Tuesday news and notes

• Although the Supreme Court didn't grant cert on this S.D. Fla. case, it's a pretty big attack of the 11th Circuit's waiver rule. Justices Kennedy and Sotomayor would have granted cert and Justice Kagan, joined by Ginsburg and Breyer, had this to say about the 11th Circuit's rule -- that issues not raised in the initial brief are waived, even if the defendant tries to file a supplemental brief based on a new Supreme Court case decided before the government even response:

And as the above citations show, the circuit courts—once again, bar the Eleventh—have routinely followed that practice in the wake of Descamps.
There is good reason for this near-unanimity. When a new claim is based on an intervening Supreme Court decision—as Joseph’s is on Descamps—the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance. Relying on that misprediction alone to deny relief to an appellant like Joseph while granting it to the defendant in Descamps ill fits with the principle, animating our criminal retroactivity law, of “treating similarly situated defendants the same.” Griffith v. Kentucky, 479 U. S. 314, 323, 328 (1987) (holding that new rules “appl[y] retroactively to all cases . . . pending on direct review”). And indeed, insisting on preservation of claims in this context forces every appellant to raise “claims that are squarely foreclosed by circuitand [even] Supreme Court precedent on the off chance that [a new] decision will make them suddenly viable.” Vanorden, 414 F. 3d, at 1324 (Tjoflat, J., specially concurring). That is an odd result for a procedural rule designed in part to promote judicial economy.
Perhaps for such reasons, even the Eleventh Circuitdoes not apply its default rule consistently when this Court hands down a new decision. Sometimes, as here, the court views its rule as pertaining “uniformly and equally to all cases,” so that a panel becomes simply “un-able to entertain” any claim not raised in an initial brief. United States v. Bordon, 421 F. 3d 1202, 1206, n. 1 (2005). But other times, the court abandons the rule without explanation—including, at least twice, for Descamps claims. See, e.g., United States v. Ramirez-Flores, 743 F. 3d 816, 820 (2014) (addressing a Descamps claim raised “for the first time at oral argument”); United States v. Estrella, 758 F. 3d 1239 (2014) (addressing a Descampsclaim raised first in a Rule 28(j) letter after all briefs were filed); United States v. Levy, 379 F. 3d 1241, 1244–1245 (2004) (per curiam) (acknowledging “a few decisions wherethis Court apparently considered a new issue raised in a supplemental brief ”). Thus, criminal defendants with unpreserved new claims may be treated differently within the Eleventh Circuit, just as they are as between theEleventh Circuit and every other court of appeals.
I nonetheless agree with the Court’s decision today to deny certiorari. We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a “reasoned exercise[ ]” of its authority. Ortega-Rodriguez, 507 U. S., at 244.

•  The University of Miami Law Review will be hosting Justice Stevens and Miami State Attorney Kathy Rundle.  Here's the summary: The University of Miami Law Review Symposium, entitled “Criminalized Justice: Consequences of Punitive Policy,” will take a critical look at how our nation’s laws have been increasingly criminalized over the past 30 years, the negative consequences of this criminalization, and recent positive developments. We will explore this topic through a variety of subjects, including immigration, homelessness, sentencing policy, and race and social class. The Symposium will feature Keynote Speakers Supreme Court Justice John Paul Stevens and Miami-Dade State Attorney Katherine Fernandez Rundle. The Symposium is scheduled for Friday, February 6, 2015 and Saturday, February 7, 2015 on the University of Miami campus in Coral Gables, Florida.

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

That was Anthony Elonis on Facebook talking about his wife.  He got convicted for making threats over the internet and was sentenced to 3 years in federal prison.  This morning, the Supreme Court will hear his case.  From the AP:

The case has drawn widespread attention from free-speech advocates who say comments on Facebook, Twitter and other social media can be hasty, impulsive and easily misinterpreted. They point out that a message on Facebook intended for a small group could be taken out of context when viewed by a wider audience.
"A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed," said a brief from the American Civil Liberties Union and other groups.
But so far, most lower courts have rejected that view, ruling that a "true threat" depends on how an objective person perceives the message.
For more than four decades, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has been careful to distinguish threats from protected speech such as "political hyperbole" or "unpleasantly sharp attacks."
Elonis claims he was depressed and that his online posts under the pseudonym "Tone Dougie" were a way to vent his frustration after his wife left him and he lost his job working at an amusement park. His lawyers say the posts were heavily influenced by rap star Eminem, who has also fantasized in songs about killing his ex-wife.
But Elonis' wife testified that the comments made her fear for her life.
After she obtained a protective order against him, Elonis wrote a lengthy post mocking court proceedings: "Did you know that it's illegal for me to say I want to kill my wife?"
A female FBI agent later visited Elonis at home to ask him about the postings. Elonis took to Facebook again: "Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat."
Elonis was convicted of making threats of violence and sentenced to nearly four years in federal prison. A federal appeals court rejected his claim that his comments were protected by the First Amendment.
The Obama administration says requiring proof that a speaker intended to be threatening would undermine the law's protective purpose. In its brief to the court, the Justice Department argued that no matter what someone believes about his comments, it does not lessen the fear and anxiety they might cause for other people.
"The First Amendment does not require that a person be permitted to inflict those harms based on an unreasonable subjective belief that his words do not mean what they say," government lawyers said.
The National Center for Victims of Crime, which submitted a brief supporting the government, said judging threats based on the speaker's intent would make stalking crimes even more difficult to prosecute.
"Victims of stalking are financially, emotionally and socially burdened by the crime regardless of the subjective intent of the speaker," the organization said.

I posted earlier about Judge Rakoff's article about innocent people pleading guilty.  There's an interesting exchange between Judge Baylson and Judge Rakoff in the New York Review of Books.  Baylson concludes:

No judge wants to see an innocent person prosecuted, convicted, or sent to prison. A criminal justice system must ensure that fundamental principle. Pretending that plea bargains or sentencing guidelines have led to the imprisonment of the innocent is not just incorrect, but impugns the honesty of prosecutors and the diligence of judges.

 And Rakoff's intro from his reply:

Barely a month goes by without someone who pled guilty being exonerated and released from prison. For example, the National Registry of Exonerations recently established by the University of Michigan Law School currently lists 162 such persons, or nearly 11 percent of the 1,476 post-conviction exonerations that have been publicly reported since 1989. If Judge Baylson’s views of the current system were correct, these figures would be zero. Instead, they are just the tip of the iceberg.

To say, as Judge Baylson does, that “most” defendants who plead guilty are in fact guilty simply dodges the issue of how many innocent people are being coerced into pleading guilty by the potential for draconian sentences effectively controlled by the prosecutor. And it is ironic that Judge Baylson should seek to justify federal prosecutors’ prior policy of charging the most serious provable crime as “truth in charging” when, as the Aaron Swartz case mentioned by his father and described below illustrates, the policy often has served not as a reflection of what everyone understood was the true nature of the alleged crime, but as a device to help extract a guilty plea to a lesser offense. Indeed, it was partly this effect that led the current attorney general to abandon the policy, stating that in many cases such a policy was not “appropriate.”

This is an important point:

Judge Baylson suggests both that the defendant has a strong weapon in the form of the presumption of innocence and that the prosecutor has a high burden of proof. But this suggestion really only comes into play if the defendant is willing to take the risk of going to trial and likely suffering a huge sentence if he loses. At the plea bargain stage, moreover, the prosecutor not only credits the un-cross-examined evidence received from his police force but also knows that, since 97 percent of the cases will be resolved by pleas, the prosecutor’s own risk of losing is minimal.

Happy Turkey Day

Hope everyone has a wonderful Thanksgiving.

If you are working today and need a break, check out Judge Martin's 20-page dissent from an en banc denial (another example of no rehearing where the government won).

Or if you want a more fun read, the Miami Herald covered Judge Cooke's book club:

Marcia Cooke, a U.S. district court judge, recalls a Sunday Book Brunch Bunch meeting in which the members met for brunch and stayed past dinnertime.
“We ended up ordering brunch and dinner that time,” she said.
The group of women, which includes an editor, an Urban League of Broward director and an acquisitions manager, meets once a month at different brunch spots to have a book discussion and girl talk.
“These are nice, intelligent, accomplished women who know a lot about literature, education and the community,” said Khamisi Grace, director of programs at the Urban League. “It’s a powerful thing.”
Grace doesn’t always finish the books and doesn’t feel pressured to. She likes having the freedom to admit when she didn’t like a book and debate with other members.
“The best conversations are on books people are in disagreement about,” she said.
When Grace would choose a book for herself, she never used to go with books that had heavy themes. No longer.
“To me, reading is supposed to be a relaxing thing, like watching TV,’’ she said. “I think the books you pick for a book club are different from the books you would pick for yourself because they launch a discussion in a different kind of way.’’
Sandra Seals, an acquisitions manager, said she would have never picked up Fever by Mary Beth Keane, a novel about the first healthy carrier of Typhoid Fever in America.
The group reads anything and everything, but tries to avoid books that depict harm to animals and children. Last month was the exception. They read We Need to Talk About Kevin by Lionel Shriver, about a fictional school massacre and a mother’s attempt to come to terms with the murders her teenage son committed.
“The book was intense,” Cooke said.

Read more here: http://www.miamiherald.com/entertainment/books/miami-book-fair-international/article4060227.html#storylink=cpy

"I'm kind of just fading away."

That's current 11th Circuit Clerk of Court John Ley on his retirement. 

If you are interested in becoming the new 11th Circuit Clerk, check out the announcement here.  Salary is in around $165k.  Alyson Palmer covers the story in this article.

Or if you are interested in becoming the court's Chief Mediator, click here.

More en banc new from the 11th Circuit

This time it's from Judge Rosenbaum's barbershop case, which the blog covered here.  The order granting hearing en banc is just a one-liner vacating the panel decision.




The panel decision started this way:

It was a scene right out of a Hollywood movie.  On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff’s Office descended on multiple target locations.  They blocked the entrances and exits to the parking lots so no one could leave and no one could enter.  With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers’ licenses.  The Orange County Sheriff’s Office was providing muscle for the Florida Department of Business and Professional Regulation’s administrative inspection of barbershops to discover licensing violations.   We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights.  See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity.  See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007).  Today, we repeat that same message once again.  We hope that the third time will be the charm.

This continues the 11th Circuit's en banc history of only granting rehearing when the government loses.