Wednesday news and notes

1.  John Goodman is testifying right now...  

Dressed in a dark suit and dotted tie, Goodman recounted the events of the night of the crash that led to the death of 23-year-old Scott Wilson, gesturing often with his hands and stammering at times through his responses in a syrupy Southern accent.
Goodman said he had two shots of tequila and two shots of vodka over the course of the night. He said he left the Players Club shortly before the crash on a quest for a Wendy's frosty. After the crash, he said, he didn't know where he was and certainly didn't realize that Wilson's car had tumbled into the canal, where he drowned.
"If you knew someone was in the canal, what would you have done?"
"I would have done whatever I could have done to help," Goodman said, over the objection of prosecutor Ellen Roberts.

2.   A federal prosecutor was commenting anonymously about a case.  Not a good idea:

U.S. Attorney Jim Letten confirmed this afternoon that Sal Perricone, one of his top prosecutors, has been using the handle "Henry L. Mencken1951" to bash landfill owner Fred Heebe and a raft of other local and national figures, including federal judges, in the comments section on NOLA.com. Perricone "'readily admitted" using the psuedonym, and the matter has been referred to the Justice Department's Office of Professional Responsibility, Letten said.

Assistant U.S. Attorney Sal Perricone 'readily admitted' using the psuedonym, and the matter has been referred to the Justice Department's Office of Professional Responsibility, his boss, U.S. Attorney Jim Letten, said.

It will be up to that office to determine Perricone's punishment, Letten said.
Perricone -- whom Letten called a "fine veteran attorney" -- has been recused from all matters that he discussed in comments on NOLA.com, Letten said. He said he could not enumerate which cases that might include.
He added that Perricone, 60, the office's senior litigation counsel, "knows the restrictions and laws under which we operate."

3.  The Supreme Court decided today in a pair of cases that defense lawyers can be ineffective at the plea stage before trial. From Lafler v. Cooper:

Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

4.  The NY Times says that the Armed Career Criminal Act is no good:

The Armed Career Criminal Act has long been a source of confusion for federal judges who are required to apply it in criminal cases. The act ratchets up sentences to a mandatory minimum of 15 years for felons who illegally possess guns and have three prior violent felony convictions. Some judges have misinterpreted this statute, with grievous results, as happened in the case of John Joel Foster. He could end up serving 15 years in prison rather than 27 months for possession of a firearm because the United States Court of Appeals for the Fourth Circuit wrongly categorized 20-year-old crimes as violent felonies. 

5.  The Supreme Court is going to determine whether Apprendi applies to fines:

Supreme Court argument on Monday was how large a role the jury must play in setting fines against corporations found guilty of environmental crimes. But the real issue in the case, as the justices’ questioning made clear, was whether the court remained committed to the logic of a 2000 decision that said the Constitution sometimes bars judges from making factual findings that lead to increased punishments.

The case arose from the conviction of the Southern Union Company for storing mercury, a hazardous waste, without a permit. The law the company violated allowed fines up to $50,000 a day, and the government contended that the company had violated the law for 762 days. That would have added up to about $38 million. The trial judge imposed penalties of about $18 million.

The company objected, contending that the jury had found only that the company violated the law for at least one day. The federal appeals court in Boston accepted that view but said it did not matter. The trial judge, it said, was entitled to determine how to calculate the penalties.

In asking the Supreme Court to hear its appeal, the company said the appeals court’s analysis could not be reconciled with the 2000 decision, Apprendi v. New Jersey, which said that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Are corporations people?

For the First Amendment, yes.

For the Sixth?  I'll let you decide after this question and answer from Justice Alito:

JUSTICE ALITO: Do we assume for purposes of this case that your client, a corporation, has a Sixth Amendment right to a jury trial?

 

MR. PHILLIPS: I think the language of the Sixth Amendment couldn't be clearer, that it says in all criminal prosecutions the -- the accused is entitled to a jury trial, and all -- and you know, Article III, section 2, says in all jury trial -- in criminal prosecutions there's a jury trial. So there is no effort whatsoever to limit the -- the individual, or in any way to -- the person or persons or entities that are entitled to those rights.

 

JUSTICE ALITO: What are the peers of the Southern Union Company that would sit on the jury, other railroads?

Don't eat the Snickers!

I found this open letter to Blago, giving him advice regarding federal prison, pretty interesting.  Although Jeff Smith (a former state Senator from Missouri) only did a year and Blagojevich has 14, there are still some good nuggets:

1. As your grandma probably taught you, God gave you two ears, two eyes and one mouth — use them in proportion.


• When you get to prison, listen, watch and learn. You'll have a hundred questions on your first day and in one month you will know the answer to 90 of them without having to ask and risk looking stupid.

•Don't ever ask anybody about their crime. If they want to tell you what they did, fine. But you won't know if they're telling the truth. And if you ask and strike a nerve with someone, the result may not be pretty.

•Don't talk about how you got railroaded. So did everyone else.

•Don't ask anything about anyone's family; it will be a sore subject with many, especially those who have not seen or heard from their children or ex-wives in years.

•Don't ever talk about how much time you have. Someone else has more.


***
12 Don't eat the Snickers.
• You'll go through orientation. You will be shown a mandatory sexual assault prevention video featuring a guy warning you not to eat the Snickers bar that may be waiting for you on your bed in your cell. (The actor ate the one left under his pillow, unwittingly signaling the predator who left it for him that he was ready and willing.) All the guys watching the video will laugh. But take the video's message to heart: Don't accept sweets from anyone.

The Fairness in Disclosure of Evidence Act

On the day that the 514-page report detailing the prosecutorial misconduct in the Ted Stevens case, Senator Murkowski (R-Alaska) proposed legislation to reform Brady disclosure by federal prosecutors.  It is entirely non-controversial and has support of both Democrats and Republicans.  One problem -- DOJ will oppose the bill.  And for no good reason except that it doesn't want to have to turn over favorable information if its not material. 

Here's Sen. Murkowski explaining why the legislation is needed:

It is the solemn responsibility of federal prosecutors to secure justice -- not simply convictions. It is the responsibility of the government to prove an individual's guilt beyond a reasonable doubt, and if the government cannot, it is expected to voluntarily abandon the case. To keep Americans' faith in the system we must raise the standards for government prosecutors and cut the chances that we will see the same "hide the ball" tactics Sen. Stevens faced.

The Stevens case was not unique.

Read more here: http://www.adn.com/2012/03/10/2364196/justice-not-convictions-more-important.html#storylink=cpy

*** 
Enough is enough.

When his conviction was overturned, Sen. Stevens said, "What some members of the prosecution team did nearly destroyed my faith." Ted Stevens was a life-long public servant. He and all Americans deserve to have full faith in the judicial system in this country.

We cannot allow the government to have a finger on the scales of justice. My bill will ensure that another legacy of the Alaskan of the 20th Century is fairness and justice for the centuries ahead.

Senator Murkowski is my new favorite Senator.

Read more here: http://www.adn.com/2012/03/10/2364196/justice-not-convictions-more-important.html#storylink=cpy

Hoops Holiday

The best two sports days of the year are today and tomorrow with the first round of the tournament. Unless something big happens in the SDFLA, there won't be much blogging. Enjoy the tourney.

U.S. News Rankings out today

The Florida schools:


UF                  48
FSU                51
UM                 69
FIU                113
Stetson           119

Ave Maria     not ranked
Barry             not ranked
FAMU          not ranked
Fl. Coastal     not ranked
Nova             not ranked
St. Thomas    not ranked
Cooley          not ranked

Watch Roy Black live in trial

Here.

It's fantastic to watch and a good example of why trials should be televised.  The public can see what's going on and lawyers can learn from the proceedings. 

It's a DUI Manslaughter case.  Here are the details from the Palm Beach Post:

There were shots dropped into pints of Guinness and drinks with names like "Mind Eraser."
Traffic homicide prosecutor Ellen Roberts described each one in detail this morning, letting jurors that by the time International Polo Club founder John Goodman caused the crash that killed Scott Wilson, he'd had the equivalent of 16 to 18 drinks at a charity event and an impromptu after-party.
When Goodman's Bentley hit Wilson's car, Roberts said "it literally pushed the little Hyundai into the canal," and Wilson eventually drowned.
These were the first statements jurors heard today in the DUI manslaughter trial of Goodman, heir to a Texas heat and air conditioning fortune.
And as expected, Goodman's defense attorney Roy Black told jurors that Goodman's Bentley malfunctioned shortly before the crash, surging forward while Goodman frantically tried to stop it.
Black promised engineers would testify to prove this occurred, and Black said jurors will also hear evidence that Goodman left the crash scene to get help but was hampered because he had suffered some painful injuries – including a broken wrist, fractured sternum and an aggravation of a previous back injury.
That pained, confused journey took him to a sophisticated barn belonging to an acquaintance, Kris Kampsen, where he found what has been described as a "man cave."
"He sits down on the couch, he's hurting. This man is in pain and he sits down and right in front of him, there is this bar," Black told jurors. "He takes out one of the bottles and he swigs it down."
That's why, Black said, Goodman's blood alcohol content was at more than twice the level at which drivers are presumed impaired when his blood was drawn some three hours after the accident.
Black said that though Goodman had three drinks over the course of the night, witnesses will testify that he was lucid as he was leaving the Players Club Bar and restaurant, his last stop before the crash.

Robin Rosenbaum scheduled for vote...

...by the Judiciary Committee for this Thursday.

Spring Break!

What's going on in the District?  Any trials?  Or is most of Miami is in Aspen this week for spring break?

The NY Times has an op-ed saying that everyone should push for trial and that would crash the system.  

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment. 

***

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid. 

This has been talked about for quite some time, but no one ever has the guts to do it....  It would be interesting...

Friday news and notes

Your pre-spring break reading list:

1.  The Federal Public Defenders Association strikes back against the TRAC report on sentencing, saying "TRAC’s analysis fails to meet minimal academic standards and should not be a basis for policy making."  For example: 

● The cases sentenced by the judges in the study are not similar.
○ The only similarity among the cases sentenced in each district is that prosecutors
categorized them as “drug,” “white collar,” etc. All other case differences are ignored.
Heroin or marijuana cases, involving 1 gram or 1 ton, are all called “similar” drug cases.
First-time offenders are lumped with lifetime criminals.
○ Academic researchers studying disparity use data from the U. S. Sentencing Commission
to categorize cases along dozens of different variables, but this data was not used in
TRAC’s analysis.

 2.  Justice Scalia spoke yesterday at Wesleyan.  Some highlights:

Near the end of the speech, some of the demonstrators dropped banners from the balcony railing. One read, “There can be no justice in the court of the conqueror.”

The justice looked up and read it and quipped, “Oh, that’s very persuasive.”
***
At the end of the speech, Scalia took questions from the audience. One person asked about the Bush-Gore case, where the Supreme Court had to determine the winner of the election.

“Get over it,” Scalia said of the controversy surrounding it, to laughter from the audience.

Scalia reminded the audience it was Gore who took the election to court, and the election was going to be decided in a court anyway—either the Florida Supreme Court or the U.S. Supreme Court.

“It was a long time ago, people forget…It was a 7-2 decision. It wasn’t even close,” he said.

3.  Inmate can sue for having to wear pink underwear:

In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said a jury should consider whether Maricopa County Sheriff Joe Arpaio's policy of requiring inmates to wear pink underclothes had led to the death, and questioned whether the policy was legal.
"Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine," Judge John Noonan said in the majority opinion. "... The dress-out in pink appears to be punishment without legal justification."

4.  The Constitution Project is calling for Brady Reform.  It's interesting to see the signatories, including many former U.S. Attorneys.  They say:

We have concluded that Brady violations, whether intentional or inadvertent, have occurred for too long and with sufficient frequency that Congress must act. Self-regulation by the DOJ has been tried and has failed. It is ultimately not a solution to the injustices that continue to occur. Nor is an amendment to the Federal Rules of Criminal Procedure a solution. Such a proposal has been considered at least twice by the Advisory Committee on the Rules of Criminal Procedure, only to be rejected by either the Advisory Committee or the full Standing Committee on Rules of Practice and Procedure, at least partly in deference to the DOJ’s attempts to address the issue internally. But, again, DOJ’s own internal efforts have not remedied the problem.

5.  10 Years of Rakontur.  Very cool.  Check it out at the O Cinema March 26-30.

6.  Watch out what you say on Twitter and Facebook (and here on the blog).  You could be committing a crime (via NY Times):

Last month, at a Supreme Court argument over a federal law that makes it a crime to lie about military honors, Justice Elena Kagan asked about laws like the one that had ensnared Mr. Miller. “There are more of them than I thought that there would be,” she said, though she did not say which ones she had in mind.

It turns out there are at least 17 states that forbid some kinds of false campaign speech, according to a pending Supreme Court petition in a case involving a Minnesota law. The lower courts are split about whether such laws are constitutional.

At the argument last month, Solicitor General Donald B. Verrilli Jr., who was defending the federal law banning lies about medals, said the broader state laws are harder to square with the First Amendment because they “are going to pose a particular risk of chill.”

The dynamic duo strikes again

AFPDs Helaine Batoff and Sam Randall are on an incredible trial streak -- they've won 3 not guilty verdicts in a row. The most recent was yesterday in a rape on the high seas case before Judge Martinez.

The federal public defender's office in the Southern District of Florida in general is tearing it up this year. I'm trying to get the actual statistics but I believe that the office has won around 10 federal trials already this year. Many districts don't try, let alone win, 10 cases all year...

What's worse than sentencing disparity?

Sentencing consistency.  Hobgoblins and all that. 

Professor Doug Berman is all over the new study by TRAC examining sentencing practices of the individual federal judges.  From his most recent post:

Unfortunately, based only on the publicly available materials set out by TRAC here in this simple report, I find it extremely hard to reach any new or refined views or conclusions about post-Booker sentencing practices. It seems that one must purchase a TRAC subscription to be only able even to understand the nature and potential limits of the data that TRAC has assembled concerning the sentencings of individual judges. Moreover, based on the TRAC reporting, I fear that the TRAC data only includes final sentencing outcomes and lacks any refined information about applicable mandatory minimums, calculated guideline ranges, offender criminal histories and other obviously relevant considerations that may be driving different sentencing patterns in different sets of cases.


Notably, at the end of the TRAC report, the folks at TRAC praise their justifiably praise their data compilation efforts with this comment: "TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts." I very much like this sentiment, and hope in the days and weeks ahead to see judges, law schools, scholars, public interest groups, Congress and others trying to unpack the TRAC data so we can all better understand and assess what it may be telling us.

The AP gives some generalities about the study:

A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.


Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.

The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....

The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.

Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.

On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.

The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.

TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
  

In my view, the old system in which sentences were driven by mandatory sentencing guidelines created by sentencing commissioners is much much worse than federal district judges evaluating the particular case and individual appearing before the court.  Cases are different.  Defendants are different.  Districts are different.  Sentences then must be individualized. 

Come one, come all

This should be a good one (and not just because I'm moderating a panel).  From the FBA website:

Don't miss the Federal Bar Association, South Florida Chapter's, Ethics in Federal Practice CLE Seminar! Hear the latest on ethical issues from the perspective of several of our federal judges and practicing lawyers, and earn three Florida Bar ethics credits (applied for), and catch up with our local federal practitioners and judges.

       Featured Speakers:

Hon. Cecilia M. Altonaga United States District Judge Hon. Jonathan Goodman United States Magistrate Judge Hon. Paul C. Huck United States District Judge Hon. Kathleen M. Williams United States District Judge

  

          Date & time:  Thursday, March 8, 2012, 8 a.m. – noon

                                Breakfast will be served

          Location:       Hyatt Regency Hotel (downtown Miami)

                                400 Southeast Second Avenue

                                Miami, Florida  33131

          Cost:              $25  government, academic, and young lawyers

                                admitted in 2005 or later)

                                $50 for members

                                $75 for non members ($50 if you join our chapter now at

                                www.fedbar.org)

Purchase your ticket now at:   www.fedbar.org/chapters/south-florida-chapter

Schedule & Panels:

8 a.m.  --  Doors open, check-in, breakfast is served, time to mingle with guests and panelists

9 a.m.  --  Civil Ethics Issues:  United States District Judge Cecilia M. Altonaga,

                 United States Magistrate Judge Jonathan Goodman, and Adolfo Jimenez of Holland & Knight.

                 Moderator - Candace Duff, Greenberg Traurig, P.A.

10 a.m. -- Ethics & Discipline:  Key note speaker - United States District

                 Judge Paul C.  Huck, Florida  Bar counsel Jennifer Moore,

                 and Chair of the United States District Court Attorney Grievance

                 Committee John Delionado.

       Moderator - Ana Maria Martinez, Assistant United States Attorney.

11 a.m. -- Criminal Ethics Issues:  United States District Judge Kathleen

                 M. Williams, Assistant Federal Public Defender Miguel Caridad, and

                 First Assistant United States Attorney Ben Greenberg.

       Moderator - David O. Markus, Markus & Markus.

ABA White Collar Conference

Lots of "white collar" criminal defense lawyers and prosecutors were in town this week at the Eden Roc for the big ABA White Collar Conference.  The conference is different than others I have been to because many of the speakers are current and former prosecutors speaking of the virtues of cooperation and pleading.  It's a much different atmosphere than the NACDL conferences that I've been to. That said, it isn't all bad and there are lots of interesting and smart people in town. 

I didn't see many of the lawyers who had won big white collar cases on the agenda.  For example, it's pretty amazing to me that Michael Caruso wasn't invited to speak when he won the biggest securities fraud trial of the year...

In other very sad news, Rumpole and SFL covered the passing of Judge Maxine Cohen Lando, who I really liked a lot.  Her funeral is today.  RIP.

Robin Rosenbaum's hearing before the Judiciary Committee

Watch live here.