News and notes

1. The Rittenhouse trial.  Lots of talk about the defendant taking the stand and the tongue lashing that the state is getting throughout the trial.  But how about the judge not understanding how zooming works on an ipad.  Oh boy: 

The man responsible for overseeing the Kyle Rittenhouse murder trial has some questions about how iPad's pinch-to-zoom feature works, and he’d really like an expert witness to explain it to him. On Wednesday, Judge Bruce Schroeder disallowed Kenosha County prosecutor Thomas Binger from showing evidence on an iPad that would require the use of the built-in zoom feature. The reason? Well, as Judge Schroeder tried and failed to articulate, maybe pinching and zooming, you know, does stuff to change the image?

"What [the defense is] saying, I think, and I know less than anyone in the room, I'm sure, about all of this stuff, but I'm hearing him to say that they are actually artificially inserting pixels into there, which is altering the object which is being portrayed," observed the judge.

This, as anyone who uses a modern smartphone knows, is not how pinch-to-zoom works. But, in the hopes of explaining it to the judge, we reached out to Apple for its thoughts on this technical dilemma.

We received no immediate response. Which is too bad, as Judge Schroeder really wanted someone to explain it to him.

"You're the proponent," he told the prosecutor, "and you need to assure me before I let the jury speculate on it that [pinch-to-zoom] is a reliable method that does not distort what is depicted."

The judge's dumbfounding technical obliviousness kicked off when Rittenhouse’s defense attorney, Mark Richards, also admitted he didn’t understand what he was talking about. You can watch the jaw-dropping exchange, starting around the the 5 hour, 2 minute and 26 second mark, in the below video uploaded by the Washington Post.

 

"iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms," he told the judge. 

 

Again, this was in service of Richards' effort to prevent the use of pinch-to-zoom.

2. Blogs matter.  Congress is investigating a law clerk's "a history of nakedly racist and hateful conduct."  Jerry Nadler and Hank Johnson have sent the following letter to Chief Justice Roberts.  Footnote 1 of the letter cites to posts at Above the Law about the clerk.

3. Finally, defense lawyers are trying to keep Al Sharpton out of the Ahmaud Arbery trial gallery.  Another oh boy:  

An attorney representing one of three men on trial in the deadly shooting of Ahmaud Arbery made a bizarre request Thursday afternoon when he called for the judge in the case to ban Black pastors from the courtroom gallery.

“We don’t want any more Black pastors coming in here,” Kevin Gough, who represents William “Roddie” Bryan, told the judge before the jury returned from their lunch break.

The Brunswick attorney for the man who recorded the cellphone video of Arbery’s death has repeatedly taken issue with the ongoing demonstrations on courthouse grounds during the widely publicized, racially charged trial.

Gough was referring to an appearance by the Rev. Al Sharpton, who sat in on some of Wednesday’s court proceedings and held a lunchtime prayer vigil outside the courthouse. During his remarks on the courthouse steps, Sharpton criticized the racial composition of the nearly all-white jury overhearing the case, calling it “an insult to the intelligence of the American people.”

 

What can stop the death penalty at the Supreme Court?

 Not much as we have seen in recent years.  But now the ultra-conservative Court has a religious liberty challenge that has the Justices all twisted.  From SCOTUSblog:

The Supreme Court on Tuesday appeared divided over a Texas inmate’s plea to have his pastor touch him and pray out loud while he is being executed. The justices have wrestled with the question of spiritual advisers at executions for two and a half years, but Tuesday’s oral argument in Ramirez v. Collier was the first time that they heard argument on the right of inmates to receive religious comfort and guidance in their final moments. The justices weighed the inmates’ religious rights against the state’s concerns about security and its desire to have the execution proceed smoothly, as well as their own worries about the prospect of endless last-minute litigation by inmates facing execution.

Arguing on behalf of inmate John Ramirez, lawyer Seth Kretzer told the justices that, before changing its policy in 2019, Texas had carried out hundreds of executions in which spiritual advisers were allowed to touch the condemned inmate and pray out loud.

Chief Justice John Roberts pressed Kretzer on the limits of his rule. Is it enough, Roberts asked, that Ramirez’ pastor, Dana Moore, touch him anywhere on his body, or does he have to touch him somewhere specific? When Kretzer responded that anywhere on the inmate’s body would be fine, Roberts inquired whether his answer would be different if an inmate’s religion required the spiritual adviser to touch the inmate on the forehead, for example, or the heart? Kretzer indicated that it would be a closer case, but that both of those body parts were still not located near the place where an IV would be inserted.

Justice Brett Kavanaugh suggested that any form of touching could pose a problem because the lethal injection process is delicate and complex. Kavanaugh pushed back against Kretzer’s contention that Texas had repeatedly carried out executions with spiritual advisers touching inmates, telling him that such examples “don’t move me at all” because those chaplains had been state employees. Kavanaugh was more worried, he said, about “someone from the outside,” like Moore, “coming in.” Kavanaugh returned over and over again to the idea that the state was trying to reduce the risk of having something go wrong in the execution. Allowing a spiritual adviser to touch the inmate during the execution, Kavanaugh contended, will increase that risk.

Kavanaugh voiced a related concern when Kretzer told Roberts that courts should analyze a state’s failure to provide the religious accommodations that an inmate requests on a case-by-case basis. A ruling in favor of Ramirez, Kavanaugh complained, would mean that similar claims would be “a heavy part of our docket for years to come.”

Justice Samuel Alito echoed Kavanaugh’s alarm at the prospect of “an unending stream of” litigation, coming to the Supreme Court at the last minute to delay executions.

Justice Clarence Thomas suggested that Ramirez might have been “gaming the system” because he had “changed his request a number of times.” If that is the case, Thomas asked Kretzer, how should courts determine whether his religious beliefs are sincere?

Kretzer pushed back against the premise of Thomas’ question, telling the justices that Ramirez has “always asked as quickly as possible” for relief and that his religious beliefs are both sincere and “consistently stated.”

Justice Amy Coney Barrett, who in February 2021 provided a key vote to block the execution of an Alabama inmate who wanted to have his spiritual adviser in the execution chamber with him, was more sympathetic to Ramirez. Responding to Kavanaugh’s characterization of the state’s interest in barring touch and prayer by spiritual advisers as one that reduces the risk of something going wrong, she pushed Kretzer to disagree – and in so doing, appeared to signal her own disagreement. The real compelling interest, she suggested, is prison security or “carrying out the execution in a humane and safe way.”

Cert grant in another outlier 11th Circuit case

 The 11th Circuit is way out there on criminal cases -- it is, by far, the most conservative court in the country.  It's no surprise that the Supreme Court has granted cert again to fix what the 11th has done in this doctor case, Ruan v. United States.

In that case, the doctor wanted to raise a good faith defense to his pain medication prescriptions.  The district court refused to give him a subjective (or even an objective) good faith instruction.  The court of appeals said that if the doctor was acting outside of appropriate medical care, that was all the government needed to prove, regardless of whether he was acting in good faith or not.  Every other circuit disagrees with this approach and requires a good faith instruction (some circuits say subjective good faith and some say reasonable good faith).  The Supreme Court granted cert on this question:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

I give our 11th Circuit judges the benefit of the doubt (I'm sure they are acting in good faith!) but it's disheartening that they rule against defendants more than any other court out there.  The Supreme Court will certainly reverse this case... in the meantime, how many well-intentioned doctors have gone to prison because of outlier appellate court? 

Linda Lopez has her Senate Judiciary hearing

Linda Lopez took the next step in becoming a district judge today with her judiciary hearing.  Hopefully she will get her floor vote by the end of the year.  We are all rooting for her!

Another person with Miami roots was nominated today: 

Judge Cristina D. Silva: Nominee for the United States District Court for the District of Nevada
Judge Cristina D. Silva has served as a judge on the Eighth Judicial District Court, Department IX, in Las Vegas, Nevada since 2019. From 2011 to 2019, Judge Silva served as an Assistant United States Attorney in the United States Attorney’s Office for the District of Nevada. Judge Silva held numerous leadership positions in the office, including Chief of the Criminal Division from 2018 to 2019 and Deputy Chief of the Criminal Division from 2013 to 2018. From 2007 until 2010, she worked as an Assistant State Attorney in the Miami-Dade State Attorney’s Office, serving as Assistant Chief of Litigation for the Domestic Violence Unit in 2010. Judge Silva received her J.D. from American University Washington College of Law in 2007 and her B.A. from Wellesley College in 2001.

And finally, Magistrate Judges in Miami are dumping Zoom for duty calendars (not other hearings). Starting on Monday, all future duty hearings will be in person. This is too bad as I thought that the quick status hearings were great by Zoom.

"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.