Michael Doyle of McClatchy Newspaper has this interesting story on Sonia Sotomayor’s district and appellate court rulings in criminal law matters. Doyle’s analysis is definitely for the general reader, yet it is better than most. Among Doyle’s findings, Sotomayor has apparently ruled, or joined others in ruling, for the government in 65 of the 90 criminal appeals she has decided on the Second Circuit. (This must be a reference to published opinions.) When voting on behalf of defendants, she has been in the majority in all but one case. Sotomayor is not afraid to go after the government for Brady violations, but does not appear to veer outside of the mainstream in her criminal law rulings. For example, in one child pornography case she ruled that an FBI affidavit lacked probable cause, but upheld the ensuing search. This was obviously the right holding under the Supreme Court’s good faith test established in U.S. v. Leon.
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Scott Greenfield over at Simple Justice has another excellent post here concerning the Supreme Court’s recent overruling of Michigan v. Jackson. Will prosecutors still be barrred from interviewing, or directing cops/agents to interview, represented suspects under state ethics rules? Under most such rules you cannot speak to a represented person unless his lawyer gives you permission or unless “authorized by law.” I believe that most, but not all, jurisdictions construe “authorized by law” to include constitutional law decisions by the Supreme Court, but I haven’t researched it recently.
He didn’t have a lot of rules for his law clerks. “I’d like you to be here when I arrive and when I leave.” That meant 8 to 5. And he didn’t want the phones tied up with many personal calls. After all, we only had two lines. And, of course, we were always expected to scrupulously honor the confidentiality of court communications. Other than that we were on our own.
He understood instinctively what it meant to be a judge–to be truly impartial and fair to both sides. And he had no interest in grand theories. Sitting on the Texas Court of Criminal Appeals, Texas’ court of last resort for all criminal appeals, he strove to preserve the rule of law and to ensure that every defendant received a fair trial. He had no use for idle gossip or Machiavellian coalition building. He just called them as he saw them. His clerks were told to examine the facts in the light of the law and never to concern themselves with the press or public opinion.
I never saw him be cruel or mean to anyone. He was the most modest, unassuming, ingenuous man I ever met. He did not go around town referring to himself as “Judge Tom Davis.” Merchants with whom he had traded for years had no clue of his title or position. Whenever I hear the term “Christian gentleman” his visage instantly comes to mind.
He adored his wife Jeannine, and loved his children, Leslie, Mark, and Tommy. His kids’ cars seemed to be constantly breaking down, and he often went to pick them up and loan them his own.
We were a happy little chambers family. Kay Tawater was the secretary, I was the senior clerk, and every year we had a new briefing attorney right out of law school–Larry Kurth, Carol Ann Wood, Mike Hutson, and Doug Wise. New appeals were stored in the judge’s office in redwells that we called “shucks.” Whenever you went to work on a new case, you grabbed a “shuck” from the judge’s office.
I have been blessed with many mentors and benefactors throughout my legal career. I owe more to Tom Davis than to any of them. He plucked me out of total obscurity to be his law clerk. He taught me, through his actions, what it means to be a professional. I clerked for him a little over three years, then left to go to a political job in Washington. Whenever I would call to check in on him, he’d start the conversation by saying: “Hello Sol. Are you calling from Air Force One?”
His accomplishments, although impressive, cannot account for the effect he had on those who knew him. He was, quite simply, an object lesson. Men and women admired him, just for who he was.
Now he goes to join Jeannine, who died last year. Our hearts go out to to his children and grandchildren. Here is the obituary from the Austin American-Statesman.
Dionne Searcey of the Wall Street Journal has a pretty good piece here on the recent upswing in Foreign Corrupt Practices Act (”FCPA”) enforcement by DOJ. The story, however, incorrectly leaves the impression that FCPA was a little-used statute that has been taken down from the shelf and “dusted off” to the surprise of corporate America. This is not the case. The great majority of public companies who do business overseas have had FCPA compliance programs for years. The law has always been a pain for U.S. businesses to deal with, since it prevents virtually all bribes and gratuities paid to foreign governments in order to obtain or keep business.
According here to the Washington Post, the announcement will come at 10:15. And here is a background piece on Sotomayor by the Post’s Keith Richburg. The article does not get into any real legal analysis, but does contain some basic biographical and human interest facts. Sotomayor actually tried cases to juries as a young lawyer, which, if she is confirmed, will make her a rarity among modern Supreme Court Justices.
Carol D. Leonnig of the Washington Post has a detailed story here on Mountaintop Technologies, a Pennsylvania firm withties to Representative John Murtha. Mountaintop is under investigation by DOJ’s Office of Inspector General, apparently in relation to its receipt of several miilion dollars in earmarks for administering and distributing DOJ grants to local Pennsylvania law enforcement agencies. The company denies any worngdoing.
The Washington Post reports here that DC Council Member and former Mayor Marion Barry’s probationary sentence for tax-related offenses was extended two years, because he failed to file a timely tax return in 2007. The original sentence of probation in 2006 was for failure to file tax returns. At that time, according to the article, Barry admitted that he had not paid taxes on most of the income he earned (about $500,000.00) between 1999 and 2004. Prosecutors originally sought prison time for Barry, but relented due to his recent kidney problems. Prosecutors did ask for 30 days home detention which was denied by the sentencing magistrate because they offerred no evidence on wilfullness. Let’s see–he was already on probation for failure to file. Does somebody still need to tell him that filing your taxes on time is a legal requirement? Barry was humble as usual. He publicly asked Attorney General Holder to investigate the prosecutors who “harassed” him.
Just kidding! The American Constitution Society is officially pleased, here, that Duke Law Professor Christopher Schroeder, co-author of ACS’s Keeping Faith with the Constitution, is President Obama’s choice to lead DOJ’s Office of Legal Policy. OLP usually has a key role within the Executive Branch in choosing judicial nominees for the federal district and circuit courts.
I take it from ACS’s description of Keeping Faith that the book is an argument against originalism and in favor of something called “constitutional fidelity.” I used to work in OLP, under Attorney General Meese, helping to choose judicial candidates committed to textualism, originalism, interpretivism, and/or Frankfurterism. A similar effort was undertaken in the Bush years, and I’m sure the Democrats try to install “living Constitution” types when they are in power.
What I learned during my time at OLP was that federal district judges are almost invariably chosen by their home state U.S. Senator or Senators, if the Senator or Senators are members of the President’s party. Essentially, it takes a morals charge to keep a Senator’s choice off of the federal district court, and sometimes even that isn’t enough. DOJ has more leeway in filling circuit court vacancies, but even here a powerful Senator (Phil Gramm and Al D’Amato come to mind from the old days) can stand in the way of the President’s choice.
What I also found back then was that most or all district court candidates and many circuit court ones as well, had virtually no background or interest in constitutional law. I recall asking one candidate about his views on the incorporation doctrine (the doctrine that the 14th Amendment incorporates the first eight amendments of the Bill of Rights and applies them against the states). He responded that he knew everything there is to know about incorporating a business.
My colleagues and I were young then, and for the most part contemptuous of mundane things like trial experience, life experience, or common sense in a judicial candidate. Then I became a trial attorney–12 years as a federal prosecutor, followed by 10 and counting on the criminal defense side, all of it in the federal court system.
From the admittedly narrow, trade perspective of a white collar criminal defense attorney I have found that I don’t really care whether a judge is liberal or conservative. What matters is whether he or she is fair, decent, impartial, intelligent, thoughtful and civil.
Will the judge actually listen to my legal arguments and let me put on my case? Is he/she totally result-oriented in favor of the prosecution or truly open-minded and fair to both sides? Will he/she be fair and willing to rule in my client’s favor, if the law and the facts call for it, even when he/she thinks that my client is guilty? Is he/she civil toward the attorneys? Does he/she encourage the government to fulfill its Brady obligations? Does he/she know government misconduct when he/she sees it, and will he/she crack down on it, even if the offending AUSA or case agent is one who has been practicing in front of him/her for years?
These are the things that interest me. There are many good judges on the federal bench using this test, and many bad ones as well. So have at it, Professor Schroeder. Whether their heroes are Brennan, Black, or Scalia, send us some judges who are decent, intelligent, fair, and who know how to try a case.
T. Christian Miller of ProPublica.org reports here that DOD-OIG may audit AIG and other carriers over their handling of claims for civilian contractors injured in Iraq and Afghanistan. The possible audit comes in the wake of a joint investigative report of wartime claims handling by ProPublica, the Los Angeles Times, and ABC News, and a request by Senator Bernie Sanders of Vermont. The original ProPublica story by Miller and the L.A. Times’ Doug Smith can be found here. According to the piece, many former contractors battling serious wartime injuries have to fight for years to obtain their benefits.
Scott Greenfield over at Simple Justice has this excellent commentary today on the abusive and anachronistic practice of perp walks–that is, law enforcement agents parading arrested defendants in handcuffs before the media. In a country that supposedly honors the principle of the presumption of innocence, this exercise in prejudicial pre-trial publicity should be stopped, and the executive branches at the state and federal level should lead the charge. But don’t count on it.
Newly elected Senator Kay Hagan of North Carolina has announced that George Holding, the U.S. Attorney for the Eastern District of North Carolina, should stay in office awhile longer, as he is overseeing investigations of two prominent Democrats–Governor Mike Easley and former Senator John Edwards. Hagan had originally announced that she was moving forward quickly to recommend a replacement for Republican appointee Holding, but backed off after coming under instant criticism. The Democrats apparently do not want to be accused of their own political U.S. Attorney firings. No word yet on whether the White House or DOJ told her to back off. Holding is a very fine man and has been an excellent U.S. Attorney. But the idea that it is improper or unseemly to replace one party’s political appointees with another’s after a change in administrations is silly. The Raleigh News & Observer story is here.
The Supreme Court has accepted certiorari in U.S. v. Conrad Black, on the question of whether honest services fraud reaches the private conduct of a defendant who did not contemplate identifiable economic harm. This has the potential to be a watershed decision that reins in the current indiscriminate use of honest services fraud as a prosecutorial tool by the federal government. Here is Miguel Estrada’s Petition For A Writ Of Certiorari, care of scotusblog.
Paula Reed Ward reports here in the post-gazette.com that the government’s attempt to retry former Allegheny Count Coroner Dr. Cyril Wecht, after an earlier hung jury, may have suffered a fatal blow. U.S. District Judge Sean McLaughlin has granted Wecht’s suppression motion and thrown out key evidence gathered in two government searches. The judge issued a 55 page opinion supporting his decision. The government is deciding whether to appeal.
Boston white collar attorney Andrew Good and his firm, Good & Cormier, have won a significant victory in a First Circuit decision involving access by witnesses to their own federal grand jury transcripts. The opinion, N0. 08-1880, is styled IN RE: GRAND JURY and was issued on May 11. Although the opinion does not go as far as the landmark 2007 D.C. Circuit ruling in In re Grand Jury, 490 F.3d 978, it lowers the burden a grand jury witness must meet in the First Circuit in order to gain access to, as opposed to a copy of, his or her grand jury transcript when facing the prospect of re-appearing before the grand jury. Such witnesses are often subject to an increased risk of perjury prosecutions, by virtue of having made inconsistent statements over time. The majority also found that the three (count ‘em, three!) AUSAs who questioned the witness were verbally abusive.
Here is a fuller, and excellent, treatment of the Kent sentencing by the Houston Chronicle’s Mary Flood. I earlier incorrectly reported that Kent had not yet retired. The impeachment proceedings being planned for him are part of an effort to force Kent to resign, rather than retire on disability, so that he will not receive any pension. Kent is blaming his years of sexual harassment and misconduct on alcoholism, which he is also claiming as his disability.
Soon-to-be fFormer Former U.S. District Court Judge Samuel Kent of Galveston was sentenced to 33 months in prison yesterday for obstructing a judicial investigation into sexual harassment complaints filed against him by female court staffers. Visiting judge Roger Vinson imposed the sentence, which includes a post-confinement three year term of supervised released. Kent apologized to the court staff and his family, but did not reference the two female employees.
Kent’s attorney, Dick DeGuerin, announced that Kent is retiring from the bench because of a disability–alcoholism. This is an effort to allow Kent to keep his $169,300.00 annual salary while in retirement. Kent had not served long enough to retire based on years of service. If he cannot retire based on a disability, he can only resign and receive nothing. Representatives John Conyers and Lamar Smith called on Kent to resign or face impeachment, according to this AP story by Michael Graczyk in the Washington Post.
In Friday’s New York Times, Charlie Savage here attempts to analyze what went wrong in DOJ’s Public Integrity Unit, whose leadership is now in hot water with Judge Emmet Sullivan for its handling of the Ted Stevens case. Savage’s article seems to posit a former golden age in Public Integrity, when the unit was “elite.” This all began to fade, the story goes, when Michael Chertoff took over as Criminal Division Chief early in the Bush Administration and replaced Public Integrity Chief Lee Radek with “outsiders.” Savage’s piece, although informative, overrates Public Integrity’s glory years and ignores/underrates the long-term, solid work of most of the unit’s line attorneys.
According to this WSJ piece by Evan Perez, DOJ’s Office of Professional Responsibility (”OPR”) is likely to call for state bar sanctions, rather than criminal prosecutions, against John Yoo and Jay Bybee, the former Office of Legal Counsel (”OLC”) attorneys who wrote or signed legal opinions (the so-called “torture memos”) authorizing harsh interrogation techniques against detainees. Amazingly, former OLC Chief Steven Bradbury, who “signed some of the memos,” was “allowed during the final weeks of the Bush administration to comment on drafts of the internal probe’s report in his capacity as a Department of Justice official.” Senators Dick Durbin and Sheldon Whitehouse find this inappropriate since Bradbury was “a target of the probe.” Well, duh! DOJ has responded in a letter to the Senators that Bradbury’s participation, which happened during Marshall Jarrett’s watch as OPR chief, was okay since it “was transparent.” Oh, come on. Am I missing something here? How often does the target of a probe get to comment on drafts of the offense report? How about never! Of course, I’m talking about in the United States, not Russia or Venezuela. Can you imagine Mike Shaheen putting up with this kind of interference when he ran OPR? Note to the Attorney General–OPR needs a little more insulation than this. Will you provide it?
Carrie Johnson of the Washington Post reports here that former Bush White House and Bush DOJ officials have been working behind the scenes to soften the OPR Report. They have apparently argued that even referring Bybee and Yoo to state bars for possible disciplinary action sets a dangerous precedent. To me, the danger of any precedents will be dependent, to a significant extent, upon the report’s factual findings and legal analysis. Let the investigatory process be dispassionate and fair and focus on the possible violation of U.S. criminal law–nothing more, and nothing less. Let the chips fall where they may. Then, assuming probable cause that laws have been broken and a winnable case, let AG Holder and/or President Obama make the prudential decision whether to bring charges. I may not agree with that decision, but it is ultimately the AG’s and the President’s (actively or passively) to make. They call it prosecutorial discretion.
The Washington Post reports here that the John Edwards Presidential Campaign is under investigation for possible misuse of campaign funds in connection with payments made to Edwards’ former mistress.
Federal judges are allowed, in imposing a sentence, to consider alleged criminal conduct against a defendant, even if the trial jury has already acquitted the defendant of those very charges. The sentencing court can use this “acquitted conduct” to increase the defendant’s sentence, provided that a preponderance of the evidence supports the allegations.
Today’s Washington Times has an interesting piece here by Jim McElhatton on the late Jim Caron, aka Juror Number 6. Caron sat for 10 months on a DC federal jury whose members ultimately acquitted defendant Antwuan Ball of all serious charges, convicting the defendant on only a minor drug count. When Caron found out that the government wanted Ball to get 40 years in prison and was using Ball’s acquitted conduct as part of its argument, Caron became furious and wrote a letter of complaint to the trial court. That letter has taken on a life of its own, and has been cited in federal appellate opinions and legal briefs.
Here is Jerry Markon’s take, in the Washington Post, on the DOJ’s decision to drop charges against Steven Rosen and Keith Weissman, formerly of AIPAC. According to Rosen, the criminal case was pushed by government officials “who have an obsession with leaks . . . and an obsession with Israel and the theory that it spies on America.” The theory that Israel spies on America? Let’s not go overboard, Steven. Defense attorneys praised the new Administration’s willingness to evaluate cases on the merits, but law enforcement sources said that EDVA prosecutors made the ultimate call.
Conservative icon and former AFL great Jack Kemp is dead of cancer at 73. Philly.com has the AP obituary here.
The Wall Street Journal reports here that the U.S. Attorney’s Office for the Eastern District of Virginia has dropped all criminal charges against former AIPAC employees Steven J. Rosen and Keith Weissman. They had been accused of passing classified national security information to Israeli sources. AIPAC is a well-known pro-Israel lobby group. DOJ officials cited an intervening appellate decision which increased their burden of proof.