Judge makes mistake and goes after criminal defense lawyer

This story really amazes me:

At issue: Anthony pleaded guilty to 13 charges in a check fraud case in January 2010. Judge Stan Strickland sentenced her to time-served in jail, and a year of probation after her jail release.

But last month, when Anthony was acquitted of murder and released from the Orange County Jail, she wasn't put on probation. The Department of Corrections said Anthony served that probation in jail while she was awaiting the murder trial.

Soon after her release, Strickland amended his original order clarifying his intentions, which were clear in video and transcripts from the January 2010 sentencing.

Anthony's defense team objected, and Perry heard arguments from attorneys earlier this month.

Perry asked the defense team if they knew Anthony was serving her probation while she was in jail. One of Anthony's attorneys admitted that they did, but didn't think it was their burden to notify the court.

Perry eventually issued an order stating Anthony does have to report to probation.

In that order, Perry took up the issue with the attorneys too, saying that, "the failure to abide by that order and the failure to notify the court of a known scrivener's error in the order may be a violation of an attorney's duty of candor."

"No attorney should conduct himself or herself in a way that impedes an order of the court. ... Our system of justice should never be in the position of rewarding someone who willfully hides the ball."

This investigation reminds me of the old F. Lee Bailey quote after he was charged with mail fraud: In England, a criminal defense lawyer is apt to be knighted, in America, he is apt to be indicted.

This is especially true where the criminal defense lawyer is representing an unpopular defendant like Casey. The Florida Bar should quickly clear Jose Baez.

Judge Milton Hirsch finds Florida drug law unconstitutional

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida's drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

"[F]or there is nothing either good or bad, but thinking makes it so."

--William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2


I. Introduction

The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding '893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."

***

V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the Due Process Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.

In the comments the other day, there was a discussion about whether Shelton was binding. Judge Hirsch has a lot to say about that, including this conclusion:

In the absence of such particularization I am obliged as a Florida trial court to presume that Florida appellate courts relied upon a Florida-law-based guarantee of due process, whether constitutional or common-law. No Florida case has decided the issue presently before me: whether '893.13 is unconstitutional by operation of the 14th Amendment to the federal Constitution. The Shelton court reached the same conclusion: A[N]o Florida appellate [court] ... has addressed the constitutionality of ['893.13] under the federal Constitution,@ Shelton, 2011 WL 3236040, at *12; and the Florida cases that appear to give passing consideration to the issue of the constitutionality or not of the statute Acontain no analysis of or citation to the tripartite constitutional analysis@ required by Staples and other U.S. Supreme Court authorities, and employed in Shelton. Id. See also supra note 3. Accordingly, I am bound to follow Shelton=s holding that '893.13 violates the 14th Amendment=s due process guarantee.

Hirsch Order

11th Circuit discusses THUG MANSION

Per Judge Carnes:

This appeal stems from a violent drug conspiracy in South Florida that involved a number of criminals, most of whom have aliases or nicknames. The four whose joint trial led to this appeal were Daniel “D.V.” Varela, Liana “The Negra” Lopez, Ricardo “Rick” Sanchez, and Daniel “Homer” Troya. Showing a keen appreciation for their own character, they referred to the townhouse where they lived as the “Thug Mansion.” During their crime wave two of the self-styled thugs, Troya and Sanchez, carjacked a fellow drug dealer and shot him to death. What would have been unfortunate became triply tragic when they also gunned down the drug dealer’s wife and their two children, ages three and four. Troya and Sanchez left all four bodies on the side of the road.

The ensuing police investigation led to the Thug Mansion, which was located in a gated residential community. Officers executed a search warrant there and found evidence of the murder and the on-going drug conspiracy. An indictment and two superseding indictments followed, and then a trial at which the four defendants were convicted on all counts. Lopez and Varela, who brought this appeal, raise several issues, the primary one being that they should not have been jointly tried with Troya and Sanchez, who committed the murders. (Sanchez and Troya were convicted of those murders and sentenced to death, and they have filed appeals that are proceeding separately from this one.)

Who wants to guess how this one came out?

Here's Tupac discussing "Thugz Mansion" (NSFW):

Which one doesn't belong?

The Federalist Society is having a panel looking back at the last ten years after September 11, 2001. On the panel: Wilfredo Ferrer, Jeff Sloman, Alex Acosta, Marcos Jimenez, Guy Lewis and Michael Caruso.

Back to work

Thanks to Rick for his excellent blogging, as usual.

A few items to start the week:

1. Enjoy the last week before school starts on the 22nd. Then back to parking-lot traffic. Ugh. (btw, shouldn't school start after Labor Day?)

2. In case you didn't see it, the Eleventh Circuit held 2-1 that President Obama's healthcare legislation was unconstitutional. Judges Dubina and Hull wrote a "joint opinion" and Judge Marcus dissented. Let's see what the Supremes do.

3. Florida state judges are saying (via Miami Herald) that they aren't bound by a federal judge's decision that the Florida drug statute is unconstitutional. I'm hearing that the same thing is occurring with Judge Martinez's order on the Florida death penalty -- state judges are saying that they aren't bound by the decision. But aren't they under the Supremacy Clause? Isn't this what federal habaes is all about? If state judges can just respond -- well, that's nice, but we'll decide what our state law says -- then why have habeas at all?