Happy New Year!

 I hope everyone has a healthy and safe new year's weekend.  Here are some of the things I'm wishing for in 2022:

1.  Judges who are flexible with schedules since COVID has messed everything up.

2.  Prosecutors who are open to self-surrender even when a defendant is not cooperating.

3.  Early exhibit lists.

4.  Early Jencks.

5. Searchable discovery.

6.  Appellate judges who find errors not always harmless.

7. Defense lawyers who represent cooperators not saying "you know I can't let him speak to you."

8. Variances.  Big ones.

9.  Judges willing to dismiss B.S. cases and not "letting the jury decide."

10. Less stress.

A guy can hope.  Anyway, thanks for your tips, your comments, and for reading.  Onward!

"The Constitutional Right We Have Bargained Away"

That's the title of this piece by Carrisa Byrne Hessick. Read the whole thing. It starts like this:

The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.

But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times longer than those of defendants who plead guilty. This practice is so common that it even has a name: the “trial penalty.”

The executive branch of government has followed the courts’ lead; many prosecutors pressure defendants to bargain away their right to a jury. They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea. Plea bargains dominate the system. Only 3 percent of convictions are the result of a trial—the rest come from guilty pleas. As the Supreme Court put it, “Criminal justice today is for the most part a system of pleas, not a system of trials.”Legislators, too, help prosecutors gut the right to a trial by passing new laws with mandatory minimum sentences. Those laws give prosecutors more leverage in plea bargaining because they can offer defendants a deal in which they plead guilty to a lesser charge that doesn’t have a mandatory minimum. In some cases legislators have admitted that they voted for those mandatory minimums in order to give prosecutors greater sway. For example, in 2015, Senator Chuck Grassley successfully blocked efforts to lower the mandatory minimum sentences for federal drug crimes. Grassley opposed changing those sentences, because he thought the harsh drug laws served the “intended goal” of pressuring defendants to cooperate with law enforcement.

The pressure that defendants face can take the form of years in prison. For example, when Mohamed Taher was accused of importing and distributing marijuana in upstate New York, prosecutors offered him a 10-year sentence in return for a guilty plea. Taher turned down the plea bargain, and prosecutors responded by filing new charges carrying a mandatory minimum sentence of 22 years. Taher went to trial, and although he had been unarmed and committed no violent crimes, he was sentenced to 25 years in prison. In effect, Taher received an additional 15 years in jail for insisting on his right to a jury trial.

If government actors tried to put people in jail because they exercised other rights—such as the right to free speech, the right to belong to a church, or the right to vote—judges would quickly step in and stop that practice. Yet not only has the Supreme Court allowed the trial penalty and plea bargaining; it has actually encouraged them.

Some proponents say that the trial penalty doesn’t punish people for exercising their right to a trial; it just grants a benefit (a shorter sentence) to those who are willing to plead guilty. Personally, I don’t see how putting someone in jail for longer because she insisted on her right to a jury trial can be recharacterized as a benefit to some other defendant who pleads guilty. But even if it were a benefit, that shouldn’t make a difference as a constitutional matter. The courts don’t usually let government officials force you to waive your constitutional rights in order to get something in return. If, for example, the federal government told you that you have to give up your right to vote in order to get Social Security benefits, judges would say that was an “unconstitutional condition” and declare the practice unlawful. But judges haven’t extended their unconstitutional-conditions doctrine to plea bargaining or the trial penalty.The reason that the Supreme Court gives for carving out the jury-trial right from its ordinary constitutional rules is simple: resources.

Another Christmas miracle...

 This time it's the White House filling a judicial vacancy in the 11th Circuit.  Well, it's only a nomination, but still.  Here's the scoop:

Nancy Gbana Abudu: Nominee for the United States Court of Appeals for the Eleventh Circuit

Nancy Gbana Abudu is the Deputy Legal Director and Interim Director for Strategic Litigation at the Southern Poverty Law Center, where she has worked since 2019. Abudu was previously the Legal Director for the American Civil Liberties Union of Florida from 2013 to 2019 and a staff attorney at the American Civil Liberties Union Voting Rights Project from 2005 to 2013. Ms. Abudu served as a staff attorney for the United States Court of Appeals for the Eleventh Circuit from 2002 to 2004. She was an associate at Skadden, Arps, Slate, Meagher & Flom LLP from 1999 to 2001. Ms. Abudu received her J.D. from Tulane University School of Law in 1999 and her B.A. from Columbia University in 1996.

If confirmed, she will be the first Black woman on the 11th Circuit.

A Festivus for the rest of us.

 Enjoy.  And see you next year! 

Happy Holidays from Merrick Garland

Better late than never!  Just in time for the holidays, AG Merrick Garland said that DOJ would reverse course and allow many prisoners who were released to home confinement during the pandemic stay on home confinement and not have to go back to prison.  From The Hill:

Attorney General Merrick Garland announced on Tuesday that the Department of Justice would allow some prisoners who were released to home confinement during the pandemic to stay out of prison, reversing a legal stance adopted in the last days of the Trump administration.

 

"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," Garland said in a statement. "We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

 

Garland cited a memo from the DOJ's Office of Legal Counsel (OLC) released on Tuesday that found that the relief bill enacted in the early days of the pandemic known as the CARES Act authorizes the department to use its discretion in allowing those on home confinement to stay out of prison.

 

The new memo overrides the legal position that had been in effect since January, which was that the thousands of inmates on home confinement must be returned to prison once the pandemic was declared over.

 

The Biden administration had been facing pressure for months to reverse the position and avoid re-incarcerating people who had spent months reconnecting with their families and integrating back into their communities. Some criminal justice reform advocates had called on President Biden to use his clemency powers to avoid a mass influx of returning prisoners.

Kevin Ring, the president of Families Against Mandatory Minimums, applauded the DOJ's reversal on Tuesday.

 

For the Defense, Season 4 Premiere with Bruce Rogow for 2 Live Crew

 

FOR THE DEFENSE SEASON 4
BRUCE ROGOW FOR 2 LIVE CREW

We're back! Season 4 of For the Defense launches today.  For the Defense is a podcast I started with Rakontur two years ago with the idea of getting in depth about the most fascinating trials with great trial lawyers. This season starts with Bruce Rogow, who will be discussing the 2 Live Crew trial.  (Episode on Apple here). Season 4 will continue with new episodes every other Tuesday featuring the following guests:  

• Mark Geragos (Susan McDougal)
• Juanita Brooks (John DeLorean)
• Gerry Goldstein (Deep Throat)
• Geoffrey Fieger (Dr. Jack Kevorkian)
• Brian Heberlig (Ali Sadr)
• Ed Shohat (Carlos Ledher)
• John Gleeson (Holloway Project)

As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

 

Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.

Linda Lopez (S.D. Cal.) confirmed

A big congrats to Miami native Linda Lopez for her confirmation as a U.S. District Judge in the Southern District of California. The vote was 48-25.  Judge Lopez started her career as a paralegal here in Miami and then became a criminal defense lawyer.  She moved to San Diego to work at the Federal Defender's Office.  She then became a magistrate judge, where folks on both sides of the aisle enjoyed appearing before her.  And now she's a district judge.  What a cool story. 

Happy Holidays!

 So sorry for the slow blogging this week.  I was in trial with Margot Moss and Todd Yoder before Judge Jose Martinez.  The charge: illegal dredging under the Rivers & Harbors Act of 1899.  We got a two-word verdict to start the holiday season!  There is still nothing better.  I'll be back next week with regular posts.