Thursday, February 28, 2013

Verdict in Steiner case

The verdict is in for Steve Steiner and Henry Fecker. It was a 54 count indictment. Fecker was found not guilty of all counts and Steiner was found not guilty of about 75% of the counts. Trial was before Judge Kathy Williams.

Wednesday, February 27, 2013

Interesting Jury Question in Khan case (UPDATED)

And here's Judge Scola's response:

Thanks very much to my tipster!

UPDATE -- here's the latest question.  Fascinating!

Another Kahn Question by

Verdict(s) today?

The juries are out in the Pakistani Taliban case and the Steve Steiner Mutual Benefits money laundering case.  If you hear anything, shoot me an email and I will post it.  Thanks!

Tuesday, February 26, 2013

Why won't the Supreme Court hear a prosecutorial misconduct case

There have been a bunch lately, but the Court keeps turning them away.  Justice Sotomayor issued a rare statement condemning the prosecutor (joined only by one other Justice), but why won't the Court take these cases? 

From her conclusion:

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dig nity of our criminal justice
system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assis tant United States Attorney for the Western District of Texas missed the mark. 
Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, the
Government failed to recognize the wrongfulness of the prosecutor’s question, instead
calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19-20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated acknowledgment came only after the Solicitor General waived the Government’s response
to the petition at first, leaving the Court to direct a response.
I hope never to see a case like this again.

Monday, February 25, 2013

"Attorney Maria Elena Perez blazes her own path in defense of former UM booster Nevin Shapiro"

That's one way to put it.  It's the headline for John Pacenti's in depth article about Maria Elena Perez, the lawyer representing the lowest of low snitches, Nevin Shapiro. 

Maria Elena Perez

Donna Shalala is outraged by it all: 
UM president Donna Shalala attacked the NCAA for its flawed investigation and maintains the university has been punished enough through two self-imposed postseason bans even though the NCAA gives the final word on punishment for violations.
Shalala is incredulous that the NCAA is taking the word of Perez's client, "who made a fortune by lying."
 Welcome to the federal criminal justice system.  This is the dirty little secret of federal criminal cases -- they are built on snitches like Shapiro every day of the week.  The criminal defense bar has gotten so used to it they it's become learned helplessness.  Maybe cases like this will push people to fight back instead of laying down while taking the shocks over and over again.  

Does DNA collection from arrestees violate the 4th Amendment?

That's the question before the High Court this morning.  Police, of course, say it's a vital tool:

The bolstered federal database has helped solve thousands of crimes by linking DNA evidence at old crime scenes to newly arrested people.
"Behind every number is a human story, a case in which a buccal swab sample collected from a felony arrestee played a crucial role in solving a violent crime," says a brief submitted by all 49 other states backing Maryland's law.
On the other side is Alonzo Jay King, who was arrested on assault charges in 2009. Police collected DNA from a simple cheek swab and matched it to a 2003 rape case, for which King then was convicted. The Maryland Court of Appeals reversed that decision, ruling that the cheek swab constituted a search without either a warrant or suspicion of another crime. Now the state, backed by the federal government, is challenging that ruling.

The NY Times, on the other hand, says no way:

The state did not, however, obtain a warrant to collect his DNA, nor did it establish that it had probable cause to think that his DNA would link him either to the assault or the rape. It did not even meet the lowest threshold for some searches, by establishing that it had a reasonable basis for taking his DNA, or showing that the DNA evidence would disappear unless it was collected.
Maryland argues that collecting and analyzing DNA is like fingerprinting. But the purpose of fingerprinting is to identify someone who has been arrested. Maryland was using DNA for investigative purposes, not identification, and doing so without legal justification.
Maryland also argues that the incursion on Mr. King’s privacy was minor compared with the major benefit in crime-solving. But the number of crimes solved with DNA from people arrested has been low. The substantial harm to innocent people that could result from the misuse of DNA greatly outweighs the benefits. And the safeguard against such harm is the Fourth Amendment, whose fundamental protections the Maryland court upheld. The Supreme Court should do likewise.
Will be interesting to see how this one comes out.  Predictions?

Friday, February 22, 2013

The twists and turns of the "psychic fraud" case

I haven't covered this story all that much, but Paula McMahon over at the Sun-Sentinel has been all over it, and here's the latest:

Federal prosecutors and investigators received a severe scolding in court this week from one of the judges overseeing a $25 million fraud case against a Broward County family of fortune tellers.
"I'm disappointed by the shameful conduct of the government here," the usually mild-mannered U.S. Magistrate Judge James Hopkins said during a hearing on defense allegations in federal court in West Palm Beach on Wednesday. "There's much about the government's conduct in this case that's very troubling."
Among the problems identified by the judge were grand jury testimony that included "ethnic stereotypes" about Gypsies or the Roma allegations an investigator had a financial relationship with alleged victim and best-selling romance novelist Jude Deveraux; that agents and a prosecutor helped Deveraux in a court case about money she owed her ex-husband; and that some "victims" were included in the indictment without agents ever contacting them to confirm any crime occurred.
The judge also called some of the investigative team's actions "deficient" and said they raised "the specter of misconduct."
Defense lawyers asked the judge to dismiss charges against Rose Marks and eight family members alleging the behavior was sufficiently egregious.
The judge said he felt the alleged misconduct did not rise to the level required by law to dismiss the charges against the family before their April 1 trial. Four family members have pleaded guilty but may withdraw those pleas if the case is dismissed for governmental misconduct.
Hopkins said the defense can raise the issue at trial and ask U.S. District Judge Kenneth Marra, the trial judge, to toss out the case before it goes to a jury. Hopkins will make his formal recommendations soon, but the defense is expected to ask Marra, who has the final say, to reconsider.
Hopkins became aggravated Wednesday when he said the U.S. Attorney's Office for the Southern District of Florida was not "'fessing up to significant errors."

Meantime, last night was the big federal bar event at the Hyatt.  It was a success as usual with a large turnout.  Most of the federal judges were there and the lines at the bar weren't too long.  So good times for all!

Have a nice weekend.

Thursday, February 21, 2013

"I kindly suggest to you that you go to a hospital."

That was 77-year old defendant Hafiz Kahn to the AUSA during cross-examination, suggesting that he was mentally ill for the questions he was asking.  The prosecutor responded: "KAHHHHHHNNNNNNN!"

Actually, he said: "I'll let the jury make that determination, Mr. Khan."

Judge Scola then sent the jury out and told the defendant to chill: "You are never going to convince Mr. Shipley to change his mind about you. The only chance you have is to convince the jury to believe you."

Curt Anderson from the AP has all the dramatic details here.  A snippet:

"In front of God, I did the right thing. In front of my tribe, I did the right thing," Khan testified in Pashto through an interpreter. "It was all lies, and it was all because of the money."
Khan spent a second day on the witness stand in his own defense on charges of funneling at least $50,000 to the Pakistani Taliban beginning in 2008. He previously testified that money he sent overseas was for the poor, for his extended family and for a religious school, or madrassa, he owns in the Swat Valley. He insisted he has never supported the Taliban.
The imam repeatedly clashed during cross-examination with Assistant U.S. Attorney John Shipley, who pressed Khan on whether the FBI recordings represented his true beliefs on terrorism. Among other things, the recordings have Khan praising the attempted bombing in 2010 in New York's Times Square and hoping that Americans would die trying to capture former al-Qaida leader Osama bin Laden.
In taped conversations with the informant Siddiqui, Khan answered, "There are many times I am agreeing with him, but that does not mean that I mean it. I didn't want to harm anyone."

Read more here:

Read more here:

Read more here:

Wednesday, February 20, 2013

The twists and turns of the Pakistani Terror trial

Last week witnesses were testifying via video feed from Pakistan.  The feed cut-off midstream (with some arguing that the Pakistan government was responsible because they were tipped off).  Judge Scola ordered that the trial continue, and now the defendant 77-year old Hafiz Khan has taken the stand.  Day two of his testimony is today.

From the AP (Curt Anderson):

"We are innocent of these accusations," said Khan, speaking in Pashto through an interpreter. "We have no connection with them whatsoever. We hate them."
Khan, who became a naturalized U.S. citizen after arriving here in 1994, said he is proud to live in this country, is registered to vote and does not even know how to fire a gun. Frequently stroking his flowing white beard and adjusting his skullcap, the imam of a downtown Miami mosque said he does not own a television and concentrates mainly on Islamic studies and teaching – something he feels utterly free to do in the U.S. because of its guaranteed rights.
"It is really a good thing to be a citizen of the United States," Khan said.

Hafiz Khan Terror Trial Miami Imam

Tuesday, February 19, 2013

Tuesday morning notes (UPDATED)

1. The Washington Post has a good article about Clarence Thomas and the fascination behind him not asking questions.  A snippet:

Some justices have told others that Thomas sometimes jots down inquiries and urges Justice Stephen G. Breyer, his friend and seatmate on the bench, to pose them.
The two often confer during oral arguments, and Thomas confirmed during a recent appearance at Harvard Law School that the talkative Breyer sometimes throws in a Thomas question.
“I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” a laughing Thomas told the law students. “I’ll say, ‘It was just something I was throwing out.’ So you can blame some of those [Breyer questions] on me.”
And another thing is the Harvard speech itself. Although he described himself during the interview with HLS Dean Martha Minow as “quite introverted” and said he could “go a lifetime without making public appearances,” his extracurricular life is as busy as that of any of his colleagues.
He described himself as someone who tends “to get along well with people.” He was lavish with praise for his colleagues — especially the liberals.
He called Justice Ruth Bader Ginsburg the epitome of what a judge should be. “She makes all of us better judges,” he said. He called President Obama’s most recent nominee, Justice Elena Kagan, a delight and said he told her that “it’s going to be a joy disagreeing with you for years to come.”
And Thomas once again explained why he doesn’t ask questions at oral arguments.
“I think it’s unnecessary to deciding cases to ask that many questions and I don’t think it’s helpful,” he said. “I think we should listen to lawyers who are arguing their case and I think we should allow the advocates to advocate.”

 2. In local news, Paul Calli who is representing the Lewis Tein firm, is showing why people shouldn't rush to judgment (via DBR):

A longtime accountant who was fired by the Miccosukee Indians days before she was to give a deposition in the tribe's malpractice lawsuit against the Lewis Tein law firm testified tribal lawyer Bernardo Roman III tried to influence her testimony and wanted her to lie.
Jodi Goldenberg, who worked for the Miccosukees for 21 years, said at the deposition attended by Roman that she was not told why she was fired but suspected there were several reasons.
"One being that I know the truth in some of these cases that are going on, and I think that what I'm going to say is contrary to what the tribe's attorney wants me to say. Maybe he wanted me to appear to be a disgruntled employee," Goldenberg said.


3.  Two big search cases from the Supreme Court today.  From SCOTUSblog:

First opinion — Harris (dog sniffs) — Kagan for the Court reversing the Florida S. Ct. unanimously.
The Court holds that because training and testing records supported the dog's reliability, and the defendant failed to undermine that evidence, there was probable cause to search the defendant's truck.... 

Here's the opinion in Florida v. Harris....  The Harris opinion does not refer to the Jardines opinion, so we may not get it today after all.  From the Harris opinion: "The Florida Supreme Court flouted this established approach to determining probable cause." (Ouch.)...

Third opinion -- Bailey v. United States -- per Kennedy, the Second Circuit is reversed. The vote is 6-3, with Breyer, Thomas, and Alito dissenting....
The Court holds that Michigan v. Summers is limited to the immediate vicinity of the premises.  Justice Scalia writes separately.  Kagan and Ginsburg join both the Court's opinion and the Scalia concurrence.

This was the case about searching someone on the basis of a warrant to search a house, when they have left the premises.  Here is the opinion in Bailey v. US....
The Court will have more opinions at 10 am tomorrow. Again, we do not know which ones or how many there will be.  The other dog-sniffing case is 11-564, Fla. v. Jardines.  It did not come out today.

Thursday, February 14, 2013

Jury duty

Yesterday I was in Rumpole's building serving as a potential juror.  It was an interesting experience.  I wasn't selected to actually sit on a jury, but I participated in Judge Andrea Wolfson's voir dire in a misdemeanor battery case. 

Judge Wolfson was fantastic and ran a very good jury selection. I was impressed by her demeanor and how she handled the lawyers and the jury pool.

It's eye-opening to see the process from the juror's point of view.  I don't think lawyers realize how much waiting around there is, but more on this later.

So what did I miss yesterday?  The Pakistan trial has hit some bumps in the road.  Rhino horn smuggling.  And Justice Scalia is hunting again, this time with Justice Kagan.  He spoke about it during a Q&A with Nina Totenberg at the same time the President gave his State of the Union Address.  From the AP:

Lest anyone think the timing of his talk was anything other than a coincidence, Scalia tried to put those thoughts to rest.
"I didn't set this up tonight just to upstage the president," he said. "The State of the Union is not something I mark on my calendar, like Easter or Yom Kippur."
Scalia said the justices in attendance inevitably keep their eyes on the chief justice, who decides when it is appropriate to applaud.
If the president says the United States is a great country, clap away, he said. But no justice can clap "if it's anything anybody can disagree with," Scalia said.
Prodded by Totenberg, Scalia also commented on the hunting ability of Justice Elena Kagan, who has joined Scalia to shoot quail, pheasant and larger animals.
Last year, on a trip to Wyoming, they had a license to go after antelope and mule deer. But there were none to be found.
Instead, "she ended up killing a white-tailed doe, which she could have done in my driveway" in suburban Virginia, Scalia said.
He said Kagan, who never handled a gun before joining the court, is just a beginner, but "she dropped that doe in just one shot."

Tuesday, February 12, 2013

Judge Carnes quotes Macbeth in USA v. Davis

Hot off the presses, he starts the opinion this way:

The defendant himself described the events leading up to this appeal when he told the judge, “Sir, I don’t see how you’re going to go forward with this trial. It’s turmoil.” But there was more than just turmoil. With two troubled jurors wanting to be excused and no alternates to replace them, and with a problem defendant stirring the brew, there was “[d]ouble, double, toil and trouble.”* The pot began to simmer in jury selection and boiled over during the trial, after jeopardy had attached. The double trouble produced a mistrial over the defendant’s objection, raising the specter of double jeopardy.

* William Shakespeare, Macbeth, act 4, sc. 1.

The conclusion: "This case having strutted and fretted its hour upon the appellate stage, we conclude that the curtain should be dropped, at least on this Act of it."

"The legal system in this country, it’s not a joke. It’s not a toy for rich idiots to play with."

That's Bill Maher discussing the $5 million lawsuit filed by Donald Trump against him:

The letter from the Cooley lawyer is absurd.

In local news, Curt Anderson covers the Pakistani Taliban case:

Testifying via video from Pakistan, a man accused by the U.S. of conspiring with an elderly Miami-based Muslim cleric to funnel thousands of dollars to Taliban terrorists insisted Monday the money was for innocent purposes, including a potato chip factory run by the cleric's son-in-law.
Ali Rehman was the first of as many as 11 witnesses expected to testify from an Islamabad hotel in defense of 77-year-old Hafiz Khan, who faces four terrorism support and conspiracy counts. Rehman is named in the same indictment and refused to come to the U.S. Other witnesses were unable to get U.S. visas in time. Rehman said he handled three separate $10,000 transactions for Khan in 2008 and 2009. Most of the money, he testified, went to Anayat Ullah, who is married to Khan's daughter Husna and started the potato chip business with his father-in-law as an investor.
Rehman said he has known Ullah since they were children in Pakistan's Swat Valley and wanted to do him a favor. "That favor was that his father was sending him some money, and I used to deliver it to him or sent it to him," said Rehman. He spoke in Pashto that was translated into English for the 12-person jury watching him on flat-screen televisions.

Monday, February 11, 2013

Monday morning

Hope everyone had a nice weekend.  Not much doing in SDFLA. 

What's left of Judge Scola's Pakistani Taliban trial continues today with the defense case.  Curt Anderson is covering it here:

Defense witnesses are set to testify from Pakistan in the South Florida trial of a Muslim cleric charged with financially supporting the Pakistani Taliban.

The first of up to 11 witnesses will testify Monday from an Islamabad hotel. The testimony will be beamed to a Miami federal courtroom via video hookup. Defense lawyers will ask questions in Pakistan, with prosecutors doing cross-examination using the video feed.

 There were a bunch of press conferences last week in the District about a new IRS crackdown on identity theft and tax fraud.  Apparently we are #1 again in this sort of fraud with the highest number of complaints of any state and the highest number for any city.

Also last week, there were a number of really good CLEs.  There was the appellate seminar, which ended up with a party at Judge Barkett's house for all the attendees.  Very cool move by Judge Barkett. 

The DCBA had a huge corporate law seminar at the Coral Gables Country Club, which was well attended.  The guest speaker was Brad Meltzer, who was excellent. 

And FACDL, along with FIU, had Tom Mesereau speak as part of its fantastic trial lawyer seminar series.  All reports say Mesereau (who was Michael Jackson's lawyer) was dynamic.

  Out of District -- this week will be oral argument in the Barry Bonds case.  And the Ninth Circuit has agreed to cameras in the courtroom.  I don't think it will air live, but it's a start.

Read more here:

Thursday, February 07, 2013

"Sonia Sotomayor No Longer Interested in Bringing Cameras Into the Supreme Court"

That's the headline from this NY Magazine article. Although Justice Sotomayor testified before Congress that she was in favor of cameras in the High Court, she has changed her mind. Her rationale:
"There's no other public official who is required by the nature of their work to completely explain to the public the basis of their decision," she said, when asked about the hotly debated issue by moderator Thane Rosenbaum.  
"Every Supreme Court decision is rendered with a majority opinion that goes carefully through the analysis of the case and why the end result was reached. Everyone fully explains their views. Looking at oral argument is not going to give you that explanation. Oral argument is the forum in which the judge plays devil's advocate with lawyers.” “I think the process could be more misleading than helpful,” she added. “It's like reading tea leaves. I think if people analyzed it, it is true that in almost every argument you can find a hint of what every judge would rule. But most justices are actually probing all the arguments."
That makes absolutely no sense to me. People may be misled by actually watching oral argument instead of hearing someone else describe it or reading the transcripts? Really?

Meantime, Justice Ginsburg gave a talk at Harvard, which was covered by the Harvard Gazette.

A snippet:

[Dean Martha] Minow inquired about collegiality on the court, which is often deeply split. Ginsburg responded that over the years her husband’s culinary skills have helped foster a friendly atmosphere. He baked birthday cakes for members of the court, she said, and catered their quarterly meetings.
Ginsburg told Harvard Law School Dean Martha Minow that she looks back on her Harvard years with fondness.
In addition, the justices like to hold regular soirees, said Ginsburg, where they forgo work and “just listen to beautiful music.”
But are there times, Minow pressed, when, despite their ritual handshakes before they take the bench, a little animosity breaks through?
Ginsburg said she may occasionally bristle at a “nasty dissent” penned by another justice, but “we are all in this together, and we do revere the institution for which we work.” Still, she said she hoped the court someday will return to the “spirit of bipartisanship which prevailed in the early ’90s.”

Wednesday, February 06, 2013

"We Found Love In a Hopeless Place"

Not sure Rihanna had this in mind when she wrote that song:

He was one of the most notorious criminals in New York’s recent history, whose execution-style murder of two undercover police officers led a jury to issue the first federal death sentence in the city in more than a half century. 

 Ronell Wilson, right, in 2003, after appearing in court to face charges in the shooting of two undercover police detectives. She was a lonely correction officer, assigned to guard the cell block at the Metropolitan Detention Center in Brooklyn, where he was being held. 

 Inside the federal jail, Ronell Wilson, the convicted killer, and Nancy Gonzalez, his nighttime guard, would talk for hours, according to other inmates. They would disappear together for minutes at a time, behind closed doors. Several times, they were seen kissing, confirming suspicions of an illicit romance. 

 Ms. Gonzalez later admitted that the two had sex repeatedly, with the goal of having a child together. She was aware, she said, of the many possible complications, from the prospect of facing jail herself to the difficulty of telling her child the truth about his father. She explained her motivations to another inmate: “Why not give him a child, as far as giving him some kind of hope?” 

 On Tuesday, Ms. Gonzalez, 29, displaying the full contours of a pregnancy now in its eighth month, was arraigned in federal court on charges of sexual abuse of a person in custody, because an inmate cannot legally consent to sex. The charge carries a maximum sentence of 15 years in prison. She stood before the judge in a black overcoat and sweat pants, softly answering procedural questions while dabbing her eyes with a tissue. 

The press surged around Ms. Gonzalez the instant she stepped out of the courthouse, and she put her head on the shoulder of her lawyer, Anthony L. Ricco. “She’s had a very tragic life and as this case proceeds, you’ll learn more about it and how these affected her judgment,” Mr. Ricco said. He added, “People find love in the strangest places.” 

Tuesday, February 05, 2013

"[Senior status] is not a done deal until you tell the president."

That's Chief Judge Joel Dubina, saying he may not take senior status after all:

But on Monday, Dubina told the Daily Report that the Administrative Office may have acted too soon. He said he had notified Chief Justice John Roberts that he would relinquish the title of chief judge on Aug. 1 and planned to take senior status that day. He said Roberts needed to know because the chief judge chairs the U.S. Judicial Conference, on which circuit court chief judges serve.
But Dubina said taking senior status “is not a done deal until you tell the president,” an action he has not made yet because of the delay in filling the two Georgia-based seats on the Eleventh Circuit.
President Obama has twice nominated Atlanta litigator Jill Pryor to fill the seat vacated by the retirement of Judge Stanley Birch in August 2010, but she has been blocked by Georgia’s senators, Saxby Chambliss and Johnny Isakson. Another seat was vacated last summer by Judge J.L. Edmondson, who took senior status.
Dubina, who was appointed in 1990 and whose seat is based in Alabama, said he didn’t want to leave his colleagues “in the lurch” with only nine active judges.
He recalled early in his appellate career when the court had several vacancies and only nine judges—with about half the caseload of today. “Nine judges is extremely difficult,” he said, noting that the court suspended its rules requiring two Eleventh Circuit judges on each three-judge panel. Instead the court allowed only one Eleventh Circuit judge on a panel, joined by two visiting judges—a solution that risked the consistency of the court’s precedents, he said.

Speaking of filling vacancies, President Obama is doing so with lots of former federal prosecutors:
President Obama's liberal supporters have been dismayed by some of his judicial appointments, and now they can cite statistics: Obama has nominated former prosecutors more often than either Ronald Reagan or George W. Bush.
In Reagan's two terms, 40.8 percent of the judges he appointed had once been prosecutors. Bush, who like Reagan sought to move the judiciary in a more conservative direction, chose ex-prosecutors for 44.7 percent of his judicial appointments. The figures were 37.3 percent for Bush's father, George H.W. Bush, and 40.7 percent for Bill Clinton.
Obama, who began his second term Jan. 21, has appointed or nominated 219 federal judges, of whom 100 - 45.7 percent - were former prosecutors, according to statistics compiled by the Alliance for Justice.
By contrast, 33 nominees, all but three of them at the trial court level, had been public defenders. Even fewer had worked as poverty or civil rights lawyers.

Judge Turnoff lays down the law

This contempt of court order is worth a read (prior coverage here):

Sunday, February 03, 2013

A call to the judiciary

There was an article in the NY Times this weekend about why cops lie.  It's a nice piece, but nothing really new.  Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense:

Those are interesting concepts, but the following 4 statements will encourage more discussion:




So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 

There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.

What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor. 

--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).   

--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid. 

--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.      

--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

--Grant motions to suppress when the officer is lying.  This goes to the NY Times article and Dershowitz's rules.

A big part of all of this goes to the court of appeals.  The 11th Circuit rules for the government even more than the district court does.  This has been the culture for a long time.  (When is the last time the court reversed a sentence within or above the guidelines?) But there is new blood on the 11th.  And three new open spots (two now, and one more this summer) will really change the court.

See what happens when there is a blackout during the Super Bowl.  The game is now back on, so I'll get off the soapbox. 

Saturday, February 02, 2013

Kim Rothstein vs. Justice Sonia Sotomayor

Kim Rothstein, Scott Rothstein's wife, leaves the federal courthouse after she plead guilty to a plot to hide more than $1 million in jewels from the feds.

Kim Rothstein pleaded guilty yesterday while Justice Sonia Sotomayor spoke at the University of Miami campus.  Who got more press in South Florida?  Sadly, Rothstein by a ton.  From Jon Burtstein's story:
Five years ago this week, she was a bride who had just gotten married at South Beach's Versace Mansion to a rich, charismatic attorney who had Fort Lauderdale abuzz.
Three years ago, she was in seclusion after watching her husband, Scott Rothstein, go before a federal judge to plead guilty to the largest financial fraud in South Florida history.
On Friday, Kim Rothstein was back at the federal courthouse in Fort Lauderdale. This time, it was to admit that she too is a criminal.
Rothstein, 38, pleaded guilty to a plot to hide more than $1 million in jewelry from federal authorities as they were seizing her husband's assets to reimburse victims of his swindle. She admitted conspiring with her then-attorney and a friend to secretly sell the jewels, including a 12-carat diamond ring, and to persuade her imprisoned husband to lie under oath about the ring's whereabouts.
She faces up to five years in prison when sentenced April 19 by U.S. District Judge Robin S. Rosenbaum.
Dressed in a dark pantsuit, Rothstein answered Rosenbaum's questions in a clear, steady voice as she pleaded guilty to a felony charge of conspiracy to commit money laundering, obstruct justice and tamper with a witness.
"Are you pleading guilty because you are in fact guilty?" Rosenbaum asked.
"Yes, your honor," Rothstein responded.
She left the courthouse flanked by her defense attorneys, David Tucker and David Kotler. She did not acknowledge the reporters and cameramen outside as she got into a sports utility vehicle waiting for her.
From the Herald story on the Supreme Court Justice visit:

From her days as a young girl in the Bronx being raised by her mother after the death of her father to becoming the first Hispanic on the highest judicial body in the country, U.S. Supreme Court Justice Sonia Sotomayor told the story of her journey before a captivated audience at the University of Miami on Friday night.

Sotomayor spoke with University of Miami President Donna E. Shalala at the BankUnited Center to University of Miami students, Coral Gables residents and perhaps a future Supreme Court justice about the inspiration behind her recently published memoir My Beloved World.

“Love and passion, that is the only way you do something well,” Sotomayor said. “Do a few things, but do them well.”

Sotomayor, 58, spoke of the many things that inspired her to share her story with the world, one of which was in responses to questions she hadn’t expected during her confirmation process, such as how children cope when a parent dies, especially if they don’t have a mother like hers.

“I began to understand that I couldn’t talk to every child in the country,” Sotomayor said. “I could give them the answers in a book.”

Friday, February 01, 2013

Is there a federal judicial clerkship crisis?

Apparently there is because federal judges won't follow the (voluntary) rules about timing of interviews and hiring.  So clerks are getting interviewed and hired earlier and earlier, which is really messing up the process.  What's the solution?  Aaron Zelinsky says take the voluntary out of the rules:
Congress has the power of the purse. It allocates funds for building courthouses, keeping the lights on, and employing staff. For instance, law clerks are employed under 28 U.S.C. 752 (for district courts) and 28 U.S.C. 712 (for circuit courts). If the judiciary really wants to fix the hiring plan, then judges should request that Congress condition salaries for law clerks upon them being hired in compliance with the judicial hiring plan. In other words, if you don't play by the rules, you don't have law clerks.

But wait, isn't that unconstitutional? Nope. The Constitution prevents Congress from lowering the salaries of federal judges, but says nothing about their staff (anyways, such a law could be written to apply only to those hired in the future, not those already employed). And Congress isn't infringing on the judicial power in any way - this law does not effect how judges make use of their clerks, just the timing of how they hire them. And it would leave the actual formation of the plan up to the judiciary.

Federal judges could ask Congress to make the hiring plan mandatory via a proposal from a special judicial working group, or even in Chief Justice Roberts's year end report to Congress. And they should. A new, mandatory plan would be fairer for less-advantaged law students and late-bloomers, more efficient for federal judges, and maybe even better for you.
Good luck with that one...

Meantime, over at his blog, Rumpole asks whether you'd rather be on the Third DCA or on the SDFLA district bench.  Or a Florida Supreme Court Justice or on the 11th Circuit.  Seems to me that the federal positions are much more sought after and are thought of in the legal community as more prestigious.  And speaking of clerks, the feds get the cream of the crop.  I imagine that the district court clerks have better resumes than the clerks on the Florida Supreme Court.  Is that right?