Bill Turner (no relation to "Bootstrap Bill") files 2244 petition. After petition is filed, Supreme Court rules that mentally retarded prisoner cannot be executed. District court expressly states it is not ruling with prejudice to Turner's ability to raise mental retardation in subsequent 2244 petition. Turner raises his alleged mental retardation in a subsequent 2244 petition and the Eleventh holds:
"...Turner has failed to demonstrate that there is a reasonable likelihood that he is in fact mentally retarded. Therefore, he has not satisfied the requirement of § 2244(b)(3)(C) that he make a prima facie showing that he is entitled to file a successive § 2254 petition asserting a claim under Atkins."
In other words - we will deny you the right to prove your alleged mental retardation because we don't think you can. Now go die.
How's that for "process" under the new and improved "effective" death penalty?
Thursday, April 7, 2011
Tuesday, April 5, 2011
Hi Ya'll
Judges Pryor, Carnes and our very own Patricia Seitz, have once again affirmed that if the sentencing judge says he/she would give a defendant the same thing, even if the appellate court says they were wrong on a guideline issue, it does not matter how screwed up the guideline calculations were in the first place. United States v. Pantle
There has been much ado about the recent Acosta v. Black allegations being publically exchanged between those two lawyers in relation to the Epstein case. Seems to me that people considering the public pronouncements should probably consider that only one of the two has been: (1) publically reprimanded by a federal judge (Order at p.4 ("Nonetheless, I enter a public reprimand against: (1) the United States Attorney and his senior staff members, for failure to exercise proper supervision...")) and (2) discussed at length in an Inspector General's report relating to the infamous DOJ hiring practice that went on during a portion of the Bush administration:
"Acosta acknowledged that Schlozman had significant responsibility for hiring during Acosta’s tenure as AAG. Acosta said he was not aware that Schlozman acted inappropriately in the hiring process. Acosta said
he believed that all attorneys hired in the Division were recommended by the section chief and the DAAG overseeing that section. Acosta said no one complained to him that inappropriate hiring practices were taking place.
However, Special Litigation Section Chief Shanetta Cutlar told us she complained directly to Acosta about Schlozman’s intent to hire as her deputy an applicant whom she considered unqualified even for a line attorney position..."
Black seems to me to be on pretty firm ground.
There has been much ado about the recent Acosta v. Black allegations being publically exchanged between those two lawyers in relation to the Epstein case. Seems to me that people considering the public pronouncements should probably consider that only one of the two has been: (1) publically reprimanded by a federal judge (Order at p.4 ("Nonetheless, I enter a public reprimand against: (1) the United States Attorney and his senior staff members, for failure to exercise proper supervision...")) and (2) discussed at length in an Inspector General's report relating to the infamous DOJ hiring practice that went on during a portion of the Bush administration:
"Acosta acknowledged that Schlozman had significant responsibility for hiring during Acosta’s tenure as AAG. Acosta said he was not aware that Schlozman acted inappropriately in the hiring process. Acosta said
he believed that all attorneys hired in the Division were recommended by the section chief and the DAAG overseeing that section. Acosta said no one complained to him that inappropriate hiring practices were taking place.
However, Special Litigation Section Chief Shanetta Cutlar told us she complained directly to Acosta about Schlozman’s intent to hire as her deputy an applicant whom she considered unqualified even for a line attorney position..."
Black seems to me to be on pretty firm ground.
Tuesday, March 29, 2011
New 11th Cases
United States v. Beasley: The Eleventh gets slapped down and then has to explain why (kind of).
What is interesting about the case is the degree that the Supreme Court in Carr v. United States, 130 S.Ct. 2229 (2010) (which remanded Beasley) and the Eleventh took to avoid the obvious ex post facto problem with applying the law to Beasley.
In sum, the Eleventh found that a federal law that made it a crime for somebody who is (1) required to register as a sex offender, (2) to travel in interstate commerce, and (3) fail to register in a new state, applied to a guy who moved to Georgia before the federal law took effect. The Supreme Court reversed, reasoning that the plain language of the statute required travel to violate the law, and thus the law could only have been violated after it took effect.
United States v. Weatherald:
Speaking of ex post facto, Weatherald addressed the problem of whether or not a court can utilize newer guidlines (2008) to a crime that was committed in 2002, if the newer guidlines are harsher:
"Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed."
But still, in true Eleventh Circuit fashion, the judges managed to find that the defendants were not screwed enough to warrant reversal because the sentencing judge said he would have given the same sentence under either guideline.
"Appellants have presented no evidence that these sentences were affected by the district court’s reference to the 2008 Guidelines, and their speculation that the judge might have departed even further had he employed the 2002 Guidelines is not sufficient to show a substantial risk of harsher punishment."
...
"Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment."
Whatever happened to due process? Harmless error is a beeotch.
What is interesting about the case is the degree that the Supreme Court in Carr v. United States, 130 S.Ct. 2229 (2010) (which remanded Beasley) and the Eleventh took to avoid the obvious ex post facto problem with applying the law to Beasley.
In sum, the Eleventh found that a federal law that made it a crime for somebody who is (1) required to register as a sex offender, (2) to travel in interstate commerce, and (3) fail to register in a new state, applied to a guy who moved to Georgia before the federal law took effect. The Supreme Court reversed, reasoning that the plain language of the statute required travel to violate the law, and thus the law could only have been violated after it took effect.
United States v. Weatherald:
Speaking of ex post facto, Weatherald addressed the problem of whether or not a court can utilize newer guidlines (2008) to a crime that was committed in 2002, if the newer guidlines are harsher:
"Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed."
But still, in true Eleventh Circuit fashion, the judges managed to find that the defendants were not screwed enough to warrant reversal because the sentencing judge said he would have given the same sentence under either guideline.
"Appellants have presented no evidence that these sentences were affected by the district court’s reference to the 2008 Guidelines, and their speculation that the judge might have departed even further had he employed the 2002 Guidelines is not sufficient to show a substantial risk of harsher punishment."
...
"Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment."
Whatever happened to due process? Harmless error is a beeotch.
Monday, March 28, 2011
Banna Boat Law
Forum non conveniens ("FNC"). That doctrine, is fast becomming the darling of multinational corporations which want to be free from liability for torts (crimes?) that they commit in foreign countries.
It was convenient for Chucky Taylor to be brought to the US for crimes he committed in Liberia, which had no connection to the United States, solely because he was an American citizen (and by the way, that was the right result). But not for Dow, Occidental, Dole, Shell, and many other large corporations.
Those companies have a tool that Chucky did not have - FNC.
To prevail on a motion to dismiss based upon FNC, a defendant must establish a few things:
"that “(1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice"
Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011).
If they prevail, the plaintiff is out of court in the US and must pursue the claim in an alternative forum. The benefits to the corporate defendants are obvious, not the least of which is the ability to force plaintiffs who often have little resources into jursidictions that have a great deal of "respect" for corporate defnedants.
Shell took advantage of the doctrine several years ago in seeking to send some peasent farmers back to the Nicaraguan courts after those individuals sued in the United States. Shell won in the Fifth Circuit. Delgado v. Shell Oil Co., 890 F.Supp. 1324 (S.D.Tex. 1995).
In Delgado, Shell convinced the Court that Nicaragua was a fine place to litigate a case.
Apparently Nicaragua is only okay for Shell if they are going to win.
In another case just decided by the Eleventh Circuit, the Nicaraguan courts hit Shell with a 97+ million dollar judgment on similar claims to Delgado. Shell fought the judgment in the United States, this time arguing that the jurisdiction it requested in the Delgado case really wasn't that adequate.
Needless to say, Shell won - a district judge found that the Nicaraguan courts (1) lacked subject matter and/or personal jurisdiction over Shell, (2) did not comport with standards of due process, and (3) the Nicaraguan judgment was repugnant to Florida public policy.
Of course, the Eleventh affirmed, but did not want to create precedent that would cause the immediate denial of future FNC motions when the other forum is Nicaragua, so it made sure to state that "we do not address the broader issue of whether Nicaragua as a whole “does not provide impartial tribunals” and decline to adopt
the district court’s holding on that question."
So now it seems that if you are a Nicaraguan who wants to sue a big company for something it did to you in Nicaragua (but planned in the United States), you better be prepared to (1) get kicked out of the US courts and (2) have your judgment rendered unenforceable if you do happen to win in Nicaragua by the US courts.
Seems fair to me.
It was convenient for Chucky Taylor to be brought to the US for crimes he committed in Liberia, which had no connection to the United States, solely because he was an American citizen (and by the way, that was the right result). But not for Dow, Occidental, Dole, Shell, and many other large corporations.
Those companies have a tool that Chucky did not have - FNC.
To prevail on a motion to dismiss based upon FNC, a defendant must establish a few things:
"that “(1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice"
Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011).
If they prevail, the plaintiff is out of court in the US and must pursue the claim in an alternative forum. The benefits to the corporate defendants are obvious, not the least of which is the ability to force plaintiffs who often have little resources into jursidictions that have a great deal of "respect" for corporate defnedants.
Shell took advantage of the doctrine several years ago in seeking to send some peasent farmers back to the Nicaraguan courts after those individuals sued in the United States. Shell won in the Fifth Circuit. Delgado v. Shell Oil Co., 890 F.Supp. 1324 (S.D.Tex. 1995).
In Delgado, Shell convinced the Court that Nicaragua was a fine place to litigate a case.
Apparently Nicaragua is only okay for Shell if they are going to win.
In another case just decided by the Eleventh Circuit, the Nicaraguan courts hit Shell with a 97+ million dollar judgment on similar claims to Delgado. Shell fought the judgment in the United States, this time arguing that the jurisdiction it requested in the Delgado case really wasn't that adequate.
Needless to say, Shell won - a district judge found that the Nicaraguan courts (1) lacked subject matter and/or personal jurisdiction over Shell, (2) did not comport with standards of due process, and (3) the Nicaraguan judgment was repugnant to Florida public policy.
Of course, the Eleventh affirmed, but did not want to create precedent that would cause the immediate denial of future FNC motions when the other forum is Nicaragua, so it made sure to state that "we do not address the broader issue of whether Nicaragua as a whole “does not provide impartial tribunals” and decline to adopt
the district court’s holding on that question."
So now it seems that if you are a Nicaraguan who wants to sue a big company for something it did to you in Nicaragua (but planned in the United States), you better be prepared to (1) get kicked out of the US courts and (2) have your judgment rendered unenforceable if you do happen to win in Nicaragua by the US courts.
Seems fair to me.
Friday, March 18, 2011
Geared towards Conviction
If you ever doubted that the federal system is geared toward gaining convictions, read the quote below. It appears in US v. Higdon, a ruling granting a petition for a writ of mandamus brought to the Third Circuit by the government, after a jury could not agree whether or not the defendant possessed a firearm. During the trial, the judge essentially submitted an interrogatory to the jurors - the defendant had stipulated that he was a convicted felon and that the gun traveled in interstate commerce - the judge refused to inform the jury about the stipulations and instead instructed them they had to determine whether or not the defendant possessed a firearm. Therefore, the only thing for the jury to determine was whether or not the defendant possessed a firearm. The quote that bothered me in the context of the opinion was:
"Possession of a firearm is ordinarily not a crime, and the emotions and fervor surrounding efforts to restrict gun ownership are all too familiar to require citation. Therefore, it is quite likely that a juror would be concerned about prosecuting someone merely for possessing a firearm, particularly if the juror is a gun owner. Although no one other than the people on Higden's first jury can know why it deadlocked, common sense suggests that it may well have been because of concerns about convicting someone for simply possessing a gun. The fact that the first trial resulted in a hung jury also suggests that at least some of the jurors may have been confused about why Higden was on trial in the first place."
The problem is that the opinion went on to suggest that it would be error for the court to bifurcate a s. 922 trial (possession of a gun by a convicted felon), an issue the district judge had not ruled on. That ruling, in light of the recognition above is quite extraordinary.
Think about it. The appellate court found that the jury likely could not follow the judge's instructions to determine whether or not he possessed a firearm, because they had not been told the defendant was a convicted felon. That is a particularly disturbing statement given the plethora of case law that says 'a jury is presumed to follow the instructions...'. Essentially, the court recognizes that a jury would be less likely to convict if they are not told a defendant is a convicted felon, and they therefore must be told he is. And yet, we have to deal with 404(b) case law every day that says a limiting instruction is sufficient. Total B.S.
Rotten.
"Possession of a firearm is ordinarily not a crime, and the emotions and fervor surrounding efforts to restrict gun ownership are all too familiar to require citation. Therefore, it is quite likely that a juror would be concerned about prosecuting someone merely for possessing a firearm, particularly if the juror is a gun owner. Although no one other than the people on Higden's first jury can know why it deadlocked, common sense suggests that it may well have been because of concerns about convicting someone for simply possessing a gun. The fact that the first trial resulted in a hung jury also suggests that at least some of the jurors may have been confused about why Higden was on trial in the first place."
The problem is that the opinion went on to suggest that it would be error for the court to bifurcate a s. 922 trial (possession of a gun by a convicted felon), an issue the district judge had not ruled on. That ruling, in light of the recognition above is quite extraordinary.
Think about it. The appellate court found that the jury likely could not follow the judge's instructions to determine whether or not he possessed a firearm, because they had not been told the defendant was a convicted felon. That is a particularly disturbing statement given the plethora of case law that says 'a jury is presumed to follow the instructions...'. Essentially, the court recognizes that a jury would be less likely to convict if they are not told a defendant is a convicted felon, and they therefore must be told he is. And yet, we have to deal with 404(b) case law every day that says a limiting instruction is sufficient. Total B.S.
Rotten.
Roy Black's Blog
Roy Black has started a blog, and it is a must read for young lawyers - go to it and pick up any insight you can. I would also encourage you to write in questions, I am certain Black will entertain answering them and providing guidance worth a heavy price.
I find myself often consulting other lawyers when I have questions and need guidance in matters. I don't want to embarrass any of them by naming them here and associating them with this often ill thought out, poorly written and intemperate blog, but I find that in general, some of the finest attorneys in the Southern District are very free with their time to help a colleague and better the profession. The consultations I have received have been invaluable and frankly, worth paying for if I had to.
We should all try to become better lawyers each day - in skill and professionalism; I am certain that reading Black's blog and gaining insight into how one of the greats views the law is a step in that direction.
In other news - why is Quaddafi still in power? Is this yet another f-up by Obama? To wait so long to take any action, only to give Quaddafi an opportunity to accept the demands of the UN and further stall his ouster seems to me to be another missed opportunity of the Obama administration. Of course, maybe I am just pissed at Obama because of his lack of skill in handling the federal appointments.
I find myself often consulting other lawyers when I have questions and need guidance in matters. I don't want to embarrass any of them by naming them here and associating them with this often ill thought out, poorly written and intemperate blog, but I find that in general, some of the finest attorneys in the Southern District are very free with their time to help a colleague and better the profession. The consultations I have received have been invaluable and frankly, worth paying for if I had to.
We should all try to become better lawyers each day - in skill and professionalism; I am certain that reading Black's blog and gaining insight into how one of the greats views the law is a step in that direction.
In other news - why is Quaddafi still in power? Is this yet another f-up by Obama? To wait so long to take any action, only to give Quaddafi an opportunity to accept the demands of the UN and further stall his ouster seems to me to be another missed opportunity of the Obama administration. Of course, maybe I am just pissed at Obama because of his lack of skill in handling the federal appointments.
Wednesday, March 16, 2011
Our Blood Money
The concept of "blood money" is quite old. Wigmore, in a book called A Kaledidoscope of Justice, (1941), wrote about it - the concept is not quite the same as the references in the Bible when Judas receives payment for the betrayal of Jesus.
It seems, we (that's right, you and me and the rest of American tax payers), have paid blood money.
"A Pakistani court has freed a US CIA contractor after acquitting him of two counts of murder at a hearing held at a prison in Lahore, officials say.
Raymond Davis, 36, was alleged to have shot dead two men in the eastern city of Lahore in January following what he said was an attempted armed robbery.
The acquittal came when relatives of the dead men pardoned him in court.
They confirmed to the judge overseeing the case that they had received compensation - known as "blood money".
Under Pakistani law, relatives of a murder victim can pardon the killer.
Reports say about 18 family members of the two dead men were in court on Wednesday and confirmed that they wanted Mr Davis to be freed and pardoned because they had received "blood money"."
I do not pretend to know what happened with Mr. Davis - whether he was killing in our name, in self-defense or for some other reason, but I do know that the payment to family members to obtain the dismissal of a case doesn't sit well with me.
If the court had found that he had diplomatic immunity and set him free, I would be more comfortable with the outcome. I guess the ultimate question is how do you value a life? Does a person who has been a victim of a homicide deserve more than simply a value placed upon their head? Obviously in civil practice, values are placed on decedents every day, but there is a line between negligence and murder, which is why the State steps in and prosecutes defendants, regardless of a civil settlement. Does anybody think a defendant should be able to pay off the family members in our system?
It seems, we (that's right, you and me and the rest of American tax payers), have paid blood money.
"A Pakistani court has freed a US CIA contractor after acquitting him of two counts of murder at a hearing held at a prison in Lahore, officials say.
Raymond Davis, 36, was alleged to have shot dead two men in the eastern city of Lahore in January following what he said was an attempted armed robbery.
The acquittal came when relatives of the dead men pardoned him in court.
They confirmed to the judge overseeing the case that they had received compensation - known as "blood money".
Under Pakistani law, relatives of a murder victim can pardon the killer.
Reports say about 18 family members of the two dead men were in court on Wednesday and confirmed that they wanted Mr Davis to be freed and pardoned because they had received "blood money"."
I do not pretend to know what happened with Mr. Davis - whether he was killing in our name, in self-defense or for some other reason, but I do know that the payment to family members to obtain the dismissal of a case doesn't sit well with me.
If the court had found that he had diplomatic immunity and set him free, I would be more comfortable with the outcome. I guess the ultimate question is how do you value a life? Does a person who has been a victim of a homicide deserve more than simply a value placed upon their head? Obviously in civil practice, values are placed on decedents every day, but there is a line between negligence and murder, which is why the State steps in and prosecutes defendants, regardless of a civil settlement. Does anybody think a defendant should be able to pay off the family members in our system?
"I'd sell your heart to the junkman baby
For a buck, for a buck
If you're looking for someone to pull you out of that ditch
You're out of luck, you're out of luck.
For a buck, for a buck
If you're looking for someone to pull you out of that ditch
You're out of luck, you're out of luck.
The ship is sinking
The ship is sinking
The ship is sinking
The ship is sinking
The ship is sinking
There's a leak, there's a leak in the boiler room
The poor, the lame, the blind
Who are the ones that we kept in charge?
Killers, thieves, and lawyers!"
The poor, the lame, the blind
Who are the ones that we kept in charge?
Killers, thieves, and lawyers!"
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