In defense of former Kentucky Gov. Matt Bevin

So the outgoing Kentucky Governor did the right thing and issued a bunch of pardons as some of  his last acts in office, and the local prosecutors are not happy about it.  From the Washington Post:

Former Kentucky Gov. Matt Bevin (R) on Friday night defended his controversial pardons as reflections of America’s foundational “support for redemption,” a statement that followed a Republican state leader’s call for a federal investigation into Bevin’s actions.
The former governor, who lost his bid for reelection in November, made national headlines this week after he pardoned hundreds of people during his final days in office, including a man convicted of reckless homicide, a child rapist and a woman who threw her newborn in the trash. In one case, Bevin pardoned a man convicted of homicide who was the brother of one of the former governor’s campaign donors.
The pardons outraged local attorneys and prosecutors, who said they were not consulted during the process. As the backlash continued to build Friday, Republicans in the Kentucky state Senate issued a statement blasting Bevin.

He responded:

On Friday, Bevin responded to his critics in a series of 20 tweets. He said he spent “hundreds of hours” reviewing pardon applications and made each decision based on the “set of facts, evidence, lack of evidence, supporting documents, reasons and unique details.”
Bevin added it was “highly offensive and entirely false” for anyone to suggest “political or financial considerations” played a role in his decisions.
“The criminal justice system is intended to find the proper balance between justice for the victims and rehabilitation for the offenders. When it is not possible to guarantee more of either being accomplished by further incarceration, it is reasonable for a person to be considered for either a commutation or a pardon,” Bevin wrote. “This is never an exact science. … The entire criminal justice system hinges upon the judgment of third parties.
Bevin, a devout Christian, also strongly defended himself from charges he endangered public safety.
“Not one person receiving a pardon would I not welcome as a co-worker, neighbor, or to sit beside me or any member of my family in a church pew or at a public event,” he wrote. “No community is either more or less safe now, than it was before the pardons and commutations given over the past four years.”

Good for Bevin and shame on the critics. We put way too many people in jail for way too long. The fact that the Governor used his pardon power as it was intended should be applauded. If we are serious about criminal justice reform, we should be encouraging this sort of behavior.

A new hope

There's been a lot of talk about how the new judges (both district and circuit) will be on criminal justice issues.  One of those judges, Roy Altman, is already distinguishing himself as independent, smart, and not just another government rubber-stamp.  Here's his latest order (which demonstrates those qualities), dismissing a hung count after trial. 

Federal courts are now used to prosecute cheating in class

We all know of the high profile, and controversial, prosecutions of Felicity Huffman and Lori Loughlin.  But now, the "Varsity Blues" prosecutors have expanded their case to go after parents who have engaged in simple cheating.  The latest case (and plea deal!) involves a charge of wire fraud for a parent who paid $9,000 for another person to take an online class for her son.  Immoral, yes.  Federal criminal wire fraud... come on!  From USA Today:

In a different twist in the nation's college admissions scandal, a woman from Newport Beach, California, was charged Monday and agreed to plead guilty to paying $9,000 to have someone take online classes for her son so he could graduate from Georgetown University.

Karen Littlefair is the 53rd person charged with crimes in the nation's sweeping college admissions case involving Rick Singer, but her case stands out from the other 35 parents charged. She is the first parent charged in the "Varsity Blues" scandal in a cheating plot involving a student already enrolled in college rather than one seeking admission.

In a deal with prosecutors, Littlefair, 57, agreed to plead guilty to one count of conspiracy to commit wire fraud. The date of her plea hearing in Boston federal court was not set.

She is the wife of Andrew Littlefair, president and CEO of Clean Energy Fuels. He was not charged in the case.

Whenever there are challenges to broad statutes, you hear prosecutors say in defense: "Don't worry; you can trust us; we would never abuse the statute." But this case is an example of why judges cannot accept those sorts of defenses. This case is just absurd.

Should the jury see a cooperating witness' factual proffer?

Justice Sotomayor isn't so sure. Here's a statement she issued today in a case where cert was denied:

For his alleged role in a group beating, petitioner Calmer Cottier was charged with, among other things, second-degree murder by an Indian in Indian country. Two other participants accepted plea deals with the Government; as part of their pleas, the participants signed statements— known as factual-basis statements—that implicated Cot-tier in the murder. A federal prosecutor also signed those inculpatory statements to vouch for their veracity. Then, that same prosecutor offered those same incriminating statements as evidence at Cottier’s trial. On appeal, the Court of Appeals for the Eighth Circuit observed that the court in which Cottier was prosecuted “routinely” sends unredacted factual-basis statements into the jury room. 908 F. 3d 1141, 1149 (2018). I agree with the Eighth Circuit that this practice is “troubling.” Ibid. By presenting the jury with a factual-basis statement signed by the Government, the prosecution improperly ex-presses its “‘personal belief ’ ” in the truth of the witness’ statements—a stamp of approval, an assurance from the Government itself, that the witness is to be believed. United States v. Young, 470 U. S. 1, 7–8 (1985). In this case, however, Cottier’s attorney did not object to the statements’ admission and used them as part of Cottier’s defense. For that reason and others expressed by the Eighth Circuit inaffirming Cottier’s convictions, I do not dissent from the denial of certiorari but instead echo its admonition that the admission of such statements “is not a favored practice.”908 F. 3d, at 1149.

Judge Barbara Lagoa sworn in

Here are some lovely pictures from the swearing in.  Congratulations to Judge Lagoa!

All around good-guy Ben Greenberg jumps to Greenberg Traurig

Great get for GT.  He's the former U.S. Attorney and a South Florida guy. 

The SDFLA U.S. Attorney's office is undergoing a lot of change in the past year.  It will be interesting to see what direction it goes without people like Ben.

Congrats to him and GT.

Meantime, in unrelated news, the government will have to deal with a huge lawsuit of women prisoners against Coleman (a federal prison for women outside of Orlando) for repeatedly raping its inmates.  Story by the Herald here:

Fourteen women, ranging in age from 30 to 56 and nearly all first-time offenders, have banded together to sue the United States, not under pseudonyms but under their real names, over the abuse they say they’ve endured at the Bureau of Prisons-operated camp. Seven of the women are still incarcerated.

Who is Andrew Brasher?

So who is Andrew Brasher, the new 11th Circuit nominee. The Vetting Room has the details here.  Below is the introduction and conclusion, but there is quite a bit of interesting information in the entire post, which you should check out.

Six months ago, Judge Andrew Brasher was narrowly confirmed to be a U.S. District Court Judge.  Now, the 38-year-old Brasher is ready to move on from the position to the U.S. Court of Appeals for the Eleventh Circuit.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.^[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.^[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General of Alabama.^[3] 

In April 2018, Brasher was nominated to the U.S. District Court for the Middle District of Alabama, filling a longstanding vacancy opened by the resignation of Judge Mark Fuller.  Brasher was confirmed by the Senate in a 52-47 vote on May 1, 2019, and has served on the Middle District since then.

***

Overall Assessment

Despite Brasher’s significant experience with litigation, his youth and strongly conservative writings and experience made him a controversial nominee at the district court level and caused his nomination to sit for over a year before confirmation by a narrow vote.  Now, as an appellate nominee, Brasher may well have a faster confirmation, simply because Republicans tend to prioritize appellate nominees.  Nonetheless, Brasher’s brief tenure as a district court judge, as well as his youth and conservative ideology, is likely to make him a controversial nominee.

Welcome back

It's the first Monday in December... the year is just about over.  And the Supreme Court has decided to hear a big gun case, the first in 10 years.  From the AP:

For years, the National Rifle Association and its allies had tried to get the court to say more about gun rights, even as mass shootings may have caused the justices to shy away from taking on new disputes over gun limits. Justice Clarence Thomas has been among members of the court who have complained that lower courts are treating the Second Amendment’s right to “keep and bear arms” as a second-class right.

The lawsuit in New York began as a challenge to the city’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits, either to a shooting range or a second home.

Lower courts upheld the regulation, but the Supreme Court’s decision in January to step into the case signaled a revived interest in gun rights from a court with two new justices, Neil Gorsuch and Brett Kavanaugh, both appointees of President Donald Trump.

Officials at both the city and state level scrambled to find a way to remove the case from the justices’ grasp. Not only did the city change its regulation to allow licensed gun owners to transport their weapons to locations outside New York’s five boroughs, but the state enacted a law barring cities from imposing the challenged restrictions.

“There is no case or controversy because New York City has repealed the ordinance and the New York state Legislature has acted to make sure it remains repealed,” said Jonathan Lowy, chief counsel and vice president of the gun control group Brady’s legal action project.

But those moves failed to get the court to dismiss the case, although the justices are likely to ask at arguments about whether there’s anything left for them to decide.

Paul Clement, who represents three New York residents and New York’s National Rifle Association affiliate challenging the transportation ban, said in an email that among the reasons the case remains alive legally is that the court frowns on tactical moves of the sort employed by the city and state that are meant to frustrate the justices’ review of an issue.