Monday news & notes

1. Who wants to go to Pakistan? Apparently the defense does in what was dubbed the "Pakistani Taliban" case when it was filed lots of publicity but which seems much different now.

Jay Weaver covers the government's opposition here:  

Two South Florida Muslim clerics — a father and son separated by more than 50 years in age — are struggling to persuade a Miami federal judge to allow their lawyers to travel to Pakistan to question alleged Taliban sympathizers who might help their defense against terrorism charges. Lawyers for Hafiz Khan and Izhar Khan, former imams of mosques in Miami and Margate, have already lost their first bid to travel with federal prosecutors to the U.S. Embassy in Islamabad to take depositions from five witnesses who do not want to come to Miami to testify at the upcoming trial. Among the potential witnesses are two other Khan family members and another suspected Taliban supporter who were accused in the same case of conspiring to aid the Taliban with money and guns. 

Last week, U.S. District Judge Robert Scola rejected the defense’s initial deposition plan — which was strongly opposed by federal prosecutors — as “unsafe and impractical.” But Scola left open the possibility for the defense’s alternative: allowing the Khans’ lawyers to question the witnesses at a hotel such as the Marriott in Islamabad in a live, videotaped deposition with the prosecutors participating from Miami. “If there is a way for you to take their deposition, I’m going to let you do it,” Scola said, setting the stage for a final hearing Oct. 29. The clock is ticking, however, because the “material-support” trial that initially drew national headlines is scheduled for early January. Bottom line, the defense said: No deposition, no fair trial.


 2. How much time should Rajat Gupta get? He went to trial and was convicted. The government is asking for 97-121 months and the defense is asking for probation.

 The trial penalty has become so absurd in our system. Gupta, I'm sure, was offered very little or no jail time if he had pleaded guilty.

 Does he really deserve 10 years because he went to trial? My prediction is that Judge Jed Rakoff sentences him to 36 months.

Here's the Bloomberg article on the case. If you are interested in the sentencing memos, you can check them out here.

Judge Jordan can't wait to see Lincoln

From his opinion yesterday: 

Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief Case: 11-13117 Date Filed: 10/18/2012 Page: 1 of 29 rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary. 

The issue we address is whether this firing violated Ms. Underwood’s First Amendment rights. In light of our precedent, we conclude, as did the district court, that it did not.

In other news, do you think that a prosecutor should be able to use a booking photo in closing argument with the words GUILTY GUILTY GUILTY superimposed on top?  The Washington State Supreme Court said no in a 5-4 opinion. Via The News Tribune:


The Washington State Supreme Court has overturned four felony convictions of a Pierce County man, saying a deputy prosecutor violated the defendant’s right to a fair trial by superimposing the words, “guilty, guilty, guilty,” over the man’s photo during a PowerPoint presentation in closing arguments.
The state’s high court, on a 5-4 vote, sent Edward Michael Glasmann’s case back to Superior Court for a new trial.
“The prosecutor’s misconduct was flagrant, ill intentioned and we cannot conclude with any confidence that it did not have an effect on the outcome of the trial,” Chief Justice Barbara Madsen wrote for the majority in an opinion released Thursday.
Prosecutor Mark Lindquist said he thought the majority made a bad call.
“The majority opinion is correct in recognizing that prosecutors are quasi-judicial figures,” he said. “We have a duty to seek justice and be fully professional. The opinion takes a strange turn, though, in finding reversible misconduct because a former deputy prosecutor superimposed the word ‘guilty’ on a PowerPoint slide with a booking photo.
“This was unnecessarily melodramatic, but did not affect the outcome.”

Read more here: http://www.thenewstribune.com/2012/10/18/2337016/pierce-man-gets-a-new-trial-over.html#storylink=cpy

Debates

This is pretty funny from Family Guy:

BREAKING -- MAGISTRATE SHORT LIST

The Magistrate Committee has cut the list to five names and now it's up to the judges to pick your next Ft. Lauderdale magistrate.  Here's the list:

Bruce Brown
Patrick Hunt
Corey Steinberg
Alicia Valle
Garth Yearick

Three AUSAs, one AFPD, and one private practitioner.  Good luck to the five.
(And thanks to my tipsters.)

Shameful

Bloomberg has a story today about our country's incarceration rates.  It's jaw-dropping.  We jail more people than any other country... by a lot.  Out of every 100,000 citizens, we jail 730.  To give some perspective, Cuba and Russia are right around 500.  England is about 150.  And how about prisons:

“The model is, if you build it they will come,” said Daniel D’Amico, a professor of economics at Loyola University New Orleans. “Because we have all these prisons and all of these other resources funneled into our criminal justice system, we have this ability to enforce things that would otherwise be unenforceable.”
“That includes the drug war, but it’s also including everything from the Martha Stewart types to immigration policies,” D’Amico said. “The scope of things that are now criminal in corporate law is exponentially higher than it was merely twenty years ago.”
The U.S. also leads the world in the number of prisons in operation at 4,575, more than four times the number of second- place Russia at 1,029. U.S. states spent $52 billion to construct and operate those prisons in 2011, more than quadruple the $12 billion spent in 1987, according to data from the Pew Center on the States. 

Just insane.  We have over 2.2 million people in prison.  That's about the size of Houston.  I hope there is a question about this at the debate tonight.