Recently in Federal Courts Category

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."
Question:  When can a judge ethically be an advocate for a party in his court?

Answer:  Pick one  --  (a) never; or (b) when the party is a violent criminal serving the sentence he earned.

Until Saturday, I didn't know anyone who would pick (b) over (a).

On that day, however, I learned that it might be OK for a judge to be an advocate for a party, at least in a case where he has "a strong vision of legal justice and then acts in service to that vision."

That's the answer I believe is suggested by Prof. Doug Berman, a distinguished lawyer and law professor who sees things from the defense perspective.

I respectfully dissent.  It is precisely when the judge feels most strongly that he must be most disciplined.  The credibility of the judicial branch, and indispensable public confidence in its neutrality, require nothing less.  The notion that the judge can be an advocate for one side is toxic to the core idea of what it means to be a judge at all.
The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

As the SL&P entry notes (in the comments section), I am the inventor of appeal waivers.  I litigated their validity for the first time in federal court in US v. Wiggins, 905 F.2d 51 (1990).  That case, and all subsequent cases on the question in the courts of appeals, upheld the waiver.  Probably because the resolution is so obvious, and the appellate courts unanimous, the Supreme Court has never addressed the issue.  I will bet $1,000 here and now on the outcome if it ever does.

The reason the issue is obvious, as explained by Judge Wilkinson in the Fourth Circuit's seminal opinion, is easy to summarize:  If a defendant can waive his constitutional right to a trial, something that has been established forever, he can waive his mere statutory right to an appeal.

DOJ's new modification makes little difference, to the small extent there has been a modification at all.  Accordingly, it's not causing me a lot of heartburn.

Assigning Judges to Cases

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In most courts below the level of the Supreme Court (state or federal), most cases are heard by something less than all the judges of the court.  How do judges get assigned to cases?  Can assignments be manipulated?  Are they?

Presently, there is a big controversy in the Ninth Circuit regarding assignments to the same-sex marriage cases.  Josh Blackman has this post at his eponymous blog.  It seems Judges Reinhardt and Berzon get assigned to these panels at rates far beyond what can plausibly be explained by chance.  CJLF takes no position on the underlying issue in these cases, but the fairness of judicial assignments is something that does concern us.

In civil litigation affecting the criminal justice system, we have seen manipulations of the "related case" rules to funnel the prisoner rights cases and the cases blocking implementation of an important reform of capital habeas corpus to the most prisoner-friendly judges.  The three-judge panel that heard the California overcrowding case was the prisoners' dream team.  If I were representing the prisoners and could choose any three judges from the entire federal judiciary, those are the three I would have chosen.

The next Congress should take a good, hard look at judicial assignment policies.  This is too important to leave to local rules of court.
It's generally good manners to say nice things about people on such occasions as their retirements, their funerals, or their advanced-years birthdays.  Just let the bad things slide for the occasion.  It is possible to go too far with that, however.  Mississippi Senator Trent Lott found that out when he said, at Strom Thurmond's 100th birthday party, that America would have had fewer problems if Thurmond had been elected president in 1948.  Although he later saw the error of his ways, Thurmond was a fire-breathing segregationist in 1948, and, no, it would not have been better.  Lott was ousted as Senate Majority Leader.

We saw something similar in the Sacramento Bee over the weekend.  Denny Walsh has this unintentionally hilarious whitewash of the career of one of the worst judicial imperialists on the federal bench, U.S. District Judge Lawrence Karlton, who has finally retired for real (as opposed to the semiretired "senior status").

For example, there is this knee-slapper, attempting to refute the charges of activism with affirmance rate:  "The 9th U.S. Circuit Court of Appeals usually affirmed his decisions, though it was well stocked with appointees of Presidents Richard Nixon, Ronald Reagan, and George H.W. and George W. Bush."

Well stocked?  This should be in The Onion, not a real newspaper.  The Ninth was packed during the Carter Administration.  Anyone who knows anything about the federal courts knows that the Ninth Circuit is nationally notorious as the most left-wing appellate court in the nation, and it is generally the court most reversed by the Supreme Court (although the Sixth is sometimes competitive for the latter dishonor).  A high affirmance rate in the Ninth means nothing with regard to refuting a charge of left-wing judicial activism, and every journalist worth his salt covering the courts knows that.

Walsh says, "To the end, every time Lawrence Karlton interpreted and applied the Constitution, that enduring blueprint of our democracy was in very good hands."  Quite the contrary, democracy was in peril every time Karlton disagreed with its results.   See, e.g., CJLF's and Crime Victims United's brief in Valdivia v. Schwarzenegger.

Walsh also says, "There is little chance we shall see his like again."  On this point, I hope to God he is right.

Time and Again

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Opening its new term, the U.S. Supreme Court has once again unanimously chastised the notorious Ninth Circuit for once again ignoring the limits placed by Congress on its authority to second-guess reasonable decisions on debatable questions of law by the state courts with primary jurisdiction over a case.  The opinion begins (emphasis added):

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. §2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is "clearly established." See, e.g., Marshall v. Rodgers, 569 U. S. __, __ (2013) (per curiam) (slip op. at 6). Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.
The case is Lopez v. Smith, No. 13-346.

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954).  Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

John Gleeson, Defense Lawyer in a Robe

A long time ago, in a galaxy far, far away, judges were neutral.  Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

Then there's the Eastern District of New York, otherwise known as Brooklyn, and its twin pro-criminal zealots, Jack Weinstein and, of late, John Gleeson.  Gleeson is young enough to know better, and I'm sure he does.  The problem is he doesn't care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them  to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes. (His screed neglected  to point out that the defense bar demands, and for all practical purposes lives off, exactly such plea offers).  His most recent stunt, however, takes pro-criminal huckstering to a new level.  I'll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?

John Conyers of Detroit, who will be 85 tomorrow, is the top Democrat on the House Judiciary Committee.  Although the Democrats are in the minority in that chamber, being the Ranking Member is an influential position (as Chuck Grassley proves daily in his counterpart position on the Senate Judiciary Committee).

But Rep. Conyers might not be there for long.  Amazingly, he did not submit enough legal signatures to qualify for the ballot.  He will probably conduct a write-in campaign, but the chances there are problematic.  He could also decide that, at 85, enough of Washington is enough.

If Conyers ever failed to vote for a bad piece of legislation, I can't remember what it was.  But I have three nice things to say about him.  He's focused and energetic for his age; he's a gentleman, having always been gracious to me when I testified (inevitably against his position) before his Committee; and, as Chairman in the late 1980's, he instigated and presided over the impeachment of corrupt then-federal district judge Alcee Hastings, who, like Conyers, is African-American. 

Of course, there were charges that Hastings was on the hook only because of racism.  Conyers rose to disagree, in words we would do well to remember today: "The principle of equality requires that a black public official be held to the same standard that other public officials are held to....Just as race should never disqualify a person from office, race should never insulate a person from the consequences of wrongful conduct."

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.

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