Monday, February 28, 2011

Death of the First Amendment?

While the Supreme Court has taken unprecedented (truly) to expand the scope of the First Amendment and make it applicable to legal entities, the US Attorney's Office in the Southern District of New York is taking steps to kill it.

That office indicted one Julian Heicklen for jury tampering - what was the tampering you may ask...

Handing out pamphlets that told people (some of whom may have been prospective jurors) that they had the power to render a not guilty verdict through nullification!

Here is a link to the Indictment.

Seems to me that Heicklen is in pretty good company - here is a quote from none other than Judge Jack Weinstein, from an order granting a motion for a new trial (which was reversed - maybe the US Attorney's Office will indict him too for attempted jury tampering), in which Judge Weinstein shares his thoughts on nullification vis a vis minimum mandatory sentences.  The case is United States v. Polouizzi.  Before going to the quote, I want to acknowledge that I have been criticized in the past for long posts - the criticism is fair and warranted.  If you don't like long quotes, stop reading, and simply ponder whether or not we want the government indicting people for informing jurors of a power that they hold - in other words, not threatening or attempting to bribe them, but simply telling the truth.  But, if you really want to see how ridiculous (and scary) the indictment is, read this portion of Judge Weinstein's order:

"Consistent modern judicial attempts to water down the Sixth Amendment have not escaped notice by academics and other scholars whose commentary has been generally critical of limitations on Sixth Amendment jury power to dispense mercy. See, e.g., Polouizzi I, 549 F.Supp.2d at 450-54 (providing selected bibliography on powers of jurors when Sixth Amendment was adopted); see also, e.g., Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1191-99 (1991) (noting that juries had power to declare laws unconstitutional and calling that argument “strong,” but cautioning that “I do not mean to suggest that I am wholly persuaded”); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 Am.Crim. L.Rev. 89, 105 (1995) (“The time has come for the Supreme Court to reconsider its decision in Sparf, as well as the question of whether the jury should be instructed of its nullification power.”); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 679 (1995) (arguing that African-American jurors should nullify in some cases to combat racism in criminal justice system); David N. Dorfman & Chris K. Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. Mich. J.L. Reform 861, 900-01 (1995) (arguing that jury nullification is a “popular check on executive and judicial discretion”); Arie M. Rubenstein, Note, Verdicts of Con-science: Nullification and the Modern Jury Trial, 106 Colum. L.Rev. 959 (2006) (basing argument in favor of jury nullification on recent Supreme Court jury right cases); Alan W. Scheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L.Rev. 168, 224 (1972) (“Preservation of ... the right to nullify ... [is] essential to a restoration of the vaunted stature the judicial system should occupy.”); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 Wash. & Lee L.Rev. 165, 166 (1991) (“[O]ur judicial system would be better served if judges instructed jurors of their true powers.”); Ran Zev Schijanovich, The Second Circuit's Attack on Jury Nullification in United States v. Thomas: In Disregard of the Law and the Evidence, 20 Cardozo L.Rev. 1275, 1278 (1999) (“Thomas is unsound both as a matter of law and as a matter of policy.”); Chaya Wein-berg-Brodt, Jury Nullification and Jury-Control Proce-dures, 65 N.Y.U. L.Rev. 825 (1990) (arguing for refocusing arguments regarding nullification on defendants' rights and reconsidering doctrines that impede nullification). But see Pamela Baschab, Jury Nullification: The Anti-Atticus, 65 Ala. Law. 110, 114 (2004) (“Jury nullification, no matter how you slice it, is at bottom a desecration of the basic premise that we are all equal under the law.”); Leo P. Dreyer, Jury Nullification*195 and the Pro Se Defense: The Impact of Dougherty v. United States, 21 U. Kan. L.Rev. 47, 60-63 (1972-73) (arguing against allowing instructions to juries regarding their power to nullify); Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L.Rev. 253 (1996) (arguing that jury nullification has a larger cost than is normally realized and that the Sixth Amendment does not protect the right of jury nullification); Richard St. John, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997)(criticizing legislative proposals to authorize jury nulli-fication).

2. Contemporary

Since the late nineteenth century, jury power has in-creasingly been suppressed in favor of judicial control in both civil and criminal trials through case law and amendments to the statutes and rules governing the trial process. This trend-especially since the 1990s-is so strong that one commentator considers it “war.” See Andrew J. Parmenter, Nullifying the Jury, The Judicial Oligarchy Declares War on Jury Nullification, 46 Washburn L.J. 379 (2007). That the courts of three out of the four states that grant juries the power in criminal cases to decide both law and fact “have eviscerated any literal translation of these constitutional provisions” is one such example. Id. at 391; see Ga. Const. art. I, § 1, para. x 1(a) (1998); Ind. Const. art. I, § 19 (1999) (“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”); Md.Code Ann., Const. art. 23, Declaration of Rights (same).

The reasons for this trend are beyond the scope of this opinion, but hypotheses include “changes in the American psyche, transitioning a young republic with revolutionary zeal and distrust for governmental authority into a mature democracy” more concerned with law and order; profes-sionalization of the lawyers and prioritizing law over facts; fears of an increasingly diverse jury pool due to the twen-tieth-century opening up of jury service, particularly with a post-World War II influx of immigrants to the country on a non-discriminatory basis from all parts of the world; and the need to have a uniform predictable national law and its enforcement that would favor the growth of national commerce. See Parmenter, supra, at 386-87; see also Husain v. Springer, 494 F.3d 108, 138 (2d Cir.2007), cert. denied, 552 U.S. 1258, 128 S.Ct. 1658, 170 L.Ed.2d 356 (2008); Monroe v. Kuhlman, 436 F.Supp.2d 474, 480 (E.D.N.Y.2006), aff'd, 248 Fed.Appx. 223 (2d Cir.2007) (suggesting that causes include “ ‘the reluctance to expand the powers of totally passive and unenlightened juries stems from three sources: (1) the tremendous inertia of long-standing legal tradition; (2) a basic distrust of juries; and (3) trial attorneys' and judges' fear of loss of control of the trial process.’ ” (quoting Mark A. Frankel, Legal In-stitutions: A Trial Judge's Perspective on Providing Tools for Rational Jury Decision-Making, 85 Nw. U.L.Rev. 221, 222 (1990))).

Relying on Sparf v. United States, judges now gener-ally refuse to inform juries of their full powers, including their power to nullify. Nullification instructions, histori-cally common, are no longer given. It is generally accepted that defendants have no right to such a charge. Yet Sparf-supposedly the bedrock case against jury nullification-adopted no such holding:

Harlan's opinion did not preclude judges from rendering nullification instructions or allowing nullification ar-guments in proper circumstances, it did not require judges to mislead jurors about their power to judge the law, and it did not sanction a judicial denial of the jury's nullification power, either by instruction or interference. Sparf only held that it was not reversible error to instruct the jury that it would be wrong to disregard the court's instruction as to the law. In fact, the trial judge in Sparf informed the jury that it had the “physical power” to render a verdict contrary to his instructions.

Parmenter, supra, at 388 (footnotes omitted).

Not only are juries not informed of their constitutional and historic power to nullify, judges increasingly issue directive and authoritative jury instructions, which increase judicial control over jurors. See B. Michael Dann, “Must Find the Defendant Guilty ” Jury Instructions Violate the Sixth Amendment, 91 Judicature 12, 12 (2007) (stating that a “survey of the states' and federal circuits' corresponding jury instruction language reveals that 24, almost 40 percent, of state courts and federal circuits use the command ‘must’ or its equivalent (‘shall’ or ‘duty’) to point juries to verdicts of guilty when all of the elements of the alleged crime have been proven. Another 7, or 13 percent, use the milder admonition ‘should’ to steer the jury's decision to guilt.”). Some judges have gone as far as to tell jurors they have a legal obligation to apply the law, that they could face sanctions upon nullification, and that they “had a duty to notify the court if any juror expressed intent ‘to disregard the law.’ ” See Parmenter, supra, at 404, 409.

Judicial control over potential and actual members of the jury has steadily increased. Voir dire, in practice since the Fugitive Slave Acts, is used to weed out potentially nullifying jurors. See Parmenter, supra, at 398 (citing Lysander Spooner, Trial by Jury (1852)). The Court of Appeals for the Eleventh Circuit has upheld a trial court's sua sponte dismissal of a juror because the juror knew the jury had the power to nullify. United States v. James, No. 98-1479, 2000 WL 136816, 2000 U.S.App. LEXIS 1738 (11th Cir. Feb. 7, 2000).

Dismissals for cause based on jurors' beliefs still result, especially in death penalty cases, in pro-conviction jury panels not fairly selected as a cross-section of the community. See, e.g., Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (approving a trial court's decision to dismiss a juror for cause after finding that the juror's ability to impose the death penalty was substantially impaired, even though he indicated that he would follow the law as instructed by the judge).

Since the 1990s, there has been a growing trend to-wards discharging jurors who may nullify. See Parmenter, supra, at 408-10 (citing cases). The court in United States v. Thomas, 116 F.3d 606 (2d Cir.1997), discussed further in Part IV.D.1, infra, utilized Federal Rule of Criminal Procedure 23(b) to approve removal of a juror during deliberations, thus allowing the return of an eleven-person verdict, citing as “good cause” the juror's possible nullifi-catory intent. Other circuits have followed Thomas. See Paramenter, supra, at 407 n. 279. After Thomas, judges might well feel empowered to disqualify potentially nul-lifying jurors at both voir dire and trial under Rule 24(c). See Fed.R.Crim.P. 24(c)(1) (“The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.”). Is this the unanimous, uncovered verdict from a cross section of the community required by the Constitu-tion?

A completely distinct division between the roles of judge and jury as is said to be embodied in Sparf is un-supported historically, see Parts IV.A and IV.B, supra, and now, post- Booker, it is unsupportable legally.197 See Part IV.D., infra. Providing jurors sentencing information would enable the jury to more effectively fulfill its historical Sixth Amendment role as the conscience of the community and guardian against government oppression."

I have seen and received similar pamphlets in front of our courthouse -

David, you should go down there now and file a lawsuit seeking an injunction on behalf of one of the pamphleteers.

Thursday, February 24, 2011

Quaddafi Sucks

Is it only me, or does anybody else think it is time to repay quadaffi for pan am, and make sure he does not retain power? Perhaps that plan runs contrary to our interests in oil, as the present stock market situation demonstrates, but at some point aren't we going to stop conducting foreign policy according to a Posneresq economic model and do the morally right thing?

In other news, check out Rumpole to learn more about never being wrong when you are a cop; David to learn more about the supremes love of big business; and SFL to learn about the hottest pi lawyer in town.

Wednesday, February 23, 2011

Pryor Rules for Defendant!

In the ever intriguing world of Eleventh Circuit appeals, Judge Pryor has just issued an opinion in favor of a criminal defendant!  Now, I am not suggesting that Judge Pryor is unfair - he is not - he is just very conservative and tends to agree with Government positions.  I guess in the end it is kind of academic because the defendant recieved a jury recommendation of life - which is what he will get on remand.  The question is just how many life sentences he will have to serve, and whether they will be consecutive or concurrent.

"Julian objected to the recommendation in the presentence investigation report that he be sentenced to consecutive life sentences for the counts of murder, but the district court overruled Julian’s objection. The district court ruled that it was required to impose consecutive sentences based on the provision that “no term of imprisonment imposed on a person under [subsection (c)] shall run concurrently with any other term of imprisonment imposed on the person.” 18 U.S.C. § 924(c)(1)(D)(ii). The district court reasoned that the requirement of consecutive sentencing applies to “all offenses in which [924(c)(1)] is implicated,” including section 924(j). The court then sentenced Julian to two life sentences on the murder charges and a total sentence of 115 years for the other crimes and ordered that all of the sentences run consecutively."

"We are unpersuaded by the decisions of the Eighth and Tenth Circuits that sentences imposed under section 924(j) must run consecutively based on section 924(c)(1)(D)(ii). United States v. Dinwiddie, 618 F.3d 821, 837 (8th Cir. 2010); Battle, 289 F.3d at 668; United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001), vacated on other grounds, Allen v. United States, 536 U.S. 953, 122 S. Ct. 2653 (2002). Both of those courts held that section 924(j) is a sentencing factor for section 924(c) and not a distinct offense, Battle, 289 F.3d at 666; Allen, 247 F.3d at 769, and we have explained above why we reject that reading of those provisions. Neither court addressed the implications of its interpretation of section 924(j) under the Fifth and Sixth Amendments; neither court discussed the distinctions the Supreme Court drew between sentencing factors and elements in Harris and Castillo; and neither court considered that its interpretation of section 924(j) would render section 924(c)(5) surplusage."
This case has a jurisdictional conflict built in - let's see if the Government decides to attempt to take it up.

In any event, the case is United States v. Julian, it is worth a read if you handle 924 cases, although too much of a read in it will leave your head spinning and a strong desire to drink consecutive six-packs.

Wednesday, February 16, 2011

DOM to Snitch = Can you loan a brother a couple Million?

That could be David's (of "him blaker than you and me" fame) opening salvo against the snitch of riches, the crem de la crem of the millionairs club informants, none other than Alexander Johnson:

"Only hours after telling prosecutor Jim Preston that it was Buju who brought up the conversation about cocaine trafficking while on a flight back from Madrid, Spain in July, 2009, Johnson under cross examination from the Jamaican's attorney David Oscar Markus changed his story."

Looks like you don't allways get what you pay for.

Monday, February 14, 2011

Supreme Court

Not to step into the Markus/Marcas arena, but there are a couple interesting arguments coming up in the Supreme Court.  One is all about the Tenth Amendment (yes, there is one between the Ninth Amendment (which nobody pays attention to except possibly Scalia) and the Eleventh Amendment (which the States love - especially when one of their employees really screws up at hurts somebody bad))...the case is Bond v. US...

The Tenth Amendment reads:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The question that the Court is set to settle, is whether or not an American can challenge a law based upon an argument that the law violates the Tenth Amendment.

My answer would be sure - why not?

The second argument will have a far greater impact on us peons in the SD Fla.  You know how the judges and prosecutors down here like to say that if you file a motion, the time that runs between the filing and dispositioin of the motion is excluded???  Does that make sense in any practicle sense?  For example, before many of the judges in the SD Fla., you can file a motion, the government won't respond to it and the judge will deny it on the first day of trial.  How can any honest person say that the motion held up the proceedings?  Well, that is the question presented in US v. Tinklenberg:

"Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, 18 U.S.C. 3161(h)(I)(D) (Supp. II 2008), or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial."

Me thinks criminal defendants get screwed on this one.

Friday, February 11, 2011

Robbery is in fact a crime of violence

Turns out that in fact, Robbery is a crime of violence for Career Offender purposes. 

Congrats to Judge Tjoflat for another well-reasoned, calm and rational decision; one written without the need to forceably insert humor where it does not belong, or criticize litigants who cannot answer.

Thursday, February 10, 2011

Obama = Muslim?

Can you f'ing believe these idiot Republicans in Iowa?  The real fun starts around 57 seconds into the video:

Am I crazy, or does anybody else think it's time for the President to come out and punch back at these racists and say something like...

"If I was a Muslim, I would tell you...because there is absolutely nothing wrong with being a Muslim."?

Anyhow, waiting on the Eleventh to issue some juicy criminal opinions.  Seems they are slow these days.

Wednesday, February 9, 2011

Leave your submarine at home

Next time you are considering going for a spin in the Pacific Ocean, in International waters, in a semi-submersible that is not registered to any country, that is not going any where, better think twice.  As it turns out, you can be prosecuted in the District Court, in Florida (which last time I checked was not even in the Pacific).

Turns out that the "High Seas Clause" of our Constitution allows almost universal jurisdiction if you are doing something that most nations would consider bad:

"Given Congress’s findings, the “protective principle” of international law provides an equally compelling reason to uphold the DTVIA. Under that principle, a nation may “assert jurisdiction over a person whose conduct outside the nation’s territory threatens the nation’s security or could potentially interfere with the operation of its governmental functions.” United States v. Gonzalez, 776F.2d 931, 938 (11th Cir. 1985). “The protective principle does not require thatthere be proof of an actual or intended effect inside the United States.” Id. at 939. Those who engage in conduct the DTVIA targets threaten our nation’s security by evading detection while using submersible vessels to smuggle illegal drugs or other contraband, such as illegal weapons, from one country to another, and often into the United States....


Based on the foregoing, we conclude that Congress acted properly within its constitutional authority under the High Seas Clause in passing the DTVIA. The fact that defendants are challenging the constitutionality of a statute other than the MDLEA does not alter our conclusion about the scope of Congress’s power under the High Seas Clause. See Estupinan, 453 F.3d at 1338. We declined to embellish one statute passed under the High Seas Clause with a nexus requirement. We now decline defendants’ invitation to rewrite the Constitution to create one."

Better watch your Roombot

I hate to sound like the Dodge Commercial - but have they never watched Terminator, Matrix, I Robot, Maximum Overdrive (I seem to recall Martians were involved in that), etc...from the article:

"European scientists have embarked on a project to let robots share and store what they discover about the world.

Called RoboEarth it will be a place that robots can upload data to when they master a task, and ask for help in carrying out new ones.

Researchers behind it hope it will allow robots to come into service more quickly, armed with a growing library of knowledge about their human masters."

RoboEarth was the second name to be proposed, and only was accepted after Skynet was found to be copyrighted.

Tuesday, February 8, 2011

Justifiable Homicide?

We have all known David to take on very difficult matters and obtain excellent results.  And I am sure many will remember David's pursuit to strike down as unconstitutional the law that banned cockfighting videos (an issue upon which David was shown to be spot on), well, word on the street is that he has a new client and I have his picture

Charges?  Try Manslaughter: "A man attending an illegal cockfight in California died after being stabbed in the leg by one of the birds, officials have said.

The cock had a knife attached to its limb to take part in the gambling fight in Tulare County, central California.

Jose Luis Ochoa, 35, was declared dead in hospital where he arrived some two hours after being injured."

Does the doctrine of transferred intent apply in a self-defense cases?  Or, is this pure justifiable homicide?

In other news, somebody sent me this joke and I pass it on:

"Dear Egypt,

Please don't destroy the pyramids. We won't rebuild.

s/The Jews"

Monday, February 7, 2011

Super Ad

Since David and SFL are touting thier favorite Super Bowl things, I will ad mine -

I loved the Chrysler/Detroit ad - it kicked ass.  Call me silly, but sitting here in Miami, the ad was emotionally uplifting and made me want to visit Detroit.  Here it is

Friday, February 4, 2011

I'm Back

Would like to tell you I shut down the blog for a week like Rumpole does because I was "reconfiguring" the blog, but I do not think that was what it was.  Perhaps the "this blog sucks" guy got to me a little, but I welcome him back.  Truth is, I was rereading some of my old posts, and felt they were a bit too critical to be posted anonymously - felt a bit cowardly.  I did not like the feeling, and took them all down as best I could. 

So, what to do?

Well, I think the best approach is to be more tempered in what I write that attacks broad swaths of people (Prosecutors, LEOs and the entire Eleventh Circuit Bench), and try to narrow the focus of the posts and be more specific on my comments.

Glad to be back, if my one reader finds me straying away from what I want to do with this, let me know and I will try to correct it.

And yes, I am leaving the awful name of the blog intact - although I do not know why.