Trial penalty exposed in New York

 We all know it exists everywhere, but NACDL is doing a nice job exposing the trial penalty.  Here's the latest report about the penalty in New York. It has 15 recommendations.  Here are the first 3:

1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

Sixth Circuit reverses above-guideline sentence

 And that's not an April Fool's joke!

Here's the opinion.

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

It was a 2-1 decision, with Judge Thapar dissenting.   

Chauvin openings

 You can watch the "3 big moments" from CourtTV here.

And highlights here:

I think the interesting thing is how they are dealing with the pandemic... lawyers and witnesses behind dividers but not wearing masks when speaking.

Magistrate Judge in SDFLA

Even though everyone was focused on the new U.S. Attorney and judge positions, there is also an opening for magistrate judge in the Southern District of Florida.  Applications were due March 19.  I don't have the list of the 49 people who applied, so if someone has it, please forward it.  Your identity will be kept secret.  As always, thanks to all of my sources over the years... Since this blog started back in 2005, no source has ever been revealed.

Meantime, Tony Gonzalez is the acting U.S. Attorney.  The outgoing U.S. Attorney Ariana Fajardo issued this statement.  Rumpole didn't like it. 

Jay Weaver covers her departure here.  From The Herald:

Barely on the job as the new U.S. attorney in Miami, Ariana Fajardo Orshan confronted her first crisis in the fall of 2018 — a sensational terrorism investigation of a homeless man who was sending crudely made pipe bombs in the mail from South Florida to politicians in the Northeast.
Her office, along with the FBI, jumped all over it. But as the probe generated national headlines, she received back-to-back phone calls from the U.S. attorney in Manhattan and the deputy attorney general in Washington, D.C.
“Stand down,” they both told her, the case would be prosecuted by the Southern District of New York, aka the “sovereign district” because of its long tradition of power and independence among the 94 U.S. attorney’s offices in the country.
“They grabbed the case,” Fajardo told the Miami Herald Wednesday. She was nominated by President Donald Trump, became the first woman to serve as U.S. attorney in Miami, and is now leaving office Friday following Trump’s defeat to Democrat Joe Biden in November. Like other top federal prosecutors nationwide, Fajardo, 48, must step down as part of the transition in presidential power.
For Fajardo, a former Miami-Dade circuit judge and assistant state prosecutor, the New York power play was an immediate “sore spot” for the federal newcomer. She argued that the perpetrator was local and mail bombs were all made here, so the case belonged in South Florida, but the Southern District of New York outmaneuvered her by opening a grand jury first to make the terrorism case. Some of the mail bombs were received by former President Barack Obama and other politicians in D.C., New York and elsewhere.
***
Fajardo, who was raised in a Cuban family in Hialeah, handpicked a dozen women and men who were Hispanic, Black, Asian, Indian and white to fill executive and supervisory positions. “I knew I wanted a greater representation in our office that reflected the community,” she said.
Fajardo, who acknowledged she doesn’t like meetings, collaborated with Gonzalez, a techie type, and other advisors to develop a methodical system of hiring new assistant U.S. attorneys — going beyond tapping only the best students from the nation’s top law schools and federal clerkships.
Her team recruited civil and criminal lawyers with trial experience in either law firms or the Miami-Dade State Attorney’s Office, hiring more than 90 new prosecutors over the past two years. Among the new hires: two Haitian Americans, which, though a small number, was significant because of their lack of presence in the office. Fajardo also recruited candidates from the conservative legal group known as the Federalist Society. It gained tremendous influence during the Trump administration.

Garamond.

 I really wanted to write this post in Garamond font, but the Blogger platform doesn't allow it.  The D.C. Circuit, which just banned the font, would be proud.  Twitter took notice.  I don't understand the dust-up as Garamond is a perfectly acceptable font.  Slate covers the scandal here:

So if a lawyer’s brief is written in a difficult font, that might make it seem more complicated than it actually is. But Schwarz says the biggest problem with Garamond is its small size, especially for older judges. He describes Garamond as “elegant” and “pretty” but “thin to print” and notes that it becomes impossible to read on your tablet or computer screen. The court’s notice nods toward this as the reason behind the change, stating that Garamond “appears smaller than the other two typefaces.” And now that most documents are digitized and printing is less common, Schwartz predicts larger fonts will continue to become more popular.
But why did the courts decide to be anti-Garamond now? Theories have abounded: As Merrick Garland traded his post as head circuit judge for attorney general last week, people wondered if Garland’s exit and Garamond’s ousting were at all related. Was Garland a secret Garamond tyrant, forcing the font on the courts? “It’s unlikely,” says lawyer Sean Marotta, a partner with Hogan Lovells. “But yeah, Merrick Garland got one vote like everyone else on the court on these issues.” Instead, Marotta thinks that the D.C. Circuit’s message was targeted at the U.S. Department of Justice’s Civil Appellate Staff, who are known to use Garamond in their briefs.
John Elwood, a partner with the law firm Arnold & Porter, tweeted that Garamond is a popular trick used to “shave serval pages off a brief.” He said on a phone call that federal filing rules for rehearing petitions switched from having a 15-page limit to a word limit in 2016. “But, before that point,” he says, “people would file a Times New Roman opening brief, a Times New Roman reply brief, they would lose, and then they would file a rehearing petition, and suddenly it would be in Garamond.” Elwood decided after reading the D.C. Circuit’s notice to test Garamond out for himself: His 25-page Times New Roman brief became 21 pages.

I can't believe Elwood gave up a trick that all of us have used... snitches get stitches.

Debate

If you're interested, I'm debating Andrew Fleischman over at Simple Justice (Scott Greenfield's blog) on whether rich defendants face disadvantages in the criminal justice system.

Here's his opening post:

David Oscar Markus recently wrote an editorial on behalf of his clients, the family of Ghislaine Maxwell, in which he said that “the rich do not enjoy enormous advantages in a federal criminal case.”1 If anything, they are greatly disadvantaged.” I’d love to live in a world where this was true. But justice ain’t cheap, and the tools a criminal defendant needs to rebut the presumption of guilt our system heaps upon them often require significant investment.
First off, there’s choosing the correct lawyer. Justice Roberts was not exaggerating when he wrote that a defendant’s inability to pay for their counsel of choice “raises substantial concerns about the fairness of the entire proceeding.”

Few things could do more to ‘undermine the criminal justice system’s integrity,’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.

But the grim reality for Kaley, a woman whose money for her lawyer was forfeited by the State, is a fact of life for the vast majority of criminal defendants who have no say in who will represent them. It can mean an experienced advocate who knows all the local players or a real estate attorney on a side hustle. It’s the difference between a lottery ticket and a paycheck.

Here's the intro to my response:

The criminal justice system crushes people. Men and women. Black and white. Rich and poor. A federal criminal case impacts your liberty, your family, your finances, your mental health, and every other aspect of your life whether you are rich or poor. Each broad category of defendants faces their own hurdles in the system. There is no question that poor defendants face enormous challenges in trying to mount an effective defense again a government with unlimited resources, what Andrew rightly calls “a bit like [fighting] a grizzly bear.” There’s an unfortunate perception out there, however, that the governmental grizzly bear isn’t as interested in gobbling up the rich. But that perception is wrong. This particular bear loves plump and shiny prey.

Michael Sherwin appears on 60 Minutes...

 ... and does a great job discussing the Capitol Riots.

Prosecutors have not yet charged any Capitol rioters with sedition. But asked whether he anticipates those charges, federal prosecutor Michael Sherwin says, “I believe the facts do support those charges.” https://t.co/QttmisXpO1 pic.twitter.com/CLq0xYdAzh

— 60 Minutes (@60Minutes) March 21, 2021

You can watch the whole thing here.

Should Justice Breyer retire?

 There's been a big push by some liberals because they see a tight window for Biden to get a Justice confirmed and they don't want another RBG situation.  Here's the AP covering the story:

Forgive progressives who aren’t looking forward to the sequel of their personal “Nightmare on First Street,” a Supreme Court succession story.
The original followed Justice Ruth Bader Ginsburg’s decision to forgo retirement from the high court, located on First Street in Washington, when Democrats controlled the White House and the Senate during six years of Barack Obama’s presidency, until 2015.
Despite some pointed warnings of what might happen, Ginsburg remained on the bench until her death last year at age 87. President Donald Trump replaced the liberal icon with a young conservative, Justice Amy Coney Barrett, and cemented a 6-3 conservative majority on the court just over a month before he lost his bid for a second term.
In the updated version, 82-year-old Justice Stephen Breyer plays the leading role. He is the oldest member of the court and has served more than 26 years since his appointment by President Bill Clinton.
With spring comes the start of the period in which many justices have announced their retirement. Some progressives say it is time for Breyer to go, without delay. Other liberal voices have said Breyer should retire when the court finishes its work for the term, usually by early summer.
“He should announce his retirement immediately, effective upon the confirmation of his successor,” University of Colorado law professor Paul Campos wrote in The New York Times on Monday.
Campos’ plea stems from the Democrats’ tenuous hold on power.
A Democrat, President Joe Biden, lives in the White House and his party runs the evenly divided Senate only because the tie-breaking 51st vote belongs to Vice President Kamala Harris.
But there is no margin for a senator’s death or incapacitating illness that could instantly flip control to Republicans. Campos noted that the party composition of the Senate has changed more often than not in each two-year session of Congress since the end of World War II.
Breyer has remained mum about his plans, at least publicly. His last comment on the topic of retirement was made to Slate’s Dahlia Lithwick in an interview published in December. “I mean, eventually I’ll retire, sure I will,” Breyer said. “And it’s hard to know exactly when.”