First Monday in October

Law nerds like you and me love this day. And it looks to be a great Term. There are lots of stories covering this Term's cases, but I like Adam Liptak's article here. Seems like a bunch of interesting criminal law cases:

The court will decide whether the police need a warrant to use advanced technology to track suspects, whether jails may strip-search people arrested for even the most minor offenses, whether defendants have a right to competent lawyers to help them decide whether to plead guilty, when eyewitness evidence may be used at trial, and what should happen when prosecutors withhold evidence.

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In United States v. Jones, No. 10-1259, the justices will consider whether the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time. Some appeals court judges have said that such surveillance put them in mind of George Orwell’s novel “1984.” Prosecutors say that electronic enhancement of the ability of the police to stake out and track suspects raises no constitutional concerns.

A second Fourth Amendment case, Florence v. Board of Freeholders, No. 10-945, asks whether people arrested and held for minor offenses may be routinely strip-searched.

The court will also consider, in Maples v. Thomas, No. 10-63, whether a mix-up in the mailroom of a big New York law firm should mean that a death row inmate in Alabama must lose an opportunity to appeal a decision against him.

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

And the justices will return to a subject that sharply divided them in last term’s Connick v. Thompson case, which threw out a $14 million jury award to a former death row inmate who was cleared after prosecutorial withholding of evidence in New Orleans came to light. The new case, Smith v. Cain, No. 10-8145, also comes from New Orleans and concerns similar claims of prosecutorial misconduct.

And the First Amendment:

The court will continue its intense engagement with the First Amendment. But where earlier cases involved quirky issues like dog fights, funeral protests and the Seven Aphorisms of a fringe church called Summum, the marquee First Amendment cases this term involve issues of sweep and consequence.

In one, the court will rule on whether the government may ban swearing and nudity on broadcast television. In another, the justices will decide for the first time whether there is a “ministerial exception” to employment laws that allows religious institutions to discriminate in ways others employers cannot.

And that little health care case might come along too:

The health care case is not the only juggernaut looming on the horizon. In the next term or two, the court may well address same-sex marriage, affirmative action and illegal immigration. For now, the justices are focused on criminal cases, especially ones concerning the Fourth Amendment’s protections against unreasonable searches and the Sixth Amendment’s guarantee of a fair trial.

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.