Federal Gideon "Explained"

By Michael Caruso

Because David’s readers are the most informed in the district, you know that this year marks the 60th anniversary of the Supreme Court’s decision in Gideon v. Wainwright. “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” the Court found, and “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

But people accused in federal court obtained the right to counsel twenty-five years earlier in Johnson v. Zerbst, and Gideon was a decision about incorporating the right and applying it to the states. Notwithstanding, Gideon profoundly affected the federal system. Before 1964 and the passage of the Criminal Justice Act (CJA), appointed attorneys were not paid to represent indigent federal defendants. Nor was there any funding for case-related expenses, much less investigators or experts. Gideon, along with the highly influential report of Professor Francis Allen (years later my 1st year Crim Law professor) to then-Attorney General Robert F. Kennedy (the Allen Report), was a significant reason for passage of the CJA and the creation of a funded federal defense system.

The Report’s words still ring true: 

When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused’s liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice. The essence of the adversary system is challenge. Survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions. It follows that insofar as the financial status of the accused impedes vigorous and proper challenges, it constitutes a threat to the viability of the adversary system. We believe that the system is imperiled by the large numbers of accused persons unable to employ counsel or to meet even modest bail requirements and by the large, but indeterminate, numbers of persons, able to pay some part of the costs of defense, but unable to finance a full and proper defense. 

The Allen Report proposed legislation that became the template for the landmark (CJA). The Report was submitted to Attorney General Kennedy on February 25, 1963, three weeks before the Supreme Court decided Gideon.

The CJA was not fully completed, however, until 1970. The original statute did not create federal public defender offices but relied solely on assigned private attorneys paid by the hour. The Department of Justice and the Judicial Conference convened another study in 1967, and the subsequent findings contained in the Oaks Report recommended Congress amend the CJA to include public defender offices. The bill passed, and aside from occasional minor amendments, the current structure of federal public defense has remained the same ever since. 

Tuesday morning

1. Rumpole and the NYTimes take on Supreme Court specialists. I usually really like Adam Liptak, but I think he (and Rumpole) got this one all wrong. Take the example they cite in the lead to the article:

Humberto Fernandez-Vargas, deported to Mexico, had run out of options. A federal appeals court said he could not return to the United States to live with his American wife and son. And his lawyer did not have the expertise or money to pursue the case further.

Then the cavalry arrived. Leading lawyers from around the country, sensing that the case was one of the rare ones that might reach the Supreme Court, called to offer free help. Mr. Fernandez-Vargas’s immigration lawyer was delighted, and he chose a lawyer from a prominent firm here.

But there was a catch, and then a controversy. The catch was that the Washington lawyer, David M. Gossett, would take the case only if he could argue before the Supreme Court himself.

The controversy was that groups representing immigrants were furious, suspicious of the new lawyer’s interest in the case and fearful of a Supreme Court ruling that would curtail the rights of immigrants nationwide.

Indeed, Mr. Gossett faced a barrage of hostile questions from the justices, and in June 2006 the court ruled against his client, 8 to 1. The ruling wiped out decisions in much of the nation — notably from the federal appeals court in California — that had favored immigrants.

So let me get this straight -- Humberto Fernandez-Vargas, having lost and waiting to get deported after serving a federal prison sentence, should not fight his case and lay down because it might not be good for others. Please. That's not how our adversary system works. Gossett was fighting for his client and was able to get cert granted! Instead of being villified by immigration groups and a front page article in the New York Times, he should be getting kudos.

This morning the Court will hear argument on whether vaccine makers should have immunity:
At issue is whether a no-fault system established by Congress about 25 years ago to compensate children and others injured by commonly used vaccines should protect manufacturers from virtually all product liability lawsuits. The law was an effort to strike a balance between the need to provide care for those injured by vaccines, some of them severely, and the need to protect manufacturers from undue litigation.

Under the 1986 National Childhood Vaccine Injury Act, such claims typically proceed through an alternative legal system known as “vaccine court.” Under that system, a person is compensated if their injury is among those officially recognized as caused by a vaccine. That person, or their parents, can choose to reject that award and sue the vaccine’s manufacturer, but they then face severe legal hurdles created by law to deter such actions.

The case before the Supreme Court is not related to autism. But the biggest effect of the court’s ruling, lawyers said, will be on hundreds of pending lawsuits that contend a link exists between childhood vaccines and autism. Repeated scientific studies have found no such connection.

In other news, everyone is just SHOCKED about the Judge Jack Camp story.

And Justice Kagan is sporting conservative robes.

Justice Ginsburg not going anywhere

She's been giving a bunch of interviews lately, the most recent one on the front page of yesterday's NY Times. Lots of really interesting stuff, including that she's not leaving the Court any time soon:

On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.

“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.

Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.

Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.

Her age has required only minor adjustments.

“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”

Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”

“I love my job,” she added. “I thought last year I did as well as in past terms.”

In other news, Eric Holder is speaking out for PD funding. Here's his op-ed:

Fifty years ago, the U.S. Supreme Court unanimously held that everyone who is charged with a serious crime has the right to an attorney. In Gideon v. Wainwright, Justice Hugo Black observed for the court that “in our adversary system, any person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided to him.” As a prosecutor, as a judge and as our nation’s attorney general, I have seen this reality firsthand.

Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources. And this year’s forced budget reductions, due largely to sequestration, are further undermining this critical work.

In stark contrast to many state defender programs, the federal public defender system has consistently served as a model for efficiency and success. According to court statistics, as many as 90 percent of federal defendants qualify for court-appointed counsel, and the majority of criminal cases prosecuted by the Justice Department involve defendants represented by well-qualified, hardworking attorneys from federal defender offices. Yet draconian cuts have forced layoffs, furloughs (averaging 15 days per staff member) and personnel reductions through attrition. Across the country, these cuts threaten the integrity of our criminal justice system and impede the ability of our dedicated professionals to ensure due process, provide fair outcomes and guarantee the constitutionally protected rights of every criminal defendant.

I join with those judges, public defenders, legal scholars and countless other criminal-justice professionals who have urged Congress to restore these resources, to provide needed funding for the federal public defender program and to fulfill the fundamental promise of our criminal justice system.

The Justice Department is strongly committed to supporting indigent defense efforts through an office known as the Access to Justice Initiative, which I launched in 2010, and a range of grant programs. The department took this commitment to a new level on Aug. 14 by filing a statement of interest in the case of Wilbur v. City of Mt. Vernon — asserting that the federal government has a strong interest in ensuring that all jurisdictions are fulfilling their obligations under Gideon and endorsing limits on the caseloads of public defenders so they can provide quality representation to each client.

Unfortunately the federal public defender program is in dire straits. As I write, federal defenders representing the Boston Marathon bombing suspect are facingabout three weeks of unpaid leave. In Ohio, the director of one federal defender office who had served there for nearly two decades has laid himself off rather than terminate several more junior attorneys.

This shameful state of affairs is unworthy of our great nation, its proud history and our finest legal traditions. In purely fiscal terms, the cuts imposed by sequestration defy common sense because they will end up costing taxpayers much more than they save. The right to counsel is guaranteed under the Constitution. On the federal level, this means that every defendant who is unable to afford a lawyer must be represented by either a federal public defender or an appointed attorney from a panel of private lawyers. While federal defender offices are staffed by experienced, dedicated professionals operating in a framework that has proved both effective and efficient, panel attorneys often possess less experience and incur significantly higher fees. An increased reliance on panel attorneys may result in less desirable outcomes as well as significantly higher costs.

Five decades after the Supreme Court affirmed that adequate legal representation is a basic right, sequestration is undermining our ability to realize this fundamental promise. The moral and societal costs of inadequate representation are too great to measure. Only Congress has the ability to restore the funding that federal defenders need to ensure that justice can be done. It is past time for our elected representatives to act.

Federal courts are open today...

...while public schools and state court are closed.  I always thought that the feds should line up with the state on this issue and close because it's too hard on everyone with kids home and so on.

But if you are working today, check out the four on the short list for federal judge in the Middle District.

Or this NRP article on an NACDL report on federal indigent defense:

A tough new report has concluded that the federal government's system for defending poor people needs to change. The nearly two-year study by the National Association of Criminal Defense Lawyers said judges who are supposed to be neutral arbiters too often put their fingers on the scales.
The report said defense lawyers for the poor who work in the federal court system need more resources to do their jobs. That means money, not just for themselves, but to pay for experts and investigators.
"Having good, fully resourced defense counsel with access to ancillary services is an absolute must in a society that is arresting 14 million people a year," said Norman Reimer, executive director of the NACDL.
In an adversary system, lawyers for poor defendants say, they need to operate on equal footing with prosecutors. But the study, the first of its kind in more than 20 years, found the source of most concern rests with judges who exercise too much control over the process.
Bonnie Hoffman, a deputy public defender in Virginia, led the task force.
"There's some significant ways we feel the federal system is not measuring up — most importantly, in the area of independence," Hoffman said.
That's because judges are in charge. They have a role in selecting the defense lawyers for the poor clients who appear in court. They act as umpires during a plea hearing or a trial. And then those same judges approve or reject the defense lawyers' fee requests.
"It's a shame to think that somebody agrees to do this work, they do the work that they're asked to do ... to be a zealous advocate for somebody who's accused of a crime," Hoffman said, "and then when they finish that somebody can come back and say, 'I know you did good work ... but we don't feel like we should pay you for all the work that you did.' "

H/T: AB

Or, watch this for your moment of zen:

Washington Post opinion piece on Michael Flynn

I wrote this editorial for the Washington Post today.  It was going up on the website just as the news broke that Judge Sullivan appointed Judge Gleeson to argue against DOJ's motion to dismiss.  Really interesting.  I'd love to hear your thoughts.  Here's the introduction:

U.S. District Judge Emmet G. Sullivan on Tuesday took action to delay the Justice Department’s move to drop charges against former national security adviser Michael Flynn. Sullivan says he expects legal experts and independent groups to weigh in on the department’s decision not to prosecute Flynn for lying to the FBI.

The judge’s ruling was a mistake: He should have immediately dismissed the case. Sullivan certainly should not heed those urging him to deny the Justice Department motion, which would force prosecutors and Flynn to a sentencing hearing or a trial that neither party wants. John Gleeson, a former judge, and two others thoughtfully argued this week that Sullivan should do just that. And on the heels of that opinion, Sullivan has appointed Gleeson to argue against the motion to dismiss and to explore whether Flynn should be held in contempt.

Judges, though, have no special interest in forcing prosecutors to prosecute. The nation’s court system is meant to adjudicate disputes between parties and to protect defendants from overreaching prosecutors. It is an adversary system, meaning that each side is responsible for presenting its own case.

What a week in the world of white collar criminal law (UPDATED)

Last week was white collar law overload. Bridgegate (convictions reversed by SCOTUS). Varsity Blues (motion to dismiss for prosecutorial misconduct denied). Michael Flynn (prosecutors move to dismiss). And more.

Some random thoughts about these cases:

1. Why does it take the Supreme Court (9-0) to continue to reverse fraud convictions. The government is clearly overreaching with these statutes and yet lower courts almost never dismiss.

2. Same with respect to lower courts and prosecutorial misconduct. They almost never dismiss on prosecutorial misconduct claims, so it was no surprise that the district judge did not dismiss the Lori Loughlin case. Why not? How will prosecutors ever get the point that they should not engage in such behavior. Maybe the Loughlin lawyers will now file a motion to dismiss based on Bridgegate. After all, if fraud requires obtaining money or property, then lying to gain college admission may not be enough for wire fraud.

3. There has been lots of criticism for the in the Flynn case. But let's take a step back for a second. Remember that Flynn had moved to vacate his plea because the new DC prosecutors had recently turned over Brady material that had yet to be disclosed. We should be applauding the prosecutors for doing that. (A big shout out to Michael Sherwin, the DC supervisory prosecutor who made sure that disclosure happened after previous prosecutors did not disclose). If the judge had vacated the plea and allowed Flynn to go to trial, would the critics have been happier if the government had gotten spanked at trial? This was a distinct possibility because the lead witness for the government was former agent Peter Strozk. Imagine that cross! Comey would likely have also been a witness... Anyway, let's hope this materiality standard explained by Barr in the Flynn dismissal memo is used across the board for criminal defendants. Wouldn't that be a good thing? Of course our justice system should not be politicized, but there is quite a bit to grab onto in that Flynn motion to dismiss.

4. Some have said that the Flynn judge should deny the motion to dismiss. That is a bad idea and would set a very bad precedent. The Department of Justice brought the case. It's their prerogative to drop the case. That's how the adversary system works. Judges do not dismiss criminal cases when the defense asks. Now they aren't going to dismiss when the prosecutor asks? Rule number 1: never dismiss cases. Rule number 2: when in doubt, see rule number 1.

UPDATE 5. Mary B. McCord, an acting assistant attorney general for national security at the Justice Department from 2016 to 2017, wrote this op-ed in the New York Times, called "Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth." I have to laugh in reading her piece. She complains that the 302 of her interview is "an interesting read" with "colorful adjectives" that "twist[s] her words." Now that's rich. The criminal defense bar has always said that 302 reports summarizing interviews are wholly unreliable and that interviews should be recorded. Prosecutors and investigative agencies like the FBI and DEA refuse to record and judges let agents testify from these reports about their interviews. McCord worked at DOJ for decades. Under her watch, thousands of non-recorded interviews took place and prosecutions relied on 302 and other interview reports to convict people. Now that she is reading her own 302, she complains. Welcome to the defense bar, Ms. McCord.

Judge Zloch sentences Alan Mendelsohn to 4 years (UPDATED)

The prosecutors had asked for 2 years and Mendelsohn's lawyers asked for probation.

From the Herald:

“Most notably, the corruption in this case strikes at the heart of the Florida Legislature,’’ Zloch said. “Dr. Mendelsohn actually facilitated a corrupt democratic process in the Florida Legislature.’’
***
Zloch expressed disgust over the “pay to play" world of Tallahassee politics that Mendelsohn described at his plea hearing in December.

Mendelsohn, initially indicted in September 2009 on 32 fraud charges and later on five tax offenses, had been facing trial in January.

His plea was the ending to a high-profile influence-peddling investigation that stretched from South Florida to Tallahassee. It started when the self-made power broker bragged about his purported connections to then-Gov. Charlie Crist and his inner circle, saying he could get them to kill legislation and investigations that would hurt a Fort Lauderdale viatical insurance business called Mutual Benefits Corp.

UPDATE -- I've mentioned previously that I don't think judges should be permitted to sentence someone above the plea agreement's terms (see, e.g., here, here and here). If the parties in an adversary system agreed that the defendant in this case deserved somewhere between probation and 2 years, a judge should respect that contract or allow the parties to withdraw from it.

It doesn't appear that DOJ really fought for the terms of the agreement. From Curt Anderson's article:

"He isn't accepting responsibility when he says, 'Everybody was doing it,'" Butler said. "That's just not going to cut it."

More from Zloch:

"It is totally inappropriate for the court to give what would amount to a slap on the wrist," Zloch said. "The corruption of public officials, those who took an oath to uphold the law, leads to contempt for the law."
***

Mendelsohn himself apologized profusely, but also said he was proud of health-related state legislation he said he pushed for and noted that since his 2009 indictment "words just can't describe the devastation" suffered by his family and business.

"Who was responsible for this devastation?" Zloch asked.

"I was," Mendelsohn replied. "I am really, really, really, truly sorry."

Louis Robles gets 15 years

This was the obvious result after the judge rejected the agreement of the parties to a 10 year deal. I still don't believe a judge should reject a plea agreement worked out in our adversary system (previously discussed here and here). I wonder if the prosecutors still argued for 10 years at the sentencing hearing as they believed this was the appropriate sentence... I think the feds (or Judge Gold) should release Robles from the appellate waiver so that he can argue to the 11th Circuit that the judge's rejection of the deal was inappropriate. Wouldn't it be nice to get some clarity about this from the appellate court?

SDFLA Blog question of the day -- Why won't the government abandon its appellate waiver so that Robles can litigate (with the government's support) whether district judges should be permitted to reject plea agreements.

10 years for Villegas (Scott Rothstein's "right hand")

That sentence was much higher than the government's recommendation (7 years) and the defense's (home confinement). You all know my feelings on this -- a judge should almost never go above a prosecutor's recommended sentence. That should be the ceiling in our adversary system. What do you all think?

UPDATE -- maybe I spoke too soon about the sentence. Here's Curt Anderson on the details of the hearing:

But Debra Villegas, 43, will probably serve far less time because of her extensive cooperation with prosecutors, who said it was likely they would seek a sentence reduction later. U.S. District Judge William Zloch also took the unusual step of allowing Villegas to remain free until June 24, 2011, so she can assist in the ongoing investigation of the now-defunct Rothstein Rosenfeldt Adler firm.

Other off-the-chart sentences are being handed out. SFLawyers covers one here, where "the kingdom of God" was invoked.

The Daily Business Review has a fancy new website. It looks really good and is much more user friendly. Go check it out.

Time for the weekend. I need to go figure out my pick against Rump.

Should judges reject agreed to plea agreements?

We've discussed this issue many times on this blog. If two parties in the adversary system work out a deal, should the judge be able to reject it? (Along the same lines, should a judge be able to reject a civil settlement?) I think the answer is clearly no for reasons I've articulated before.

The issue has come up again, this time out of the district. This time some (alleged?) crooked judges agreed to plead guilty in exchange for a particular sentence agreed to by the prosecutor. The federal judge rejected the deal in this order, in part because of the "scandalous conduct" of the judges.

What say you, readers? Are you persuaded by the court's reasoning? Should judges be permitted to reject the deals made by the parties to the lawsuit?

"Prosecutors will decide..."

That was the catch-phrase in John Oliver's take on why the criminal justice system is in shambles. He ticks through a bunch of the problems that result from letting prosecutors control the system: the trial tax, what discovery is produced, no accountability for misconduct, and so on.  One example:

“Prosecutors typically get to decide whether something is relevant to the defense, which seems inherently flawed,” said Oliver. “You can’t just count on an adversary to voluntarily expose all of their weaknesses. In Star Wars, the rebels had to steal the Death Star plans. The Empire didn’t just email it to them with the subject line FWD: GIANT STUPID WEAK SPOT (VERY DUMB, GO TO TOWN).”

It's below and definitely worth a watch.

In the Manafort trial, the judge is actually standing up to the prosecution team and trying to limit irrelevant evidence. But the prosecutors aren't used to someone else deciding. So they have resorted to disrespect and anger. From Politico's article "Manafort prosecution's frustration with judge leads to fiery clashes":

For days, U.S. District Court Judge T.S. Ellis has been cracking the whip at prosecutors in the Paul Manafort fraud trial, prodding them again and again to keep the case moving forward and to drop matters he considers irrelevant.

Prosecutors’ frustration with those exhortations spilled out publicly Monday in a series of prickly clashes in which Ellis snapped at one of special counsel Robert Mueller’s prosecutors, Greg Andres, and Andres sometimes lashed back at the judge — something lawyers rarely do.

The day’s first significant altercation came as Andres sought to question Manafort’s former deputy, Rick Gates, about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

***

Ellis said he wanted to give Andres an “opportunity to educate me” about the usefulness of the testimony about Ukraine’s political system and why wealthy individuals were paying millions of dollars to back Manafort’s work as a political consultant.

“I don’t see any earthly relationship” between testimony about “political contributions” and the alleged tax evasion on Manafort’s part, the judge said.

Andres took issue with calling the payments political contributions, and he appeared to fault Ellis for minimizing the significance of the payments in his comments in front of the jury

“These people are not making political donations,” the prosecutor said. Calling the donors “oligarchs” — a term Ellis banned the government from using in front of the jury last week — Andres explained that their livelihood was completely dependent on government-granted monopolies.

“That makes it even clearer to me” that it’s not relevant, the judge interjected. “It doesn’t matter whether they’re good or bad or oligarchs or crooks or mafia or whatever. … You don’t need to throw mud at these people.”


At that point, Ellis noted that Andres was looking at the lectern. “You’re looking down as if to say, ‘This is B.S.,’” the judge complained.

Andres seemed angered by the accusation and said the judge was leaping to conclusions. “We don’t do that to you,” the prosecutor said.

When the judge mentioned an earlier complaint he made about lawyers rolling their eyes, Andres interrupted again and the atmosphere grew tense. “I find it hard to believe I was both looking down and rolling my eyes,” he said.

Andres pressed on with his argument that the payments to Manafort were not political contributions, this time adding the charge that every time the government tried to elicit testimony about why the payments were made, “Your Honor stops us.”

“The record will reflect I rarely stopped you,” Ellis insisted.

“I will stand by the record,” Andres snapped.

“And you will lose,” the judge shot back.

The role of judge

So if a prosecutor and a defense attorney agree that a particular case merits a particular sentence, should a judge be permitted to impose a harsher sentence. That's the question being argued in a case in which the government and defense agreed to a sentencing range of 57-71 months for a defendant who pleaded guilty to alien smuggling (which resulted in the tragic death of a 7 year old boy during the chase on the high seas). Judge Moore has indicated that the agreed upon sentencing range (which is based on an enhancement for death) is not sufficient and has asked for briefs from the parties as to why he should not go higher.

The question is an interesting one. If, as Chief Justice Roberts has suggested, judges are merely umpires who are supposed to call balls and strikes, then why should the umpire call what the parties have deemed a strike as a ball. In other words, it is the government (who represents the people) and defense (who represents the defendant) who know the case the best and who have fought -- under our adversary system -- to reach a result that both sides could live with. Why shouldn't the judge enforce that agreement? Thoughts? Here's the AP story on it.

UPDATE -- The first comment lays out the case for the judge taking such action. Interestingly, according to Jay Weaver, AUSA Dana Washington explained to the judge that the sentence was reasonable and that the sentencing guidelines took into account the death. He cited to a previous case in which Judge King was reversed for departing upward to life. If the prosecutor, who represents the people, believes the sentence is enough, should the judge (umpire) take a different position?

(Disclosure -- I represented a co-defendant in that King case in which we also secured a reversal in the 11th Circuit on another issue. My client ended up with about 4 year sentence because the 11th Circuit concluded that the events on the boat were not foreseeable to my client)...

Judge Pryor says judicial branch disrepected by AG Holder

Some fireworks from the Sentencing Commission last week when 11th Circuit Judge Pryor said that AG Holder disrespected the judicial branch by not opposing the proposed two level decrease in the drug guidelines. More from NLJ:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”

Nevertheless, Pryor voted with the seven other Republican and Democratic judges to reduce sentencing guidelines involving drug offenders.

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission—an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent.

Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.

“For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement. “One way to consider this question is to ask whether, if the Attorney General ordered prosecutors to seek increased sentences that were, at the time, only preliminary, those applauding Mr. Holder’s actions would be as enthusiastic as they are today.”

I'm not sure I see the disrespect or the separation of powers issues. The Attorney General can tell his prosecutors what sentences to seek; in fact, he can even go so far as to pick and choose what cases to prosecute. I see the judges' role as a check on the prosecution power in seeking sentences that are too high, not too low. This is an adversary system, so if the executive branch says that a particular sentence is too high, I'm not sure how that is disrespecting the judicial branch. As an aside, the guidelines aren't even based on any empirical data; they are simply made up numbers -- and the Commission voted unanimously to reduce those made up numbers. Had Holder not told his prosecutors to stop seeking the higher sentences, we'd see a flood of 2255s, along with appeals, and I'm sure the judicial branch wouldn't be happy about that.

Judge Marra's sentencing of Christopher George last week demonstrated how the judiciary rightly checks the government. The prosecution asked for a third off of George's sentence for cooperation and the defense asked for way more. Judge Marra correctly said no and gave much less -- about 20%. From Paula McMahon the Sun-Sentinel:

Christopher George, whose highly successful pill mills in Broward and Palm Beach counties made about $40 million, was hoping Friday that his cooperation with prosecutors would earn him a big break on the prison term he is serving.

Though the inmate wasn't in court to witness it, prosecutors formally recommended that he should get close to six years shaved off his 17 1/2 year federal prison sentence and told the judge that they wouldn't object to him getting as much as a 50 percent sentence reduction.

But U.S. District Judge Kenneth Marra was not going for anything even close to that.

"I'm not sure that I want him back out on the streets as quickly as everyone here seems to want — he's a dangerous person," Marra said.

Recalling George's boastful testimony last summer in the trial of two doctors he hired to prescribe massive amounts of painkillers to addicts and other drug, the judge said the former Wellington twin was "proud of being a criminal."

"He was proud of what he did. He was just upset that he got caught," Marra said.

The judge, who has granted sentence reductions for several other co-defendants who helped the prosecution, reminded prosecutors and defense attorney Fred Haddad that he could refuse to reduce George's sentence by even one day.

But mindful that prosecutors investigating tough cases often need the help of cooperating criminals — who will only do the right thing if they know they will receive some kind of reward — Marra said it would be "unwise and damaging to the criminal justice system" to give George no credit at all.

After a long silence, Marra ruled that it was appropriate to take 3 1/2 years off George's prison term – which cuts his punishment to 14 years. Federal inmates usually serve about 85 percent of their sentences, with time off for good behavior.

Ft. Pierce courthouse dedication and other Monday notes

1.  The Ft. Pierce courthouse was dedicated on Friday:

After what some government officials called a 25-year effort, theU.S. District Court, Southern District of Florida and the U.S. GeneralServices Administration formally dedicated the new federal courthousein Fort Pierce on Friday.
U.S. Sen. Bill Nelson called the $56.3 million, 123,400-square-footbuilding "a jewel for downtown Fort Pierce and the Treasure Coast."Nelson, who spearheaded efforts to construct the courthouse, praisedthe nation's criminal justice system and addressed the highlypublicized shooting death of Trayvon Martin by a community watchvolunteer in Sanford.
"We are not just dedicating a building, we are dedicating a conceptthat this is a country that abides by the rule of law," said Nelson,who delivered the ceremony's keynote speech.
***
According to U.S. District Judge Donald Graham, the judges in theSouthern District voted to install a permanent district judge at theFort Pierce courthouse pending White House and Senate approval. Grahamsaid the process could be lengthy, especially during an election year.
Graham was pleased with the courthouse's stunning aesthetics and security.
"The key issue is security," said Graham of the building, whichboasts blast-resistant materials, concrete walkways, undergroundparking and a sun-filled atrium.
"Its been a labor of love for many of us," said Graham, who addedtwo floors can be expanded to include additional courtrooms if needed."It's a beautiful, beautiful building, and it's functional, too."

2. The health care oral arguments start today, and the lawyers have been training... literally (via NY Times):

Last week, there were so many of the mock arguments that lawyers callmoot courts that they threatened to exhaust something that had neverbeen thought in short supply: Washington lawyers willing to pretend tobe Supreme Court justices.

The problem, said Paul D. Clement, who represents the 26 stateschallenging the law, was not just the length of the arguments that thecourt will hear, but the variety of topics to be addressed.

The law itself is a sprawling revision of the health care system meantto provide coverage to tens of millions of previously uninsuredAmericans by imposing new requirements on states, employers andinsurance companies and, through what has been called the individualmandate, requiring most Americans to obtain insurance or pay a penalty.

The decision in the case will have enormous practical consequences forhow health care is delivered in the United States. It is likely to landin June, with large repercussions for both President Obama and hisRepublican challenger just before the two parties hold their nominatingconventions.

The justices have broken the case into four discrete issues, schedulinga separate session for each, for a total of six hours, the most in morethan 40 years. Mr. Clement, like his principal adversary, SolicitorGeneral Donald B. Verrilli Jr., will be arguing three times.

3.  Congrats to my boys from Rakontur, celebrating their 10th anniversary.  Nice coverage in the Herald, and cool events all week at the O Cinema.  Since I'm a Miami native, I just love that they are home boys -- making movies starring this city:

The bond between Corben, Spellman and Cypkin — who are all 33,became friends at Highland Oaks Middle School, made their first shortfilm in high school and co-founded rakontur in 2001 — has grownstronger with each of their successes.
So, too, have their roots to Miami.
“Wemade a decision to stay in Miami to further our careers, which seemsanti-instinctual in our business,” says Corben, who has directed all ofrakontur’s films. “But it was a deliberate, calculated decision. It wasa brand-basing decision. We didn’t want to be another group of schmuckstap-dancing Los Angeles or New York. There have been a lot of talentedfilmmakers who have come from Miami, but none whose work is associatedwith the city the way Woody Allen is associated with New York or BarryLevinson and John Waters are associated with Baltimore. We wanted to beknown as the Miami guys.”

Read more here: http://www.miamiherald.com/2012/03/25/2711793/10-years-of-rakontur-celebrates.html#storylink=cpy

 4.  Combining items 2 (the Supreme Court) and 3 (Miami), there's this story about a case from South Florida going to the Supremes (via Curt Anderson):

 Court documents refer to it as "that certain unnamed gray, two-storyvessel approximately 57 feet in length." To Fane Lozman, it was afloating Florida home never intended to sail the seas. Now, along-running dispute over exactly what the structure was has landedbefore the U.S. Supreme Court.
Lozman, a 50-year-old former Chicago financial trader, seeminglylost his nearly six-year battle with the seaside city of Riviera Beachwhen his home was hauled away in 2009 and later destroyed by courtorder. But Lozman refused to give up, claiming officials vindictivelyand illegally targeted him for eviction from the city's marina becauseof his vocal opposition to a major redevelopment plan.
"Whatever they had to do to get me out of there, they were going todo it," Lozman said. "All I want to do is live a quiet life. I didn'tlook for this drama, it came to me because I wanted to stay at themarina."
The only-in-Florida backstory matters less to the Supreme Court thana more fundamental question: When is something a vessel, and when is itnot? The court agreed to take the case earlier this year and isexpected to hear arguments in October.

5.  St. Thomas is having a wonderful event this Friday:

On March 30, 2012, the St. Thomas Law Review and the Daily Business Review will host a symposium titled, Media and the Law: Adjusting Trial Strategy in Light of Media Portrayal and Public Perception.  From 9 a.m. to 5:15 p.m., the symposium will focus on how judges, litigants, and members of the media face an increasing number of challenges regarding public influence and potential jury misconduct as technology advances.  Tickets are $25 and include breakfast, lunch, and an evening reception.  Credits for Continuing Legal Education are pending approval with the Florida bar.

The luncheon will feature keynote speaker Professor Charles Nesson, Weld Professor of Law at Harvard Law School, and Founder and Faculty Director of the Berkman Center for Internet and Society.  Professor Nesson has litigated high profile cases such as White v. Crook, Anderson v. Cryovac, and Daubert v. Merrell Dow Pharmaceuticals, a United States Supreme Court case.  He defended Daniel Ellsberg in the 1971 Pentagon Papers case, and represents Joel Tenenbaum in a well-publicized music file sharing case, Sony BMG v. Tenenbaum.

The symposium will also consist of three panels and will be moderated by Benedict P. Kuehne of the Law Offices of Benedict P. Kuehne, P.A.  Each panel will be comprised of three to four members of the legal profession who have faced challenges in their handling of high-profile cases as a result of media coverage and exposure, and members of the media who inform the public of such cases.

The media panel will include three members of the media: David Lyons, Editor-in-Chief of the Daily Business Review; Manny Garcia, Executive Editor, El Nuevo Herald; Willard Shepard, an Anchor and Journalist with NBC 6.  These panelists will provide keen insight into their experiences reporting high profile cases.  Their discussion will cover the ethical dilemmas the media faces to appeal to public interest while protecting the sanctity of our judicial system, and the responsibility of the media in balancing these interests.

The litigants panel will consist of three attorneys: Carey Haughwout, Palm Beach Public Defender; Ervin Gonzalez, attorney at Colson Hicks Edison; and Abraham Laeser, a retired prosecutor from the Miami-Dade State attorney’s office.  These panelists will discuss their experiences in handling high-profile cases, and the effect of media coverage on how they approach the case.  The panelists will also provide their perspectives on attorneys’ ethical obligations when communicating with the press.

Finally, the ethics panel will feature Florida Supreme Court Justice R. Fred Lewis, Chief Magistrate for the Southern District of Florida, Judge Stephen Brown, and Anthony Alfieri, Professor at the University of Miami School of Law.  These panelists will explore ethical issues and dilemmas litigants and judges face in an era when the public has a seemingly insatiable appetite for information about high profile legal cases and cutting edge legal issues.

Additionally, the symposium will host Judge George Greer, who received national attention when he presided over the Terri Schiavo case.  Judge Greer’s session, “A Conversation with Judge Greer,” will be moderated by Professor Tamara Lawson, Professor of Law at St. Thomas University School of Law.

The US1 apocalypse starts Monday

Enjoy your last day today.

Okay, okay, you want some law.  There's been a lot of internet research and cites coming out of this District and the 11th Circuit recently.  Apparently, the 7th Circuit judges got into a tiff about it in Rowe v. Gibson (via Above The Law):

Jeffrey Allen Rowe, a prison inmate proceeding pro se, is suing various prison officials under 42 U.S.C. § 1983. Rowe accuses the officials of deliberate indifference to his serious medical need, specifically, need for proper treatment of his reflux esophagitis aka gastroesophageal reflux disease (GERD).

...

Judge Posner’s majority opinion, joined by Judge Ilana Diamond Rovner, cites such internet authorities as the NIH, the Mayo Clinic, WebMD, and Wikipedia in the course of analyzing Rowe’s medical claims. Judge Hamilton’s opinion, concurring in part and dissenting in part, castigates the majority for its extra-record adventures. Let’s start with Judge Hamilton (emphasis added):

I must dissent, however, from the reversal of summary judgment on Rowe’s claim regarding the timing for administering his medicine between January and July 2011 and after August 2011. On that claim, the reversal is unprecedented, clearly based on “evidence” this appellate court has found by its own internet research. The majority has pieced together information found on several medical websites that seems to contradict the only expert evidence actually in the summary judgment record.

Gotta love Judge Hamilton’s use of scare quotes around “evidence.”

Judge Posner’s opinion defends the use of outside research because pro se prisoners like Rowe don’t have easy access to expensive expert witnesses to support their claims, arguing that “[i]t is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.” (By the way, Judge Posner seems quite fond of the h-word these days; remember his calling Chief Justice Roberts’s gay-marriage dissent “heartless.”) Judge Hamilton’s opinion doesn’t buy it:

The majority writes that adherence to rules of evidence and precedent makes a “heartless … fetish of adversary procedure.” Yet the majority’s decision is an unprecedented departure from the proper role of an appellate court. It runs contrary to long-established law and raises a host of practical problems the majority fails to address.

After acknowledging the existence of a debate on the subject of factual research by judges, Judge Hamilton writes this (emphasis added):

Using independent factual research to find a genuine issue of material, adjudicative fact, and thus to decide an appeal, falls outside permissible boundaries. Appellate courts simply do not have a warrant to decide cases based on their own research on adjudicative facts. This case will become Exhibit A in the debate. It provides, despite the majority’s disclaimers, a nearly pristine example of an appellate court basing a decision on its own factual research.

Ouch. Translation: “Judge Posner, you are now the poster child for irresponsible judicial fact-finding.”

Later on in the opinion, Judge Hamilton refers snarkily to “[l]aw-office or judicial-chambers medicine,” arguing as follows about the web:

Law-office or judicial-chambers medicine is surely an even less reliable venture. The internet is an extraordinary resource, but it cannot turn judges into competent substitutes for experts or scholars such as historians, engineers, chemists, psychologists, or physicians. The majority’s instruction to the contrary will cause problems in our judicial system more serious than those it is trying to solve in this case.

In other words, to use a health-care metaphor, the medicine here is worse than the disease.