The Long Way Home

By Michael Caruso

If you were a criminal defense lawyer in our district in the early 2000s, you undoubtedly had a client incarcerated at FCI Tallahassee. And if you did, your client certainly knew Katina Smith, who befriended many other women who were serving time there.  Ms. Smith's son—former NFL receiver Demaryius Thomas—passed away yesterday due to a medical issue stemming from a car accident. 

When I heard of his passing, I first thought of a client who was very close to Ms. Smith at FCI Tallahassee. I then recalled this fantastic piece of journalistic storytelling about Ms. Smith and her son.  The story reveals much about their family and our federal criminal legal system.

A little more than a year after the publication of this story, President Obama commuted Ms. Smith's 24-year sentence, and Ms. Smith finally got to see Demaryius play football—in the Super Bowl. 

This is not, however, a story about football but of a family's devastation, struggle, and perseverance. And because of President Obama's commutation, Ms. Smith and Demaryius were reunited and able to be a family again.

According to the Department of Justice, nearly 18,000 clemency petitions are currently pending. As December is traditionally the month in which Presidents issue pardons and commutations, here's hoping that President Biden uses his powers wisely and other families are reunited.

Do dems secretly want Roe to get overturned?

 That's the question that keeps coming up at every holiday party and cocktail event.  If Roe gets wiped away, will that turn the tide in the next election and help the Democrats keep the House/Senate and retake the Supreme Court?  Is that worth it since it appears that the party is in neutral? 

Meantime, Ruth Marcus wrote this piece in the Washington Post about the oral argument:

The vision of getting the courts out of the abortion-deciding business sounds so reasonable, so alluring.

It is also wrong, misleading and dangerous.

Mississippi Solicitor General Scott Stewart laid out the argument during the oral argument last week — urging the justices not only to uphold his state’s ban on abortion after 15 weeks but to overrule its decisions finding that the Constitution protects a woman’s right to choose.

“The Constitution places its trust in the people,” Stewart said. “On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”

Justice Brett M. Kavanaugh amplified Stewart’s argument, presenting it as the position of one side but leaving little doubt how much it resonated with him.

The Constitution, Kavanaugh posited, is “neutral” on abortion, “neither pro-life nor pro-choice.” Consequently, “this Court should be scrupulously neutral on the question of abortion … rather than continuing to pick sides.”

How superficially appealing all this is. Who could be against neutrality, especially scrupulous neutrality? Who disagrees with leaving choices to “the people” in a democracy?

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

The Constitution instructs that the majority cannot force its preferred religion on the minority; in fact, it must respect and accommodate individuals’ free exercise of their own religious beliefs. The Constitution teaches that the majority cannot choose to shut down or punish speech that it finds disagreeable or even offensive. It means that “the people’s” decisions about how to reduce gun violence are limited by the court’s interpretation of the Second Amendment.

Conservative justices have had no difficulty taking this disempowering of “the people” to sometimes questionable extremes.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.


***

Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”

Stewart, the Mississippi lawyer, blithely assured the justices that the court’s abortion cases are unique, and that its other precedents, on contraception, gay rights or same-sex marriage wouldn’t be next in line if Roe and Casey fell. But why not? Maybe conservative activists have no burning desire to overrule Obergefell v. Hodges, the 2015 same-sex marriage ruling, but as a logical matter the right, without a basis in history or tradition, should be at least as vulnerable as abortion.

“I’m not sure how your answer makes any sense,” Justice Sonia Sotomayor told Stewart. “All of those other cases … rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong, according to your theory.”

***
And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.

Is it time to add more Justices to the Supreme Court?

 President Biden's Supreme Court Commission can't come to an agreement on this point.  Here's the report.  Here's the CNN coverage of it:

A controversial commission set up by President Joe Biden to explore changes to the US Supreme Court concluded in a draft final report Monday that there was "profound" disagreement over whether to add more seats to the bench but suggested more consensus for term limits for the justices without taking a final position on the issue.

The report -- which was widely criticized before its release because it would not offer concrete recommendations to the President -- spans hundreds of pages and also tackles issues such as the court's emergency docket and the current state of confirmation hearings. The draft report was compiled by a commission with more than 30 members, who are expected to vote Tuesday to make the report final.

The report from the commission, which was established last April, comes as polls show that public approval of the Supreme Court has dropped in recent months, especially since September, when the justices allowed a Texas ban on abortions at roughly six weeks of pregnancy to take effect. More recently, after oral arguments in a Mississippi abortion rights case, it appeared the justices were on the cusp of eviscerating the core of Roe v. Wade, the 1973 landmark ruling that made abortion legal nationwide.

Instead of (or maybe in addition to) adding seats, we should impose term limits on Justices.  18 years sounds about right.

"How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"

 That's the title of this NY Times editorial, which is a question that the criminal defense bar has been pressing for decades. From the conclusion:

There is no principled reason for federal prosecutors to avoid the accountability expected of all public servants. Their exemption from the general rule was adopted in 1988 as a favor to Dick Thornburgh, who was then the attorney general and had tried to derail the creation of an inspector general for the Justice Department. Years later, Mr. Thornburgh admitted he had been wrong. “This is a highly professional operation that goes where the evidence leads and is not directed by the way the political winds are blowing,” he said at a gathering marking the law’s 25th anniversary in 2014. “I’ve come to be a true believer.”

So have large numbers of Republicans and Democrats in Congress, a remarkable fact at a moment when the parties can’t agree on the time of day. Their fix is straightforward: Eliminate the loophole in the 1988 law and empower the inspector general to review claims against federal prosecutors, just as the office currently does in cases involving other Justice Department employees. A Senate bill co-sponsored by Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would do exactly this. Yet Attorney General Merrick Garland is continuing in the tradition of his predecessors by opposing any change to the existing system.

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

“To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

By Michael Caruso:

This story is both remarkable and not. In 1982, Anthony Broadwater was convicted of raping the author Alice Sebold when she was a student at Syracuse University. He served 16 years in prison. Two weeks ago, a court vacated his conviction after prosecutors reexamined the case.

Sebold wrote in 1999′s “Lucky” of being raped and then spotting a Black man in the street several months later who she believed was her attacker. Sebold, who is white, went to the police. An officer said the man in the street must have been Broadwater, who had supposedly been seen in the area. After the police arrested Broadwater, Sebold failed to identify him in a police lineup, picking a different man as her attacker because she was frightened of “the expression in his eyes.”

But prosecutors put Broadwater on trial anyway. He was convicted based largely on Sebold identifying him as her rapist on the witness stand and testimony that microscopic hair analysis had tied him to the crime. That type of analysis has since been deemed junk science by the U.S. Department of Justice.

Broadwater always insisted he was innocent and was denied parole several times for refusing to acknowledge guilt. He took two polygraph tests, decades apart, with experts who determined that his account was truthful.

In a statement, Sebold wrote to Broadwater that she was truly sorry for what he’d been through.“I am sorry most of all for the fact that the life you could have led was unjustly robbed from you, and I know that no apology can change what happened to you and never will,” she wrote.

She wrote that “as a traumatized 18-year-old rape victim, I chose to put my faith in the American legal system. My goal in 1982 was justice — not to perpetuate injustice. And certainly not to forever, and irreparably, alter a young man’s life by the very crime that had altered mine.”

Broadwater said he was “relieved that she has apologized.” “It took a lot of courage, and I guess she’s brave and weathering through the storm like I am,” he said. “To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

This story is not remarkable in that a man suffered a wrongful conviction because of a misidentification and the introduction of junk science at his trial. The story is remarkable as an example of our capacity to forgive grievous wrongdoing. A lesson for all of us. 

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.”