Recently in Federal Courts Category

President Trump has nominated U. Penn. Professor Stephanos Bibas to the U.S. Court of Appeals for the Third Circuit (Penn., N.J., Del.).

Among other works, Prof. Bibas is the co-author of a brief, interesting essay, "The Heart Has Its Value: The Justifiable Persistence of the American Death Penalty."  Also noteworthy is The Right to Remain Silent Only Helps the Guilty, 88 Iowa L. Rev. 421 (2003).

Orin Kerr has this post at VC.  Doug Berman has this post at SL&P.

Also nominated to courts of appeals are Colorado Supreme Court Justice Allison Eid to the Tenth Circuit and District Judge Ralph Erickson to the Eighth Circuit.
One thing that really makes my eyes roll is seeing someone state the question presented in a case in a way that assumes one side of a hotly disputed point and then phrases the "question" as something that no one would dispute based on that assumption.  It's bad enough when advocates do it.  It is inexcusable for a judge to do it.  For the majority of a U.S. Court of Appeals en banc to join an opinion doing that is a head-shaker.  The Fourth Circuit opinion in the travel ban case, International Refugee Assistance Project v. Trump, No. 17-1351, begins:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains "a law for rulers and people, equally in war and in peace." And if so, whether it protects Plaintiffs' right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.
I don't have time at present to write up a complete analysis of the opinion, but right out of the gate this seems to call for Supreme Court review.

Ten Federal Court Nominees

Debra Cassens Weiss reports for the ABA Journal:

President Donald Trump nominated 10 lawyers Monday for federal judgeships, including two state judges from his list of 21 potential U.S. Supreme Court nominees.
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The two judges from the Supreme Court list are Michigan Supreme Court Justice Joan Larsen, nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals, and Justice David Stras of the Minnesota Supreme Court, nominated to the St. Louis-based 8th U.S. Circuit Court of Appeals.

Larsen is a former University of Michigan law professor and a former law clerk to late Justice Antonin Scalia. Stras is a former University of Minnesota law professor and a former law clerk to Justice Clarence Thomas.

The nomination of another judge from the Supreme Court list, U.S. District Judge Amul Thapar of Kentucky, is pending. He has been nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals. His is the only other nomination to the lower federal courts so far.

Other nominees are:

Splitting the Ninth, Again

The idea of splitting the Ninth Circuit is in the news again.  In this article by Sarah Westwood of the Washington Examiner, based on an interview, she quotes President Trump saying he has considered the proposals to break up the Ninth.  He states that his main concern is judge-shopping.

At the WaPo, Amber Phillips writes, "So, no. President Trump cannot wave his pen and break up a federal court like he suggested he wants to do."  Phillips does not quote any language by the President saying or implying that he believes he can do that unilaterally, and there is none in Westwood's article, so I don't know where she gets that.  It would, of course, take an act of Congress.

Phillips goes on to state some reasons for not breaking up the Ninth, but she fails to recognize the best one from the President's point of view.  Breaking up the Ninth would aggravate, not ameliorate, the judge-shopping problem that is the President's foremost, and entirely legitimate, concern.

If the states with larger percentages of person of sense, such as Arizona and Alaska, were split off into a Twelfth Circuit, the remaining Ninth Circuit would be even loonier lefty than it is now.  Since plaintiffs, at present, have too much power to choose the venue, loony lefty plaintiffs would shop their suits to the even-leftier rump Ninth.

The answer to judge-shopping is venue reform, not splitting the Ninth. 

Fixing the Ninth will require a series of solid appointments over a good many years.  If President Trump serves two terms, he may make a good dent in it.  Let's hope he gives fixing the Ninth a higher priority than President Bush did.
Last week, I commented on Justice Sotomayor's dissent in the McGehee case from Arkansas.  She said that the Supreme Court should stay the Arkansas executions to resolve a difference of opinion between federal courts of appeals regarding the availability of an alternative method of execution when an inmate claims the state's method creates an excessive risk of pain.

My comment at the time was that there was not yet a circuit split that was ripe for Supreme Court review because the decision of a Sixth Circuit panel was not yet that circuit's final word.  The court might take up the case for rehearing before the full court (en banc).

Sure enough, today the Sixth did exactly that.

Repeal and Replace

President Trump has issued this Executive Order titled, "Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States."  Section 13 provides:

Sec. 13.  Revocation.  Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Daniel Nasaw describes the differences in the old and new orders for the WSJ.

When a case becomes moot pending review, the lower court decision should be vacated and cease to have effect as precedent.  This is called the Munsingwear rule.  "The point of vacatur is to prevent an unreviewable decision 'from spawning any legal consequences,' so that no party is harmed by what we have called a 'preliminary' adjudication."  Camreta v. Greene, 563 U.S. 692, 713 (2011), quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40-41 (1950). 

In other words, the rule facilitates getting rid of bad law that can no longer be reviewed.  It also provides fodder for bad jokes about Munsingwear briefs.

The Ninth Circuit should grant rehearing en banc on the prior case, vacate as moot, and wipe that precedent off the books.  If someone wants to challenge the new order, that is a new case.

And Congress still needs to do something about venue and judge shopping.

Summary Reversal on Excusing Jurors

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The U.S. Supreme Court has once again summarily reversed a federal court of appeals for failure to obey Congress's landmark reform of habeas corpus law in 1996.  Once again, it is a capital case in a circuit divisible by 3.

Because juries in the penalty phase of capital cases must be unanimous, it is particularly important to remove from the jury those members of the venire who will not actually weigh the aggravating and mitigating circumstance but instead will automatically vote against the death penalty no matter what.  This is particularly important in states which stupidly do not require the jury to deliberate to unanimity one way or the other but instead allow a single holdout juror to veto the decision of the other eleven.

People often do not state their views straightforwardly.  Sometimes they are dishonest, but more often they just haven't thought them all the way through themselves.  Determining which jurors are "Witherspoon/Witt" excludable therefore involves some judgment.  The trial judge, who sees the venire members live and in full context, is entitled to considerable deference in making this judgment.  However, anti-death-penalty judges who are just itching to overturn a death sentence regardless of how richly deserved it may be find jury selection to be a fertile source of excuses to nullify a law they disagree with.  To forbid such misuse of the law and limit the lower federal courts' power to overturn state decisions to cases of clear error, Congress enacted the "deference" provision of the Antiterrorism and Effective Death Penalty Act of 1996.  Federal district and circuit judges who regard themselves as infinitely superior to state supreme court justices hate this law and regularly ignore its mandate.  This is particularly common in the Third, Sixth, and Ninth Circuits.  Reversing them has become a significant part of the Supreme Court's workload.

In today's decision in White v. Wheeler, the Court includes the following admonition without dissent:

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty.
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary.  Judges who cannot or will not decide capital cases fairly should not sit on them.  They should be excludable just like the jurors.  If they will not recuse themselves, perhaps it is time to establish a challenge for cause.  How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

Jonathan Adler has this post at the Volokh Conspiracy.

Malia Zimmerman has this article on Fox News titled 'Obvious Flight Risk': Toddler's brutal beating prompts call to withhold bail from illegal immigrants.  Here is a summary of the story:

In late July 2015, 27-year-old illegal immigrant Francisco Javier Chavez beat the two-year-old daughter of his live-in girlfriend to near-death in San Luis Obispo County, California.  He was arrested and jailed for the crime, but was granted bail by a judge and released from custody.  Two weeks later, on the day of his scheduled arraignment in August, Chavez failed to appear and hasn't been seen since.  Prior to the toddler's brutal beating, Chavez was convicted of assault and drug offenses, arrested for kidnapping, carjacking and child cruelty, and deported to his native Mexico in February 2014 but "found it easy to sneak back across the border."

A few weeks after Chavez's disappearing act, 52-year-old illegal immigrant and unlicensed driver Jose Enrique Vasquez was speeding down a residential street in San Bernardino County when he struck and killed two-year-old toddler Jonathan Montez and fled the scene.  He was arrested two weeks later and granted bail.  Vasquez's rap sheet included spousal abuse, battery of a police officer, driving without a license, driving under the influence, armed robbery, failure to appear in court, possession of false citizenship documents and eight deportations.

How did two illegal immigrants, arrested for horrific crimes, each with criminal histories that were not only serious in nature but indicative of flight risk and danger to public safety, be awarded bail?  Zimmerman notes:

The willingness of judges to grant bail to illegal immigrants charged with serious crimes  compounds the ongoing controversy surrounding so-called sanctuary cities.
One of the reasons that the U.S. Court of Appeals for the Ninth Circuit is so often reversed by the Supreme Court (and often summarily, unanimously, with a harsh rebuke, or all of the above) is that the full court chronically fails to correct the errors of rogue panels when they favor a state prisoner, especially in capital cases.

Last December I noted that a 2-1 majority of a 3-judge panel (Thomas and Reinhardt, Kozinski dissenting) had overturned yet another death sentence, after four previous reviews of the case by other courts had found no reason to disturb the judgment.

Today, wonder of wonders, the Ninth agreed to rehear the case pseudo-en-banc, i.e., before an eleven-judge panel comprised of the chief judge and ten randomly selected judges.  Unfortunately, the automatically selected chief judge is the author of the erroneous opinion, so Arizona will need to draw six persons of sense out of ten.  That is less than even money in the Ninth, but not out of the question.  We do know that a majority of the pool voted to rehear the case.
From the Answers to Questions Practically No One Is Asking File ... Did a statute enacted almost 20 years ago abrogate a Supreme Court decision rendered almost 40 years ago with hardly anyone noticing, even though this involves a very heavily litigated area of law?  Nope, even the Ninth Circuit won't buy that.
No, they do not.  As noted in this post, Timothy McVeigh as executed less than four years after sentence.  He voluntarily gave up one of the many steps, appeal from the denial of collateral relief, but the case went through all the other steps.

Congress has made clear that review of capital cases should be handled expeditiously.  In 18 U.S.C. §3595(a), Congress provided that an appeal from a death sentence "shall have priority over all other cases."

From the date of affirmance of the direct appeal through the Supreme Court, the inmate has one year to file a collateral review motion under 28 U.S.C. §2255.  Again, Congress has provided, "The ... adjudication of any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters."

The federal government has an advantage over states in that there is normally only one round of collateral review, not two.

We need the Department of Justice, if it is going to live up to its name, to insist on prompt completion of these cases and to start frequently taking up writs if these statutes are ignored.
The defense wants to call the notorious Sister Helen Prejean to testify in the trial of the Boston Marathon Bomber.  I can't fathom that she can offer any relevant evidence.

"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the action."  Federal Rule of Evidence 401. "Irrelevant evidence is not admissible."  FRE 402.

What are the facts of consequence in the penalty phase of a federal capital cases?  They are the mitigating and aggravating factors listed in subdivisions (a) and (c), respectively, of 18 U.S.C. §3592.  Obviously the defense does not want to introduce evidence in aggravation, so that leaves the mitigating factors in subdivision (a).

The relevant mitigating factors are impaired capacity, duress, minor participation, equally culpable defendants getting off with less, no prior criminal record, mental disturbance, victim's consent, and the catchall factor:  "Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."

Any evidence that is not about this crime or this defendant is irrelevant and therefore inadmissible.

What does Helen Prejean know that is relevant?  Nothing, I strongly suspect.  If not, she should not testify.

A Smear Job by a Sitting Federal Judge

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Are you in favor of the system of stern federal sentencing that has helped reduce crime to levels not seen since the Baby Boomers were in grade school?

If so, you're not merely mistaken, misguided or misinformed.  You're in bed with lynching.

That is the level of "argument"  --  indeed, that is exactly the argument  --  put forth in a new article by a sitting US District Judge, Mark Bennett of Iowa.  The article, available here, is titled, "A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges."

Never one to appeal to emotion or fiction, Judge Bennett starts his hatchet job on those who disagree with him with this:

The 2014 Best Picture Oscar winner, 12 Years a Slave, is based on the 1853 autobiography by Solomon Northup.1 Northrup, a black freeman in New York, was kidnapped and sold into Southern slavery.2 There is an eternally haunting, prolonged, and grueling scene in the movie where Northup has a noose around his neck and strains for breath by tiptoeing on the ground to keep from being lynched.3 Other slaves on the plantation are paralyzed by fear and ignore him. Like a ballerina en pointe, Northup spends long hours in this slow motion lynching dance until he is rescued by his owner.

This article is supposed to be about modern federal sentencing, mind you.

Of course, a number of paragraphs later, Bennett inserts the obligatory if limp disclaimer, a disclaimer embarrassing for its blase' insincerity:

This Article does not suggest that incarcerating almost exclusively black men for unprecedented lengthy terms of incarceration, for crack cocaine offenses they illegally committed, is the equivalent of lynching innocent blacks. It does, however, suggest both actions have strong racial overtones; both share a lack of public outcry; both share tacit public complicity; both share governmental complicity; both share devastating effects on families, children, and neighborhoods; and both have been accomplished largely at the hands of those unknown--at least to the general public.

SCOTUS As A Late Adopter

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"Be the first kid on your block ... "  Long ago that sales pitch was used to sell things to children.  Today, there are still lots of people who take enormous pleasure in being among the first to have the hottest new thing.  They are called early adopters in the tech business, and those of us who aren't early adopters benefit from their willingness to pay high prices for still buggy software and for gadgets that may or may not endure.  Remember the Betamax?  Personally, I am content to let others be the lab rats research participants and wait for version X.1.

The federal courts are not early adopters, Chief Justice Roberts explains in his 2014 Year-End Report on the Judiciary, and the U.S. Supreme Court particularly is not.  Filing documents over the internet is an important advance, but development of the system has been slow in the federal district courts and courts of appeals, and the Supreme Court still doesn't have it.  Today we email PDFs of briefs on the due date, but the printed brief must still be in the mail on that day, and that is the official filing.

SCOTUS will finally come around in 2016, but the Chief wants to make sure the system is equally available to all.  Unlike the CM/ECF system for the lower federal courts, access will be free to the public.

The report begins with an amusing bit of infotech history -- pneumatic tubes carrying documents around the building.  The report is well done, not long, and worth reading.

The Abbottabad Letters

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Here's an interesting development in the case of United States v. Khaled Al Fawwaz and Anas Al Liby in U.S. District Court in Manhattan. The court entered a scheduling order on motions regarding admissibility at trial of "documents recovered during the May 2, 2011 raid of Usama bin Laden's Abbottabad, Pakistan compound."  The text of the order follows the break.

I have the government's motion but not al Fawwaz's motion.  That is probably one of the many sealed documents not available to the public.  The government's motion says,

The Abbottabad Letters--including two authored by the defendant, himself--reflect his continued active participation in al Qaeda following eight years of incarceration in Iran. The Letters constitute powerful, direct, proof of al Qaeda's conspiracies to bomb and kill Americans, as well as Anas al Liby's knowing and intentional participation in them. Indeed, one can scarcely conceive of more powerful uncharged-acts proof than recent correspondence among bin Laden, his chief deputy, and the defendant about the defendant's continued participation in al Qaeda--including a 2010 letter from the defendant to bin Laden in which the defendant "ask[s] God to reunite me with you soon under the banner of Islam and the Islamic state and the banner of jihad." That is particularly true where, as here, the defendant's state of mind will be a central issue in dispute.
The legal argument relates to admissibility of "other acts" evidence under Federal Rule of Evidence 404(b).  The background paragraph begins with this statement:

On May 2, 2011, U.S. forces conducted an operation that resulted in the death of al Qaeda leader, and (formerly) charged co-defendant, Usama bin Laden.
I like that "(formerly)."  This is technically known in the trade as "mootness."

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