See you Monday

Here's what's up:

1. Did Bill Buckner appearing on Curb cause the Sox to lose?

2. I love when pro-se litigants win.

3. Fellow nerds unite!

4. Is this guy for real, arguing that mandatory guidelines are good? I would challenge him to a debate, but he'd never accept.

5. Roy Black examines the Conrad Murray openings.

Rosh Hashanah news and notes

1. Former ICE chief Anthony V. Mangione made his initial appearance today in federal court on this indictment (where he drew Judge Marra). His defense lawyer is David Howard. (The Herald has more here.)

2. Speaking of Judge Marra, he has ruled that the feds should have notified the victims (via PBP):

A federal judge has paved the way for victims to continue their fight to invalidate a secret deal, which saved billionaire sex offender Jeffrey Epstein from facing serious federal charges and significant prison time.

Monday’s 14-page ruling by U.S. District Judge Kenneth Marra rejects the U.S. Attorney’s Office argument that it was under no obligation to notify victims prior to striking a non-prosecution agreement with Epstein simply because there were no federal charges filed against him.

Marra ordered that discovery in the case proceed, which means that the victims — and the public — may get access to previously secret correspondence between Epstein’s attorneys and the government.

Attorneys Paul Cassell and Brad Edwards have been fighting on behalf of Jane Does No. 1 and No. 2 to have the federal non-prosecution agreement overturned, because, they say, it was done without notice or consent of the victims, which violates the federal Crime Victims’ Rights Act.

In his ruling, Marra agrees that the language in the act provides for victims’ rights to include pre-charge proceedings.

“The government’s interpretation ignores the additional language throughout the statute that clearly contemplates pre-charge protections,” Marra wrote in his ruling.

Marra also rejects the government’s argument that “pre-charge CRVA rights could impair prosecutorial discretion and decision-making.”

Cassell, a former federal judge, called the ruling “a home run" for all victims.

3. Here's an interesting opinion on the plain view doctrine and screen savers, via Orin Kerr:

The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?
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The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

"Head of ICE in South Florida arrested on child porn charges"

That's the headline from the Sun-Sentinel.

The feds have been investigating for quite some time.

Initial Florida Bar vote finds 2255 waivers unethical

Last week, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement. Staff from the Florida Bar will now draft an advisory opinion for the committee's consideration, and the committee will consider it at its next meeting (sometime next year). The government will oppose the proposed ethics opinion.

But why? Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up.

Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?

So, SDFLA readers, what do you think? Should the government be asking for 2255 (and other waivers) or is Judge Roettger (and the Florida Bar) right that these waivers are unethical.

The trial tax

Despite this NY Times article about declining trials, this district still tries cases -- Judge Ungaro has closing arguments in a criminal antitrust case this morning; Judge Seitz is in the middle of a lengthy mortgage fraud case; Judge Cooke is starting a trial this morning. That said, the NY Times examines whether the "trial tax" is too high, forcing too many people to plead. The article focuses on state cases in Florida, but here's a snippet on the feds:

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.

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Some federal prosecutors worried that their power would be weakened by a 2005 Supreme Court ruling that made sentencing guidelines advisory only. But academics say the ruling had much less effect than what some predicted as many judges still largely follow the guidelines, and the ruling did not affect other laws that have given prosecutors more power.