Some fireworks in an 11th Circuit case

More specifically, a death penalty case.  Judge Wilson's opinion (joined by Judge Martin) is here, and he frames the issues:

Derrick Anthony DeBruce, an inmate on Alabama’s death row, appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his death sentence. DeBruce contends that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution in both the guilt and the penalty phases of his capital murder trial.
DeBruce was convicted of fatally shooting a customer during the robbery of an AutoZone store which he committed with five other men.1 DeBruce argues that his retained trial attorney, Erskine Mathis, was constitutionally ineffective in failing to cross-examine state witness LuJuan McCants, a co-participant in the robbery who identified DeBruce as the shooter at trial, with McCants’s earlier allegedly contradictory statements. He also argues that Mathis was ineffective in failing to investigate and present evidence about DeBruce’s mental capacity and background during the penalty phase of his trial.

Judge Tjoflat dissents:

Derrick DeBruce’s lawyers may or may not have been ineffective. I don’t know, and my colleagues don’t either. We can’t know—despite two decades of litigation in state and federal court—because DeBruce failed to develop a record of what his attorneys did (or did not do) in preparation for the penalty phase1 of his capital murder trial. Without a thorough record, it is impossible for DeBruce to overcome the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984), and impossible for this court to say—as it must to grant relief under § 2254—that the State court’s application of Strickland was “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 1521, 146 L. Ed. 2d 389 (2000).
***
But now our court, evidently possessed of special insight, reverses and grants habeas relief. My colleagues do so by inventing a theory of the case that is both factually unsupported and facially implausible: that DeBruce’s seasoned capital-defense lawyers walked into the penalty phase of trial without knowing anything about the man they were defending. That claim would be dubious standing alone, but here it must overcome the “doubly deferential” standard of review federal courts apply when Strickland and AEDPA operate in tandem. Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003). To grant relief under this demanding standard, the majority needs unambiguous evidence that DeBruce’s attorneys were incompetent. There is no such evidence, so instead the majority embellishes the record, disregards AEDPA, and succumbs to the “all too tempting” impulse “for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission . . . was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

 Judge Martin concurs because she: "feel[s] [she] must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I 'invent[ed] some facts,' 'embellish[ed] the record,' exhibited a 'lackadaisical relationship with the evidence,' and 'disregard[ed] AEDPA' in deciding this case."

The whole concurrence is worth a read (I left out the footnotes):

 After thorough consideration of this difficult case, Judge Wilson and I have come to the view that Derrick Anthony DeBruce is entitled to habeas relief. This is quite a serious thing, as Mr. DeBruce has been sentenced to death by the State of Alabama. The federal statutory scheme put in place by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was intended to, and does give great deference to the judgment of a State court decision that adjudicated a federal claim on the merits. See 28 U.S.C. § 2254(d). As it should. “AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, ___ U.S. ___, ___, 134 S. Ct. 10, 15 (2013). At the same time, the Supreme Court has admonished federal judges that, “[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).

None of the three judges on this panel takes this case lightly. On the one hand, Mr. DeBruce was convicted of killing an innocent man named Doug Battle, who did nothing more than happen by the AutoZone Store in Talladega, Alabama on August 16, 1991. On the other hand, Mr. DeBruce is himself set to die as a result his conviction for killing Mr. Battle. None of the cases involving inmates who are sentenced to death are easy, and Mr. DeBruce’s case is no exception. It was filed in our court about three and one-half years ago on April 6, 2011. Four judges of our court have considered the case during the time it has been pending here. It came from the Northern District of Alabama, where it was filed on September 7, 2004, and stayed pending for more than six years.

I write separately because I feel I must respond to the dissenting opinion, and specifically Judge Tjoflat’s repeated statements that Judge Wilson and I “invent[ed] some facts,” “embellish[ed] the record,” exhibited a “lackadaisical relationship with the evidence,” and “disregard[ed] AEDPA” in deciding this case. See Maj. Op. at 2, 3, 40, 81. Judge Tjoflat is a nationally known and admired judge who has served as a member of the federal judiciary since 1970, and as a judge for the State of Florida before that. He is not only admired nationally, he is also admired by Judge Wilson and me. Our work would be much quicker, easier and happier if Judge Wilson, Judge Tjoflat and I all agreed on how the law applies to this case—and every other case, for that matter. But if we do our jobs properly, it is inevitable that we will have disagreements. And we disagree here. That being the case, it is incumbent upon each of us, as a part of this difficult process, to lay out how we understand the law to apply to the specifics of Mr. DeBruce’s case. Each of us has honestly assessed this case to the best of our ability, and the opposing views expressed in our respective opinions were reached through a sincere effort to properly perform the role required of us as judges of this Court.

Another 5-year cap in the Rothstein web

This time to Frank Preve, the 70-year old COO of Banyon Investments LLC.  Even though the 5-year count in the information is a sure tell that the case has been resolved the DBR reports as follows:

Preve, Rothstein's point man at Banyon, was charged in a criminal information with one count of conspiracy to commit wire fraud. Usually, an information indicates a plea deal has been struck, but Preve's attorney—Ramon A. Rasco, a partner at Podhurst Orsek in Miami—told the Daily Business Review his client hasn't agreed to anything as of yet.
Rasco said the case against Preve is about "omissions," his failure to disclose to investors Rothstein's financial shenanigans in the months leading up to the implosion of the fraud in October 2009.
From July to October 2009, "Preve caused investors and lenders to pay more than $20 million to the Banyon Group by wire transfer for investments in confidential settlements," the information reads.
Rasco noted the information doesn't accuse Preve of having any direct knowledge of Rothstein's settlement financing fraud. "Considering the allegations that have been made against Frank over the years, it is a very, very watered-down version of events," he said.
Preve and Rothstein exchanged thousands of emails, but they met only a handful of times, and Preve did not have an office in Rothstein Rosenfeldt Adler's Fort Lauderdale office as alleged in civil suits, Rasco said.
"He did not have any knowledge of the Ponzi scheme, and he wasn't working with Rothstein, and he certainly did not benefit from it," Rasco said. "What the government is alleging now are basically technical violations."
Rothstein's scam was disguised as an investment strategy where Rothstein would purchase discounted confidential settlements in sexual harassment or employment whistleblower cases.

Homeless man who robbed bank was sentenced...

...to 28 months in prison.

The 71-year old said he robbed the bank to get medical care in prison and 3 squares a day. From the Sun-Sentinel:

A 71-year-old homeless man who said he robbed a bank to get medical treatment and a jailhouse roof over his head was sentenced Friday to two years and four months in federal prison.

George Hernandez was a longtime customer at the SunTrust bank on Fort Lauderdale's North Ocean Drive until February, when he gave a teller a note claiming he had a gun and walked out with $4,980.

He left in a cab, gave $2,000 to a homeless family he had befriended and paid for his motel room and medication for his chronic lung disease, his lawyer told U.S. District Judge Federico Moreno.

Hernandez, who said he drank 12 beers a day, was arrested a few days after the robbery. He used a wheelchair and oxygen tube in court.

The judge said it was a sad case but Hernandez's age and medical problems were no excuse. He recommended Hernandez serve his time in a federal prison hospital.

Judge Kopf to continue blogging

His explanation is here:

After reading every comment I could get my hands on about whether I should continue to blog (including over 500 blog comments of all sorts, especially critical comments from law professors such as those found here and here, lots of e-mails going both ways but more than a few from experienced lawyers agreeing with my friend, contrasted with spirited support from prominent federal practitioners like that found here and here, together with encouragement from two Nebraska state trial judges and two federal district judges from other districts*) and after a sincere and thorough evaluation of my motivations in writing this blog, I have decided to continue.

...

I care deeply about federal judicial transparency, I don’t see much of that and if I quit there would be even less of it and none of it from federal district judges. The implicit assumption of the thoughtful lawyer who wrote me is that mystery and mythology are better for the legal profession and the judiciary than transparency, particularly when the transparency revealed is raw. I profoundly disagree.

On the contrary, that thinking has brought both the legal profession and the judiciary to the brink of disaster. In these polarized times, why should anyone trust us if we judges, particularly federal judges, are not utterly open to examining our motivations and mistakes before the public for whom we serve? Law is not politics, but that assertion now requires proof, not mere belief. ...

Our blog poll called this one.

Pizzi opening statements

The Herald covers them here:

In opening statements, Dwyer argued that Pizzi pocketed bribes from a now-convicted Miami-Dade County lobbyist and the undercover agents posing as sleazy businessmen. By dangling bribes in front of him, they talked the mayor into supporting the federal grant proposals purportedly to spur job growth in his community and the neighboring town of Medley.
Dwyer said Pizzi intentionally grabbed the money and campaign checks to line his pockets — a total of $6,750 — knowing that Miami Lakes and Medley would not be benefiting from any federal grants for a jobs feasbility study.
“This case is about a powerful politician who sold his power, who sold his position,” Dwyer told the jurors.
In Pizzi’s defense, Shohat said the federal case was “horribly flawed” on several levels, including the sting operation’s premise, the FBI’s investigative techniques and the prosecution’s get-rich allegation.
“He didn’t sell his office,” argued Shohat, who is handling the defense with three other lawyers, Ben Kuehne, Michael Davis and Ralf Rodriguez. “He didn’t risk his entire career for $6,750.”

Who says there aren't trials?

Judge Darrin Gayles is already in trial, in this interesting case (via the Sun-Sentinel):

The former president of the labor union local representing maritime workers at Port Everglades in Fort Lauderdale went on trial in federal court Tuesday, accused in a 17-count indictment of using false documents to steal thousands of dollars in union funds.
Darryl Brice "Mike D" Payne, 47, of Sunrise, was president of a union that represents workers who are primarily employed loading and unloading cargo and providing services for the shipping and cruise industries at Port Everglades and elsewhere in Broward County.
Payne used union money to pay for personal travel expenses to Las Vegas, Baltimore, St. Louis and other cities, as well as to buy sports memorabilia, including a signed Miami Heat basketball, according to a 55-page indictment filed in August.
Among the charges are conspiracy to steal union assets, stealing union assets, endeavoring to obstruct justice, mail fraud and making false statements.
The charges carry penalties of between five and 20 years in prison, as well as substantial fines.
Payne, who still works as a crane operator at Port Everglades, was portrayed by his defense attorney Bruce Zimet as a reform-minded labor leader who was targeted by union rivals after he won the presidency of International Longshoremen's Association, AFL-CIO, Local Union No. 1526 in 2007.
The local has more than 800 members, according to its website.
"He implemented change to move the union into the 21st century," Zimet said in his opening statement. "Some were unhappy and formed a campaign to undermine that. Right away they're trying to destroy him."
Prosecutor William Shockley began his case by showing jurors several documents in support of the government's contention that Payne submitted false invoices and work records to cover personal expenses and inflate his years of seniority.
One of the first witnesses to testify was Denise Rodgers, former executive director of the Sistrunk Historical Festival in Fort Lauderdale, a civic organization that had honored Payne in 2008 for what she called his "outstanding contribution to the community."
At a silent auction that year, Payne successfully bid on the signed Heat basketball, a football autographed by former NFL star defensive end Michael Strahan, and a spa massage. The total contribution for all three came to $380, Rodgers testified.
Prosecutors alleged in its indictment that Payne used union funds to pay for those purchases by using a false invoice to lump them in with other legitimate expenses paid to the Historical Festival as charitable donations.
The mail-fraud charge relates to an alleged scheme to deceive officials of the union's pension fund by presenting an altered U.S. Department of Labor document that made it appear as if Payne had received workers' compensation for four years.
In fact, however, Payne had received workers' compensation payments for only about four months, prosecutors allege. Payne submitted the altered document, the government alleges, in order to add years to his seniority and thus increase his pension.

 And the Pizzi case is off and running, with opening statements this morning (via The Miami Herald):

In opening statements, prosecutors will argue that Pizzi pocketed bribes from a now-convicted Miami-Dade County lobbyist and undercover agents posing as sleazy businessmen. They persuaded the mayor to support bogus federal grant proposals purportedly to spur job growth in his community and a neighboring town.
They will contend Pizzi intentionally grabbed the money to line his pockets -- a total of $6,750 -- knowing that Miami Lakes and Medley, where he worked as the town attorney, would not be benefiting from any federal grants.
Pizzi’s defense team will counter that he did not receive some of that cash from the lobbyist, Richard Candia, and the FBI undercover agents claiming to be executives of the phony grant-writing business, Sunshine Universal.
His attorneys will also assert that Pizzi did accept some of that money, but it was a legitimate reimbursement for his own political campaign expenses.
And, they will argue that Pizzi always believed that the federal grant proposals would help Miami Lakes and Medley -- and that they were not a scam.

It's supposed to be summer time!

Michael Pizzi trial starts today

Should be lots of fireworks...

Here's the Herald coverage of the opening act:

He is charged with conspiracy and extortion offenses for allegedly accepting $6,750 in mostly cash bribes during an FBI sting operation. In exchange, he supported bogus federal grant proposals purportedly to spur job growth that prosecutors say were only meant to line his pockets.
Pizzi is accused of collaborating with onetime Miami-Dade lobbyist Richard Candia, who flipped for the feds, has pleaded guilty and will testify against him. Two others busted last August on similar charges — former Sweetwater Mayor Manuel Maroño and lobbyist Jorge Forte — have also pleaded guilty and been imprisoned.
Of the four defendants, Pizzi has the most defensible case, and has been the most vocal about his innocence. But for Pizzi to be acquitted, he still must justify to jurors why he accepted alleged cash bribes: $1,000 from Candia at a Starbuck’s cafe; $2,000 from a couple of FBI undercover agents at a billiard hall; and $3,000 from Candia in an office closet at Medley Town Hall, where Pizzi worked as the town attorney.
Pizzi also accepted alleged bribes in the form of $750 check donations for his 2012 reelection campaign from a Miami-Dade lobbyist, Michael Kesti. Kesti, who is not expected to testify at Pizzi’s trial, was paid $114,000 by the FBI, including use of a rented Lexus, to play the role of a government informant in the 2011-13 sting operation.
The biggest question hanging over his trial is whether the voluble Pizzi will take the witness stand in his own defense. “That will be up to my lawyers,” he said.
Pizzi, a Brooklyn native who moved to South Florida in 1988, sees himself as the character Carmine Polito in the Oscar-nominated movie, American Hustle — an over-the-top tale of the FBI’s undercover takedown of a fictional blue-collar New Jersey mayor who lived for his constituents.
“Everyone who has seen American Hustle says that Carmine Polito is Michael Pizzi,” he said. But he leaves out the part that Polito’s character was modeled after an actual 1970s-era Jersey mayor convicted in the FBI’s so-called Abscam sting.

Judge Kopf is thinking about ending his entertaining blog because he is getting heat for telling the Supreme Court to STFU

Here's the post:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.
To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.*
The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’s “passive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.** What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?  What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would  have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?
Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.***
*“Americans continue to take a dim view of the U.S. Supreme Court’s performance, perhaps in part because most still think the justices base their decisions on their own political agenda rather than the law.” Rasmusssen Reports, (Tuesday, June 24, 2014) (Only “26% Rate Supreme Court’s Performance Positively.”).
**Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.
***Thanks to June Edwards, one of the smartest lawyers I know, for stimulating this post last evening (July 4, 2014) as we sat on her pleasant patio overlooking a fire works display that illuminated the entire City of Omaha from our perch in the western hills. By the way, Charlie, the dog, was fine because Joan must have fed him 3 or 4 burgers plus all manner of other treats.

And here is the federal district judge now discussing whether he should stop blogging.



What say you:

Should Judge Kopf continue blogging?
	Yes, it's interesting to hear what a federal judge has to say.
	Yes, judges are people too, and if other people don't like it, they don't have to read it.
	No, judges should not be permitted to blog.
	No, his comments bring disrepute on the judiciary.
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