If you ever wondered whether or not there is a significant difference between litigating in Federal and State criminal court, look no further than Cliff Berry Inc. v. State of Florida.
Case reversed on Jury instruction, but took time to address a Richardson issue.
Richardson, for those of you who don't know, basically says that a trial court must conduct an inquiry when there is a discovery violation. In federal court, that would be the equivalent of actually holding AUSAs responsible when they...let's say...fail to turn over Giglio until the week before trial, when they were supposed to do it 14 days after the discovery order was entered.
Apparently, the former AUSA was practicing like he was back over in federal land where the lunatics run the asylum and there is no accountability as to prosecutors. Here is the section dealing with the discovery violation:
"The record demonstrates that on November 26, 2008 – the day Schneir began testifying and before the State concluded its direct examination – defense counsel alerted the trial court to a possible discovery violation after it became clear that Schneir’s trial testimony was a significant departure from his pre-trial
statements and deposition:
[DEFENSE COUNSEL]: Judge, one request before we break, it’s through the Court to the prosecutors. . . .
Apparently now, with Mr. Schneir[’s] testimony and questions, it’s clear that Mr. Schneir’s testimony is at
odds with both his sworn [testimony] in May to the prosecutors, and his deposition in June. And I’m asking if there are other statements, interviews or notes that occurred since that time, that are inconsistent with his prior testimony, that under Brady, that they be produced.
. . . .
THE COURT: So you’re invoking Brady, and I’m assuming, Mr. Scruggs, you’re aware of that, and
anything they are entitled to, you have turned over?
(Tr. 1545-46.)
The prosecutor denied being in possession of any such materials and asserted that “if I had any such reports or anything, they would have gotten them a long time ago.” (Tr. 1546.) [This line of course is cut and paste from the standard response in federal court...'the government is aware of...and will comply...]
Defense Counsel continued:
It’s clear from the question asked about dates and how he [Schneir] lied and all the meetings about dates, that Mr. Scruggs, before he asked these questions, knew that the testimony was going to vary from the sworn testimony previously given.
I believe that the oral statements have been made to Mr. Scruggs or to Mr. Fiedler that are inconsistent, that is within the obligation the prosecutor owes, and I cannot believe that Mr. Scruggs asked the questions, and is
surprised to hear that now the witness is testifying in variance.
So, I think there are statements out there, with all respect to Mr. Scruggs that Mr. Scruggs knows perfectly well and I ask for them now.
(Tr. 1546.)
In the exchange with the trial court that followed, the prosecutor agreed to think about and produce any undisclosed oral or written statements to the defense over the holiday weekend.
As we have already noted, based on the Assistant State Attorney’s Script, [in federal land, this would be referred to as work product, rather than the testimony the prosecutor prepared for the witness] it is clear that the State was aware Schneir would depart significantly from his pretrial sworn statement and deposition at trial before Schneir took the stand. For example, the Script summarizes the information the Assistant State Attorney expected to elicit from Schneir as follows:
• “Theft actually started in early 2000.”
• With respect to the outbound fuel lines, fuel was stolen “approx 12 times in 2000 to March 2003,” and with respect to the inbound fuel lines, fuel was stolen “approx 12 times.”
(Script, at R. P3364-65.)
The Script also outlines questions the Assistant State Attorney planned to (and did, in some form) ask Schneir at the trial:
• “Why lower numbers [and] wrong times for fuel theft?”
• “Why did you give wrong dates in depo?”
• “Why did you give wrong numbers/times in depo?” (Below this series of questions, the words “MINIMIZE INVOLVEMENT” were written in another person’s handwriting. These are the exact words Schneir used at trial to explain his departure from his pretrial testimony.)
(Script, at R. P3370.)
And, in fact, the Assistant State Attorney later confirmed at a post-trial hearing that he learned of the changes in Schneir’s testimony the weekend before Schneir took the stand. The State failed to notify the defense that
Schneir’s testimony had changed until after Schneir began testifying, and, exactly what the State told the defense is all but certain, as the dissent suggests."
...
"In his pre-trial sworn statements and a pre-trial deposition, Schneir contended that the Defendants began stealing jet fuel from the Fuel Farm in June 2002. At trial, Schneir testified that the theft of jet fuel began much earlier, in January 2000. Schneir's trial testimony at least doubled or tripled the amount of fuel he claimed the Defendants stole from the fuel farm and dramatically increased the duration of the crime. Although the State was aware that Schneir’s testimony at trial would drastically vary from his pre-trial sworn statement and deposition, the State failed to notify disclose the Defendants until Schneir had taken the stand."
The opinion goes on to reason that although the testimony was not Brady or impeachment material, the State was obligated to produce it when it became aware, and failed to do so, resulting in prejudice to the defense.
The contrast is really quite fascinating. In federal court, there is no chance to depose or obtain statements pretrial, the manner in which this would have unfolded would have been that at trial, the guy would have testified to the higher fuel amounts, and then the government would have (if they were acting in good faith) produced the earlier, different statements. The case would have gone up and the 11th would have PCA affirmed the conviction.
Great work by the boys over at Carlton Fields!
Thursday, January 5, 2012
Monday, December 19, 2011
Judge Pryor Loves Free Speech!!!
Some folks often point out that Judge Pryor seems to be a very very very conservative jurist. Whether that criticism comes from his facial expressions (some might call smirks) when confronted with a liberal thought or argument, or the general tenor of his body of work, it may be time to rethink the position.
In Keeton v. Anderson-Wiley, judge Pryor wasn't satisfied with just affirming a trial court's denial of a requested injunction to prevent Augusta State University from discriminating against a potential enrolee because she had expressed homophobic sentiment and wanted to be a multicultural counselor, so he specially concurred to let everybody know just how much he loves free speech:
"But we have never ruled that a public university can discriminate against student speech based on the concern that the student might, in a variety of other circumstances, express views at odds with the preferred viewpoints of the university. Our precedents roundly reject prior restraints in the public school setting.
...
"A few decades ago, the prevailing view of the psychiatric profession maintained that homosexuality was a treatable mental disorder. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (2d ed. 1968). As this record makes plain, the prevailing view changed. This shift in psychiatric orthodoxy occurred largely because professionals who had been taught that homosexuality was a disease of the mind, but who rejected that view, argued successfully that the psychiatric diagnostic criteria should be amended. See Herb Kutchins & Stuart A. Kirk, Making Us Crazy 55–77 (1997) (describing professional efforts to remove homosexuality as a mental disorder from the DSMII).
This change in opinion would have taken much longer if public universities had been able to expel students who rejected the prevailing view and intended to argue that homosexuality was not a mental disease. As the First Amendment protected the professionals who successfully advocated against the then-prevailing view of the psychiatric profession, so too does it protect Keeton should she decide to advocate that those professionals got it wrong."
I wholly agree with the opinion and argument. But something makes me suspicious of Judge Pryor's desire to make his position so crystal clear...I am not sure why, but if I may take a moment to speculate as to what Judge Pryor may have intended the concurrence to mean, I may be able to get my thoughts in order:
'Dear Newt:
Should you be elected President in a conservative tidal wave, please do not be offended by my opinion in Keeton v. Anderson-Wiley, et al.. In fact, I am happy to be subpoenaed before Congress to explain under the escort of US Marshals (an idea of yours that I fully support) that I specially concurred so I could make clear that people who hate homosexuality, evilution, the environment and puppies, are all free to use whatever academic exertions they choose to convince those tree hugging homo liberals otherwise, and if need be, obtain degrees so that they can provide a scientific basis for what we all know is true.
Yours Truly,
J.P.
P.S., when you nominate me for the Supreme Court and I am appointed, I promise not to wear silly gold stripes on my robe.
xoxo
P.P.S.
F the liberals.
In Keeton v. Anderson-Wiley, judge Pryor wasn't satisfied with just affirming a trial court's denial of a requested injunction to prevent Augusta State University from discriminating against a potential enrolee because she had expressed homophobic sentiment and wanted to be a multicultural counselor, so he specially concurred to let everybody know just how much he loves free speech:
"But we have never ruled that a public university can discriminate against student speech based on the concern that the student might, in a variety of other circumstances, express views at odds with the preferred viewpoints of the university. Our precedents roundly reject prior restraints in the public school setting.
...
"A few decades ago, the prevailing view of the psychiatric profession maintained that homosexuality was a treatable mental disorder. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (2d ed. 1968). As this record makes plain, the prevailing view changed. This shift in psychiatric orthodoxy occurred largely because professionals who had been taught that homosexuality was a disease of the mind, but who rejected that view, argued successfully that the psychiatric diagnostic criteria should be amended. See Herb Kutchins & Stuart A. Kirk, Making Us Crazy 55–77 (1997) (describing professional efforts to remove homosexuality as a mental disorder from the DSMII).
This change in opinion would have taken much longer if public universities had been able to expel students who rejected the prevailing view and intended to argue that homosexuality was not a mental disease. As the First Amendment protected the professionals who successfully advocated against the then-prevailing view of the psychiatric profession, so too does it protect Keeton should she decide to advocate that those professionals got it wrong."
I wholly agree with the opinion and argument. But something makes me suspicious of Judge Pryor's desire to make his position so crystal clear...I am not sure why, but if I may take a moment to speculate as to what Judge Pryor may have intended the concurrence to mean, I may be able to get my thoughts in order:
'Dear Newt:
Should you be elected President in a conservative tidal wave, please do not be offended by my opinion in Keeton v. Anderson-Wiley, et al.. In fact, I am happy to be subpoenaed before Congress to explain under the escort of US Marshals (an idea of yours that I fully support) that I specially concurred so I could make clear that people who hate homosexuality, evilution, the environment and puppies, are all free to use whatever academic exertions they choose to convince those tree hugging homo liberals otherwise, and if need be, obtain degrees so that they can provide a scientific basis for what we all know is true.
Yours Truly,
J.P.
P.S., when you nominate me for the Supreme Court and I am appointed, I promise not to wear silly gold stripes on my robe.
xoxo
P.P.S.
F the liberals.
Dust in the Wind
""My name is OZYMANDIAS, King of Kings."
Look on my works ye Mighty, and despair!
No thing beside remains. Round the decay
Of that Colossal Wreck, boundless and bare,
The lone and level sands stretch far away."
-Percy Bysshe Shelley
Kim Jong-il - Dead.
I wonder whether those who abuse their power ever think about how they will be remembered?
"The boast of heraldry, the pomp of power,
And all that beauty, all that wealth e'er gave,
Awaits alike th' inevitable hour:-
The paths of glory lead but to the grave.
Nor you, ye Proud, impute to these the fault
If Memory o'er their tomb no trophies raise,
Where through the long-drawn aisle and fretted vault
The pealing anthem swells the note of praise.
Can storied urn or animated bust
Back to its mansion call the fleeting breath?
Can Honour's voice provoke the silent dust,
Or Flattery soothe the dull cold ear of Death?"
Look on my works ye Mighty, and despair!
No thing beside remains. Round the decay
Of that Colossal Wreck, boundless and bare,
The lone and level sands stretch far away."
-Percy Bysshe Shelley
Kim Jong-il - Dead.
I wonder whether those who abuse their power ever think about how they will be remembered?
"The boast of heraldry, the pomp of power,
And all that beauty, all that wealth e'er gave,
Awaits alike th' inevitable hour:-
The paths of glory lead but to the grave.
Nor you, ye Proud, impute to these the fault
If Memory o'er their tomb no trophies raise,
Where through the long-drawn aisle and fretted vault
The pealing anthem swells the note of praise.
Can storied urn or animated bust
Back to its mansion call the fleeting breath?
Can Honour's voice provoke the silent dust,
Or Flattery soothe the dull cold ear of Death?"
-Thomas Gray
Tuesday, December 13, 2011
Jorge A. Perez A Bit Defensive?
I thought it was a very nice gift, but isn't he a bit defensive?
On behalf of all Miamians, I thank you for the gift.
On behalf of all Miamians, I thank you for the gift.
Monday, November 28, 2011
Yikes?
"One of the women threw water in my face and they injected me with something that gave me a strong sexual desire," he said.
"They stopped the car and made me have sex with each of them several times, using condoms.
"When they had finished they left me in the bush totally naked.
"Some people gathering grass helped me by calling the police, who took me to hospital to deal with the effects of this drug that I had been given, as the urge to have sex was still there."
That's right, he was injected with a substance that made him have sex with three women, several times, and he was not finished. Here is the article...you would think they would at least have let him have a drink of water.
How much do you think they could sell that stuff for on South Beach?
Do you think the CIA is passing it out to tribal elders in lieu of Viagra?
Perhaps a few hundred thousand cases could be shipped to Japan, where they have an interesting problem:
"The latest found that 61% of unmarried men aged 18 to 34 have no girlfriend, and half of women the same age have no boyfriend - a record high.
More than a quarter of the men and 23% of the women said they were not even looking.
Some cited a shortage of money, others a belief that it is impossible to find a good partner once they had passed the age of 25.
Many of the women also said single life suited them better than how they imagined marriage would be.
The survey also found that more than quarter of unmarried men and women between 35 and 39 years old said they had never had sex."
Those numbers are probably about on par with the success rate of UFs abstinence only campus club.
"They stopped the car and made me have sex with each of them several times, using condoms.
"When they had finished they left me in the bush totally naked.
"Some people gathering grass helped me by calling the police, who took me to hospital to deal with the effects of this drug that I had been given, as the urge to have sex was still there."
That's right, he was injected with a substance that made him have sex with three women, several times, and he was not finished. Here is the article...you would think they would at least have let him have a drink of water.
How much do you think they could sell that stuff for on South Beach?
Do you think the CIA is passing it out to tribal elders in lieu of Viagra?
Perhaps a few hundred thousand cases could be shipped to Japan, where they have an interesting problem:
"The latest found that 61% of unmarried men aged 18 to 34 have no girlfriend, and half of women the same age have no boyfriend - a record high.
More than a quarter of the men and 23% of the women said they were not even looking.
Some cited a shortage of money, others a belief that it is impossible to find a good partner once they had passed the age of 25.
Many of the women also said single life suited them better than how they imagined marriage would be.
The survey also found that more than quarter of unmarried men and women between 35 and 39 years old said they had never had sex."
Those numbers are probably about on par with the success rate of UFs abstinence only campus club.
Thursday, November 17, 2011
What the hell are we doing here?
"Officials at a meeting of elders in Kabul changed a committee's number after delegates rejected 39 because of an Afghan belief that the number is associated with pimps.
....Elders refused to take part in group 39 until its number was changed to 41.
The number is held as a mark of great shame across Afghanistan.
Correspondents say some believe the taboo started because a pimp had 39 on his vehicle number plate. But others say it dates from an old way of calculating numbers called "Abjad".
Many delegates at the loya jirga voiced their fervent opposition to being part of committee 39, one attendee told the BBC's Bilal Sarwary in Kabul.
''One delegate said: 'I don't want to return to my area and be called a pimp. I don't care if it is true or not, but people out there believe in it. Look no one wants to have a vehicle with number plate 39. And yet, you want me to be in 39?''' the member said.
...
"But when I raised it, everyone else told me to shut up. Everyone said, they didn't want to be called [a pimp] or their children and family members harassed in streets, schools and neighbourhoods. So than a committee 41 was established,'' the delegate continued...."
I can just hear Karzi saying "Oy Vey!"
We are trying to establish a partnership with a country that has people in it who will harass family members in the streets because their father is on committee # 39? And yet, changing the official number to "41" despite the fact that it remains in reality the 39th committee is sufficient?
I know we have many buildings here that "don't" have a 13th floor, but harassing children because of a committee number?
I am now convinced that our mission in Afghanistan, whatever it might be, is doomed.
Monday, November 7, 2011
Boy would Cleisthenes be pissed off.
I am back from my vacation paddling down the Yangtze in search of the Baiji to ask it whether or not the long nose is a curse handed down for lying about the source of its rather pale skin. Sadly, there are only a couple dozen left and I was unable to commune with one.
Lot's has been going on since I departed!
Perhaps most interesting is the fact that democracy's birthplace has now seen the final demise of democracy. First, the Greeks come to a bailout deal with the EU that requires significant cuts to social expenditures and increases in taxes, next, the Greek prime minister announces his intention to allow the people of Greece to vote on whether or not they want to accept the agreement. The EU countries, stock markets, banks and China all go berserk. Finally, the vote by the people is tabled, the prime minister is out, and the Greeks are now having the deal shoved down their throats.
If anybody ever questioned who runs the world, you now have the answer - the bankers.
The following is a great video by a rapping Tennessee lawyer (HT ATL), you HAVE to freeze the thing at 2:19 to fall in love with this guy who apparently loves to make out with clients(?) paralegals(?) co-counsel(?):
Do you think Judge Moreno will let me shoot my video in his courtroom? Maybe I could borrow a couple of his and Martinez's clerks for extras?
Lot's has been going on since I departed!
Perhaps most interesting is the fact that democracy's birthplace has now seen the final demise of democracy. First, the Greeks come to a bailout deal with the EU that requires significant cuts to social expenditures and increases in taxes, next, the Greek prime minister announces his intention to allow the people of Greece to vote on whether or not they want to accept the agreement. The EU countries, stock markets, banks and China all go berserk. Finally, the vote by the people is tabled, the prime minister is out, and the Greeks are now having the deal shoved down their throats.
If anybody ever questioned who runs the world, you now have the answer - the bankers.
The following is a great video by a rapping Tennessee lawyer (HT ATL), you HAVE to freeze the thing at 2:19 to fall in love with this guy who apparently loves to make out with clients(?) paralegals(?) co-counsel(?):
Do you think Judge Moreno will let me shoot my video in his courtroom? Maybe I could borrow a couple of his and Martinez's clerks for extras?
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