The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Colombia’s top anticorruption prosecutor was arrested Tuesday in his country’s capital after Drug Enforcement Administration
agents in Miami said they had recorded him in South Florida at meetings
where a former Colombian governor was asked to pay bribes in exchange
for favorable treatment and names of witnesses.
The
arrest is a blow to Colombia’s president, Juan Manuel Santos, whose
conservative critics have accused his administration of mismanagement.
In April, more than 10,000 people took to the streets to protest what
many say is widespread graft.
The
prosecutor ensnared in the latest case, Luis Gustavo Moreno Rivera, 35,
is the director of the anticorruption unit of the attorney general’s
office in Colombia. Mr. Moreno was under scrutiny by federal
investigators in the United States because of accusations that he
planned to seek a bribe from a criminal defendant while in Miami this
month to deliver an anticorruption presentation to the Internal Revenue
Service.
“With indignation and profound institutional pain,” the Colombian attorney general’s office said Tuesday, Mr. Moreno was held after Interpol issued a red notice “for conduct that seriously damages our institutional integrity.”
This is a really funny note from Justice Rehnquist to Justice Marshall, expressing end-of-school-itis. Today is the last day of the Term, and you can get all of your news at SCOTUSblog.
Last week, the Supreme Court gave permanent resident Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, leading to Lee's deportation. The twist here is that Lee's chances to win at trial were almost nil and therefore, he would get deported anyway. So can a lawyer be ineffective for telling a defendant to plead guilty where the proof of guilt is overwhelming? Chief Justice John Roberts, in his opinion for the court, said yes and explained that pleading guilty was a certain deportation and going to trial was an "almost" certain deportation. Had Lee known this, he would have opted for trial even in the face of overwhelming odds. I particularly liked NACDL's* amicus (available here), which explains that "funny things happen" at trial:
For all types of litigants, “there is no such thing as
a sure winner . . . at trial” and “juries are inherently
unpredictable.” Miller UK Ltd. v. Caterpillar, Inc., 17
F. Supp. 3d 711, 739–40 (N.D. Ill. 2014). Taking a
case to trial may be more than just a “Hail Mary.”
See Pet’r Br. at 30. Instead, it is a key part of
criminal procedure that has nothing to do with
“whimsy” or “caprice,” and everything to do with
putting the government to its proof. Strickland v.
Washington, 466 U.S. 668, 695 (1984).
Funny things happen on the way to, and at, the
forum.12 The annals of criminal law are replete with
unexpected developments and shocking results in the
courtroom. A variety of factors influence a jury ver-
dict, or a non-verdict. Trial practices affect trial out-
comes. For example, juror note taking practices, the
jury’s ability to ask the witnesses questions, the jury’s opportunity to discuss evidence before delibera-
tion, jury instructions, juror sequestration, and the
length of the deliberations may affect the outcome of
a trial. Paula L. Hannaford-Agor, When all eyes are
watching: Trial characteristics and practices in noto-
rious trials, 91 Judicature 197, 200 (2008). Mr. Lee
may reasonably weigh these factors, as well as those
that affect a hung jury, against accepting his plea
bargain. See Paula Hannaford-Agor et al., Why Do
Hung Juries Hang? 251 Nat’l Inst. Justice J. 25, 26–
27 (July 2004). Many factors influence a hung jury,
separate from jury nullification—the quality of the
evidence, the degree to which jurors believe that the
law they are instructed to apply is fair, and the jury
deliberation process. Id. For example, a survey in the early 2000s revealed “39 percent of potential white
jurors and 50 percent of potential black jurors would
be ’very willing’ or ‘mostly willing’ to acquit, despite
evidence of guilt, in a first-time, nonviolent drug pos-
session case.” DeBartolo, 790 F.3d at 779 (citing
Lawrence D. Bobo and Victor Thompson, “Racialized
Mass Incarceration: Poverty, Prejudice, and
Punishment,” in Doing Race: 21 Essays for the 21st
Century 343 (Hazel R. Markus & Paula Moya eds.,
2010) (Fig. 12.9)).
*Full disclosure -- I am on NACDL's Supreme Court amicus committee, but did not participate in this brief.
One of the dirty little secrets of the criminal justice system is implicit bias. This article by the Marshall Project shows what one district court is doing about the problem:
There’s something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named “Jury Lounge.” But in one federal district, the customary civics lessons for jurors have been given a twist to alert them to the hidden biases they might bring into the courtroom.
The source is a 10-minute video — believed to be the first of its kind — that since March has been shown to every prospective juror in the two federal courthouses, in Seattle and Tacoma, that serve the U.S. District Court for the Western District of Washington.
The video — which cost the court $15,000 to make — complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district’s U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffrey Robinson, an attorney for the American Civil Liberties Union who started his career as a criminal defense lawyer.
“You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam,” Robinson says in the video, describing examples of conscious — or explicit — bias. “Today, though,” he says, speaking slowly and looking directly into the camera, “I want to talk to you about unconscious bias: something we all have, simply because we’re human.”
Here's the video:
Will our District employ such a video?
Judge Milton Hirsch's Constitutional Calendar has this entry today:
On June 22, 1933, in the Limestone County, Alabama, Courthouse, Judge James Edwin Horton did one of the bravest and most principled things a judge can do.
Judge Horton had presided over the trial of Haywood Patterson, one of the "Scottsboro Boys." Patterson was a young black man charged in connection with the rape of two white women; and although it was perfectly obvious that there was no real evidence against him, he had been convicted with a recommendation for death. Horton had been cautioned by an emissary from the state capitol that if he were to grant the defense motion to set aside the verdict and order a new trial, there would be no chance of his being re-elected. "What does that have to do with the case?" he replied.
On that warm day in June, Judge Horton read aloud in open court every word of his order. It took over an hour. The defense motions were granted.
As he knew he would be, Horton was defeated overwhelmingly in 1934, and never served as a judge again. Haywood Patterson was re-tried in a case presided over by Judge William Callahan, who instructed the jury, inter alia, that if there was evidence of intercourse between a white woman and a black man, the intercourse was presumed as a matter of law to be rape.
If you'd like to be added to Judge Hirsch's email list, contact him at milton.hirsch@gmail.com
