"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 Today, The 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.

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.”

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...

This is not The Onion.

This is your President:

Do you get the impression that the Supreme Court doesn’t like me?

— Donald J. Trump (@realDonaldTrump) June 18, 2020

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.