"Justice Department wrong to encourage prosecutions it's fearful of losing"

That's the title of my latest piece in The Hill.  Below is the introduction.  Would love your feedback.

The American Bar Association held a big shindig down in Miami last week, with hundreds of white-collar criminal defense lawyers gathering to get up to speed on developments in the law. Because of COVID, it’s been a while since everyone was able to get together in person. The event is known for panels that include top government officials explaining the future of white-collar prosecutions and what is to be expected in the coming years. This conference was no different — in fact, Deputy Attorney General Lisa Monaco gave the keynote address on corporate crime.

Her speech included a comment that jumped out to me and should be a serious cause of concern for white-collar criminal defense lawyers. While recognizing that “cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases,” she explained that “the fear of losing should not deter [prosecutors].”

But the fear of losing is exactly what should deter prosecutors from bringing the weight of the criminal justice system against an individual.

The mere filing of a criminal case against a corporate executive will likely lead to that person’s firing, financial ruin, inability to work, reputational harm, emotional scarring, and the like — even if the individual is eventually exonerated. Filing a criminal case should be no small matter.

There's a new guideline manual!

 

We haven't had a new one since the red 2018 version because we haven't had enough Sentencing Commissioners.  Now we have the blue cover with yellow lettering.  The sole Commissioner, Charles Breyer, wrote a letter explaining what's up:

"As many of you know, since early 2019, the United States Sentencing Commission has been operating without the quorum of four voting members required by statute to promulgate amendments to the sentencing guidelines, policy statements, and commentary...

The Commission has received feedback indicating that hard copies of the 2018 Guidelines Manual are significantly worn and that there is a limited supply of new copies available. In addition, the Commission has identified the need to update Appendix B, the accompanying volume to the Guidelines Manual that compiles the principal statutory provisions governing sentencing, the Commission, and the drafting of sentencing guidelines. Congress has amended several of the statutory provisions contained in Appendix B since the Commission released the 2018 Guidelines Manual.

As acting chair of the Commission, I am pleased to transmit this edition of the Guidelines Manual..."

You can listen to Judge Breyer discuss sentencing and other issues on my podcast here.

Big ABA White Collar Conference in Miami

 The annual White Collar Conference is back on after the COVID pause.  It's being held at the Miami Hyatt.  Typically 1,500 lawyers descend in Miami and try to fit in at all of the clubs on Brickell and Miami Beach.  This year, though, only about 500 lawyers are here. 

In addition to COVID-anxiety, many have speculated that attendance isn't at normal levels because of the ABA fight with the Florida Supreme Court over CLE credits.  Florida Bulldog covers it here:

The Florida Supreme Court seems to be buffing its ultra-rightist image by picking a fight about diversity with Florida Bar leaders and the American Bar Association.

Propelling it all is a controversial 1978 U.S. Supreme Court decision that outlaws “reverse discrimination,” Regents of the University of California v. Bakke. Florida’s high court is resurrecting Bakke to suggest that a diversity policy is really an unfair quota intended to displace white men in favor of women and minorities.

Traditionally the court wields its power over the Florida Bar only after weighing all sides of an issue. It takes in facts and opinions from the legal community, then makes or changes rules for everything from lawyer discipline to divorce procedures.

Not this time. The subject is Continuing Legal Education (CLE), the tightly regulated system that licensed lawyers use to keep up with developments in their practice areas.

In an unusual move, the justices accepted no input before rejecting a pro-diversity policy for CLEs that was recently adopted by the Bar’s Business Law Section, copying a 2017 ABA guideline. Both set numerical goals for CLE faculties so they represent all races, genders, ethnicities and viewpoints.

“We don’t exclude anybody from participating in the panels,” ABA President Patricia Lee Refo has explained. “What we do, where necessary, is to expand the size of the panel to include nontraditional voices.”

Although no white male Florida lawyers had reason to complain about getting kicked off Continuing Legal Education panels, the Florida Supreme Court decided to strike down the diversity policy on its own. Not a single self-identified injured party presented a “case or controversy,” the standard trigger for litigation.
Court: ‘Quotas’ taint Continuing Legal Education

The court’s April 15 ruling prevents Florida lawyers from earning CLE credits for ABA courses. According to a majority of the justices, the courses are corrupted by “quotas” just like Business Law Section courses would have been under the rejected policy.

“It is essential that The Florida Bar withhold its approval from continuing legal education programs that are tainted by such discrimination,” the court declared in its unsigned opinion.

Sentencing Commission trying to pull a fast one on district judges

 This is crazy.  The Sentencing Commission released a sentencing tool called JSIN so that judges can see average sentences before making a decision.  The problem -- the statistics exclude all sentences in which the judge did not impose incarceration.  Michael Yeager discusses the flawed data in this article at Law360:

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Supreme Court new argument style

 The Supreme Court has a new argument format, as detailed in this Court guide to oral advocates on page 7.  Jonathan Adler explains it here:

The Supreme Court has been utilizing a new oral argument format this term. Audio of the arguments is streamed live through the Court's website. Advocates get a brief opportunity to introduce and frame their case, followed by a period of open questioning, followed by an opportunity for each justice, in order of seniority, to ask additional questions they may have. ... The new format seems to result in longer arguments, but also more probative ones, and live audio is great.

One interesting development with the new format is that Justice Thomas has asked the first question in the vast majority of arguments thus far. Indeed, as of yesterday, Justice Thomas had asked the first question to all but one of the advocates so far this term. This is a positive development, as Justice Thomas' questions are good ones.

That last part about Justice Thomas now asking questions has been really interesting.  Many have said that he really enjoyed asking questions during the telephonic arguments where questioning would go in order of seniority.  And because he liked it, he likes to get his questions in first after the advocates finish their brief introduction.

Justice Sotomayor explained that the format of questioning changed because the female Justices were getting interrupted more often than their male counterparts.   

Shame on you prosecutors. Shame.

 Prosecutors were very bad in a recent trial before Judge Cooke. So bad, the 11th Circuit called them out:

More broadly, however, I feel compelled to address the  prosecution’s conduct and the tactics it employed throughout the trial. The prosecution fell short of the high level of professionalism that we expect prosecutors to embody, even if their actions did not rise to the level of misconduct. An unfortunate but notable feature of this trial was that the district court exerted considerable time and energy corralling the prosecution’s often wayward tactics. Starting in voir dire and continuing through the testimony of multiple witnesses, the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them, eliciting remarks from the court including:

• “Counsel, you know that’s improper.”
• “[W]hy would you go there?”
• “We went over this. . . . I may be wrong, but I ruled. Let’s go.”
• “We’ve had this conversation through other witnesses. Counsel, move on.”
• “We did this yesterday. I’m not revisiting. Anybody [who] wants to go back to the transcript, can.”
• “I don’t know . . . how many other languages to speak to you. . . . I said how to proceed. Proceed that way.”
• “What you have to do is to remember we have had some rules in this trial and somehow they seem to have been forgotten.”

The court’s admonitions, it seems, had little effect. After a particularly volatile exchange between a prosecutor and defense witness Miller, in which the prosecutor admitted that he lost his composure, the district court warned that he was “close” to causing a mistrial. Afterward, outside the presence of the jury, she admonished the prosecutor, telling him: “You’re better than having to go to the lowest part of your anger in order to examine this witness. . . . [Y]ou’re an experienced cross-examiner. You didn’t have to do
that. I would have expected that of someone of less experience than you.” The district court lamented that things “got very messy and uncontrolled.”

But apparently not bad enough to get a new trial or reversal. Instead of any actual consequences, the court says, in a concurrence by all three judges, that the prosecutors shouldn't do this again.  

Ha!  

Nothing is going to change regarding the epidemic of prosecutorial misconduct until there are some consequences.  I mean, the prosecutors in this case aren't even named in the opinion.  Defendants receive obstruction enhancements for less.  Walks of shame are not enough...

11th Circuit changes font and format of its opinions

 You thought we only covered the bickering amongst our district judges?  No, dear readers! We also break the important news in the 11th Circuit, including that the court finally updated its font and format.  It used to look like this:

And here's the new one:

Breaking -- Ryon McCabe is your new Magistrate Judge

 

It looks like the judges worked through their deadlock... by turning to the AO's published guidance which permits for a revote and if that doesn't result in a majority, then the Chief Judge gets to choose.  It's unclear whether the revote broke up the logjam or whether the Judge Altonaga had to make the selection, but either way, it's over.

Congratulations to Ryon McCabe, a really good guy.  We had cases against each other when we were both new lawyers (he was an AUSA and I was an AFPD).  He was also honorable and is a smart guy.  He's been in private practice for some time now and McCabe Rabin.  The FBI will do its background check, which usually takes a few months, and then he will sit in West Palm Beach.