Florida death penalty found unconstitutional

Judge Milton Hirsch's order is affirmed.  And Judge Martinez is vindicated.  The New York Times has the story:

The Florida Supreme Court ruled Friday that the death penalty cannot be imposed without the unanimous support of a jury, deepening the recent turmoil around capital punishment in a state with a long history of executions.

One of Friday’s decisions, in a case that previously reached the United States Supreme Court and upended Florida’s death penalty system, said that the Eighth Amendment, which forbids cruel and unusual punishment, and Florida state law effectively mandated consensus in capital cases. The court said in a separate case that a new state law, which allowed for the death penalty when 10 of 12 jurors agreed, was unconstitutional.

“Requiring unanimous jury recommendations of death before the ultimate penalty may be imposed will ensure that in the view of the jury — a veritable microcosm of the community — the defendant committed the worst of murders with the least amount of mitigation,” the Florida court said in siding with Timothy L. Hurst, a death row inmate whose appeal led lawmakers early this year to rewrite the state’s death penalty law.

Referring to a 1958 United States Supreme Court opinion invoking the Eighth Amendment, the Florida court added, “This is in accord with the goal that capital sentencing laws keep pace with ‘evolving standards of decency.’”

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Manrique oral argument summary

From SCOTUSblog is here:

For most of Tuesday’s 53-minute oral argument in Manrique v. United States, the Supreme Court seemed caught between two very different ways of looking at the question presented — whether a notice of appeal from an initial judgment of conviction and sentence in a federal criminal case can also encompass a challenge to the district court’s subsequent restitution determination under the Mandatory Victims Restitution Act. On one hand, as Assistant Federal Defender Paul Rashkind argued on behalf of petitioner Marcelo Manrique, there is a longstanding norm that one notice of appeal suffices in criminal cases, so the court of appeals erred by holding that it could not reach Manrique’s challenge to the amount of restitution ordered in his case because he did not separately notice an appeal from that judgment. On the other hand, as Assistant to the Solicitor General Allon Kedem argued on behalf of the United States, the Federal Rules of Appellate Procedure don’t appear to cover such a situation – and it would be unprecedented to allow a notice of appeal to encompass matters that have not yet been determined. And although predicting a result based upon oral argument is always a fraught proposition, the six justices who asked questions certainly seemed to be leaning toward the government’s view by the end of the session.

And here is the transcript.  Paul Rashkind did a great job arguing with a skeptical bench.  Requiring a defendant to file two notices of appeal seems so formalistic and silly to me.  The simply solution is to have one notice that covers both the sentence and restitution.  But I guess that's too easy?

And what's with Justice Breyer -- he has just gotten so crotchety lately.  Yes, he has been really bad for defendants for a while now, but he used to be polite about it.

Paul Rashkind goes to DC, part 2

Appellate lawyer extraordinaire Paul Rashkind (from the FPD's office in Miami) will be arguing his second Supreme Court case this morning.  It's Manrique v. U.S. and SCOTUSblog has the preview here:

When defendants are convicted of federal crimes, district courts will often enter two different judgments: an initial judgment of conviction and sentence, and a subsequent, amended judgment of restitution after a hearing under the Mandatory Victims Restitution Act. In its 2010 decision in Dolan v. United States, the Supreme Court held that, so long as the initial judgment includes a deferred order of restitution, an amended, post-hearing judgment fixing the specific amount of restitution does not have to comply with the MVRA’s 90-day deadline for restitution awards, because the latter judgment was simply attaching an amount to the restitution already ordered by the former judgment. And although the court in Dolan noted the potential consequences of the interaction of such bifurcated restitution orders with appellate time limits, it left resolution of such questions “for another day.”


That day appears to have come, with the justices set to hear argument next Tuesday in Manrique v. United States. Marcelo Manrique pled guilty to one count of possession of material involving a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2), and was sentenced to 72 months’ imprisonment; a life term of supervised release; and deferred restitution – recorded as $0 in the initial judgment, but determined after a hearing to be $4,500. Manrique filed a notice of appeal from the initial sentencing judgment, but not from the amended post-hearing judgment. This shortcoming, the U.S. Court of Appeals for the 11th Circuit ruled on its own motion, deprived the appeals court of jurisdiction to consider a challenge to the appropriateness of the restitution award. Manrique asked the Supreme Court to review the lower court’s decision.

Federal Courts closed, but schools are open.

So is your office open today?

Are your offices open today?

Yes because schools are open.

Yes because Columbus day is not a holiday.

No because federal courts are closed.

No because Columbus day is a holiday.

Yes because there were two hurricane days last week and we need to get back to work.

My office is open but I'm staying home.

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Last week, Judge William Pryor came out with this doosy:

This appeal requires us to decide two issues: whether student speech that objects to the pedagogy of officials of a public college is “school-sponsored” expression under the First Amendment and whether an invasive ultrasound constitutes a “search” under the Fourth Amendment when performed for instructional reasons instead of investigative or administrative reasons. After several employees of Valencia College encouraged students to submit voluntarily to invasive ultrasounds performed by peers as part of a training program in sonography, some students objected. The employees then allegedly retaliated against the objecting students and successfully pressured two students to undergo the procedure. The students filed a complaint against the employees, which the district court dismissed for failure to state a claim. Because the district court erroneously classified the students’ speech as school-sponsored expression and the district court erroneously ruled that the ultrasound was not a search under the Fourth Amendment, we vacate the order dismissing the complaint and remand for further proceedings.