All jury trials and grand juries in the SDFLA are continued until October 13, 2020

That's the latest administrative order from Chief Judge Moore.

Thanks for all the tipsters who have emailed the Order to me.  I will post it as soon as it is on the Court's website.

DOJ’s stunning admission in the Roger Stone case shows unfairness of criminal justice system

Assistant United States Attorney Aaron S. J. Zelinsky’s opening remarks before the House Judiciary Committee sets out his argument that Roger Stone received preferential treatment because of his friendship with President Trump.  Most would agree that similarly situated criminal defendants should be treated the same, regardless of their relationship with the President.  But what if that means treating everyone unjustly?

That’s the shocker in Zelinsky’s testimony — he admits that the Department of Justice always seeks to penalize those, like Roger Stone, who proceed to trial. He says: “For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of.”

A quick history.  The Federal Sentencing Guidelines were enacted in 1984. The stated intent of the Guidelines were to bring uniformity to criminal sentencings.  A defendant who robbed a bank in New Hampshire should get the same sentence as the defendant who robbed a bank in Texas.  The system was point based — use a gun, get more points.  Recruit others into the scheme, add some more.  For a while these Guidelines were not guidelines at all — they were mandatory, and judges were forced to impose the calculated sentence absent very rare exceptions.  On first blush, that goal of consistency seems admirable.

But the Guidelines have been a complete disaster.  Judges had no discretion and complained that they were mere calculators, adding and subtracting points.  What were these points even based on? 

Until the Supreme Court stepped in, judges were not even permitted to consider mitigation evidence.  Had the defendant led an otherwise good life?  Served in the military?  Raised a family on her own? Was she elderly or sick? None of it mattered.  Unsurprisingly, sentences dramatically increased in the wake of the Guidelines.  

In addition to sentences shooting up, the number of trials sank.  Before the Federal Sentencing Guidelines were enacted in 1984, about 20% of criminal cases proceeded to trial and 80% pleaded guilty.  After the Guidelines, the number of trials decreased every year and now only about 3% of cases proceed to trial. Judge Jed Rakoff pointed out that even innocent people were pleading guilty. Former Judge Gleeson explained that “the Department of Justice got in the habit long ago” of “strong arming guilty pleas” in part by using urging judges to impose “excessively harsh sentencing ranges” for defendants who have the temerity of proceeding to trial.

Roger Stone’s case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the Guidelines. And had he met with prosecutors and cooperated, he likely would have been sentenced to probation. Because he had the audacity to go to trial, his guideline range jumped to 7-9 years even though he was a first-time non-violent offender.

Zelinsky, without any sense of horror, says everyone who goes to trial should get this severe punishment determined by some made up point system, while at the same time not taking issue with the fact that the judge in sentencing Stone determined that the Guidelines were way too harsh.  He concedes that the Department of Justice advocates for these absurdly high sentences in every single case where a defendant proceeds to trial with no exception.  That’s the true injustice of our system and that is what needs to be reformed.  Prosecutors should never be seeking 7-9 years for an old, first-time, non-violent offender.  Zelinsky is right that everyone should be treated the same, but that should be with compassion, not with a hammer. 

"As the writer of the Sparks opinion, I regret my error and appreciate the Court’s correction of our Circuit’s jurisprudence."

That was Judge Rosenbaum, concurring in this en banc opinion which abrogated United States v. Sparks, 806, F.3d 1323 (11th Cir. 2015).  I'm certainly in favor of having an open mind and re-evaluating past decisions. It's just that I've never seen a judge apologize for an earlier mistake.  Refreshing! Judges can make mistakes. And even acknowledge them!

Justice Jackson had a nice way of putting it when he made mistake:

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court * * *.' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

I got that Jackson quote from a Twitter comment in response to a tweet I had posted earlier about the decision.  I've been thinking for a long time about switching form the blog to Twitter full time.  Thoughts?  Isn't Twitter easier to follow than a blog?

Anyway, the actual en banc decision is summarized in the first paragraph by Judge Newsom:

Sometimes courts make simple mistakes. And simple mistakes call for simple fixes. Just so here. In United States v. Sparks, we held that a suspect who “abandons” his privacy or possessory interest in the object of a search or seizure suffers no “injury”—and thus has no standing—in the Article III sense, and, accordingly, that an argument asserting the suspect’s abandonment is jurisdictional, nonwaivable, and subject to sua sponte consideration. 806 F.3d 1323, 1341 n.15 (11th Cir. 2015). Sitting en banc, we now overrule Sparks and hold, to the contrary, that a suspect’s alleged abandonment implicates only the merits of his Fourth Amendment challenge—not his Article III standing—and, accordingly, that if the government fails to argue abandonment, it waives the issue 

D.C. Circuit orders Flynn case dismissed

The 2-1 decision is here.

It’s right on, as I have argued in the Washington Post, USA Today, The Hill, and in this debate hosted by The Federalist Society.

The majority concludes this way:

Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority. This is not a case about whether “a district judge may even hold a hearing on a Rule 48(a) motion.” Dissenting Op. 11 (emphasis omitted). Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives. On that, both the Constitution and cases are clear: he may not.

The dissent starts like this:

It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection. I therefore respectfully dissent from the majority’s grant of the writ.

What will happen when the SDFLA reconvenes grand juries and starts having jury trials again?

Will it be business as usual?

In New York, there is a huge backlog of criminal cases.  According to the New York Times:

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.

Certain precautions that are being considered may raise legal issues. “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.

“Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.

“If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books.

And grand juries are also presenting a problem, but not as much in the smaller offices:

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis. Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip. And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.

But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Take the capital case of the Uzbek man accused in a 2017 terrorist attack that killed eight people on a Manhattan bike path. More than 1,000 prospective jurors had come in to fill out jury-selection questionnaires, but later were dismissed after Judge Vernon S. Broderick postponed the trial indefinitely because of the pandemic. The process would have to be redone.

At a teleconference in April, a jury official explained that bringing in so many potential jurors might take three days “with things being normal.”

But, with social-distancing guidelines, she added, “I don’t know what the new normal would be.”

Thought experiment

What would have happened if President Obama had Attorney General Eric Holder fire SDNY U.S. Attorney Preet Bharara because Bharara was investigating Obama and members of Obama’s inner circle?

I mean, remember the reaction when Bill Clinton said hello to AG Lynch on the tarmac...

It is a shame that Berman resigned.  It would have been interesting to see the legal showdown between him and Barr/Trump.  This really was a script from Billions...

This is not The Onion.

This is your President:

Do you get the impression that the Supreme Court doesn’t like me?

— Donald J. Trump (@realDonaldTrump) June 18, 2020

When they rule for Trump, he says it's the greatest Supreme Court -- and of course, he takes credit for it. When they rule against him, he cries.

Justices are people too. And they can’t be pegged into ruling exactly one way or the other on all cases — except Justice Alito, of course, who is always on brand.

Law clerks unite

This is a great story about a law clerk rightfully taking on a very powerful federal appellate judge in a group email and winning.  So great.  The whole article is worth a read, but here’s the intro with the law clerk’s responsive email:

The battle over renaming U.S. bases that currently honor Confederate officers broke out in the U.S. Court of Appeals in Washington, D.C., on Monday. But the argument was not in the courtroom; rather, it was launched, and settled, over email. In an email sent Circuit-wide on Sunday, Judge Laurence Silberman, a Reagan appointee, lambasted Sen. Elizabeth Warren, D-Mass., for her amendment to the National Defense Authorization Act requiring the military to strip the names of rebel officers from any military assets. “Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”Silberman’s post, which went out widely to scores of Court staff and judges, sat unanswered over the next day, until the first volley was sent back not by a fellow judge but by a clerk: courtroom employees who work directly with judges to research and write their opinions. “Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”

[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.

The correspondence was provided to The Intercept by a member of the Court staff on the condition the identity of the clerk (who was not the source) and judges who replied be kept confidential.