Tuesday, June 09, 2015

Tuesday news and notes

1.  More on House Srebnick and the cert grant, from the DBR:
The U.S. Supreme Court agreed Monday to decide in a Miami case whether federal prosecutors can freeze untainted assets a criminal defendant needs to retain an attorney.
Miami attorneys and brothers Scott and Howard Srebnick filed a petition for writ of certiorari in the case of Sila Luis. Senior U.S. District Judge Paul Huck in Miami froze Luis' assets after she was indicted in a Medicare fraud scheme.
The defense attorneys believe the government violated Luis' Fifth and Sixth Amendment rights to due process and to counsel of her choice.
"Our view is that she's not yet been convicted, she's not yet had a trial, and under our Constitution she has the right to use her own legitimate assets to pay for defense," said Howard Srebnick of Black, Srebnick, Kornspan & Stumpf.
2.    Justice Scalia gives a funny graduation speech on platitudes.  From the Washington Post:
Supreme Court Justice Antonin Scalia delivered an off-the-bench opinion on graduation addresses Thursday, drawing laughter and applause as he criticized cliches that don’t work during a commencement speech at an all-girls Catholic school.
“My problem with these platitudes is not that they are old and hackneyed, but that a lot of them are wrong,” Scalia said, standing before 79 graduates and hundreds of relatives and friends in the main gymnasium at Bethesda’s Stone Ridge School of the Sacred Heart.
As they and others listened, Scalia parsed a litany of stock phrases, melding them with his own advice. He first took issue with the oft-expressed sentiment that “we face unprecedented challenges.”
“Class of 2015, you should not leave Stone Ridge High School thinking that you face challenges that are at all, in any important sense, unprecedented,” he said. “Humanity has been around for at least some 5,000 years or so, and I doubt that the basic challenges as confronted are any worse now, or alas even much different, from what they ever were.”
Scalia — dressed in a suit and tie — took on other bits of advice, too, including, “To thine own self be true.”
“Now this can be very good or very bad advice, depending on who you think you are,” he said, as laughter rippled through the crowd.
He also turned some age-old sayings on their head.
“Never compromise your principles,” Scalia said, “unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.”
 3.  When does counsel need to raise suspicions about jurors?  The Second Circuit issued an interesting opinion about juror misconduct but didn't address the question head on.  Here's Alison Frankel:
The 2nd U.S Circuit Court of Appeals undid an injustice Monday when it ordered a new trial for David Parse, a one-time Deutsche Bank broker who was convicted in 2011 for his alleged participation in a tax shelter scheme supposedly masterminded by the now-defunct law firm Jenkens & Gilchrist. In an opinion by Judge Amalya Kearse, the appeals court said Parse’s conviction was tainted by a biased juror who admitted after trial that she had told a series of breathtaking lies during voir dire. Even though Parse’s former lawyers at Brune & Richard had turned up Internet evidence before and during trial that raised suspicions about the juror, the 2nd Circuit said, Parse had not waived his right to an impartial jury.
But the appeals panel refused to define exactly when lawyers are obliged to inform judges that prospective jurors might be lying in order to preserve their clients’ constitutional rights. Parse’s counsel, Alexandra Shapiro of Shapiro Arato, and the New York Council of Defense Lawyers, in an amicus brief, had asked the 2nd Circuit to establish a bright-line rule that defense counsel need not report concerns unless they are sure of jurors have done something wrong. Judge Kearse and the other members of the 2nd Circuit panel, Judges Richard Wesley and Chester Straub, said they doubted “that such a sweeping and absolute rule is appropriate,” and that, in any event, they didn’t need to devise a broad rule to resolve Parse’s appeal.
That’s a missed opportunity to clarify the implications of juror research that has become commonplace in white-collar cases. The Parse opinion seems to imply that judges should not construe defense counsel’s failure to alert the court of their suspicions as a waiver of their client’s Sixth Amendment right to an unbiased jury. I doubt, however, that any lawyers want their clients to go through Parse’s ordeal of four years of post-trial and appellate proceedings before securing a new trial. Defense lawyers in the 2nd Circuit will probably have to err on the side of disclosure if their investigation of prospective jurors turns up anything untoward: Tattling to judges may invade jurors’ privacy and annoy the court, but that’s preferable to risking a defendant’s constitutional rights.


Anonymous said...

Interesting. The studies I've seen say that the overwhelming majority of defendants would be better off with federal public defenders than private attorneys.

Mississippi Goddam said...

“Never compromise your principles,” Scalia said, “unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.”

I would add, “unless of course your principles are the Lost Cause of the Confederacy, Dixie, the Stars and Bars, white supremacy racism, the Ku Klux Klan, Jim Crow, peonage, lynching, Confederate History (propaganda) Month, or support of Dylann Roof.

Unfortunately a significant portion of the US population holds such principles, which are a majority view in the South.

Maybe "we face unprecedented challenges" after all.