SCOTUS Monday: Fane Lozman is 2-0

Fane Lozman has won his second case before the Supreme Court, this time 8-1.  From Justice Kennedy's intro:

This case requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech. An arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation. See, e.g., Devenpeck v. Alford, 543 U. S. 146, 153 (2004). At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Crawford-El v. Britton, 523 U. S. 574, 592 (1998).
The petitioner in this case alleges that high-level city policymakers adopted a plan to retaliate against him for protected speech and then ordered his arrest when he attempted to make remarks during the public-comment portion of a city council meeting. The petitioner now concedes there was probable cause for the arrest. The question is whether the presence of probable cause bars petitioner’s retaliatory arrest claim under these circumstances.

And then the intro to the analysis:

The issue before the Court is a narrow one. In this Court Lozman does not challenge the constitutionality of Florida’s statute criminalizing disturbances at public assemblies. He does not argue that the statute is overly broad, e.g., Terminiello v. Chicago, 337 U. S. 1 (1949); Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150 (2002); or that it impermissibly targets speech based on its content or viewpoint, e.g., Texas v. Johnson, 491 U. S. 397 (1989); Cohen v. California, 403 U. S. 15 (1971); or that it was enforced in a way that curtailed Lozman’s right to peaceful assembly, e.g., Brown v. Louisiana, 383 U. S. 131 (1966). Lozman, furthermore, does not challenge the validity of the City Council’s asserted limitations on the subjects speakers may discuss during the public-comment portion of city council meetings (although he continues to dispute whether those limitations in fact existed). Instead Lozman challenges only the lawfulness of his arrest, and even that challenge is a limited one. There is no contention that the City ordered Lozman’s arrest to discriminate against him based on protected classifications, or that the City denied Lozman his equal protection rights by placing him in a “class of one.” See Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam).Lozman, moreover, now concedes that there was probable cause for the arrest. Although Lozman does not indicate what facts he believes support this concession, it appears that the existence of probable cause must be based on the assumption that Lozman failed to depart the podium after receiving a lawful order to leave.
Lozman’s claim is that, notwithstanding the presence of probable cause, his arrest at the city council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. The question this Court is asked to consider is whether the existence of probable cause bars that First Amendment retaliation claim.

The Court says no and reverses the 11th.

The Court also has a couple of sentencing decisions, one in favor of the defendant and one if favor of the government.  Check SCOTUSBlog for details.  (Still no Carpenter)

Judges are people too.

Just a friendly reminder that judges are people too. They eat dinner, even Supreme Court Justices.  They should be permitted to use Facebook.  And they should be able to write a letter for a friend without getting reprimanded.  From David Ovalle at the Herald:

A Miami-Dade judge, lauded for working with drug-addled defendants, has agreed to a public reprimand after she improperly wrote a letter of support for a mental-health worker convicted of federal Medicare fraud.
County Judge Deborah White-Labora is the third Miami judge in the past two months to get into trouble with Florida's Judicial Qualifications Commission The other two are facing possible expulsion from the bench, one for using a racial slur, the other for failing to report luxury hotel stays gifted to her husband.
White-Labora was cited for improperly using her position to vouch for Sam Konell, who was sentenced in February to five years in federal prison for illegally steering state-court defendants to a corrupt clinic, which in all fraudulently billed Medicare for more than $63 million.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article213341544.html#storylink=cpy

Dershowitz takes on the recall to Judge Aaron Persky

You remember Persky.  He is the judge who gave the 6 month sentence to the Stanford student convicted of rape.  The sentence seemed too low to most observers, and the judge was just recalled.  Dersh persuasively argues that the recall is a dangerous attack on judicial independence.  Even if you disagree with the sentence, judges need to be free to judge.  If not, they will just do what the majority says:

Yet, demanding a recall of a judge because of disagreement with a particular sentence has institutional implications that transcend a single case. The campaign to recall Judge Persky was led by a feminist law professor from Stanford named Michele Dauber, who argued that Judge Persky was too lenient in his sentence and that she wanted to send a message to other elected judges.

Opponents of the recall included prosecutors and judges, who argued, “It certainly appears the goal is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts.”

Professor Dauber succeeded in recalling Judge Persky but, in doing so, she and those who voted for the recall inflicted a deep wound on judicial independence. Today, they recalled a judge who made a ruling against their agenda. Tomorrow, this recall will energize extremists from the right to recall judges who make rulings supporting the left-wing agenda.

California has already experienced a successful right-wing effort to remove liberal judges. Back in 1986, Chief Justice Rose Bird and Associate Justice Cruz Reynoso were voted out of office because of their opposition to the death penalty and their support of other liberal agenda issues. We are likely to see more recalls and contested judicial elections now, organized by extremists on both sides.

The sad reality is that the last thing extremists want is judicial independence. What they want is judges who will do their bidding, who will support their agenda and who will vote their side. In an age when nearly everybody picks a side and supports it without regard to neutral principles of justice or civil liberties, the danger to judicial independence comes equally from the left and the right.

The difference is that the left needs judicial independence more than does the right. This is because independent judges are supposed to defend the rights of the disenfranchised, the weak, the discriminated against and those who cannot prevail in our majoritarian political system. No judge has ever been removed from office for being too tough on crime, for imposing excessive sentences, or for siding with prosecutors. The recall is a right-wing tool that now has been sharpened by the hard left.

So the decision to recall Judge Persky may benefit the extreme left in the short run, but it hurts liberals and progressives in the long run. But extremists always demand immediate gratification and rarely look to the long-term implications of the damage they are doing. The ultimate losers will be African Americans, Hispanic Americans, Native Americans and other minorities who too often are treated unfairly by our legal system.

News & Notes

1.  Brendan Dassey (from the Netflix show Making a Murderer)  is trying to get the Supreme Court to hear his case.  The NY Times covers it here.

2.  New Florida Bar President Michelle Suskauer will focus on criminal justice reform and smaller law offices.  She will be great.  DBR coverage here:

Suskauer says the greatest weapon in her arsenal is social media, and she plans to use it with vigor. Followers can expect to see monthly video messages from Suskauer, as well as projects like the Legal Fuel Speaker Series, delivering on-demand, practical information to help the everyday lawyer with their practice.
Like many criminal defense attorneys, Suskauer believes rehabilitation has more societal benefits than punishment. In line with her calls for “common sense” justice reform, the bar will propose new criminal reform legislation this October at the Criminal Justice Summit — the first of its kind.

 3.  The feds have charged the former police chief and two officers in Biscayne Park for framing a teenager with unsolved burglaries.  From the Herald:

Federal prosecutors said Police Chief Raimundo Atesiano and two cops acting under his authority lied about the arrests to wow the small village's elected leaders with their crime-solving savvy.
Atesiano faced a Miami magistrate judge for the first time Monday afternoon after being indicted on charges that he violated the teen's civil rights during the arrests five years ago.
"The existence of this fictitious 100% clearance rate of reported burglaries was used by Atesiano to gain favor with elected officials and concerned citizens," according to an indictment.
Atesiano, 53, now stands accused of encouraging the officers to arrest the teen in June 2013, "knowing that there was no evidence and no lawful basis to support such charges," prosecutors said after unsealing the indictment. The teen is referred to as T.D. in the indictment.
The officers, Charlie Dayoub and Raul Fernandez, collected evidence from four unsolved burglaries, completed four arrest reports and created false narratives to imply the teen had broken into four unoccupied homes that April and May, according to the indictment. At a village council meeting in July 2013, a month after the teen's arrest, Atesiano claimed a perfect close-out rate for burglary cases in the mostly residential community near Miami Shores that is home to about 3,200 people.
Atesanio surrendered Monday to authorities on two charges of conspiring to violate the teen's civil rights and depriving him of those rights. He was granted a $50,000 personal surety bond, co-signed by his wife. Magistrate Judge John J. O'Sullivan set his arraignment for June 25.

Still no Carpenter...

I was waiting to blog this morning, thinking that SCOTUS would issue Carpenter today and I would have a lot to say.  But the watch is still on.  We did get Alito issuing an opinion that would strip voters of their ability to vote.  Sotomayor goes after him:

Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote. The majority of States have found ways to maintain accurate voter rolls without initiating removal processes based solely on an individual’s failure to vote. See App. to Brief for League of Women Voters of the United States et al. as Amici Curiae 1a–9a; Brief for State of New York et al. as Amici Curiae 22–28. Communities that are disproportionately affected by unnecessarily harsh registration laws should not toler-ate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.

Immigration judges are judges too.

So says Judge Jordan in this opinion dealing with an issue of first impression in the country:

One of Mr. McLean’s arguments presents an issue of first impression for us (and, as far as we can tell, for the country): whether an immigration judge is a “United States judge” within the meaning of § 115(a)(1)(B).

The answer:

Fortunately, there is a statutory definition in § 115(c)(3), which provides (emphasis ours) that “‘United States judge’ means any judicial officer of the United States, and includes a justice of the Supreme Court and a United States magistrate judge.” Because this definition includes as examples both an Article III federal judge (a Supreme Court justice) and an Article I federal judge (a magistrate judge), we know that the terms “United States judge” and “judicial officer of the United States” are not limited to federal judges with life tenure (i.e., Article III judges). So Mr. McLean’s Rule 29 argument—that a “United States judge” must be appointed under Article III—fails.

BREAKING -- Ariana Fajardo Orshan nominated to be the U.S. Attorney for the SDFLA

Here is the statement from the White House:

If confirmed, Judge Ariana Fajardo Orshan will serve as the United States Attorney for the Southern District of Florida. Judge Ariana Fajardo Orshan is currently a Circuit Court Judge of the Eleventh Judicial Circuit of Florida and an adjunct professor at Florida International University College of Law. She was appointed to the bench in 2012 by Governor Rick Scott. Prior to her appointment, Judge Fajardo Orshan was a partner in a boutique law firm where she specialized in litigation. She began her legal career as an Assistant State Attorney in Miami-Dade County, where she prosecuted a wide variety of crimes specializing in narcotics and organized crime. Judge Fajardo Orshan earned her B.S. from Florida International University and her J.D. from Nova Southeastern University Shepard Broad Law Center. Judge Fajardo Orshan is married to Robert D. Orshan and is the proud mother of a teenage son, Lucas.

zzzzzzzzzzzzzz

Seems pretty quiet in the District right now.

The Heritage Foundation's Podcast interviews CA11 Judge Kevin Newsom here.

In state court, the 4th DCA orders a new trial in this infamous murder case, showing how harmless error really should be applied.  From the Sun-Sentinel:

An appeals court gave new life to one of Broward’s most notorious murder cases on Wednesday, ordering a new trial for a man serving a life sentence for ordering the mob-style execution of the founder of Miami Subs in 2001.
Anthony “Big Tony” Moscatiello, 79. was convicted in 2015 — the third of three defendants to face justice for the February 2001 murder of Gus Boulis.
Moscatiello had been hired as a security consultant to protect one of the new owners of the SunCruz Casino boat fleet, which Boulis had been forced to sell in late 2000. But secretly, the hire was intended to telegraph to the underworld that Moscatiello’s new boss, Adam Kidan, was protected by the Gambino crime family, according to trial testimony.

 Here's the opinion on harmless error:

Given the substantial issues of credibility of all of the major witnesses in the case, we cannot say that the State has shown beyond a reasonable doubt that the error in admitting Gurino’s statement was harmless. See Shivers v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (finding the erroneous admission of an affidavit was not harmless error where the State made it a feature of closing argument). We are mindful that there is plenty of evidence of Moscatiello’s guilt. But our supreme court has consistently stated that overwhelming evidence is not the test, particularly where the erroneously admitted evidence becomes a focal point of the trial. See State v. Lee, 531 So. 2d 133 (Fla. 1988). We are constrained by these rulings.
As to the remaining issues raised, we affirm. But, because we cannot conclude that the error in admitting Gurino’s statement regarding Moscatiello is harmless under DiGuilio, we reverse for a new trial.