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Nominee for USCA 6?

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Andrew Wolfson reports for the Louisville Courier-Journal:

Kentucky Supreme Court Justice Lisabeth Hughes Abramson of Louisville is being vetted by the FBI for a seat on the U.S. Court of Appeals' 6th Circuit.
I have it on solid local authority that she would be a vast improvement over the departed Judge Boyce Martin.
Tuesday, the US Court of Appeals for the Ninth Circuit took a bite out of federal court micromanagement of prisons in Griffin v. Gomez, No. 09-16744.

Griffin has been in prison since 1970 and was validated as an Aryan Brotherhood member in 1979.  Gang members can and do commit crimes while in prison, sometimes within the prison and sometimes by arranging them on the outside.  Griffin was therefore confined to the secure housing unit, known as the SHU.  He petitioned for release, claiming he had sworn off the gang and was a changed man.

"Procedurally, this case is a mess" (p. 17).  I'm sure judges say that a lot in chambers, but it's quite another thing to read it in the opinion.

A Decision on Younger Abstention

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This morning the US Supreme Court decided the Sprint case, having to do with Younger abstention, previously discussed in this post in October. The decision was unanimous in favor of the federal court going ahead and not abstaining.

No criminal cases were decided today, and none will be argued.

Streaming USCA9 En Banc

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The US Court of Appeals for the Ninth Circuit (covering nine Far Western states) announced today that video of its "en banc" oral arguments will be available live on the Internet.

Federal courts of appeals normally hear cases in 3-judge panels, but cases are sometimes heard or reheard by the full court to resolve conflicts between panels or in cases of exceptional importance.  Because of its size, the Ninth Circuit rarely sits truly "en banc" but instead hears cases as an 11-judge court consisting of the chief judge and 10 judges chosen at random.

Follow-up on Vacating the Franklin Stay

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Several posts in the last two days have noted the case of Joseph Franklin in Missouri:  the stays of execution, the Eighth Circuit's action vacating the stays, and the Supreme Court's refusal to reinstate them.  I have found the Eighth Circuit's orders in the case.  Here is the order vacating the one of the stays:

Having reviewed the parties' briefs and the record in this expedited appeal, we conclude Joseph Franklin has not met his burden under 28 U.S.C. ยง 2254(d) to present sufficient evidence to warrant interference with the judgment of the Missouri courts nor has Franklin proffered sufficient evidence to show a likelihood of success on the merits to support a stay of execution. See Panetti v.  Quarterman, 551 U.S. 930, 946-47, 956-57, 961 (2007). Determining the district court abused its discretion, we reverse the district court's stay of execution.

Well that's pretty short and sweet, probably due to the time pressures.
In August, Federal District Judge Shira Scheindlin issued an injunction in the stop-and-frisk case.  AP described the ruling as "a stinging rebuke to a policy [Mayor Bloomberg] and the New York Police Department have defended as a life-saving, crime-fighting tool that helped lead the city to historic crime lows."

Judge Scheindlin came in for a rebuke of her own today.  Not only did the Court of Appeals stay her order, it went on to say:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ."), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.2

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

Whack!  The footnotes follow the break.
Tuesday, November 5, is federalism day at the high court.  One case on the docket is Bond v. United States, No. 12-158, a rare criminal case where the defendant is right.  As I noted last January, Carol Bond deserves to be severely punished for her use of poison to get revenge on her former best friend for having an affair with her husband.  But that punishment should be meted out by the Commonwealth of Pennsylvania, not the United States.

The other case is a civil case that concerns a doctrine that often comes up in criminal cases.  That is the Younger doctrine, named for Evelle Younger, District Attorney of Los Angeles back in the turbulent 60s.  A criminal defendant filed suit in federal district court to halt an ongoing prosecution in state court.  The Supreme Court quashed that in Younger v. Harris (1971).  Younger had taken office as AG by the time the case was decided, but it bears his name anyway.

The case before the Supreme Court on November 5 is Sprint Communications Co. v. Jacobs, No. 12-815.  As you might guess from the title, it involves telecommunications regulation.  (Yawn.)  But wait, is the Supreme Court inclined to expand Younger or narrow it?  That might matter the next time a criminal defendant tries to go judge-shopping in federal court when the case belongs in state court. 

Scott Dodson has this preview at SCOTUSblog.  Sprint's main argument seems to be that because the case involves a federal question it should be decided in federal court.  But state courts have been competent to decide questions of federal law from the dawn of the republic.  Congress did not even vest the lower federal courts with "federal question" jurisdiction, as we now know it, until after the Civil War, and the exigencies of Reconstruction are now a fading speck in the rear-view mirror.  I will be rooting for the State of Iowa on this one.

Barring Out-of-State Prisoner Placements

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When the lawyers for the California prisoners in the Plata case were arguing against a stay of the three-judge court's order in the U.S. Supreme Court, they said, "More fundamentally, Appellants do not have to release any prisoners; they have wide latitude to substitute other methods for reducing overcrowding....  For example, Appellants could 'reassign prisoners to leased jail space,' without any impact on public safety whatsoever."

With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.

Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer."  Okay, but then there is this provision in the order:  "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."

Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?

Bill for New Federal Judgeships

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Senators Leahy and Coons have introduced a bill to add a bunch of new judgeships.  These two eastern Senators seem to be particularly interested in adding new judges in the West.  Of the 65 new permanent district court judgeships, 21 of them are in California.  Of the five new, permanent Court of Appeals judgeships, four are in the Ninth Circuit.

The workload may well warrant expansion, but it is pretty scary to consider the prospect of Barack Obama nominating this many judges to courts that are already listing so far to the left as to take on water.  There was a big expansion during the Carter Administration, and the cohort of Carter nominees are largely the ones responsible for the well-earned nickname "the Ninth Circus."  Carter's truly dismal appointments haunt us to this day.

In the late 1970s, Republicans were so weak in Congress that they were unable to stop this disaster.  Today, they have a majority in the House of Representatives.  If this bill passes the Senate, it should be DOA in the House.  We should not forget history or condemn the next generation to a repeat.

So what to do about overloaded federal courts?  Let's have fewer federal questions to be litigated. 

Update:  Todd Ruger at NLJ (subscription required) has this article headlined "Hail Mary Pass for Judgeships."  "It's been years since Congress created more federal judge positions, and the latest proposal seeking to make up for lost time appears as quixotic as it is ambitious."

Ed Carnes to be CJ of USCA11

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U.S. Circuit Judge Ed Carnes will be the next Chief Judge of the U.S. Court of Appeals for the Eleventh Circuit (Georgia, Alabama, and Florida).  Brian Lyman has this story for the Montgomery Advertiser.

The PC Attempt to Intimidate Judges

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I wrote recently about US Attorney Bill Killian's snarling threat to demonstrate "what the consequences are" to those with the temerity to say anything "offensive or inflammatory" about Muslims.  If President Obama, who appointed Killian, has done anything to rebuke him, I haven't heard about it.  (Not that rebuking him would be sufficient, and not that Obama has any desire to rebuke him, either).

As if going after the ordinary citizen who might criticize Muslims, fairly or unfairly, were not enough, we now see that the PC crowd will go after federal judges, too. Thus, when Fifth Circuit Judge Edith Jones said at a University of Pennsylvania Law School talk that blacks and Hispanics are more violent than whites, a consortium of civil rights* organizations filed a complaint.  The complaint calls for stern discipline, on the grounds that the remarks were "discriminatory and biased."

So far as I have been able to discover, it makes no mention of the fact that they're true.

*  I am old enough to remember that civil rights used to include the First Amendment.
The US Courts of Appeals for the Sixth and Ninth Circuit, and to a somewhat lesser degree the Third, have a dismal record in the Supreme Court in capital cases.  In part, that has been because the full courts have insufficiently exercised their authority to correct outlier decisions by rogue panels.  When a decision is so blatantly wrong that the Supreme Court reverses summarily and unanimously, the en banc court of appeals didn't do its job.

But we are seeing some gradual improvement.  Yesterday, the Sixth Circuit en banc corrected a particularly wacko panel opinion in United States v. Gabrion, No. 02-1386.
Todd Ruger reports for the NLJ (free registration required):

The U.S. Senate unanimously confirmed Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit on Thursday, making him President Obama's first successful nomination to the court and the first new judge there since 2006.

Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, saw his nomination sail through a normally contentious Senate confirmation process. The 97-0 vote reflected his broad support from the legal community and legal pedigree that included work for both Democrat and Republican administrations.
The D.C. Circuit does not handle as many criminal cases as most circuits.  CJLF filed its very first brief in that court just this year.  The circuit has no jurisdiction to review criminal cases from the local D.C. court system, either on appeal or habeas.*

The crime-related cases the D.C. Circuit does handle, though, include some of the most controversial ones.  The Gitmo detainee cases are there.  The lethal injection importation case, noted above, is there.  The habeas "fast track" case will be there shortly.

So where does Judge Srinivasan stand on the issues of greatest importance to enforcement of the criminal law?  I have no idea.  His work as an advocate for the government in his present position is highly regarded, but that work is advocating for positions determined by others.  A Lexis search for articles turned up nothing on criminal law or anything else.  We will have to wait and see.

* No, that doesn't violate the Suspension Clause.  Not even liberal demigods Brennan and Marshall thought it did.

Piracy and Judges

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From today's decision of the Ninth Circuit in Institute of Cetacean Research v. Sea Shepherd Cons. Soc., No. 12-35266:

You don't need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.
Regular readers of Ninth Circuit opinions will have no difficulty guessing the author.  The self-high-minded folks are anti-whaling activists who disagree with international law on whaling and therefore deem themselves entitled to forcibly enforce their own view of the law.  Surprisingly, they actually prevailed in the district court, leading to the suspicion the judge shares their views on whaling and allowed those views to influence his legal judgment.  But the Ninth Circuit has its own surprise for the district court judge:

The district judge's numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington.
If a judge regularly makes "numerous, serious and obvious errors" in a particular class of cases, and if there is good reason to believe that his strong views against the underlying law are the reason, should he be disqualified from cases of that class?  Would the Ninth Circuit be willing to apply that rule to its own judges?

For more on the definition of "piracy," there are multiple posts over at Volokh Conspiracy.

Rhode Island Rebellion Over?

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Rhode Island Governor Lincoln "Stand in the Jailhouse Door" Chafee has reached the end of his legal rope.  The Supreme Court denied writs of certiorari to Chafee and the man he is trying to help, accused murderer Jason Pleau, in cases 12-223 and 12-230.  Prior post, with links to earlier posts, is here.

Will Chafee actually resist the order?  What would the President do if he did?  Looking at history, we see an exponentially descending degree of force used against recalcitrant state governments:

President Lincoln sent a large army that fought for four years.
President Eisenhower sent one division, the 101st Airborne.
President Kennedy sent his brother and a few marshals.
Maybe President Obama could send Michelle.

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