"An estimated 20,000 persons, or more, ... are in prison for crimes to which they pleaded guilty but did not in fact commit."

And those are conservative numbers according to Judge Jed Rakoff, who has written a compelling piece explaining that innocent people are pleading guilty to crimes that they have not committed.  There is a lot to blame for this phenomenon but he offers this solution:

What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys.

Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.
I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.
As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.
The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.
Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program.
I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?

Stop using Courier (and Times New Roman)

Font choices are in the news because the Massachusetts Supreme Court is still using Courier, as are a number of judges in this District.  You must stop!  From the Boston Globe:

The court’s opinions all come down in Courier, the old-fashioned typeface designed to mimic electric typewriters. Courts are known for being tradition-bound, but today the SJC is one of only five state high courts that still issue opinions in Courier. And Massachusetts is one of only three states—along with Alabama and New Jersey—that essentially force appeals court attorneys to file their briefs in the font.

As a result, Massachusetts court proceedings have an almost uniquely retro look. The US Supreme Court publishes its opinions in neat, literary Century type. The State Department defected from Courier a decade ago in favor of Times New Roman. Even middle-school students can print their papers in high-toned Bodoni or Garamond.

“If the court asked, ‘So, would you like to stop using Courier?’ there probably would be a tsunami of, ‘Yes, please!’” said Susan Sloane, the director of Legal Research and Writing at Northeastern University School of Law.

Why does Massachusetts cling to Courier? The habit began with typewriters, of course, but its persistence in 2014 offers an illustrative window into the workings of the court, where deference to judges—and to precedent—governs things that have nothing to do with the law itself.

In the type world, Courier is what’s called a “monospaced” font, in which letters are squeezed or stretched to have equal width and spacing; for example, Courier adds a wide tail to lowercase “i” and squishes “w,” so they take up the same amount of room on the page. Most fonts used for texts today—including the one you’re reading—are “proportional,” meaning the spacing of each letter varies according to its size. These are easier to read, but didn’t work for typewriters, which were mechanically unable to vary spacing or the width of the metal type.

For decades, most appellate court briefs and opinions were produced on Courier typewriters, so they all looked the same. They also all had roughly the same number of words per page, because of the font’s uniform monospacing. So judges could conveniently and fairly set a page-count limit on their length.

With the advent of computers, lawyers began dabbling in different fonts that looked better—but also let them squeeze way more text onto the page. A 50-page brief might have the equivalent of 70 pages of Courier text in it. Many overwhelmed courts responded by passing rules requiring the use of Courier or a similar monospaced font.

In 1999, the Massachusetts SJC imposed a restriction in its Rules of Appellate Procedure, which govern the form of legal briefs. “Only a monospaced font is allowed,” that rule says, and Courier is the only one suggested. If there were any doubt as to why, SJC clerk Francis Kenneally points out, you can actually find a note in the rules explaining that it’s to prevent lawyers from sneaking extra text into the 50-page brief limit. (The rule doesn’t apply to the more egalitarian trial courts, which accept even handwritten suits, according to Michael Donovan, clerk of the Suffolk County Superior Court for Civil Business.)

The past 20 years have seen writing and typography advocates successfully pressing courts to modernize—not only in fonts, but in other typewriter holdovers such as double-spacing and in-line citations. A top advocate for better-looking court documents is Matthew Butterick, a Los Angeles attorney who’s also a Harvard-trained typeface designer. His blog “Typography for Lawyers” and 2010 book of the same name have been influential on many courts. He considers himself something of a Courier assassin.

“Have you ever seen a book, newspaper, or magazine printed in Courier? Never,” Butterick said in an e-mail. And for good reason, he said: It’s hard to read, and the written equivalent of “droning along in a monotone.”

 Butterick says stop using Times New Roman as well:

Why not? Fame has a dark side. When Times New Roman appears in a book, document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.
If you have a choice about using Times New Roman, please stop. Use something else. See font recommendations for other options.

Okay, Okay, so you don't want to read about font choices on Monday morning.  Well here's a story from USA Today on a big fight in the Supreme Court about overcriminalization:

 Look up the definition of "fisherman" and John Yates' wrinkled, weather-beaten, Winston-puffing mug might appear. But these days, he's limited to restoring antique furniture and dealing in scrap metal.
Now look up the Sarbanes-Oxley Act of 2002, and you'll find the federal government's Enron-inspired crackdown on financial fraud and document shredding.
But three years ago, the act reeled in Yates for tossing 72 undersized red grouper into the Gulf of Mexico.
On Wednesday, the Supreme Court will examine the curious case of Yates v. United States, which asks the question: Was it the government that went overboard?
"It's obvious that a fish is not a document," says Yates, 62, over a lunch of grouper bites and Budweisers on the Gulf coast, which has been his home for the past 15 years. "You don't have to be that smart to figure that out."
Does the nation's highest court have bigger things to fret about than six-dozen 19-inch fish? Certainly.
But the justices agreed to hear Yates' appeal, even after two lower federal courts determined that his prosecution under a law targeting white-collar criminals was justified. It mirrors a similar case last year, in which the government prosecuted a jilted wife's clumsy effort at revenge under a federal chemical weapons treaty. The court reversed that one, 9-0.
The facts of the case: Yates was captaining the 47-foot "Miss Katie" in 2007 when a state conservation officer with federal enforcement power boarded, measured some 3,000 pounds of fish and found 72 grouper under the 20-inch minimum. He ordered them returned to shore.
Not throwing back in the undersized fish is a civil violation, punishable by a fine or fishing license suspension. But this fish tale got more complicated when Yates allegedly ordered a crew member to throw the offending fish overboard and replace them with longer ones. When the fish were remeasured on dry land, the government smelled a rat. So to speak.
It's a charge Yates still denies to this day; He says they were the same fish, measuring differently based on their mouths, tails and temperature. His wife, Sandy, a former paralegal, keeps a voluminous file that includes the original handwritten measurements of each fish.
Yates was convicted in 2011 of violating Sarbanes-Oxley, which carries a possible 20-year sentence for tampering with or destroying "any record, document or tangible object." He served a 30-day sentence over the Christmas holidays and still lives under a three-year supervised release program. When Sandy's sister died earlier this year, he quips, "It took an act of Congress for me to bury her in Ohio."

Bill Shepherd of Holland & Knight has written an amicus brief for NACDL supporting Yates.

"As Kim Kardashian is with her husband, I'm not going to keep you long."

That was Chief Judge Ed Carnes today at Robin Rosenbaum's investiture. It was a great event with lots of good speeches.  Judge Carnes also invoked the song "Don't Rock the Boat Baby" in describing the importance of collegiality on the 11th Circuit.



Judge Stanley Marcus (who has known Judge Rosenbaum since she was his law clerk) gave a very funny talk, telling numerous jokes, which had the audience laughing out loud.  He started out by saying that since this was the third investiture that he was speaking at for Judge Rosenbaum, he felt a little like Zsa Zsa Gabor's 8th husband: he knew what was expected of him, but he wasn't sure how to make it different.



In response, Judge Rosenbaum said: "If you've enjoyed the entertainment, they'll be playing again next week in Las Vegas."  Then she invoked Talking Heads, "Once in a Lifetime."



Very fun event.



Here are some pictures:

Here is Judge Marcus swearing in Judge Rosenbaum.

How would you like this jury:

And here are 11 of the 12 active judges on the 11th Circuit, plus two senior judges:

Big unpublished opinion from the 11th Circuit reversing because of a judge's refusal to ask voir dire questions related to sexual preference prejudices

Judge Martin issued this 2-1 opinion in United States v. Bates, holding that it was reversible error not to ask potential jurors about their biases against "men who have sex with men." Northern District of Florida Judge Robert Hinkle dissented while Judge Richard Eaton from the Court of International Trade joined Judge Martin.  Even though the emergency order allowing two visiting judges has been lifted, its revocation only applies going forward, so it does not affect this opinion.

From the intro:

Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr. Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.

From the end of the opinion:

The government cannot carry its burden to show that this error was harmless. If Mr. Bates is to be convicted, we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high. His convictions must therefore be vacated, and we remand this case for further proceedings.

 The court was also concerned with the amount of time the defense was given to prepare:

Although we do not decide Mr. Bates’s argument that the District Court abused its discretion by denying his motions to continue trial, on remand the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense. Two circumstances of this case raise concern that Mr. Bates was not afforded the time or resources necessary to prepare an adequate defense during his first trial. First, there was a delay of several months in getting approval for funds for an expert. ...
Second, we are concerned that Mr. Bates did not have enough time to prepare his defense, given that the focus of his prosecution shifted abruptly before trial. Mr. Bates was originally charged on August 23, 2012 in a two count indictment that included only one specific date on which child pornography was allegedly distributed, and gave a range of dates spanning sixteen months over which child pornography was allegedly downloaded or accessed. On February 14, 2013, just two weeks before trial, the government superseded on the indictment, increasing the number of counts to eighteen and highlighting much more detailed information about the dates and times child pornography was downloaded, accessed, and distributed. One week after that, the government disclosed a lengthy supplementary expert report, which was also more detailed than anything Mr. Bates had gotten from the government to that point. Given these late shifts in the focus of Mr. Bates’s prosecution, and the technical nature of the evidence the government presented, we are concerned that he did not have enough time to adequately defend himself during his first trial. See United States v. Verderame, 51 F.3d 249, 250–52 (11th Cir. 1995). If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.

"Never dance with a Cuban."

That was Justice Sonia Sotomayor, speaking at an event at Yale with Justices Thomas and Alito (see post below for more on the event and Alito getting turned away from brunch).  The Washington Post covers Justice Sotomayor's dance preferences:

The justice, whose family hails from Puerto Rico, said that as an appeals court judge, she was often invited to Hispanic events where salsa was being played. But she was a “potted plant” who never learned the steps.
So around age 50, Sotomayor took lessons and made a discovery: “I cannot keep a beat to save my life. But I have a facility that some of my colleagues would find very strange: I can follow.”
Amid the laughter, Sotomayor said that what she needs is a partner who can lead.
“Among Hispanic men, the best dancers in terms of keeping a beat are Dominicans, the worst are Cubans,” Sotomayor continued. “Dominicans have big, big steps--”
A doubled-over and guffawing Thomas interrupted: “That’s profiling!”
“It is, but it proves itself right a lot,” Sotomayor continued. “Cubans have these very tight little steps. Never dance with a Cuban. And Puerto Ricans I can dance with, too.”
It was the perfect set-up for the conservative Alito, with whom liberal Sotomayor frequently disagrees.
“It’s a revelation to know that Sonia likes to follow,” Alito said. “I think we’re going to start dancing in the conference room.”

“Well, he should have made a reservation. We get very busy for brunch.” -- hostess after turning Justice Alito away for brunch

Above the Law has a cute story about Justice Alito being turned away for brunch yesterday and how he handled it graciously.  This shouldn't be a big deal obviously, but when you have judges yelling at store clerks to take down signs, it's nice to hear that some judges have manners.

Anyway, three Justices were in New Haven giving a talk.  Per the NY Times:

Justice Thomas, 66, has apparently mellowed the most. He acknowledged being a “cynical and negative” law student, blaming immaturity and the unsettled political climate of the early 1970s. “I cannot say we were thinking straight about a lot of things, even if we were not using illegal substances,” he said.

“I wish I came here at a time when I could have been more positive,” he added. “There is so much here that I walked right by.”

For years, Justice Thomas had refused to return to Yale. In his 2007 memoir, “My Grandfather’s Son,” he wrote that his law degree had been tainted by affirmative action. He had, he wrote, “learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.”

He added that he had “peeled a 15-cent price sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale.”

***

Justice Sotomayor, 60, has written that she was admitted to the law school with the help of affirmative action and that she found her time here intimidating and inspiring. She has been a frequent visitor and honoree, often drawing huge crowds, particularly after the publication of her own memoir, “My Beloved World.”

On Saturday, she said she is a poor dancer but loves salsa and does well with a strong partner. “I have a facility that some of my colleagues would find very strange,” she said. “I can follow.”

Justice Alito looked shocked. “It’s a revelation to me that Sonia likes to follow,” he said. “I think we’re going to start dancing at conference.”

The justices were questioned by Kate Stith, a law professor at Yale. She asked Justice Alito what he had been reading.

“I have two books that are inspirational,” he responded. “I keep them on a table by my bed, and I try to read a little bit of them every night. It’s ‘My Grandfather’s Son’ and ‘My Beloved World.’ ”

***

The six other justices all attended Harvard Law School, though Justice Ruth Bader Ginsburg transferred to and graduated from Columbia Law School.

Chief Justice John G. Roberts Jr., who has two Harvard degrees, was once asked whether it is healthy for the Supreme Court to consist of only justices with degrees from elite institutions.

“First of all, I disagree with your premise,” he responded. “Not all of the justices went to elite institutions. Some went to Yale.”

Speaking of judges having manners, Chief Judge Michael Moore says that Judge Cooke does not need to recuse in the Miccosukee case.  Judge Moore really did a solid for his colleague.  From the DBR:

Cooke was critical of Bernardo Roman III, the tribe's attorney who filed the federal litigation against his predecessors. Cooke said at one point that Roman "probably never read the rule of ethics."
"The court finds that these statements, while indicative of Judge Cooke's understandable frustration with the parties and proceedings, in no way demonstrate a bias or partiality," Moore wrote.
Cooke dismissed with prejudice the tribe's lawsuit on jurisdictional grounds against its former Miami attorneys: Guy Lewis and Michael Tein of Lewis Tein and Dexter Lehtinen of Lehtinen Schultz Riedi Catalano de la Fuente.

 Here's the whole order.

11th Circuit "emergency" over

On October 17, the 11th Circuit, per Chief Judge Carnes, issued an order putting an end to the emergency order that allowed cases to be decided by panels with only one active 11th Circuit judge.  Now we are back to at least 2 11th Circuit judges per panel.

Aly Palmer of the Daily Report has this story:

With his court back to nearly full strength, the chief judge of the U.S. Court of Appeals for the Eleventh Circuit has announced the end of a court emergency.
In December, Chief Judge Edward Carnes declared an emergency, saying that cases could be decided by three-judge panels composed of only one of the court's judges plus two visiting judges. At the time, four of the court's 12 slots were vacant.
Since then, three vacancies have been filled. Most recently, Judge Jill Pryor of Atlanta started work two weeks ago. On Friday, Carnes signed a new order declaring the emergency over.
Friday's order suggested that the public will continue to see decisions from panels that include only one member of the court. Carnes explained that panels composed of fewer than two Eleventh Circuit judges that have had any appeals either orally argued or submitted to them for decision before Friday remain authorized to decide the cases.
Federal law says that when federal appeals courts decide cases by three-judge panels, at least two of the judges must be members of that particular appeals court. An exception includes the chief judge's ability to certify an "emergency."

Meantime, the big federal bar shindig tonight is at the JW Marriott.  Who is in?

Judge Gold formally retires

The blog reported back in August the sad news that Judge Gold was formally retiring this month and that he would close his chambers and take inactive status.  John Pacenti of the Daily Business Review covered the story last week and reports that Judge Gold is happy about moving on to the next phase of his life:

But for now, he is focused on his baby granddaughter in New York. His wife, Susan F. Gold, retired last year as an associate professor of pediatrics and education at the University of Miami, and they want to focus on family and travel.
"It's about at this phase in my life, reprioritizing while I'm healthy," he told the Daily Business Review. "We wanted to explore really other interests in our lives together and independently."
Gold was appointed by President Bill Clinton in 1997 after serving as a state circuit judge, an attorney with Greenberg Traurig and a Miami-Dade County attorney. He took senior status in 2011.
"This is a tough week because there is a sense of sweet sorrow in retrospect, but also an excitement about living a mindful phase of my life," the 70-year-old judge said. "At this stage, it's time to ask your next question: Who are you now, and what is it you want to do with the time you have left?"
***
U.S. District Judge Federico Moreno said Gold was one of the hardest-working judges in the district."He always has been one of our more scholarly judges," Moreno said. "We are going to miss him because he was such a hard worker, but I'm delighted he wants to spend more time with his family. He certainly deserves a break." 

Judge Gold was at Judge Bloom's investiture last week and looked great. 


He handled some of the biggest cases in this district -- Exxon, UBS, Shaygan...  But more importantly than the brilliant way he handled those cases was that he was a great person and made everyone feel like they were getting a fair shake.  He'll be missed on the bench.