Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Category: U.S. District Court

United States v. Davila: No. 12-167: Although Judge’s Statements Made During In Camera Plea Conference Violated Rule 11, Error Does Note Require Plea to Be Vacated

Things have been busy in these last couple of weeks leading up to the Fourth of July holiday, so I’ll keep this short.  Federal criminal defense and federal criminal appeals lawyers, especially those practicing in the Southern District of Florida or the Eleventh Circuit, will be interested to know that the US Supreme Court has reversed the Eleventh Circuit on an important issue: the consequences of a judge’s violation of Fed. R. Crim. P. 11 regarding guilty pleas.  In United States v. Davila, No. 12-167, the Court held that even though the Magistrate Judge who presided over an in camera plea conference made statements which violated Rule 11’s ban on judicial participation in plea discussions, Davila was not entitled to have his guilty plea vacated because he failed to show that he was prejudiced by the judge’s statements.

Is it just me, or does anyone else notice the irony of this decision?  This is a rare case where the Eleventh Circuit actually sided with the criminal  defendant, and afforded him relief.  Yet, on certiorari review, the US Supreme Court took the position most often taken by the Eleventh Circuit–and denied the criminal defendant relief.

How Will the Florida Bar’s Ethics Opinion Prohibiting Waivers of Claims of Prosecutorial Misconduct and Ineffective Assistance of Counsel Be Enforced?

Florida’s criminal defense attorneys are probably aware by now that the Florida Bar has adopted the highly debated ethical opinion which prohibits waivers of claims of prosecutorial misconduct and ineffective assistance of counsel in plea bargains.  According to the Florida Bar News report, although representatives from the United States Attorneys offices for the Southern, Middle, and Northern Districts of Florida argued against the adoption of the ethical opinion, the Board of Governors adopted the proposed ethical opinion with only a few dissenting votes.

The ethical opinion is a step in the right direction, but how will the opinion will be enforced?  For those of you who practice in State court, if your client is offered a plea that contains a waiver of claims of ineffective assistance of counsel or prosecutorial misconduct, perhaps you could bring the new ethical opinion to the prosecutor’s attention.  If that fails, you could bring the ethical opinion to the attention of the court.

However, if you practice in Federal court, the ethical opinion may not necessarily change anything.  Federal court criminal defense practitioners may know that the Department of Justice does not require that the Assistant United States Attorneys be admitted to their state bar.  In other words, AUSAs in the Southern, Middle, and Northern Districts may not necessarily be members of the Florida Bar.   If the AUSAs are not members of the Florida Bar, they would not be bound by any of the Florida Bar’s ethical rules.  Therefore, unless the U.S.  Attorneys in the districts of Florida voluntarily adopt a policy prohibiting plea offers containing waivers of prosecutorial misconduct and ineffective assistance of counsel, Federal court criminal defense practitioners may see little to no change with regard to plea offers.  I would hope that the US Attorneys take it upon themselves to change their policies, but, given their opposition to the ethical opinion, I wouldn’t expect it.

United States Seeks to Limit Guantanamo Detainees’ Access to Lawyers

Skimming through the news reports today, I came across this article on CNN.com that criminal defense and criminal appeals attorneys might want to read.

According to the article, the U.S. Department of Justice has recently taken the position that only the Government can decide when Guantanamo detainees should have regular access to their attorneys.  At issue is whether a 2008 Supreme Court decision, Boumediene v. Bush, gives federal courts the ultimate power to control habeas petitions from enemy combatants in U.S. military custody.  While pro bono lawyers argue that they should have regular access to their imprisoned clients, even if there is no active habeas challenge pending in court, or any pending charges, the Justice Department disagrees.

The Justice Department acknowledges that it has already started restricting when Guantanamo prisoners can challenge their detention in the United States District Court for the District of Columbia.  However, the Justice Department has proposed even further changes to the current rules governing attorney access.  Under the proposed changes, the Navy base Commander at Guantanamo would have sole veto power over attorney access, as well as access to classified material, including information provided directly by the detainees from interrogations.  Some chilling words from the Government’s pleadings:

The dispute thus before the Court, though important, is quite narrow . . .The only question presented is whether detainees who have neither current nor impending habeas petitions are entitled to” challenge continued access to counsel. The answer to that question is ‘no.’

If this language is not scary enough, the Justice Department has argued that although it does not seek to restrict lawyers who have an active legal appeal, the rights of detainees shrink once they have filed their first habeas challenge.  According to the report, the military wants lawyers to agree to the new conditions in order to have continued access to their clients and to any classified information the military would deem to release.  Wow.

The Judge to whom all the Guantamo cases are assigned, Chief Judge Royce Lamberth of will preside over a hearing on the issue on August 17, 2012.

Judge Robin Rosenbaum, the Newest District Court Judge for the Southern District of Florida

You might recall that I previously noted that our own Judge Robin Rosenbaum had been nominated by President Obama to serve as a United States District Court Judge for the Southern District of Florida.  Well, I am happy to report that Judge Rosenbaum was overwhelmingly confirmed by the US Senate today.  You can read a couple of reports here and here.  I am sure that many of my fellow South Florida attorneys, criminal and civil alike, wish her the best of luck. Now we will just have to wait and see who will apply to fill her vacant Magistrate Judge spot.

South Florida Fugitive Martin James Malone Turns Over New Leaf While on the Run, and US Supreme Court Holds that Sentence of Mandatory Life Without Parole for Juveniles Violates the Eighth Amendment

The Sun Sentinel ran a good story today that I wanted to pass along to other criminal defense and criminal appellate lawyers in South Florida.  Martin James Malone fled to Ecuador before a jury convicted him of federal drug charges in 1990.  According to the story, Malone made good use of his time while on the lam, acting as a “medicine, man” contractor, and overall good samaritan.  His story is a great example of how people can make a change for the better after getting into trouble.  Since even the prosecutor reportedly noted that Malone played a very small role in the 1989 cocaine-importing conspiracy, let’s hope that Judge Zloch’s sentencing will be fair.

Also today, the United States Supreme Court issued an opinion in Miller v. Alabama, No. 10-9646, where it held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.’” In its rationale, the Court relied heavily on two other juvenile cases, one of which hits close to home for Florida’s criminal defense lawyers: Roper v. Simmons, 543 U. S. 551, 560, (2005) (invalidating death penalty for all juvenile offenders under 18), and Graham v. Florida, 560 U. S. –, (2010) (holding that life without parole violates the Eighth Amendment when imposed on juvenile nonhomicide offenders).  As you’re reading the majority opinion, be sure not to skip the footnotes, as several point out the flaws in the dissenter’s analysis.  I especially like footnotes 6, 8, and 10.


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