a defendant, Ramos continues. Starting as far back as the 14th century, Ramos explains, laws in England required a unanimous verdict. The colonies embraced this requirement in their own legal systems, and the Framers of the Constitution and the Bill of Rights adopted this understanding of what the right to jury trial meant in the Sixth Amendment. The requirement of a unanimous verdict also serves important purposes at the heart of the jury trial right, such as countering possible bias or overreach by prosecutors. “Indeed,” Ramos writes, “the knowledge that a conviction cannot be obtained absent a unanimous verdict deters prosecutors from bringing questionable charges in the first place.” The requirement also “ensures the jury’s verdict represents the voice of the whole community” and “promotes public confidence in the reliability and fairness of the criminal justice system.”
Louisiana counters that the Sixth Amendment does not require a unanimous jury. Nothing in the text of the Constitution imposes such a requirement, even though the Constitution imposes other requirements on the jury system – for example, specifying where jury trials must take place. And, the state argues, the justices should not assume that, just because juries were required to be unanimous in the late 18th century, that requirement was tacitly included in the Constitution’s reference to a “jury.” To the contrary, the state suggests, the history of the Bill of Rights shows that the Framers intentionally omitted a unanimity requirement from the Sixth Amendment: The original draft of the amendment included a unanimity requirement, but the Senate rejected it, instead adopting a different version without one. At the same time, the state observes, some state constitutions explicitly imposed a unanimity requirement – which they would not have needed to do if the phrase “trial by jury” had been understood to include a requirement that the jury’s vote be unanimous. Indeed, the state adds, there were other historical jury practices that no one has argued should be read into the Sixth Amendment – for example, “the requirement that juries consist of twelve male property owners who would be held without food and drink until they returned a unanimous jury verdict.”
Louisiana also sees no conflict between the purpose of the Sixth Amendment and a rule that jury verdicts do not have to be unanimous. The purpose of the jury trial clause, the state stresses, is to ensure that a defendant is convicted by members of the community, who have looked at the evidence and independently concluded that he is guilty beyond a reasonable doubt. That purpose is served, the state insists, whether the vote is unanimous or is instead 11-1 or 10-2 – as demonstrated by the fact that most countries (including England) that use jury trials do not require unanimous verdicts. Eliminating the unanimity requirement also significantly reduces the likelihood of a deadlocked jury, the state notes, which in turn reduces burdens on court systems.

Breaking — Jared Strauss is your new Magistrate Judge

Strauss has been an AUSA in Broward. He graduated from Harvard Law School in 2005.

Congratulations to Jared Strauss!

Rudy G. hires Jon Sale

Yours truly is quoted in the Herald article praising Rudy for the hire.  It's a smart move.

A former Watergate prosecutor based in Miami may have a big say in whether Rudy Giuliani complies with a subpoena from lawmakers conducting impeachment hearings in the House of Representatives.

Giuliani has tapped Miami-based veteran attorney Jon A. Sale, of counsel with Nelson Mullins, to represent him before the congressional inquiry into whether President Donald Trump improperly pressured Ukraine’s president for a political favor.

“This subpoena is very complex because it raises a lot of issues — including privilege and constitutional issues — so it requires serious analysis,” Sale said in a brief telephone interview Tuesday afternoon. “There’s a lot of work involved here.”

A former New York University law school classmate of Giuliani, Sale was a junior prosecutor during the Watergate probe and is often described as the dean of the white-collar defense bar in South Florida.

Your new chair of the Committee on Audits and Administrative Office Accountability .... is .....

Drumroll please...
....

Chief Judge K. Michael Moore.

Congrats on the appointment by Chief Justice John Roberts.

Other appointments are listed here, including Judge Kethledge as the Chair on the Advisory Committee on Criminal Rules.