Book review Bum Rap by Paul Levine

If you're looking for a fun summer read, pick up Paul Levine's latest novel, Bum Rap. Miamians and those of you in the criminal justice system will enjoy it.

It takes place in Miami and the set-up is the B-girl case, which the blog covered in detail. You'll see lots of familiar places, including the Justice Building. And you'll also see lots of familiar names, including Roy Black and Levine's wife Marcia Silvers. I won't ruin it with all of the Miami references, which are fun to see as you go.

Good stuff!

11th reverses honest services conviction

Jury instructions were the cause in United States v. Aunspaugh:

This is an honest-services fraud case. On one view of the evidence, the defendants participated in a classic kickback scheme. On another view, the scheme involved an egregious conflict of interest but no kickback. Under Skilling v. United States, 561 U.S. 358 (2010), the defendants’ conduct constituted honest- services fraud only on the first view, not the second. Because the jury instructions would have allowed a conviction on either view of the evidence, we vacate the honest-services convictions. We also vacate other convictions that depend on the honest-services convictions. But we uphold convictions for structuring financial transactions not dependent on the honest-services convictions. 

The panel also said this about acceptance at the new sentencing:

We add one other note about sentencing. The Aunspaughs argue that the district court improperly inferred a lack of remorse because they chose not to plead guilty but remained silent instead. They argue that the court’s consideration of these things violated their constitutional rights. See, e.g., United States v. Rodriguez, 959 F.2d 193, 197 (11th Cir. 1992) (noting that a district court may weigh remorse in a defendant’s favor but must not “weigh against the defendant the defendant’s exercise of constitutional or statutory rights”). Because we remand for resentencing, we do not address this issue today. The district court should resentence the defendants without weighing against them their exercise of constitutional rights.

 

Unpublished, yet enbancworthy?

A few months ago we wrote about an Eleventh Circuit unpublished decision affirming a major upward variance for a relatively minor crime (though committed by a defendant with a lengthy criminal history). The panel’s decision not to publish the decision seemed “unusual,” and we suggested that, because it was unpublished, “the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts.”

Perhaps that view was overstated. Last week Fifth Circuit Judge Jerry E. Smith, joined by three of his colleagues, dissented from the denial of rehearing en banc of an unpublished decision reversing a district court’s denial of habeas relief. To Judge Smith, the “panel majority’s obvious error cries out for correction.” In his view, the “opinion is enbancworthy because, even though unpublished, it infects our entire habeas jurisprudence.”

The defendant’s lawyers in the Eleventh Circuit case filed a petition for rehearing en banc. Today, however, the petition was denied in a one-line order. It simply wasn’t enbancworthy.

***

In related news, the Eleventh Circuit last week affirmed the conviction and sentence of a former Rothstein Rosenfeldt Adler lawyer for her role in the Ponzi scheme. In affirming her 5-year sentence, Judge Linn, sitting by designation and writing for the court, ended the (unpublished) opinion this way:

The district court’s sentence of 60 months is also substantively reasonable. In this case, had there been no loss, the parties agree that the guidelines suggested a sentence of 8–14 months. The problem for Kitterman is that the guidelines are intended for normal cases and, for a number of reasons, her case is anything but. First, Kitterman impersonated an official of the Florida Bar. Second, as the district court explained, this case will put people on notice that if “they do a fraud, and at the time they do it, they don’t appreciate the consequences of that fraud, there will be consequences if they are apprehended.” Third, while it is perhaps impossible to estimate what value Kitterman ascribed to the Bar complaints, the district court was correct that “it would blatantly be wrong to say [the intended loss] had no value.” Thus, a zero loss here does not, as might normally be the case, suggest that Kitterman’s intent was less pernicious. Fourth, this case is unusual because, as the district court noted, Kitterman was a lawyer and should have appreciated that “what [she was] doing is wrong.” Fifth, Kitterman’s sentence is also justified by the fact that Steven Caputi—who posed as a banker to deceive investors but who also did not know about the Rothstein Ponzi scheme—received a similar sentence of five years. Finally, Kitterman’s sentence is significantly below the total statutory maximum of 60 years imprisonment for the three wire fraud convictions.

Are criminal trials fair?

Judge Kozinski says no way in this really interesting read from the Georgetown Annual Review of Criminal Procedure.  His main points, as summarized by Business Insider:

1. Eyewitnesses are highly reliable

Eyewitnesses are highly unreliable, especially when the witness and perpetrator are of different races, or when witnesses are asked to recall a situation in which they were under the stress of violent crime or catastrophe, Kozinski writes. Mistaken eyewitness testimony was a factor in one-third of all wrongful conviction cases, according to his article.
Jed Rakoff, another well-known federal judge, made the same point in a Washington Post op-ed this year.

2. Fingerprint evidence is foolproof

Kozinski says prints left in the field are often smudged and incomplete — making them difficult to identify. He adds that when tested by more rigorous scientific methods, fingerprint examiners have a significant error rate.
The National Academies of Sciences has also said the work of fingerprint examiners can be flawed. 

3. Other types of forensic evidence are scientifically proven and therefore infallible

Aside from DNA evidence, Kozinski says what is true about fingerprint evidence is doubly true about bloodstain-pattern identification, foot- and tire-print identification, and ballistics.
"Some fields of forensic expertise are built on nothing but guesswork and false common sense," Kozinski writes. 
Recently, the Justice Department exposed major problems with microscopic hair testing in criminal cases. 

4. DNA evidence is infallible

Kozinski says the integrity of DNA evidence is often compromised during the collection, preservation, and testing process, and that DNA examiners are not always competent and honest.
As Mother Jones noted in April, "Real-life crime labs are a total mess."

5. Human memories are reliable

Kozinski, citing a study by cognitive psychologist Elizabeth Loftus, believes the mind not only distorts and embellishes memories, but that external factors affect how memories are recalled and described. 
In an interview with Slate, Loftus acknowledged that we're all capable of fabricating memories. 
"We all have memories that are malleable and susceptible to being contaminated or supplemented in some way," Loftus told Slate. 

6. Confessions are infallible because innocent people never confess

Kozinski has found that innocent people confess surprisingly often, due to a variety of factors including interrogation tactics, Stockholm syndrome, emotional or financial exhaustion, family considerations, and general feeble-mindedness. 
As The New Yorker has reported, police can also produce false confessions by using a certain interrogation technique. 

7. Juries follow instructions

Kozinski claims courts know very little of what juries do when they decide cases. Courts have no way of knowing whether juries follow instructions or even whether they understand them, according to Kozinski. 
"We have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases," Kozinski writes.

8. Prosecutors play fair

Kozinski believes prosecutors often fail to turn over evidence that could be favorable to the defense, known as exculpatory evidence. In a case called Brady v. Maryland, the Supreme Court ruled that prosecutors have to turn over that evidence. But Kozinski claims there's an "epidemic" of Brady violations in America. 

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt

In reality, Kozinski writes, the defendant is often at a disadvantage because prosecutors have the chance to argue their case before the defense during a trial.
That's troubling because of psychological evidence showing that "whoever makes the first assertion about something has a large advantage over everyone who denies it later," according to Kozinski.

10. Police are objective in their investigations

Kozinski says police have the opportunity to alter or remove evidence, influence witnesses, extract confessions, and more or less lead an investigation in such a way that they can stack the deck against somebody they believe should be convicted.
"There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence," Kozinski writes. 

11. Guilty pleas are conclusive proof of guilt

Kozinski has found that when a defendant believes an outcome is highly uncertain or stacked against them, they might cave and enter a guilty plea to a lesser charge so that they can still salvage a part of their life.
Judge Jed Rakoff has also lamented the fact that 97% of federal criminal defendants plead guilty if their cases aren't dismissed. 

12. Long sentences deter crime

America has 716 prisoners for every 100,000 people — the most of any country in the world, Kozinski notes. America also has much longer sentences than other countries for comparable crimes. Kozinski points out that a burglary charge in the US warrants an average of 16 months in prison, compared with five months in Canada and seven months in England.
"As with much else in the law, the connection between punishment and deterrence remains mysterious," Kozinski writes. "We make our decisions based on faith."

Meantime, there are a bunch of criminal trials starting this summer, which are expected to last over a month.  One just started before Judge Martinez, so if you are looking for something for your interns to do... send them over to watch a federal trial!

Happy 10th Birthday to the Blog!

The Southern District of Florida Blog shares its birthday with the U S of A.  The blog turns 10 this year.  And America is 239, not 2015.

The very first post 10 years ago asked for President Bush to appoint a Floridian to the Supreme Court.  Although the Court did get its first Hispanic jurist, it did not get a Floridian.  Hopefully one day soon!

Since then, the blog has had 2835 posts and more than 2 million views.

Thanks to all of my tipsters and readers.  It's been a fun 10 years.

--David