This summer's big winners are...

... Aimee Ferrer and Alex Arteaga-Gomez.  These AFPD's just won an across-the-board acquittal after a 6-week fraud case before Judge Martinez for Cristal Clark. (The jury hung on all counts as to the co-defendant, Dave Clark). The case had lots of twists and turns, including an 11-member jury at the end when it reached its verdict on Friday afternoon.  The AP has some coverage:

Dave Clark's defense contended that the developments were legitimate and only collapsed because of the financial recession, not due to any criminal wrongdoing. The attorneys for Cristal Clark, meanwhile, said she relied on her husband and his financial advisers and committed no crimes.
In June 2014, Dave Clark was extradited from Panama and Cristal Clark from Honduras to face the U.S. charges. Both have been jailed as flight risks ever since. After Cay Clubs failed, Dave Clark and two partners formed a Cayman Islands-based company that opened a string of pawn shops across the Caribbean known as CashWiz.
Some of the fraud charges against the Clarks stem from that business, with prosecutors contending the couple were illegally siphoning off for themselves cash the company was making buying and selling gold.

Congrats to the FPD's office and to Aimee and Alex.

This is a good example of why judges are too harsh with bond.  It takes a lot of courage and perseverance to wait in jail over a year to try your case.  The New York Times covered the bail problem with a front page story here.  The story focused on low-level indigent defendants, but it's really a huge problem in all cases as judges have become more and more stingy with bonds, even for first-time non-violent offenders. 

In other news, Judge Diane Ward is really cool.  She is collecting and showing courtroom sketch work from well-known federal trials in Miami.  This is an awesome project.  And thankfully, the sketches don't look like this one!  From Dave Ovalle and picture by Emily Michot:

For many young lawyers who dart down the halls of the criminal courthouse, the history of Miami-Dade’s legendary legal dramas — along with the names of famous lawyers and often infamous defendants — might ring unfamiliar.
There was Ted MacArthur, the ex-homicide detective who murdered his wife in 1989. Joseph Hickey, the son of a Miami judge, who tried to extort $2 million in a bizarre kidnapping hoax. And Al Sepe, the Miami judge who did 18 months in prison in the notorious “Court Broom” judicial corruption scandal that erupted in 1991.
“It was the second-biggest corruption scandal in the nation’s history, and no one remembers it,” said Miami-Dade Circuit Judge Diane Ward as she walked down a hallway behind her courtroom.
Thanks to Ward, the enduring images of those and other important trials — sketched in bold pastel strokes by South Florida courtroom artists — now hang in a hallway behind her fourth-floor courtroom at the Richard E. Gerstein Justice Building. For the judge and lawyers who recently loaned her framed sketches, the corridor has become a mini-museum documenting not only the cases of yesteryear but the fading art of courtroom sketching.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article31251140.html#storylink=cpy

An Argument for cameras in Federal Court... bad sketch artists

This is supposed to be Tom Brady:

On Johnson retroactivity, the Eleventh Circuit splits with the Seventh Circuit

Last week, the Seventh Circuit held that Johnson v. United States, which held that increasing a sentence under the Armed Career Criminal Act's residual clause is unconstitutional, applied retroactively on collateral review. Today, the Eleventh Circuit, in a 2-to-1 decision, came to the opposite conclusion.

The majority opinion starts this way:

This application for leave to file a second or successive motion to vacate, set aside, or correct a federal sentence requires us to decide whether the decision of the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), established "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," 28 U.S.C. § 2255(h)(2). Gilberto Rivero was sentenced as a career offender under what were mandatory United States Sentencing Guidelines, and his judgment of conviction and sentence was upheld on direct appeal and collateral review, id. § 2255. Rivero now applies for leave to file a second or successive motion under section 2255. Because we hold that Johnson did not establish a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, we deny Rivero's application.

The majority disagreed with the Seventh Circuit:

We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015). In Price, the Seventh Circuit explained that "[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review" because "[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him." Id. at *7. We disagree. We can "escap[e] th[at] logical conclusion" because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.

Judge Jill Pryor dissented:

I dissent because I believe that in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court announced a new substantive rule of constitutional law that the Court has made retroactive to cases on collateral review. In no uncertain terms, the Supreme Court has said that "decisions that narrow the scope of a criminal statute by interpreting its terms . . . . apply retroactively . . . ." The majority concedes that Johnson is that very type of narrowing decision. So does the government, which does not contest Johnson's retroactivity.

Will be interesting to see how this plays out.

Should judges blog?

I say yes.  If Supreme Court Justices can write books and give speeches, what's the real difference?

Judge Kopf stopped blogging, but wishes more judges would get involved (via NLJ):

A month after U.S. District Judge Richard Kopf of Nebraska abruptly shut down his controversial blog, he still believes federal judges and even Supreme Court justices would do “far more good than harm” if they publicly blogged and tweeted.
“Properly done, the public’s perception of the federal judiciary is enhanced when judges speak and write candidly about our courts,” Kopf said in an exclusive interview with The National Law Journal.
Kopf added that he might blog again—but not about judging or the law. “I have burned too many bridges to continue that activity on a regular basis,” he said, expressing regret about some but not all of his headline-making blog posts over the past two years.
For example, he stood by his June 22 post in which he urged Justice Anthony Kennedy to “zip the pie hole shut” on issues like solitary confinement.
The 68-year-old Kopf ended his blog Hercules and the umpire on July 9, after learning from Judge Laurie Smith Camp, chief of the U.S. District Court for Nebraska, that it came up during a retreat for court employees that Kopf did not attend. She told him that the "great majority" of the employees indicated they felt his blog had become an embarrassment to the court.
That discussion followed a July 6 post in which Kopf pronounced U.S Sen. Ted Cruz, R-Texas, "demonstrably unfit to be president" because of his proposal that Supreme Court justices stand for judicial-retention elections every eight years.

Some of the Q&A:

NLJ: With benefit of hindsight, do you think you should have stayed your pen, so to speak, and not posted your more controversial opinions? I'll ask about some of them, one by one. First, telling the Supreme Court to STFU because it decided to rule on the Hobby Lobby case involving contraceptive coverage in health care plans.
Kopf: First, nothing that follows is intended to make excuses for my many errors. I don’t regret writing most of the Hobby Lobby post. The last sentence is the one I regret. Specifically, I do regret using “STFU.” Using that acronym was unnecessary and distracting; it was also too cute by (at least) half.
NLJ: What about your comments about how female lawyers dress in your court, and your reference to a woman who "wears very short skirts and shows lots of her ample chest." You added, "I especially appreciate the last two attributes.”
Kopf: The subject of how female lawyers dress for court was worthy of discussion, but the post was offensive. When I wrote it, I thought the post was merely sardonic and self-mocking. I was wrong. But, as my old law partner and dear friend used to say, there is no fixing dumb, and that applies to me in spades.

I'm baaaaaaacck

Big thanks to the the guest bloggers and posts while I was away.  Entertaining, informative and a little different than what you usually get from me, so that's really great.

Lots of complaints about prisons in the press, but not much action.  Here's the L.A. Times on the Supermax, and the Washington Post on solitary confinement. When will the Supremes take up the issue?

Former Broward Teachers Union President Pat Santeramo was indicted.  Paula McMahon is covering the story and Ben Kuehne is defending.

The 11th Circuit finally decided to dump one of the most ridiculous procedural rules ever. Now if the Supreme Court decides an issue after you've filed your initial brief, you can still raise the issue in a supplemental filing. 

Looks like the 4th Circuit in Graham created a Circuit split with the en banc 11th in Quartavious Davis on the cell-site data issue.  Hopefully the Supreme Court will take it (I'm biased as I am counsel of record for Davis).  My co-counsel, the ACLU, covers the story here.