Wednesday, July 16, 2014

Some fireworks in an 11th Circuit case

More specifically, a death penalty case.  Judge Wilson's opinion (joined by Judge Martin) is here, and he frames the issues:
Derrick Anthony DeBruce, an inmate on Alabama’s death row, appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his death sentence. DeBruce contends that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution in both the guilt and the penalty phases of his capital murder trial.
DeBruce was convicted of fatally shooting a customer during the robbery of an AutoZone store which he committed with five other men.1 DeBruce argues that his retained trial attorney, Erskine Mathis, was constitutionally ineffective in failing to cross-examine state witness LuJuan McCants, a co-participant in the robbery who identified DeBruce as the shooter at trial, with McCants’s earlier allegedly contradictory statements. He also argues that Mathis was ineffective in failing to investigate and present evidence about DeBruce’s mental capacity and background during the penalty phase of his trial.

Judge Tjoflat dissents:
Derrick DeBruce’s lawyers may or may not have been ineffective. I don’t know, and my colleagues don’t either. We can’t know—despite two decades of litigation in state and federal court—because DeBruce failed to develop a record of what his attorneys did (or did not do) in preparation for the penalty phase1 of his capital murder trial. Without a thorough record, it is impossible for DeBruce to overcome the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984), and impossible for this court to say—as it must to grant relief under § 2254—that the State court’s application of Strickland was “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 1521, 146 L. Ed. 2d 389 (2000).
***
But now our court, evidently possessed of special insight, reverses and grants habeas relief. My colleagues do so by inventing a theory of the case that is both factually unsupported and facially implausible: that DeBruce’s seasoned capital-defense lawyers walked into the penalty phase of trial without knowing anything about the man they were defending. That claim would be dubious standing alone, but here it must overcome the “doubly deferential” standard of review federal courts apply when Strickland and AEDPA operate in tandem. Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003). To grant relief under this demanding standard, the majority needs unambiguous evidence that DeBruce’s attorneys were incompetent. There is no such evidence, so instead the majority embellishes the record, disregards AEDPA, and succumbs to the “all too tempting” impulse “for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission . . . was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
 Judge Martin concurs because she: "feel[s] [she] must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I 'invent[ed] some facts,' 'embellish[ed] the record,' exhibited a 'lackadaisical relationship with the evidence,' and 'disregard[ed] AEDPA' in deciding this case."

The whole concurrence is worth a read (I left out the footnotes):

 After thorough consideration of this difficult case, Judge Wilson and I have come to the view that Derrick Anthony DeBruce is entitled to habeas relief. This is quite a serious thing, as Mr. DeBruce has been sentenced to death by the State of Alabama. The federal statutory scheme put in place by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was intended to, and does give great deference to the judgment of a State court decision that adjudicated a federal claim on the merits. See 28 U.S.C. § 2254(d). As it should. “AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, ___ U.S. ___, ___, 134 S. Ct. 10, 15 (2013). At the same time, the Supreme Court has admonished federal judges that, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).

None of the three judges on this panel takes this case lightly. On the one hand, Mr. DeBruce was convicted of killing an innocent man named Doug Battle, who did nothing more than happen by the AutoZone Store in Talladega, Alabama on August 16, 1991. On the other hand, Mr. DeBruce is himself set to die as a result his conviction for killing Mr. Battle. None of the cases involving inmates who are sentenced to death are easy, and Mr. DeBruce’s case is no exception. It was filed in our court about three and one-half years ago on April 6, 2011. Four judges of our court have considered the case during the time it has been pending here. It came from the Northern District of Alabama, where it was filed on September 7, 2004, and stayed pending for more than six years.

I write separately because I feel I must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I “invent[ed] some facts,” “embellish[ed] the record,” exhibited a “lackadaisical relationship with the evidence,” and “disregard[ed] AEDPA” in deciding this case. See Maj. Op. at 2, 3, 40, 81. Judge Tjoflat is a nationally known and admired judge who has served as a member of the federal judiciary since 1970, and as a judge for the State of Florida before that. He is not only admired nationally, he is also admired by Judge Wilson and me. Our work would be much quicker, easier and happier if Judge Wilson, Judge Tjoflat and I all agreed on how the law applies to this case—and every other case, for that matter. But if we do our jobs properly, it is inevitable that we will have disagreements. And we disagree here. That being the case, it is incumbent upon each of us, as a part of this difficult process, to lay out how we understand the law to apply to the specifics of Mr. DeBruce’s case. Each of us has honestly assessed this case to the best of our ability, and the opposing views expressed in our respective opinions were reached through a sincere effort to properly perform the role required of us as judges of this Court.

Tuesday, July 15, 2014

Another 5-year cap in the Rothstein web

This time to Frank Preve, the 70-year old COO of Banyon Investments LLC.  Even though the 5-year count in the information is a sure tell that the case has been resolved the DBR reports as follows:
Preve, Rothstein's point man at Banyon, was charged in a criminal information with one count of conspiracy to commit wire fraud. Usually, an information indicates a plea deal has been struck, but Preve's attorney—Ramon A. Rasco, a partner at Podhurst Orsek in Miami—told the Daily Business Review his client hasn't agreed to anything as of yet.
Rasco said the case against Preve is about "omissions," his failure to disclose to investors Rothstein's financial shenanigans in the months leading up to the implosion of the fraud in October 2009.
From July to October 2009, "Preve caused investors and lenders to pay more than $20 million to the Banyon Group by wire transfer for investments in confidential settlements," the information reads.
Rasco noted the information doesn't accuse Preve of having any direct knowledge of Rothstein's settlement financing fraud. "Considering the allegations that have been made against Frank over the years, it is a very, very watered-down version of events," he said.
Preve and Rothstein exchanged thousands of emails, but they met only a handful of times, and Preve did not have an office in Rothstein Rosenfeldt Adler's Fort Lauderdale office as alleged in civil suits, Rasco said.
"He did not have any knowledge of the Ponzi scheme, and he wasn't working with Rothstein, and he certainly did not benefit from it," Rasco said. "What the government is alleging now are basically technical violations."
Rothstein's scam was disguised as an investment strategy where Rothstein would purchase discounted confidential settlements in sexual harassment or employment whistleblower cases.

Monday, July 14, 2014

Homeless man who robbed bank was sentenced...

...to 28 months in prison.

The 71-year old said he robbed the bank to get medical care in prison and 3 squares a day. From the Sun-Sentinel:

A 71-year-old homeless man who said he robbed a bank to get medical treatment and a jailhouse roof over his head was sentenced Friday to two years and four months in federal prison.

George Hernandez was a longtime customer at the SunTrust bank on Fort Lauderdale's North Ocean Drive until February, when he gave a teller a note claiming he had a gun and walked out with $4,980.

He left in a cab, gave $2,000 to a homeless family he had befriended and paid for his motel room and medication for his chronic lung disease, his lawyer told U.S. District Judge Federico Moreno.

Hernandez, who said he drank 12 beers a day, was arrested a few days after the robbery. He used a wheelchair and oxygen tube in court.

The judge said it was a sad case but Hernandez's age and medical problems were no excuse. He recommended Hernandez serve his time in a federal prison hospital.

Friday, July 11, 2014

Judge Kopf to continue blogging

His explanation is here:
After reading every comment I could get my hands on about whether I should continue to blog (including over 500 blog comments of all sorts, especially critical comments from law professors such as those found here and here, lots of e-mails going both ways but more than a few from experienced lawyers agreeing with my friend, contrasted with spirited support from prominent federal practitioners like that found here and here, together with encouragement from two Nebraska state trial judges and two federal district judges from other districts*) and after a sincere and thorough evaluation of my motivations in writing this blog, I have decided to continue.

...

I care deeply about federal judicial transparency, I don’t see much of that and if I quit there would be even less of it and none of it from federal district judges. The implicit assumption of the thoughtful lawyer who wrote me is that mystery and mythology are better for the legal profession and the judiciary than transparency, particularly when the transparency revealed is raw. I profoundly disagree.

On the contrary, that thinking has brought both the legal profession and the judiciary to the brink of disaster. In these polarized times, why should anyone trust us if we judges, particularly federal judges, are not utterly open to examining our motivations and mistakes before the public for whom we serve? Law is not politics, but that assertion now requires proof, not mere belief. ...

Our blog poll called this one.

Thursday, July 10, 2014

Pizzi opening statements

The Herald covers them here:

In opening statements, Dwyer argued that Pizzi pocketed bribes from a now-convicted Miami-Dade County lobbyist and the undercover agents posing as sleazy businessmen. By dangling bribes in front of him, they talked the mayor into supporting the federal grant proposals purportedly to spur job growth in his community and the neighboring town of Medley.
Dwyer said Pizzi intentionally grabbed the money and campaign checks to line his pockets — a total of $6,750 — knowing that Miami Lakes and Medley would not be benefiting from any federal grants for a jobs feasbility study.
“This case is about a powerful politician who sold his power, who sold his position,” Dwyer told the jurors.
In Pizzi’s defense, Shohat said the federal case was “horribly flawed” on several levels, including the sting operation’s premise, the FBI’s investigative techniques and the prosecution’s get-rich allegation.
“He didn’t sell his office,” argued Shohat, who is handling the defense with three other lawyers, Ben Kuehne, Michael Davis and Ralf Rodriguez. “He didn’t risk his entire career for $6,750.”