Burying documents

Prosecutors are in trouble again, this time in SDNY.  But this time, at least they dismissed the case -- even after trial (something most prosecutors, including in this District, refuse to do after misconduct has been proven).  Even though they have agreed to dismiss, the judge wants answers and strangely, the prosecutors are saying that their actions weren't all that bad.  From NPR:

Federal prosecutors under scrutiny for failing to turn over favorable evidence to a defendant told a judge they didn't act in bad faith, even as they disclosed internal emails in which they discussed whether they might try to "bury" a document they were giving to defense lawyers in a stack of other papers.

Prosecutors in the Manhattan U.S. Attorney's Office made the disclosure in a letter to Judge Alison Nathan, who had demanded answers about the prosecution's failings and whether she had the power to impose sanctions against them.

The newly revealed email message described how one of the prosecutors found out that an important document hadn't been turned over to the defense, suggesting: "I'm wondering if we should wait until tomorrow and bury it in some other documents."

Prosecutors now say the document was not, in fact, "buried" because they turned it over less than 24 hours after the email discussion.

Their July 2 letter said the prosecutor who wrote the email was "endlessly chagrined about this chat" and added that "we believe it would go too far to condemn her for a Friday night lapse in thinking regarding a document that was in fact disclosed Saturday afternoon."

Defense lawyers for Ali Sadr Hashemi Nejad, who was charged with violating American sanctions laws against Iran, told the court they are "surprised and disappointed."

Attorney Brian Heberlig accused the prosecutors, and an official in the U.S. attorney's office who's tasked with promoting professional responsibility, of trying "to minimize, deflect, and deny, avoiding any acknowledgment or acceptance of responsibility for the government's obvious, repeated failures and its notable lack of candor," in his own letter to the court.

Squabbles over turning over documents, known as discovery, are common in federal criminal cases. But it's rare for a judge to demand that the government identify lawyers and supervisors involved in evidence-sharing lapses.

And it's even more rare for prosecutors to acknowledge such serious faults that they moved to dismiss a case they had already won.

"Any new trial would necessarily require a new team of (assistant U.S. attorneys) who would have to become familiar with every aspect of the investigation — not an easy task, particularly in a case that has already suffered from multiple breakdowns in communication that contributed to significant disclosure failures," prosecutors wrote to explain their rationale for abandoning the conviction.

Aside from the discussion of whether to "bury" a government exhibit, Sadr's lawyers said the prosecution team had engaged in even more "egregious wrongdoing" by misrepresenting a search of emails before the March 2020 trial began.

If a defendant had engaged in this behavior, a prosecutor would have no qualms charging him and seeking an enhancement for obstruction, and a judge would give it in a heartbeat.

Happy 4th! (UPDATED -- and happy birthday to the blog!)

UPDATE -- I almost forgot! The blog turns 15 this weekend. The first post of the longest running Florida legal blog was way back on July 4th weekend, 2005 (calling for a Floridian to be appointed to the Supreme Court, which still hasn't happened!). HowAppealing and SCOTUSblog started things off and are still kicking, but most legal blogs have folded in favor of Twitter and other social media.  The blog has had over 3800 posts and over 4.6 million page views. I'm not sure how much longer I'll do this, but it's been a fun ride! Thanks to all the tipsters and readers over the years.  I really appreciate it.

ORIGINAL POST: For your reading pleasure, here's an article about judges behaving badly.  None of our judges made the list.  Here's my favorite one:

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

Some sad stats:

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Is Justice Alito going to retire?

The rumor mill is in high gear right now.  Check out this article suggesting that the retirement is coming.

And it's July 1, and we don't have all of the Court's opinions yet.  The poor dears can't start their summer vacay yet because there is still work to do.  More opinions on Monday, but in the meantime, the Court granted cert today on whether the Mueller report would be released in total... after the election.  Via Scotusblog:

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices added another high-profile case to their docket for the fall, involving a dispute over efforts by members of Congress to obtain secret materials from the investigation by Special Counsel Robert Mueller. Mueller submitted a report last year to Attorney General William Barr on possible Russian interference in the 2016 election, and Barr released a redacted version of that report in April 2019. In July 2019, the House Judiciary Committee went to federal court in Washington, D.C., seeking an order that would require the disclosure of the redacted portions of the Mueller report, as well as grand jury transcripts and materials that had been kept secret, for use in its impeachment investigation. The committee relied on a provision in a federal rule of criminal procedure that allows a court to authorize the disclosure of grand jury materials that would otherwise be kept secret “in connection with a judicial proceeding.”

The 11th Circuit, though, is working hard — cranking out opinions every day.  And it just granted en banc review in the very big felon voting rights case.

Sam Rabin is a legend. (UPDATED)

Corrected: This is what Sam Rabin wore to court today:

The original post said Sam was ordered to appear, but that was not accurate. He could have Zoomed into the sentencing hearing (as the prosecutor did), but he wanted to be sitting next to his client during the hearing.

UPDATE -- for those of you who think this was over the top, here's the latest from FDC-Miami:

Ivan Gonzalez Ramirez, 68, was awaiting trial for a drug offense at a federal prison in Miami. He had long-term, pre-existing medical conditions. The BOP just announced that he died on Sunday from COVID-19.

Read that again: Awaiting trial for a drug offense. Now he’s dead. pic.twitter.com/O1oAA0wHn5

— Vanita Gupta (@vanitaguptaCR) June 30, 2020

“Fortunately for me, we have just a fabulous clerk of the court in Kiry Gray. She’s so street-smart and really knows her job."

That was then-Chief Judge of the Central District of California, Cormac J. Carney, about the clerk of court, Kiry K. Gray. He has since stepped down as Chief of that District.  From the LA Times:

The chief judge for the Central District of California, the nation’s largest federal court jurisdiction, which includes Los Angeles and its neighboring counties, has stepped down from that post, citing his racially insensitive comments regarding the court’s top administrative official, a Black woman.

U.S. District Judge Cormac J. Carney, who began a four-year term as chief district judge June 1, announced his decision to step down from the top post but remain a judge in an email Friday to court staff and fellow judges, and offered a public apology to Kiry K. Gray.

A federal court employee for 35 years, Gray in 2015 became the first Black woman appointed to be the Central District’s executive and clerk of court, a job that entails working closely with the chief judge to oversee court operations.

“I have apologized to Ms. Gray, but I have concluded that a simple apology will not put this matter to rest. There will be division in the Court, unnecessary, negative and hurtful publicity, and a diversion from the Court’s essential mission of administering justice if I were to continue serving as the Chief District Judge,” Carney wrote in the email, which The Times reviewed. “I cannot allow the Court to become politicized and embroiled in controversy.”

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