Tuesday, June 30, 2020

Sam Rabin is a legend. (UPDATED)

Corrected: This is what Sam Rabin wore to court today:

The original post said Sam was ordered to appear, but that was not accurate. He could have Zoomed into the sentencing hearing (as the prosecutor did), but he wanted to be sitting next to his client during the hearing.

UPDATE -- for those of you who think this was over the top, here's the latest from FDC-Miami:

“Fortunately for me, we have just a fabulous clerk of the court in Kiry Gray. She’s so street-smart and really knows her job."

That was then-Chief Judge of the Central District of California, Cormac J. Carney, about the clerk of court, Kiry K. Gray. He has since stepped down as Chief of that District.  From the LA Times:
The chief judge for the Central District of California, the nation’s largest federal court jurisdiction, which includes Los Angeles and its neighboring counties, has stepped down from that post, citing his racially insensitive comments regarding the court’s top administrative official, a Black woman.

U.S. District Judge Cormac J. Carney, who began a four-year term as chief district judge June 1, announced his decision to step down from the top post but remain a judge in an email Friday to court staff and fellow judges, and offered a public apology to Kiry K. Gray.

A federal court employee for 35 years, Gray in 2015 became the first Black woman appointed to be the Central District’s executive and clerk of court, a job that entails working closely with the chief judge to oversee court operations.

“I have apologized to Ms. Gray, but I have concluded that a simple apology will not put this matter to rest. There will be division in the Court, unnecessary, negative and hurtful publicity, and a diversion from the Court’s essential mission of administering justice if I were to continue serving as the Chief District Judge,” Carney wrote in the email, which The Times reviewed. “I cannot allow the Court to become politicized and embroiled in controversy.”

Monday, June 29, 2020

All jury trials and grand juries in the SDFLA are continued until October 13, 2020

That's the latest administrative order from Chief Judge Moore.

Thanks for all the tipsters who have emailed the Order to me.  I will post it as soon as it is on the Court's website.

Friday, June 26, 2020

DOJ’s stunning admission in the Roger Stone case shows unfairness of criminal justice system

Assistant United States Attorney Aaron S. J. Zelinsky’s opening remarks before the House Judiciary Committee sets out his argument that Roger Stone received preferential treatment because of his friendship with President Trump.  Most would agree that similarly situated criminal defendants should be treated the same, regardless of their relationship with the President.  But what if that means treating everyone unjustly?

That’s the shocker in Zelinsky’s testimony — he admits that the Department of Justice always seeks to penalize those, like Roger Stone, who proceed to trial. He says: “For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of.”

A quick history.  The Federal Sentencing Guidelines were enacted in 1984. The stated intent of the Guidelines were to bring uniformity to criminal sentencings.  A defendant who robbed a bank in New Hampshire should get the same sentence as the defendant who robbed a bank in Texas.  The system was point based — use a gun, get more points.  Recruit others into the scheme, add some more.  For a while these Guidelines were not guidelines at all — they were mandatory, and judges were forced to impose the calculated sentence absent very rare exceptions.  On first blush, that goal of consistency seems admirable.

But the Guidelines have been a complete disaster.  Judges had no discretion and complained that they were mere calculators, adding and subtracting points.  What were these points even based on? 

Until the Supreme Court stepped in, judges were not even permitted to consider mitigation evidence.  Had the defendant led an otherwise good life?  Served in the military?  Raised a family on her own? Was she elderly or sick? None of it mattered.  Unsurprisingly, sentences dramatically increased in the wake of the Guidelines.  

In addition to sentences shooting up, the number of trials sank.  Before the Federal Sentencing Guidelines were enacted in 1984, about 20% of criminal cases proceeded to trial and 80% pleaded guilty.  After the Guidelines, the number of trials decreased every year and now only about 3% of cases proceed to trial. Judge Jed Rakoff pointed out that even innocent people were pleading guilty. Former Judge Gleeson explained that “the Department of Justice got in the habit long ago” of “strong arming guilty pleas” in part by using urging judges to impose “excessively harsh sentencing ranges” for defendants who have the temerity of proceeding to trial.

Roger Stone’s case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the Guidelines. And had he met with prosecutors and cooperated, he likely would have been sentenced to probation. Because he had the audacity to go to trial, his guideline range jumped to 7-9 years even though he was a first-time non-violent offender.

Zelinsky, without any sense of horror, says everyone who goes to trial should get this severe punishment determined by some made up point system, while at the same time not taking issue with the fact that the judge in sentencing Stone determined that the Guidelines were way too harsh.  He concedes that the Department of Justice advocates for these absurdly high sentences in every single case where a defendant proceeds to trial with no exception.  That’s the true injustice of our system and that is what needs to be reformed.  Prosecutors should never be seeking 7-9 years for an old, first-time, non-violent offender.  Zelinsky is right that everyone should be treated the same, but that should be with compassion, not with a hammer. 

Wednesday, June 24, 2020

"As the writer of the Sparks opinion, I regret my error and appreciate the Court’s correction of our Circuit’s jurisprudence."

That was Judge Rosenbaum, concurring in this en banc opinion which abrogated United States v. Sparks, 806, F.3d 1323 (11th Cir. 2015).  I'm certainly in favor of having an open mind and re-evaluating past decisions. It's just that I've never seen a judge apologize for an earlier mistake.  Refreshing! Judges can make mistakes. And even acknowledge them!

Justice Jackson had a nice way of putting it when he made mistake:
Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court * * *.' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.
I got that Jackson quote from a Twitter comment in response to a tweet I had posted earlier about the decision.  I've been thinking for a long time about switching form the blog to Twitter full time.  Thoughts?  Isn't Twitter easier to follow than a blog?

Anyway, the actual en banc decision is summarized in the first paragraph by Judge Newsom:
Sometimes courts make simple mistakes. And simple mistakes call for simple fixes. Just so here. In United States v. Sparks, we held that a suspect who “abandons” his privacy or possessory interest in the object of a search or seizure suffers no “injury”—and thus has no standing—in the Article III sense, and, accordingly, that an argument asserting the suspect’s abandonment is jurisdictional, nonwaivable, and subject to sua sponte consideration. 806 F.3d 1323, 1341 n.15 (11th Cir. 2015). Sitting en banc, we now overrule Sparks and hold, to the contrary, that a suspect’s alleged abandonment implicates only the merits of his Fourth Amendment challenge—not his Article III standing—and, accordingly, that if the government fails to argue abandonment, it waives the issue 

D.C. Circuit orders Flynn case dismissed

The 2-1 decision is here.

It’s right on, as I have argued in the Washington Post, USA TodayThe Hill, and in this debate hosted by The Federalist Society.

The majority concludes this way:
Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority. This is not a case about whether “a district judge may even hold a hearing on a Rule 48(a) motion.” Dissenting Op. 11 (emphasis omitted). Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives. On that, both the Constitution and cases are clear: he may not.
The dissent starts like this:
It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection. I therefore respectfully dissent from the majority’s grant of the writ.

Tuesday, June 23, 2020

What will happen when the SDFLA reconvenes grand juries and starts having jury trials again?

Will it be business as usual?

In New York, there is a huge backlog of criminal cases.  According to the New York Times:

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.

Certain precautions that are being considered may raise legal issues. “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.

“Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.

“If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books.

And grand juries are also presenting a problem, but not as much in the smaller offices:

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis. Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip. And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.

But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Take the capital case of the Uzbek man accused in a 2017 terrorist attack that killed eight people on a Manhattan bike path. More than 1,000 prospective jurors had come in to fill out jury-selection questionnaires, but later were dismissed after Judge Vernon S. Broderick postponed the trial indefinitely because of the pandemic. The process would have to be redone.

At a teleconference in April, a jury official explained that bringing in so many potential jurors might take three days “with things being normal.”

But, with social-distancing guidelines, she added, “I don’t know what the new normal would be.”

Sunday, June 21, 2020

Thought experiment

What would have happened if President Obama had Attorney General Eric Holder fire SDNY U.S. Attorney Preet Bharara because Bharara was investigating Obama and members of Obama’s inner circle?

I mean, remember the reaction when Bill Clinton said hello to AG Lynch on the tarmac...

It is a shame that Berman resigned.  It would have been interesting to see the legal showdown between him and Barr/Trump.  This really was a script from Billions...

Friday, June 19, 2020

This is not The Onion.

This is your President:

When they rule for Trump, he says it's the greatest Supreme Court -- and of course, he takes credit for it. When they rule against him, he cries.

Justices are people too. And they can’t be pegged into ruling exactly one way or the other on all cases — except Justice Alito, of course, who is always on brand.

Wednesday, June 17, 2020

Law clerks unite

This is a great story about a law clerk rightfully taking on a very powerful federal appellate judge in a group email and winning.  So great.  The whole article is worth a read, but here’s the intro with the law clerk’s responsive email:
The battle over renaming U.S. bases that currently honor Confederate officers broke out in the U.S. Court of Appeals in Washington, D.C., on Monday. But the argument was not in the courtroom; rather, it was launched, and settled, over email. In an email sent Circuit-wide on Sunday, Judge Laurence Silberman, a Reagan appointee, lambasted Sen. Elizabeth Warren, D-Mass., for her amendment to the National Defense Authorization Act requiring the military to strip the names of rebel officers from any military assets. “Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”Silberman’s post, which went out widely to scores of Court staff and judges, sat unanswered over the next day, until the first volley was sent back not by a fellow judge but by a clerk: courtroom employees who work directly with judges to research and write their opinions. “Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”
[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.
The correspondence was provided to The Intercept by a member of the Court staff on the condition the identity of the clerk (who was not the source) and judges who replied be kept confidential. 

Monday, June 15, 2020

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

That was Justice Gorsuch for a 6 Justice majority today (including Chief Justice Roberts) in Bostock v. Clayton County.  This was another slap down for the 11th Circuit, which has tilted WAY too far to the right.

Justice Kavanaugh was completely wrong in his dissent, but at least he wasn’t a jerk about it — unlike Alito.  Look at the difference in tone:

Kavanaugh at least acknowledged “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

Alito, on the other hand, said Gorsuch’s opinion “is virtually certain to have far-reaching consequences” which will “threaten freedom of religion, freedom of speech, and personal privacy and safety.” He said that Gorsuch was “irresponsible,” because his opinion “greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution.”

Meantime, the 11th Circuit has a couple of 2-1 decisions. First is a reversal of the Metro-West injunction related to corona. Newsom and Martin square off, with a visiting district judge joining Newsom.

The second is a reversal of a suppression order, with Branch and Marcus in the majority. Kudos to Judge Ungaro for dissenting:
While the evidence is that the three men and Mrs. Yarborough were secured near the porch of the house and, as emphasized by the majority, Officer Monroy’s re-entry was swift and his search was cursory, the only conclusion I can reach from the record is that Officer Monroy made the sweep, no doubt for officer safety, because the arrest scene was proximate to the house and he had a concern that the house, like any structure, could have concealed the presence of a dangerous individual. In other words, Officer Monroy conducted the sweep based on speculation, rather than articulable facts.

Sunday, June 14, 2020

Tennessee v. Garner

You'll be hearing a lot about that old 1985 case in the coming weeks.  It's interesting to re-read the case and to listen to oral argument (which you can do here).

The case, per Justice White, held: Under the Fourth Amendment, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Here, a state police officer shot and killed Garner as he was fleeing the scene of the crime. Despite knowing that Garner was unarmed, the police officer believed that he was justified in shooting him to prevent his escape. Garner's father brought a constitutional challenge to the Tennessee statute that authorized the use of deadly force in this situation. The state prevailed in the trial court, but the state appellate court ruled that the statute was unconstitutional. The Supreme Court decided that when a non-violent felon is ordered to stop and submit to police, ignoring that order does not give rise to a reasonable good-faith belief that the use of deadly force is necessary, unless it has been threatened.

Justice White was joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens.

Justice O'Connor wrote the dissent and was joined by Justices Burger and Rehnquist.

One local connection -- former UM Law Professor, Steve Winter, argued for Garner.  Winter is now at Wayne State University Law School.

Friday, June 12, 2020

"Cellphones haven't stopped cops from lying — only courts can do that"

That's the title of my latest piece in The Hill.  Here's the intro:
A 75-year old man was injured when he “tripped and fell.” That was the scenario the Buffalo police department released to the public before it knew that there was a video showing two officers shoving the old man to the ground and then walking over him while blood poured out of his head.

Many express shock that police officers would misrepresent — even lie — with such impunity. Those people naively ask what would happen if there wasn’t a video of the whole affair. Criminal practitioners know exactly what would happen — because, sadly, it’s what has been happening in courtrooms around the country every day for years. Too many officers are known to lie under oath, and there are judges and prosecutors who let them get away with it. This dirty secret is a true epidemic in the criminal justice system; it’s called “testilying,” and it has been around a long time.
Please let me know your thoughts. Have a nice weekend!

Flynn OA day

You can listen here at 9:30am. 

Also, check out SDNY Judge Nathan's order in a case where the Government obtained a conviction at trial and then moved to dismiss post-trial because of all of the Brady violations.  Judge Nathan says not so fast... you need to explain yourself first via a response to the defense motion for new trial, as the defense has requested and then dismiss with prejudice. This is a  big difference from Flynn where the parties have agreed.  Judge Nathan is doing the right thing.

Wednesday, June 10, 2020

Justice Sotomayor slaps 11th Circuit

Thanks to helpful readers in the comments yesterday and through email, I saw Justice Sotomayor issued this statement yesterday just crushing the 11th Circuit on its unique (and awful) practice of how it handles successive habeas petitions.  Although cert wasn't granted, congrats to Brenda Bryn and FPD's office for getting the Court's attention.

Part of the intro:
Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application. In re Williams, 898 F. 3d 1098, 1102 (2018) (Wilson, J., concurring). Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F. 3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc). That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture. The Eleventh Circuit has published several of its orders denying permission to file a second or successive petition, and determined that all future litigants (including those on direct appeal) are bound to the holdings of these orders unless and until an en banc Eleventh Circuit or this Court says otherwise. See 909 F. 3d 335, 346 (2018). These factors make out a troubling tableau indeed. Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process. The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case. In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.
Here's some coverage by NLJ:
In the Supreme Court petition denied Monday, Michael St. Hubert had sought authorization from the circuit court, as required by federal law, to file a second or successive habeas petition. To be successful, the prisoner must show that the habeas petition will be based either on new evidence sufficient to establish that no reasonable fact-finder would have found the defendant guilty or on a new constitutional rule made retroactive on collateral review.

Sotomayor, contrasting the Eleventh to other circuits, said the Eleventh publishes "far more" denials of authorization (45 from 2013-2018 compared to 80 from all circuits combined); mandates a decision within 30 days; requires prisoners to state their legal argument on a form with space for fewer than 100 words; does not grant oral argument in noncapital cases; generally does not require briefs from the prisoner or government, and often decides the merits of the habeas claims when the circuit court is only to decide whether the prisoner's application meets the authorization requirements.

"Surprisingly still," Sotomayor wrote, the circuit court has published a number of authorization denials stating that all future litigants, even those on direct appeal, are bound by the orders until overruled by the en banc court or the Supreme Court.

In opposing review, U.S. Solicitor General Noel Francisco said some members of the circuit court "expressed concerns" about publishing and giving precedential weight to certain denials of authorization.

"Yet, in the course of those opinions, no member of the court addressed the possible application of the Due Process Clause," Francisco told the justices. "Given the court of appeals’ active internal deliberation about the proper treatment of published orders on applications for leave to file second or successive Section 2255 motions, that court should decide in the first instance whether or to what extent due process principles should affect the court’s approach."

Sotomayor ultimately agreed with the government's recommendation. "The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case," Sotomayor wrote. "In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative."

Tuesday, June 09, 2020

What upppppp?

The federal courts are extremely slow.
No jury trials.
No grand juries.
Prosecutors have been told to work at home whenever possible.
It's slow.

In the meantime, here is some reading material.
  • Professor Ricardo Bascuas and I, along with Jeffrey Green from Sidley, filed this NACDL amicus brief in support of the Rule 48 motion to dismiss the Flynn case.
  • The DBR covers John Couriel's appointment to the Florida Supreme Court:
Born in 1978, Couriel grew up in West Miami. In his application to the Florida Supreme Court, Couriel said he was the son of hardworking Cuban immigrants that sacrificed their income to support their son’s educational endeavors. Couriel was always interested in the law and excelled academically.
In high school, Couriel’s interest in law led him to participate on the debate team. Debate was more than just a means to sharpen his speaking skills — in the final round of one particularly competitive showdown, Couriel was pitched against his future wife, Rebecca L. Toonkel. Ultimately, he triumphed in the debate, and they would later connect during their undergraduate years at Harvard College.
    President Donald Trump put forth an unsubstantiated conspiracy theory Tuesday about the 75-year-old protester in Buffalo who suffered head injuries after he was pushed to the ground by police and hit his head on the sidewalk.
    "75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment," Trump said in a morning tweet. Citing a report on conservative news network OANN, Trump said, "I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?" He said Gugino "could be" an anarchist "provocateur" but provided no evidence for that assertion. Two suspended Buffalo police officers were charged with assault and accused of intentionally pushing Gugino, who bled from the back of the head after he hit the sidewalk.

Sunday, June 07, 2020

News & Notes

1.  NACDL says that it isn't safe to have jury trials right now and issues a number of guidelines for courts on how and when to reopen:
Compromising accused persons’ constitutional and fundamental rights -- like the right to counsel, the right to confront witnesses, the right to due process, and the right to a speedy and public trial by a jury culled from a fair cross section of the community -- for the sake of public safety results in grave injustice. NACDL recognizes that there is no way to fully reconcile these core constitutional rights with the public safety considerations arising from this pandemic. There are, however, fundamental principles that can minimize the constitutional burden while protecting the public and all the stakeholders who must come together for our courts to function.

2. An Ohio federal judge had ordered the release or transfer of over 800 inmates from a high risk prison. Justice Sotomayor issued a stay. SCOTUSblog covers it:
Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

3. How broken is our criminal justice system? Clark Neily from Cato says it's rotten to the core:
Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts. And the most relevant fact is that America’s criminal justice system is rotten to its core. Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response. If America is burning, it is fair to say that America’s criminal justice system—which is itself a raging dumpster fire of injustice—lit the fuse.
As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government. Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

4. The Sentencing Commission just released some data, which shows how this broken system is disproportionately affecting minorities: Of those in federal prison, 34.3% are Black, 33.7% are Hispanic, 28.2% are White, and 3.8% are other races.

Wednesday, June 03, 2020

Chief Judge Bill Pryor

Today was Judge Ed Carnes’ last day as chief. Judge Bill Pryor takes over. The 11th Circuit website already has been updated.

This anonymous account is a great follow on Twitter for judicial updates. Here’s his thread today:

Bruce Bagley pleads guilty

The Miami Herald has the story of the UM professor and money laundering expert pleading guilty to money laundering in the SDNY:

University of Miami professor Bruce Bagley pleaded guilty on Monday to two counts of money laundering after being charged with using bank accounts in his name and in the name of a company he created in Florida to launder over $2 million in proceeds from a Venezuelan bribery and corruption scheme.

Bagley, recognized as an international scholar on drug cartels and money laundering, pleaded not guilty soon after his arrest in November 2019 in the New York case linked to South Florida, but filed a notice in March indicating that he planned to change his plea.

“Bruce Bagley (…) went from writing the book on crime — literally writing a book on drug trafficking and organized crime — to committing crimes,” said Geoffrey S. Berman, the United States Attorney for the Southern District of New York, in a press release. “Professor Bagley admitted today to laundering money for corrupt foreign nationals — the proceeds of bribery and corruption, stolen from the citizens of Venezuela. Bagley now faces the possibility of a long tenure in prison.”

Tuesday, June 02, 2020

“There is no such thing as rock bottom. So, assume that the worst is yet to come.”

I try to keep this blog apolitical, but wow, what a piece by George Will in the Washington Post.  Here's how it ends:

In life’s unforgiving arithmetic, we are the sum of our choices. Congressional Republicans have made theirs for more than 1,200 days. We cannot know all the measures necessary to restore the nation’s domestic health and international standing, but we know the first step: Senate Republicans must be routed, as condign punishment for their Vichyite collaboration, leaving the Republican remnant to wonder: Was it sensible to sacrifice dignity, such as it ever was, and to shed principles, if convictions so easily jettisoned could be dignified as principles, for . . . what? Praying people should pray, and all others should hope: May I never crave anything as much as these people crave membership in the world’s most risible deliberative body.

A political party’s primary function is to bestow its imprimatur on candidates, thereby proclaiming: This is who we are. In 2016, the Republican Party gave its principal nomination to a vulgarian and then toiled to elect him. And to stock Congress with invertebrates whose unswerving abjectness has enabled his institutional vandalism, who have voiced no serious objections to his Niagara of lies, and whom T.S. Eliot anticipated:

We are the hollow men . . .

Our dried voices, when

We whisper together

Are quiet and meaningless

As wind in dry grass

or rats’ feet over broken glass . . .

Those who think our unhinged president’s recent mania about a murder two decades ago that never happened represents his moral nadir have missed the lesson of his life: There is no such thing as rock bottom. So, assume that the worst is yet to come. Which implicates national security: Abroad, anti-Americanism sleeps lightly when it sleeps at all, and it is wide-awake as decent people judge our nation’s health by the character of those to whom power is entrusted. Watching, too, are indecent people in Beijing and Moscow.

Monday, June 01, 2020

Jury trials and grand juries continued till August 31

Not too long ago, all of the Miami courthouses informally closed for the summer.

Now it’s official. Because of corona, there will be no juries or grand juries this summer. We will regroup in September. Chief Judge Moore’s order was issued last night. I will post it shortly.

In the meantime, go read Rumpole's blog who is doing a lot of good coverage of what's going on in the community with the protests. 

And Udonis Haslem is trying to bring people together