"They want me to lie. They’re yelling at me.”

That was Rick Singer, the ringleader and main snitch in the Varsity Blues case describing what the case agents wanted him to do.  That should make your blood boil of course.  But the cover-up by prosecutors is just as bad, not disclosing this obvious Brady material until after twenty of the defendants have already pleaded guilty and served their time. It's just outrageous.

From the NY Times:

Since the mastermind of the college admissions scandal, William Singer, pleaded guilty last March to racketeering and other charges, he has been mostly offstage, paddleboarding and enjoying the California sun while many of his former clients head off to prison.

But this week, Mr. Singer, who admitted to organizing a scheme to cheat on tests and bribe college coaches to get students into elite schools, was again the center of attention. Lawyers for the actress Lori Loughlin and other parents said that notes Mr. Singer had taken while cooperating with federal investigators showed that they pushed him to lie to incriminate his clients.

They said that Mr. Singer’s own words suggested that parents did not knowingly engage in a conspiracy to bribe coaches, as prosecutors have argued, and they accused prosecutors of sitting on the evidence for months in violation of their legal obligations.

“Loud and abrasive call with agents,” Mr. Singer wrote on Oct. 2, 2018, in a note with several typos and misspellings. “They continue to ask me to tell a fib and not restate what I told my clients as to where there money was going - to the program not the coach and that it was a donation and they want it to be a payment.”

He added that the agents were essentially “asking me to bend the truth.”

In a hearing on Thursday, a federal judge called the allegations of prosecutorial misconduct “very serious” but did not rule on the issue, directing the parties to submit further motions.

Ms. Loughlin’s lawyers had written in a court filing on Wednesday that the evidence in Mr. Singer’s notes was “devastating to the Government’s case and demonstrates that the Government has been improperly withholding core exculpatory information, employing a ‘win at all costs’ effort rather than following their obligation to do justice.”

I previously wrote about how prosecutors were trying to bully Aunt Becky into pleading guilty.  Turns out they were doing much worse!

So what will happen now? The judge took various motions under advisement.  But the sad truth is that the likelihood that anything will happen to the prosecutors or agents who engaged in this misconduct -- or to the case itself -- is very low.  The right result would be to issue severe sanctions, including dismissal.  That's the only way that we are going to stop prosecutorial misconduct, which is a real problem for the criminal justice system.

The judiciary exists to act as a check on the executive branch.  But unfortunately we don't see much of that at all when it comes to misconduct. Instead, we hear: don't do that again; it wasn't intentional; there was no prejudice; it was harmless; and so on. So prosecutors and agents keep doing it.

At sentencings every day in every courtroom around the country, we hear about deterrence and why severe sentences are needed.  Let's be consistent with prosecutorial wrongdoing.

Roy Altman speaks for new judges at SCOTUS

Very cool honor for Judge Altman who spoke to and on behalf of the new judges (class of '19).  Justice Thomas spoke for the Court, and Justices Sotomayor, Alito, and Kavanaugh attended. Here are some pictures:

Elections matter...

...especially for the Supreme Court.

This week, in a 5-4 opinion, the Court found that a Border Patrol Agent cannot be sued for shooting a teenager from Mexico in the face.

Immune.

Insane.

Inhumane.

And of course it’s Alito writing the opinion. Totally on brand.

The opinion is Hernandez v. Mesa, available here.

The holding in Bivens v. Six Unknown Federal Narcotics Agents does not extend to claims based on a cross-border shooting.

Justices Thomas and Gorsuch say in a concurrence that they would do away with Bivens altogether!

Alito really is the most partisan Justice we have.

And it’s not even close.

Don’t @ me.

Thank goodness for Justice Ginsburg who writes the dissent and explains that allowing the suit to go forward would not impact national security or any other “concern” that the majority has.

It's Judge Newsom, not Newsome

Judge Newsom has quickly become known as one of the more entertaining writers on the 11th Circuit.  He even makes IP litigation fun.  From the intro:

Royal Palm Yacht & Country Club, a residential community in Boca Raton, Florida, is home to multimillion-dollar mansions, a championship golf course, and even a private marina. It’s also home, as it turns out, to the contentious real-estate rivalry that spawned this trademark litigation.
Royal Palm Properties, a real-estate broker whose specialty is buying and selling homes in Royal Palm Yacht & Country Club, sued its competitor, Pink Palm Properties, for infringing its registered service mark on the phrase “Royal Palm Properties.” Pink Palm Properties counterclaimed, challenging the mark’s validity. A jury in the U.S. District Court for the Southern District of Florida upheld Royal Palm Properties’ mark but found that Pink Palm Properties hadn’t infringed it. The district court, though, overturned the verdict in part, granting Pink Palm Properties’ renewed motion for judgment as a matter of law and ordering the cancellation of Royal Palm Properties’ mark. The question before us is whether the district court correctly flipped the jury’s verdict and granted judgment as a matter of law on Pink Palm Properties’ trademark-invalidation counterclaim.

We hold that the district court erred. To be entitled to judgment as a matter of law, Pink Palm Properties would have had to make quite the showing at trial—such that no reasonable jury could have found that it failed to prove grounds for cancelling Royal Palm Properties’ mark. Based on our careful review of the record, we conclude that Pink Palm Properties didn’t meet this high bar. On neither of its two grounds for cancellation—that the “Royal Palm Properties” mark (1) is not “distinctive” and (2) is “confusingly similar” to previously registered marks—did Pink Palm Properties prove, decisively, that it had won the day. We therefore reverse the district court’s decision to overturn the jury’s verdict and invalidate Royal Palm Properties’ service mark.

I enjoyed this discussion and the footnote especially:*

Pink Palm Properties certainly satisfied the first two Coach House requirements. The “Royal Palm Properties” mark clearly “resembles” the “Royale Palms” marks—the spelling of the dominant words is nearly identical8—and the “Royale Palms” marks were registered several years before the “Royal Palm Properties” mark.

8.Welcome to the author’s life. Compare “Newsom” with “Newsome.”

* Welcome to this author's life as well.  Compare "Markus" with "Marcus."

Stone sentenced to 40 months

The criminal justice world, as well as the political world, are all talking about the Roger Stone sentence.  40 months...

Rumpole has a nice post about it here, calling the sentence too harsh.  He's right of course.  The problem is that so many people see it as lenient because the sentence was below the Sentencing Guidelines.  And that's the problem.  Over 3 years (YEARS!) in prison for a first-time non-violent and elderly offender is not lenient by any stretch.

We've become so accustomed to the Sentencing Guidelines that people -- including judges -- see downward variances as some sort of break.  But once we realize that the guidelines are just made up numbers, which are not based on anything, and that they have completely warped our system into jailing more people for longer amounts of time than any other country in the world, then we will see that downward variances are no break and 3+ years is lenient. 

Maybe we should not call them "downward variances."  That implies that the judge should start off with the guidelines.  Any ideas?