We're doomed.

 That's the feeling of Roe supporters after the Supreme Court argument yesterday.

SCOTUSblog covered the oral argument:

Sotomayor is also prepared to put the case in stark perspective.

“Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices,” she says, adding that the same was true about a separate Mississippi law, passed earlier this year and not before the high court, that would ban abortion after six weeks of pregnancy.

“Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” Sotomayor says.

I’ll confess that I thought I heard her say “political hacks,” as if she were playing on the phrase Justice Amy Coney Barrett used during a speech this summer, when she insisted the justices are not “a bunch of partisan hacks.” But a close listen to the recording seems to confirm what is in the transcript: “political acts.” There was no mistaking, though, that Sotomayor said “stench,” a strong word not often heard in this courtroom.

Stewart has an answer for her.

“Justice Sotomayor, I think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text, structure, history, and tradition, and that carefully goes through the stare decisis factors that we’ve laid out,” he says.

“Casey did that,” she replies.

“No, it didn’t, Your Honor, respectfully,” he says.

The chief justice, as he has done before, decides to interrupt Sotomayor after she has gone on at some length. (She will come back a few minutes later with, “May I finish my inquiry?”)

Roberts asks Stewart how fetal viability was addressed in Roe, noting that Justice Harry Blackmun, the author of that decision, revealed with the release of his personal papers that the viability line was “dicta.”

Roberts calls the papers, released five years after Blackmun’s 1999 death, “an unfortunate source.” Later in the argument, Roberts says the release of the Blackmun files “is a good reason not to have papers out that early.” So I think we will be waiting for the Roberts papers for a good long time.

Rikelman, who argued and won June Medical Services v. Russo in 2020, which struck down Louisiana’s abortion restrictions, takes to the lectern and tells the court, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent.”

After a few questions from Thomas, the chief justice zeroes in on Mississippi’s 15-week ban. Fifteen weeks is well before the point of fetal viability, which occurs around 24 weeks of pregnancy.

“If you think that the issue is one of choice — that women should have a choice to terminate their pregnancy — that supposes that there is a point at which they’ve had the fair choice … and why would 15 weeks be an inappropriate line?” Roberts asks. “Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

Rikelman says that, among other reasons, “without viability, there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy.”

Justice Samuel Alito presses Rikelman on a more philosophical question.

“What is the philosophical argument, the secular philosophical argument, for saying [viability] is the appropriate line?” he says. “There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics. But viability is dependent on medical technology and medical practice. It has changed. It may continue to change.”

“No, Your Honor, it is principled,” she says, “because, in ordering the interests at stake, the court had to set a line between conception and birth, and it logically looked at the fetus’ ability to survive separately as a legal line because it’s objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake.”

Prelogar, arguing for the United States in support of Jackson Women’s Health, says, “The real-world effects of overruling Roe and Casey would be severe and swift. Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest. … If this court renounces the liberty interests recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”

A Place at the Table

By Michael Caruso

Earlier this week, David posted an article that lamented Judge Charles Bryer's status as the sole member of the United States Commission (USSC). But that description is not entirely accurate. Judge Breyer is the sole voting member of the USSC. There are currently two “ex officio” members of the USSC. Both ex officio members are employees of the Department of Justice—a designee of the Attorney General of the United States and the Chairperson of the United States Parole Commission. 

Since the creation of the USSC in 1984, and despite persistent efforts, there never has been an ex officio representative from the Federal Defender community.  Unlike the USSC, the majority of state sentencing commissions have a public defender representative to provide them with advice and input at crucial stages of the decision-making process. Because we represent over 65% of those charged in federal criminal cases, a public defender representative would improve transparency and accountability in sentencing policy and provide the Commission with an internal defense perspective and balance.

Today, Senators Booker and Durbin introduced legislation to repair this long-standing structural issue. The self-described mission of the USSC is “to reduce sentencing disparities and promote transparency and proportionality in sentencing.” These are laudable goals, and this reform undoubtedly will further that mission. Congress hopefully will act expeditiously. 

Can prosecutors get an automatic 6 month extension under the statute of limitations for any reason they want?

 That's the issue in United States v. B.G.G., which I will be arguing in the 11th Circuit in January.  I will be defending Judge Middlebrooks' order, which Jay Weaver covers in this lengthy Herald article.  The Herald is covering the issue again because since B.G.G. was decided, Judges Ruiz and Altman have issued orders coming out the other way.  From the Herald:

When the coronavirus pandemic gripped the nation, the federal court system also largely ground to a halt. Not only did trials get postponed but grand juries could no longer meet to consider indicting criminal defendants. In South Florida, as idle criminal cases ranging from healthcare to financial fraud piled up, prosecutors did what some critics called an end-run around the grand jury process — normally a critical step before charging defendants. They filed a document known as an “information” to avoid missing the five-year deadline to bring charges under the statute of limitations — but without obtaining the constitutionally required consent of defendants to give up their right to be charged by a grand jury indictment. This story is a subscriber exclusive Now, a federal appeals court is going to hear oral arguments in January that will spotlight conflicting decisions on this crucial matter by U.S. district court judges in South Florida: Two found that prosecutors in the U.S. Attorney’s Office acted lawfully, but one concluded they did not when they filed an information as a place keeper to stay within the statute of limitations without the approval of the defendant. Much is riding on the outcome in the 11th U.S. Circuit Court of Appeals — which covers the states of Florida, Georgia and Alabama — because a ruling could decide whether about 10 defendants will still face charges for crimes that both sides acknowledge happened more than five years ago. “Three judges in our district have written thoughtful opinions addressing an issue brought about by the pandemic and caused by the absence of grand juries,” prominent Miami white-collar defense attorney Jon Sale told the Miami Herald. “These decisions are a law professor’s delight,” said Sale, a former federal prosecutor in the Southern Districts of New York and Florida. “They look to the meaning of words going all the way back to the times of our Founding Fathers. It is up to the Eleventh Circuit to resolve the relationship between the plain meaning of a statute and the Fifth Amendment’s guarantee of the right to be charged by a grand jury within the statute of limitations.” 

Back at it

Hope everyone had a nice Thanksgiving break.

I am thankful for judges who work with lawyers on scheduling and grant continuances.

I can't imagine Judge Breyer is thankful about the status of the Sentencing Commission.  From Reuters:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum. Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed. Armstrong and Raskin cited his potential departure as another reason to act.

Elizabeth Holmes takes the stand

 Unfortunately we can't watch it (as we did with the Rittenhouse trial).  How absurd.

So, we need to rely on short news stories about the drama in court, which of course, are always skewed toward the government.  Here's NBC News:

Theranos founder and former CEO Elizabeth Holmes returned to the witness stand Tuesday, confirming key aspects of the prosecutor’s allegations behind the 11 counts of fraud she faces, but asserting that there was nothing wrong in what she did.

The prosecution has repeatedly shown jurors lab reports emblazoned with logos of the pharmaceutical companies Pfizer and Schering-Plough. Witnesses from those companies who worked with Theranos testified that the use of the logos was unauthorized and they were unaware of it at the time.

Holmes admitted that she was the one who had added the logos to Theranos lab reports and sent them to Walgreens as she pursued a deal to put her blood-testing startup's diagnostic machines in the pharmacy's retail stores.

Holmes acknowledged that in some cases, Theranos used third-party devices, rather than its own equipment.

“This work was done in partnership with those companies and I was trying to convey that,” she said by way of explanation. "I wish I had done it differently,” she added.

Addressing another key point made by the prosecution, Holmes said that when Theranos switched from using on-site analyzers to process samples to a centralized lab approach, it used third-party devices rather than its own equipment as an “invention” because there were too many samples to handle. Witnesses have testified that Theranos' signature blood-testing machine repeatedly failed quality assurance tests and delivered erroneous results. Holmes said the company didn’t tell its business partners about this arrangement because it was a trade secret.

She rebutted the prosecution's arguments about some of the alleged misrepresentations she made to investors, the media and business partners, affirming that she had received specific positive reports from employees and outside experts and believed their statements to be true.

And we can't even see images of the courtroom... we get sketches instead.  

Anyway, I hope all of you have a Happy Thanksgiving... even you Rumpole.

Biden pardons two turkeys...

 ...but we are still waiting on the first human pardon.

Not a good look for a President who said he would be open to criminal justice reform.  

The New York Post covers Biden's response to the question of when to expect some real pardons:

As if there was any doubt — “Peanut Butter” and “Jelly” will not be on the Thanksgiving dinner table this year.

President Biden pardoned turkeys named after the common kids lunch ingredients Friday, continuing a pre-Thanksgiving tradition in the Rose Garden after he laughed off a question about whether he would also pardon human beings — as clemency advocates asked him to honor his pledge to free “everyone” in prison for marijuana offenses.

“Will you be pardoning any people in addition to turkeys?” The Post asked Biden as he returned to the White House after receiving a physical and colonoscopy at Walter Reed Medical Center outside Washington.

Biden, wearing aviator sunglasses, pointed at a reporter and joked, “Are you — you need a pardon?” In response to a follow-up question about whether he would free pot inmates, whom he vowed to release during the 2020 Democratic presidential primary, Biden said, “just turkeys.”

This is why we really need judges to grant more compassionate release motions and issue large variances.  There's no reason why America should lead the world in people imprisoned and lead the world in length of sentences.   

One reason we see these numbers is the "trial tax."  Clark Neily from CATO just wrote an important piece about how rare trials are and how we need to get back to the basics in our criminal justice system -- the right to a trial without fear of an enormous sentence.  The intro:

The most remarkable thing about the Kyle Rittenhouse trial is that there was a trial at all.

The vast majority of criminal prosecutions in our system are not resolved by trial but instead by an ad hoc and often extraordinarily coercive process that we refer to euphemistically as “plea bargaining.” Because of the way it unfolded, however, the Rittenhouse case sheds important light on our decision to generally substitute plea bargaining for constitutionally prescribed jury trials, in open defiance of the Founders’ deliberate and very wise decision to make citizen participation integral to the administration of criminal justice. The lesson here is clear: We can be certain that other prosecutions would collapse as spectacularly as Rittenhouse’s if we reined in the government’s ability to spackle over weak cases with coerced pleas.

Former UM professor Bruce Bagley sentenced to 6 months

One of the country's most thoughtful sentencing judges, Jed Rakoff, had the case.  From the NY Times:

Prosecutors had argued for a sentence below guidelines of 46 to 57 months, but did not specify exactly how much lower. In court papers this month, prosecutors said that although Dr. Bagley’s age and health should be taken into consideration, some incarceration was necessary to serve as a deterrent.

In court on Tuesday, Judge Rakoff said that a sentence of up to five years, as recommended by federal guidelines, would be “irrational” and “overly punitive,” according to The A.P. But like prosecutors, the judge said some incarceration was needed. The judge recommended that Dr. Bagley’s sentence be served in a medical facility, according to a Justice Department spokesman.

According to prosecutors, Dr. Bagley opened a bank account in Florida under his company’s name, Bagley Consultants, in 2016. But there was hardly any activity in the account until a year later, when he started receiving large deposits from bank accounts in the United Arab Emirates and in Switzerland.

Those accounts ostensibly belonged to a food company and a wealth management firm but were actually controlled by a Colombian national whose money came from “the proceeds of foreign bribery and embezzlement stolen from the Venezuelan people,” according to an indictment.

Dr. Bagley knew the source of the money and entered into “multiple sham contracts” in order to conceal it, according to the indictment.

After each deposit, Dr. Bagley would go to his bank and get a cashier’s check for about 90 percent of the money, which he would then give to another individual, and wire the rest to his personal bank account, the indictment said.

In October 2018, the bank closed the company’s account because of suspicious activity, according to the indictment. But Dr. Bagley opened another account in his name that December and continued the scheme until April 2019, receiving at least 14 illegal deposits, prosecutors say.

Though Dr. Bagley lives in Florida and the laundered funds were sent to Florida banks, prosecutors said they were prosecuting the case in Manhattan because the money passed through New York City as it came from abroad.

 Law360 also covered the case, and included this awesome statement by Judge Rakoff:

Prosecutors asked for prison time below Bagley's non-binding federal guidelines range of 46–57 months, while the defense had asked for time served, citing the 75-year-old's age, pulmonary nodules, diabetes and hypertension in a heavily redacted sentencing submission.

The judge said prison was warranted to send a message of deterrence, but also acknowledged Bagley's health problems as he quipped that "some might describe" the Federal Bureau of Prisons' repeated assurances that it can handle any medical issue as "a repeated fraud on the court."

Say it ain't so

 The CARES Act is expiring on 11/25/21.  Unless it gets extended again, there will be no more video conferences for criminal proceedings.  That's bad news!  

Zoom hearings for various criminal proceedings has been really efficient and beneficial for criminal defendants and lawyers.  Here's hoping that we find a solution and that Zoom can continue for some of our proceedings.

In other news, Rumpole's blog turns 16 today.  That's an incredible run for a blog.  Head over there and wish him well.