Judge Reinhart Orders Unsealing of Search Warrant and attachments

 By John R. Byrne

 Hot off the presses. Here's the order. The inventory of the seized items will remain redacted. Here are the unsealed materials.

Here's a write up from the Sun Sentinel. But some notable items described in the property receipt include an "Executive Grant of Clemency re: Roger Jason Stone, Jr.,""Info re: President of France," and numerous entries for "Miscellaneous Top Secret Documents."

Motion to unseal search warrant

 Here's the motion, signed by the U.S. Attorney (Tony Gonzalez) and Jay Bratt, the Chief of the Counterintelligence section.

Just filed in the Mar-a-Lago warrant case: “UNITED STATES’ MOTION TO UNSEAL LIMITED WARRANT MATERIALS” pic.twitter.com/YK5DEkVwjc

— Andrew Solender (@AndrewSolender) August 11, 2022

NACDL hosting its annual meeting in West Palm Beach

 And it's been renamed the Albert Krieger annual meeting, which is very cool.

Other news:

1.  Trump takes 5.  Get ready for all of the bad 5th Amendment takes.

2. If the government moves to dismiss 4 counts so that the defendant can plead guilty to the remaining count, can the district court deny that motion?  Nope, says the 8th Circuit (but it can reject the plea to the remaining count).  From the opinion (h/t Sentencing Law & Policy):

The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....

The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...

Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....

For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995).  Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.”  Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).

Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.”  These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.

Who signed the Trump Mar-a-Lago warrant?

The Miami Herald and numerous other outlets are saying it was Magistrate Judge Reinhart.  They point to docket entries showing sealed warrants signed on 8/5 by Reinhart.  Perhaps.  

One thing that always has bothered me about search warrants is that they should not remained sealed once they are executed unless there is a real law-enforcement need to keep them sealed.  And they should almost always be made available to the party affected.  But I bet Trump's legal team hasn't even seen the actual affidavit in support of the warrant yet, which is bananas.

The warrant will likely remained sealed until (if?) an indictment is brought.  If there is no indictment, the warrant may never become public.

You Get What You Pay For

BY MICHAEL CARUSO

I assume everyone has read an opinion or order and wondered, "where did that come from?" For example, Judge Ed Carnes has quoted Bob Dyan on occasion, see, e.g., Wright v. Farouk Sys., Inc., 701 F.3d 907, 908 (11th Cir. 2012)(quoting "Not Dark Yet"), and Judge Rosenbaum has referred to a classic Star Trek scene. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1158 (11th Cir. 2017)(Rosenbaum, J., dissenting, unfortunately)(referencing the Kobayashi Maru). While some decry the use of pop culture references in judicial opinions, I enjoy them for the most part. And in my opinion, Judge Zloch wins this competition by using a line from Hilary Mantel's great novel "Bring Up The Bodies" in the context of a lawyer's ethical obligation not to present perjured testimony: “We are lawyers. We want the truth little by little and only those parts of it we can use.” 

But a recent Washington Post article provides empirical evidence of a very alarming trend in judicial opinion writing. A new paper from MIT and Maynooth University in Ireland finds that judges there routinely rely on Wikipedia articles not just for background information but for core legal reasoning and specific language they use in their decisions. In our country, the New York Times identified this trend years ago.

What? Yes, I know that once in a while, you get shown the light in the strangest of places, but Wikipedia is not a reliable source for information about legal analysis. As a user-generated source, an entry can be edited by anyone at any time and may be a work in progress, simply incorrect, or an act of vandalism.

We should be better. Many colleges and universities, as well as public and private secondary schools, have policies that prohibit students from using Wikipedia as their source for doing research papers, essays, or equivalent assignments. Perhaps The Judicial Conference of the United States should do the same for judges. After all, judicial opinions and orders are not 4th-grade book reports.

   

Sentencing Commissioners confirmed…

 …finally.

Here they are:

Judge Carlton W. Reeves: Nominee for Commissioner and Chair of the United States Sentencing Commission

Judge Carlton W. Reeves has served as a United States District Court Judge for the Southern District of Mississippi since 2010....

Laura Mate: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel....

Claire McCusker Murray: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Claire McCusker Murray served as the Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021....

Judge Luis Felipe Restrepo: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Judge Luis Felipe Restrepo has served as a United States Court of Appeals Judge for the Third Circuit since 2016....

Judge Claria Horn Boom: Nominee for Commissioner of the United States Sentencing Commission

Judge Claria Horn Boom has served as a United States District Court Judge for the Eastern and Western Districts of Kentucky since 2018....

Judge John Gleeson: Nominee for Commissioner of the United States Sentencing Commission

Judge John Gleeson is a partner at Debevoise and Plimpton LLP in New York, where he has practiced since 2016....

Candice C. Wong: Nominee for Commissioner of the United States Sentencing Commission

Candice C. Wong serves as an Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia....

August in Miami

It's the last stretch of summer.  

And elections are coming up.

It's brings up the age old questions about whether judges should be elected or appointed. 

There's really no good answer.

But when you look at some of the challengers to our good judges, it looks like appointment may be the better option.

Check out the Captain's post about the challenger to a really good judge -- Lody Jean. 

Hard to imagine that the challenger will win, but in a judicial race, anything is possible.

On the other end of the spectrum, Justice Jackson is gearing up for her first term in October.

Here's Empirical SCOTUS with a preview:

The overall picture from these data conform more to the picture painted by the JCS Scores than to that painted by the campaign finance scores.  The picture is of a liberal judge, not as liberal as Justice Sotomayor, and more likely a moderate with a similar ideological position to that of Justice Kagan.  Even though we lack complete information on which to formulate accurate predictions of how future justices will vote when on the Court, this more refined way of viewing Brown Jackson’s lower court record should give a more complete picture than other available methods.

 

Anyway, we have a few weeks left until school starts. Let's enjoy the last few weeks of summer.

Justice Alito again shows his true colors

 For a sitting Justice to give remarks like this is extremely concerning.  

In his Rome speech on religious liberty, Justice Alito mocked "foreign leaders" who condemned his opinion overturning Roe v. Wade, including Boris Johnson, Macron, Trudeau, and ... Prince Harry.

Of Boris, Alito quipped: "He paid the price." https://t.co/NPqalw0KA6 pic.twitter.com/xC0qguZ31n

— Mark Joseph Stern (@mjs_DC) July 28, 2022

Here is a Slate piece discussing the bizarre remarks:

It speaks volumes about Samuel Alito that, in the face of international outrage over the impact of this ruling on the lives of millions of women, he centered himself and his own feelings. His snarky little potshots at Prince Harry and Boris Johnson were not so much “jokes” about world leaders as personal petulance over international criticism, cloaked in the insistence that Alito doesn’t care what these  world leaders think of him.

But to focus on Alito trolling American women, reproductive justice advocates, his liberal colleagues on the bench, and his international critics is to take his feeble bait. Alito is quite transparent about the fact that he delights in disapproval. He invites it! He welcomes it! His “comedy” is actually just a distraction from his gleeful effort to decimate whatever remaining legitimacy the Supreme Court still possesses in the eyes of the secular, liberal world order. Focus on that fact and there is really nothing hilarious to report from Rome at all.

For starters, there is the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court. We only found out about this speech a week later when Notre Dame released the video, because the justices have no obligation to publicize or record their public speeches. The Rome event’s sponsor, Notre Dame Law School’s Religious Liberty Initiative, was founded about four months before Justice Amy Coney Barrett joined the Supreme Court in 2020. As Gabe Roth of Fix the Court, a nonprofit that promotes judicial ethics reforms, noted in an email Thursday, RLI and its affiliated professors “have filed amicus briefs in several SCOTUS cases, and they have a near-perfect record.” (Naturally, these professors filed a brief in Dobbs v. Jackson Women’s Health Organization urging the reversal of Roe.) As Roth further pointed out, we won’t know if RLI financed the trip until mid-June 2023, when it must be disclosed under current law. For now, the image of a tuxedo-clad Alito chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.

And he wonders why our citizens don't trust the Court.

The conclusion to the Slate piece:

If you are not very frightened by the prospect of a Supreme Court justice crossing the ocean in order to quote the Gospels to religious adherents of his own faith, who have business before the court, as he excoriates all who do not share his personal view of the primacy of religion as an organizing force in a political democracy, it’s difficult to know what could alarm you. The Framers attempted to strike a careful balance between religious liberty and secular moral values. Alito would like you to know that for the foreseeable future, the latter is the enemy, and will be vanquished and mocked.