Thursday, February 14, 2019

(UPDATED) "About 20 years ago now, an insightful (and hilarious) lawyer friend of mine said to me—and because this is a family show, I’ll clean it up a bit—“Not everything that s[tink]s violates the Constitution.” If ever a case proved the truth of that little nugget, this is it."

That's Judge Kevin Newsom in this concurring opinion.  I really like this new style of accessible (and fun) writing.  You see it with Kagan on the Supreme Court and with some of the younger judges on the 11th Circuit like Rosenbaum and Newsom. 

UPDATE -- On Friday afternoon, Judge Newsom wrote this concurring and dissenting opinion in U.S. v. Caniff.  It starts this way:
 If forced to choose a favorite movie, I’d have to go with A Man for All Seasons, which chronicles Sir Thomas More’s heroic, principled-to-the-death stand against King Henry VIII’s effort to procure a divorce from Catherine of Aragon—and in the process anoint himself the head of his own newly-formed church. (Christopher Nolan’s Inception runs a close second, for sheer mind-blowing awesomeness, but I digress . . . .) My favorite scene from my favorite movie: a testy dialogue between More and his son-in-law-to-be, the ever-zealous Richard Roper. Roper, anxious that the opportunistic hanger-on Richard Rich intends to double-cross More, who was then serving as the Lord Chancellor of England, pleads (along with More’s wife and daughter) to have Rich arrested on the ground that he’s “bad”—to which More responds, impassively, “There’s no law against that.” To the objection that while they go on “talk[ing],” Rich has “gone,” More rejoins, more emphatically: “And go he should even if he were the Devil himself until he broke the law.” Then, this gem—

Roper: So, now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

* * *

I knew this day would come—eventually, I’d have to hold my nose and cast (and then explain) a vote that I found utterly nauseating. Well, here we are. I couldn’t agree more with the majority—and the staffer-drafters of H.R. Rep. No. 99-910, whoever they were—that “[o]f all the crimes known to our society, perhaps none is more revolting than the sexual exploitation of children, particularly for the purposes of child pornography.” Maj. Op. at 16. And happily for me, Congress has given prosecutors plenty of ammunition to try, convict, and sentence the purveyors and consumers of child porn. But, I respectfully submit, the majority’s construction of 18 U.S.C. § 2251(d)(1)—to hold that when Caniff sent a private, person-to-person text message requesting explicit photos he “ma[de]” a “notice” for them—stretches that particular provision beyond the breaking point.
To be clear, I’m not suggesting that Caniff is the “Devil himself” (although the crimes of which he has been convicted are most assuredly devilish). Nor am I any way intimating that the majority’s construction of § 2251(d)(1) is tantamount to “cut[ting] down every law in [America]”—the majority’s interpretation is plausible, even if (I think) incorrect. And I am most certainly not casting myself in the role of the inimitable More. I’m simply saying that as badly as I’d like to get Caniff—to see him rung up on every count of the indictment—my job is to take the law as I find it, and however regrettable it may be to me, I cannot conclude that § 2251(d)(1) reaches Caniff’s conduct here.

Tuesday, February 12, 2019

One huge trial in the books; another one just started

The El Chapo jury just came back with a guilty verdict.

Meantime, opening statements were held this morning in the Esformes case before Judge Scola.  Via the AP:
A Florida health care executive used bribery, kickbacks and false paperwork in a $1 billion effort to fleece Medicare and Medicaid, one of the biggest such cases in U.S. history, a federal prosecutor told jurors Tuesday.

But an attorney for 50-year-old Philip Esformes told jurors as trial began in Miami that he was no criminal but a driven businessman who legitimately operated more than 20 nursing homes and assisted living facilities in Florida.

The opening statements kicked off a trial expected to last about eight weeks. Esformes faces decades in prison if convicted because of the scope of the alleged fraud committed between 2006 and 2016. There are also allegations that he bribed a college basketball coach in an effort to get one of his sons on the team.

Assistant U.S. Attorney Elizabeth Young told the jury the fraud involved four steps: bribing doctors to refer patients to Esformes’ facilities, moving them to other facilities when their Medicare eligibility at the first place expired, selling access to patients to others so they could also defraud the government programs, and then starting the process again.

“I happened over and over and over again,” Young said. “Rinse and repeat. And it happened for 10 years.”

Prosecutors say the Esformes network and co-conspirators falsely billed Medicare alone for $1 billion during the scheme, of which about $500 million was paid. Much of the evidence relies on audio recordings between Esformes and two co-conspirators who were secretly cooperating with the FBI and have previously pleaded guilty, Young said.

“He was the mastermind. He made this happen. The evidence will show he was involved every step of the way,” Young said.

Esformes attorney Roy Black, however, told jurors they should be skeptical of the motivations and backgrounds of many government witnesses, including convicted co-conspirators Gabriel and Guillermo Delgado.

“They have stacked their case with con artists, liars, fraudsters and even drug traffickers,” Black said. “We will try to expose all that we can.”

Monday, February 11, 2019

“OPR should investigate real prosecutorial misconduct, not Secretary of Labor Alex Acosta”

That’s the title of my latest piece in The Hill.  Below is the introduction, but please click here to read the whole thing:
Prosecutorial misconduct is rampant in the criminal justice system.  From intimidating witnesses, to hiding exculpatory information, to anonymously blogging to influence jurors, to spying on criminal defense attorneysto knowingly putting on false testimony, all the way to setting up innocent men. It’s seriously depressing.
Just as depressing as the widespread misconduct itself is the fact that nothing is being done about it. Prosecutors are immune from being sued, convictions affected by misconduct routinely get affirmed because courts find that the misconduct was not “prejudicial,” and nothing ultimately happens to the wrongdoers. They generally keep their jobs, without even a smack on the hand.
Although there’s an office assigned to look into prosecutorial misconduct, called the Office of Professional Responsibility (“OPR”), that office almost never takes any action against bad prosecutors and keeps its findings private. OPR is such a joke that it often rejects even the rare judicial finding of prosecutorial misconduct. One study showed that during a three year period, there were 60 cases of serious judicial criticisms or findings of misconduct and yet OPR found no wrongdoing by any of these prosecutors.
Instead of taking action against bad prosecutors, it was just publicly announced that OPR will be investigating Secretary of Labor Alex Acosta for his handling of the Jeffrey Epstein case ten years ago when he was the U.S. Attorney in South Florida. For those of us who care about real prosecutorial misconduct, this news is truly absurd.

Friday, February 08, 2019

SCOTUS vacates CA11 stay of execution

One of the most conservative judges on arguably the most conservative appellate court in the country granted a stay of execution this week because the Muslim inmate was denied his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber. The very next day, an even more conservative Supreme Court lifted the stay and allowed the execution to go forward in a 5-4 decision.

Justice Kagan explains in her dissent:
To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.

Tuesday, February 05, 2019

SOTU addresses criminal justice reform

Despite all of the partisan clapping/sitting during the State of the Union, there was one nice moment of bipartisanship. It came during the discussion of criminal justice reform. The First Step Act got everyone standing as it was a joint effort. Who would have thought criminal justice reform would be the issue that brought the two sides together? But so much more needs to be done. The United States has more individuals in prison than any other country and more than Russia and China combined. It’s just insane.

Meantime, the President only gets 4 Supreme Court Justices at the SOTU: Roberts, Kagan, Gorsuch, and Kavanaugh.

I don’t think we’ve seen that lineup on a case yet. I wonder if we ever will.