Scalia vs. Zimmerman

Piers Morgan had Justice Scalia on last night and Hannity landed George Zimmerman. Must see TV for law nerds!

Scalia had lots of interesting things to say, and I liked how Morgan pushed him a bit.  Scalia said he is most proud that the Court doesn't really cite legislative history anymore and that he has helped move the Court to focus on just the text of the statute or Constitution.  Yet earlier in the interview, he said that he frequently reads the Federalist Papers to see what the Framers intended.  I'm not sure why the Federalist Papers are an okay source for intent, but legislative history is not...

Anyway, here is one clip from the interview:



And here is the NY Times coverage of the interview:

Asked by CNN’s Piers Morgan whether he and Chief Justice Roberts “have had a parting of the ways, gone from best buddies to warring enemies,” Justice Scalia first ducked the question. “Who told you that?” he asked. Mr. Morgan cited news reports, prompting Justice Scalia to respond: “You should not believe what you read about the court in the newspapers. It’s either been made up or been given to the newspapers by somebody who’s violating a confidence, which means that person is not reliable.” After protesting that he would not talk about internal matters, Justice Scalia relented. “No, I haven’t had a falling out with Justice Roberts,” he said. Asked whether there had been loud words or slammed doors, he said, “No, no, nothing like that.” More generally, Justice Scalia said his colleagues had good personal relationships even as they disagreed on legal matters. That is consistent with reports from other justices. “There are clashes on legal questions but not personally,” he said. “The press likes to paint us as nine scorpions in a bottle, and that’s just not the case at all.”

The NY Times also covers the Zimmerman interview:

The assault happened while Mr. Zimmerman tried to pull his cellphone out, he said. Mr. Zimmerman said he had yelled “help” repeatedly, hoping that the police would hear him. After he shot Mr. Martin, he said, he was “terrified” and nervous the police might shoot him if they saw him with a gun.

Mr. O’Mara said the state’s stand-your-ground self-defense law was appropriate for the case. The law permits people who fear great bodily injury or death at someone else’s hands to use lethal force to defend themselves.

Mr. Zimmerman said he had volunteered to take lie detector tests and voice tests, which he said he had passed. “I didn’t have anything to hide,” he said.

The interview ended with Mr. Zimmerman apologizing to the Martin family, and to America for any racial polarization the shooting may have caused.

To Mr. Martin’s family, “I would tell them again that I’m sorry,” he said, adding: “I am sorry they buried their child. I can’t imagine what it must feel like, and I pray for them daily.”

$3 million stolen Henri Matisse recovered by FBI

The one on the left is the real "Odalisque in Red Pants" and the one on the right was a fake on display Sofia Imber Contemporary Art Museum of Caracas, Venezuela.  According to the USAO press release Marcuello Guzman and Ornelas Lazo were arrested today:


According to the affidavit filed in support of the criminal complaint, this case was the result of an FBI undercover investigation. According to the allegations in the complaint affidavit, Marcuello negotiated the sale of the Matisse painting, which had been previously stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSI)) in Caracas, Venezuela in December 2002. The painting is valued at approximately $3 million. Marcuello allegedly admitted to the undercover agents during a meeting that he knew the painting was stolen and offered to sell the stolen painting for approximately $740,000.00. As part of the negotiations, Marcuello further agreed to have the painting transported by courier to the United States from Mexico, where the painting was being stored. The courier was subsequently identified as co-defendant Ornelas.

According to the affidavit, on July 16, 2012, Ornelas arrived at the Miami International Airport from Mexico City, Mexico, hand-carrying a red tube containing the painting. On July 17, 2012, defendants Marcuello and Ornelas met with undercover agents and produced the Matisse painting titled “Odalisque in Red Pants” from inside the red tube. Upon inspection by the undercover agents, the painting appeared consistent with the original Henri Matisse painting reported stolen from the MACCSI museum. At the conclusion of the meeting, Marcuello and Ornelas were arrested.

The Huffington Post has some interesting details:


In 2002, Venezuelan-born Miami art collector Genaro Ambrosino contacted SICAM after hearing that the painting was for sale. Director Rita Salvestrini told him "Odalisque in Red Pants" wasn't on the market, at which point museum officials discovered that the one in their collection had been swapped for a forgery.
One Venezuelan newspaper argued the Matisse may have been swapped during an exhibition loan in Spain in 1997, according to the Daily Mail, while other evidence points to the exchange having happened in 2000.
Either way, “Odalisque in Red Pants” had been a fixture on Art Loss Register's list of most valuable missing artwork. If convicted, according to the U.S. Attorney's office, Marcuello and Ornelas each face a possible maximum statutory sentence of up to ten years in prison.
Unfortunately, most stolen artwork is rarely recovered. According to the Christian Science Monitor, only about 15 percent of missing or stolen art returns to its rightful owner.
In 2004, the FBI created an Art Crime Team and set up a National Stolen Art File database. In the past 9 years, they have recovered over 2,650 items that amount to over $150 million, according to the Daily Mail.
"Generally speaking, art thieves are fairly good criminals, but they're terrible businessmen," Robert Wittman, an art-security consultant and former investigator for the FBI's national Art Crime Team, told the Associated Press. "And the true art is not the stealing, it's the selling."

"Our system of pleas then looks more like a system of railroading."

That's the NY Times op-ed discussing appellate waivers, one of the dirty little secrets of the federal criminal justice system. Here's more:

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself. 

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

Blogger's block

I wish I had something exciting to blog about this Monday morning...

I could try to tie in Miami by discussing how great the traffic is compared to, say, DC:

The usually punctual Sen. Patrick Leahy (D-Vt.) had some choice words for District of Columbia leaders this week, when he blamed their policies for making his 11-mile commute to Capitol Hill last an hour and 40 minutes on Wednesday.
"We go through a city that will spend millions of dollars and enforce parking meters and get fines, and pay for speed cameras which mainly make out of town companies rich, and so on," Leahy said after arriving about 10 minutes late to a 9:30 a.m. hearing. "But they can't coordinate their street lights when their street lights are broken."
Leahy, while pouring himself water on the dais of the Senate Judiciary Committee, didn't say where he was driving from or what roads he took. But he observed that "the main thoroughfares have a green light that will go on for one second and go 10 minutes red."

That prompted Sen. Chuck Grassley (R-Iowa) to joke: "Aren't you sure the problem probably is that they purposely don’t coordinate?"

Or compare the 11th Circuit conference to the 9th Circuit, which was planning a $1 million affair in Hawaii until Congress got wind of it:

Political controversy persists over a conference planned for federal judges on Maui, with two Republican senators calling for the event to be canceled or at least scaled back.

Sen. Jeff Sessions of Ala­bama and Sen. Chuck Grassley of Iowa, who have been questioning the need to hold the August conference at a "far-flung island paradise," sent another letter Friday to the chief judge of the 9th U.S. Circuit Court of Appeals.

"During this time of extraordinary debt, and given the history of opulence — including repeated trips to the Hawaiian Islands — we believe you should cancel the million-dollar conference," the letter said. "Failing that, ample opportunities to scale back costs at this event and at future conferences remain."

After that letter, the Circuit cancelled the conference.  Maybe they should call Adam Rabin to plan the next one.

But those comparisons seem like too much of a stretch.  The District is quiet.... Maybe we'll hear some exciting news today.  Send me your tips!

Judge Beverly Martin says what criminal practitioners are thinking about 11th Circuit's sentencing jurisprudence:

District judges only get reversed when they go way down, but not when they go way up. It's a fabulous concurrence and it invites en banc review.

The case is United States v. Early, and Judge Martin starts her concurrence way:


Where a sentencing court addresses the factors set out in 18 U.S.C.
§ 3553(a) and imposes a sentence within the statutory maximum, this court’s
precedent teaches deference to that judgment on any variance above the Guideline
range, no matter how large. See, e.g., United States v. Shaw, 560 F.3d 1230, 1241
(11th Cir. 2009) (upholding a 120-month sentence representing a 224 percent
upward variance from the maximum Guideline sentence); United States v.
Amedeo, 487 F.3d 823, 834 (11th Cir. 2007) (upholding a 120-month sentence
representing a 161 percent upward variance); United States v. Turner, 474 F.3d
1265, 1281 (11th Cir. 2007) (upholding a 240-month sentence representing a 281
percent upward variance). Indeed, in all the cases decided by this court since
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), I have found none
in which we vacated an upward variance from the Sentencing Guidelines on
reasonableness grounds. For this reason, even though Mr. Early’s sentence of
210-months imprisonment represents a 116 percent variance above the 97-month
sentence set by the top of his Guideline range and a remarkable 169 percent
increase from the 78-month sentence requested by the government itself, I cannot
say the panel’s decision here is contrary to our precedent.

At the same time, I write separately to note that this Court has declined to
exercise similar deference toward a sentencing court’s decision to grant a
downward variance. See, e.g., United States v. Jayyousi, 657 F.3d 1085, 1118–19
(11th Cir. 2011) (holding that a 42 percent downward variance was substantively
unreasonable); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en
banc) (same); United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008)
(holding that a 100 percent downward variance was substantively unreasonable).
This, even where the extent of the variance from the Guideline range was far
smaller and where the reasons given by the sentencing court were more
substantial.

My reading of these cases tells me that in considering sentences above the
Guideline range, we look only to whether the sentencing court seemed to consider
the § 3553(a) factors and we ignore whether the court might have disregarded one
of the factors or weighed the factors in an unreasonable way. In contrast, for
downward variances, we show no such deference and instead scrutinize how a
sentencing court applied each and every § 3553(a) factor. We even go so far as to
decide for ourselves whether the factors were weighed correctly. See Irey, 612
F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203.

And Judge Martin finishes like this:


In sum, even though our case law purportedly requires “a significant justification”
to support a “major departure” from the Guidelines, see Pugh, 515 F.3d at 1201, 
the panel’s review of Mr. Early’s 116 percent upward variance evinces little
indication that such a requirement even applies here.

Absent correction, I fear this Court’s different approach for reviewing up and down sentence variances may erode public trust in our work.

One of the cases that Martin cites is Jayyousi, which is the co-defendant's name in Jose Padilla's case.  There, the 11th Circuit found that the district court's below guideline sentence was unreasonable and cert was just denied.  But, the case is far from over.  Check out this article about the DoD report explaining how Padilla was tricked into believing that the feds injected him with truth serum:

In 2006, a lawyer for Jose Padilla, the accused dirty-bomb plotter, made an explosive claim in a federal court filing: the "enemy combatant" was "given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations."
But what Seymour failed to disclose, reported here for the first time, was that Padilla was given the flu shot during an interrogation session and told by his interrogators the injection was "truth serum," according to a declassified Department of Defense (DoD) inspector general's report that probed the use of "mind-altering drugs" during the interrogation of war on terror detainees.
Sanford Seymour, the technical director of the US Naval brig in South Carolina where Padilla was held, however, vehemently denied the charge during a 2006 hearing to determine whether Padilla, a US citizen, was competent to stand trial. Seymour asserted Padilla was injected with an influenza vaccine.
The inspector general's investigation determined that although Padilla was not administered mind-altering drugs (such as LSD), "the incorporation of a routine flu shot into an interrogation session ... was a deliberate ruse by the interrogation team, intended to convince [redacted] he had been administered a mind-altering drug."

 How long till the motion for new trial is filed?

Thunderstorm Wednesday News & Notes

Looks like everyone is gonna be dragging this morning after those loud storms woke us in the middle of the night.  Some news and notes for this rainy day:

1.  The Herald supports Judge Cooke's ruling in the Docs vs. Glocks case and urges the Governor not to appeal.

2.  The 11th Circuit decides a Stolen Valor case (in this unpublished opinion, USA v. Amster) right after the Court rules.  The opinion basically says -- we have to follow the Court's holding that the Act is unconstitutional but we can still affirm the false statement convictions under other statutes. 

3.  AUSA Lynn Rosenthal is now a Circuit judge in Broward (via DBR).

4.  A defendant calls the former US Attorney in Chicago a "rooster with no nuts." (via Main Justice)

5.  Jay Weaver covers this semi-secret hearing in which an ex-Haiti official gets a year in prison.

Are across the board appellate waivers also unethical?

Perhaps.  Professor Berman has the story on a judge rejecting a plea deal with an appellate waiver here.

From the Denver Post:


They began appearing in federal criminal cases in Colorado after the state's current U.S. attorney, John Walsh, took office in 2010, said Jeff Dorschner, a spokesman for the office. Walsh, Dorschner said, was concerned about wasting the court's and the government's resources when defendants appeal the sentences they received after initially agreeing to those sentences in plea deals. Such appeals are almost always denied.
"The concept is simple," Dorschner said. "If you are sentenced within the guideline you agree to in the plea agreement, then you don't have the ability to appeal that sentence. ... This is the most narrow, limited appellate waiver I think you're going to find."
In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.
Vanderwerff's attorney also urged Kane to accept the deal.
"Both sides benefit from it," Assistant Federal Public Defender Edward Harris wrote.
Harris did not return a call for comment.
Kane, though, viewed the waiver dimly.
"[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."



 From the opinion:

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers.  Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment.  See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012).  Ethical and moral values inevitably infuse the decisionmaking process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such.
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline.  That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly.  Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.
Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.  Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court’s recent history.  See Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005)).  Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Inside baseball at SCOTUS

Tom Goldstein has all the goods here on how SCOTUSblog got it right on Health Care day and CNN/FOX got it wrong.

One thing that is totally annoying:

The Supreme Court will not grant SCOTUSblog a press credential. Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston. There are six other members of our team nearby, running nine computers on eight separate Internet connections.

Why wouldn't the Court give SCOTUSblog access when it is the site most people are relying on for SCOTUS news?  And to boot, the Court won't email the opinion:

The Court’s own technical staff prepares to load the opinion on to the Court’s website. In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced. But now it relies only on its website, where opinions are released approximately two minutes later. The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.
But it does. At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever. It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling. And millions of people are now on the site anxiously looking for the decision. They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again. In the face of the crushing demand, the Court cannot publish its own decision.
The opinion will not appear on the website for a half-hour. So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

The article explains how CNN and Fox do not at all get it right.  Fun read.
Another fun article, but not related to the law, is this piece on the '83 Fleer baseball card set:

A fan here named Scott Mortimer has his own pursuit, with July 31 as the date to watch. That is when the Class AA Erie Seawolves come to Manchester to play the New Hampshire Fisher Cats. The hitting coach for Erie is Jerry Martin, a former outfielder who hit .251 for five teams from 1974 to 1984. Scott Mortimer needs him.
Mortimer, 41, is a stay-at-home father on a worldwide baseball scavenger hunt. He is trying to get autographs on all 660 cards in the 1983 Fleer baseball card set. After six years of trying, he is down to his final 99. One of the blank cards is Martin’s.
“I don’t know what kind of person Jerry Martin is, if he’d be willing to sign the card, if he would even pop out of the dugout before the umpires come out,” Mortimer said at his home last Sunday. “But that’s part of the excitement.”
Mortimer calls it the 83F Project and runs a blog with images of the autographs. He is part of a tribe of collectors who put their twist on a child’s hobby, mining a subset of the industry for fun, not profit. He trades with other collectors pursuing their own autographed sets, and has friends in other countries — scouts, in a way — who keep a lookout for his targets.