Should we have a "Defender General?"

Daniel Epps and William Ortman make the pitch for a Defender General in this forthcoming piece:

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

I haven't thought through all the pros and cons of a DG, but if we are going to have one, I nominate Michael Caruso.

News & Notes

1.  Fane Lozman, of Supreme Court fame, has settled his case against Riviera Beach to the tune of $875,000.  Good for him!

2.  Michael Munday's case was affirmed by the 11th Circuit.  No issues with playing clips from Cocaine Cowboys at trial.

3.  Should Apple be forced to open an iPhone from accused defendants?  The NY Times covers this recurring debate here.

4. Michael Avenatti was supposed to start trial next week in New York (with Miami criminal defense lawyers), but he was arrested last night in connection with his California case.  The feds allege that he was violating his bond conditions. 

5.  Mike Flynn wants to withdraw his guilty plea.  I've never understood judges who deny these motions.  (There are some judges in this District who always grant them, which seems like the right move.)  If he wants a trial, let him have his trial!

RIP Magistrate Judge Barry L. Garber

A good man, he will be missed.

Garber was a no-nonsense judge on the bench.  Off the bench, he was a tall teddy bear.  He was appointed back in 1991, and died last night at 89.  RIP.

UPDATE -- services will be held on January 15 at 10:30am at Riverside Mount Nebo Kendall (5900 SW 77th Avenue).

What sentence should Michael Flynn get?

Once upon a time, the government said something other than prison.

But now it is asking for 6 months in this memo. From the Washington Post:

The government revoked its request for leniency weeks after Flynn’s sentencing judge categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election. “In light of the complete record . . . the government no longer deems the defendant’s assistance ‘substantial,’ ” prosecutor Brandon Van Grack wrote in a 33-page court filing. He added, “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request Jan. 22.

The request marked the latest twist in the legal saga of the former Army lieutenant general and adviser to President Trump, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days — before resigning in February 2017. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him with helping them.

Flynn’s change of heart came after the end of special counsel Robert S. Mueller III’s probe of Russian election interference. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly Flynn. A potential prison term could renew such calls.

Flynn, 61, pleaded guilty Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office.

***

This year Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging Flynn had been entrapped into pleading guilty and prosecutors wrongfully withheld evidence. Flynn also broke with prosecutors in the July federal trial of his former business partner Bijan Rafiekian, on charges of illegally lobbying for Turkey. Flynn was set to be the star witness against Rafiekian. He told a grand jury he and Rafiekian campaigned “on behalf of elements within the Turkish government,” a project that included an op-ed under Flynn’s name on Election Day in 2016. But just before the trial, Flynn claimed prosecutors wanted him to lie. A jury convicted Rafiekian without Flynn’s testimony, but a judge threw out those convictions in part because he found “insufficient” evidence of a conspiracy between the two men or of the Turkish government’s role....

In withdrawing their request for leniency, Flynn’s prosecutors highlighted his hindrance of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.” The government recommended zero to six months of incarceration for Flynn, citing “the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian.”

Prosecutors backed their claim Tuesday by filing dozens of pages detailing Flynn and his lobbying firm’s misconduct, including grand-jury transcripts and FBI interview reports. Overall, prosecutors said Flynn participated in 19 interviews with federal prosecutors and turned over documents and communications. The substance of his cooperation was initially hidden, but most has come out in Mueller’s final report, subsequent trials or public records released as a result of lawsuits filed by news organizations.

Fascinating debate in the 11th Circuit about juror deliberations and divine intervention

Can a juror base his decision to vote not guilty because that's what "the Holy Spirit" told him to do?  This is a really interesting one because Judge Rosenbaum writes the majority opinion in which she says that the district court was justified in excusing the juror:

If the right to a jury trial means anything, it means a right to a verdict based on the evidence. Indeed, the entirety of our procedural mechanisms is geared to achieve this result: we have trials so we can ensure all jurors consider the same universe of evidence; we have an entire body of rules—the Federal Rules of Evidence—devoted to controlling the information on which jurors can rely in reaching their decision; and we expressly instruct the jurors that they must determine their verdict based on the evidence. Then, if a defendant loses at trial, on appeal, we review the record to be certain that sufficient evidence supports the verdict.
We do these things to try to ensure that only those proven guilty based on admissible evidence will be convicted and to try to prevent convictions that arise from prejudice or even ostensibly noble reasons—such as a juror’s belief that God has told him to convict, irrespective of the evidence. The consistent application of these practices underpins the public’s faith in the jury system and delivers due process of law, an ideal in which our system of justice is grounded.
So we must steadfastly insist that a deliberating juror who is incapable of reaching a verdict based on the evidence be dismissed, regardless of whether that juror intends to convict or acquit a defendant. If we do not, we guarantee that, under at least some circumstances, a juror who is unable to arrive at a verdict rooted in the evidence will nonetheless be allowed to convict a defendant. That is unacceptable.
Here, the district court became aware that during deliberations, Juror 13 in Defendant-Appellant Corrine Brown’s trial made remarks suggesting he might not base his verdict on the evidence adduced at trial. Specifically, Juror 13 informed the other jurors at the outset of deliberations that “[t]he Holy Spirit told [him]” that Brown was not guilty on all counts.
The district court questioned Juror 13 for a while, in the presence of the parties, to ascertain whether Juror 13 meant that he had prayed to the Holy Spirit for guidance and wisdom in reaching a verdict based on the evidence—which would not run afoul of the court’s instructions to return a verdict based on the evidence—or whether he meant instead that he believed the Holy Spirit had “told” him to return a certain verdict irrespective of what the evidence showed—which would violate the court’s instructions. Based on Juror 13’s responses and demeanor, the district court concluded that Juror 13 was not capable of rendering a verdict rooted in the evidence presented at trial but that, despite his best intentions, Juror 13 would instead arrive at a verdict based on his perceived divine revelation, uninformed by the actual evidence. For this reason, the district court dismissed Juror 13 from the jury.
We find no clear error in the district court’s factual findings. And for that reason, the district court certainly did not abuse its discretion in dismissing Juror 13 from the jury. To hold otherwise would undermine our system of justice by allowing jurors to return verdicts based not on the evidence or law, but instead on a juror’s perceived divine revelation, irrespective of the evidence. Though here, the juror’s perceived divine revelation might have worked in the criminal defendant’s favor had the district court not learned of it mid-deliberations, a contrary holding would allow criminal defendants to be convicted based on a divine revelation divorced from the evidence, rather than the evidence presented at trial—a troubling result, to say the least. And regardless of whether it works in favor of or against the defendant, a rule that would allow a juror to base his verdict on something other than the evidence would be antithetical to the rule of law and is contradicted by decades of precedent.
Brown also raises a challenge to the forfeiture order the district court entered. We find no error there, either. We therefore affirm Brown’s convictions.

Judge William Pryor dissents and says the conviction should be reversed:

Do each of you solemnly swear that you will well and truly try the case now before this court and render a true verdict, according to the law, evidence, and instructions of this court, so help you God?

Every juror who was empaneled in Corrine Brown’s criminal trial swore this oath. One of them was dismissed because he apparently meant it. By approving his dismissal, the majority erodes the “tough legal standard” governing the removal of deliberating jurors and imperils the sanctity of the right to trial by jury. United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001) (requiring that juror misconduct be proven “beyond reasonable doubt” before dismissing a deliberating juror). And it does so in an especially troubling manner: after admitting that “one reasonable construction” of the record supports the view that this juror rendered proper service, it holds that the district court’s adverse reaction to the way this juror talked about God nevertheless proved “beyond a reasonable doubt” that the juror engaged in misconduct. Majority Op. at 29–31 (emphasis added).
Over an hour and a half on the third day of jury deliberations, the district court investigated a concern about a juror who, on the first day, reportedly twice used religious language to express his position. During that hour and a half, the suspect juror repeatedly affirmed that he was basing his decision on the evidence. He even explained that he considered it his religious duty to do so. The district court thought he meant what he was saying; in the district court’s words, the suspect juror was “very earnest” and “very sincere.” The other juror who had raised the concern agreed that the suspect juror was deliberating, and she implied that he had not said anything worrisome during the second day of deliberations. Indeed, she never even accused him of misconduct.
But none of these encouraging signs mattered once the suspect juror confirmed that, near the start of deliberations, he had said something to the effect of “the Holy Spirit told me that Corrine Brown was not guilty on all charges.” With next to no context—and no other evidence of misconduct—the district court deemed this statement “an expression that’s a bridge too far, consistent with jury service as we know it,” and conclusive proof that the juror was “using external forces to bring to bear on his decision-making in a way . . . inconsistent with his jury service and his oath.”
To be sure, the risk of juror misconduct in deliberations is one of the most sensitive problems that can arise in a criminal trial, and the district court took its responsibilities seriously. Alas, to err is human, to forgive divine, but forgiveness is not a comfort afforded to a court of appeals. And the district court’s error in this appeal is clear. If this devout juror’s religious language alone proved his misconduct “beyond reasonable doubt,” Abbell, 271 F.3d at 1302, then the phrase “reasonable doubt” has changed its meaning.
The majority opinion suffers from several flaws. Foremost, it fails to adhere to our precedents governing the dismissal of a juror. Our precedents impose a “tough” standard of proof—indeed, the highest standard of proof known to law, “beyond a reasonable doubt”—before a district court can purge a deliberating juror. After paying lip service to this standard, the majority ordains district courts with broad discretion to dismiss any juror who confesses receiving guidance from God. But the majority fails to view that discretion through the lens of the tough standard imposed by our precedents, and so it fails to appreciate why the limited record below does not satisfy our standard. The majority then compounds these errors by misconstruing the import of the juror’s religious statements—which were spoken in the vernacular of a substantial segment of our citizenry—and by failing to understand why these statements were not conclusively disqualifying. The upshot of these errors is that the majority’s decision makes it far more difficult for the citizens of our Circuit to be judged by juries that represent a cross-section of their communities. Indeed, it even provides discriminating lawyers with a tool to target and eliminate certain demographics from jury service. For example, African American and evangelical Christians are more likely than others to believe that God speaks to them, and the majority’s decision now requires that these eligible jurors be stricken for cause if a discriminating lawyer elicits during voir dire that God communicates with them. For these reasons, I must dissent.

For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.