Category Archives: U.S. District Court

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

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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

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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

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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

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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.

Florida’s Battle of the Branches of Government Continues, and E-Discovery Violation in Federal Criminal Case Results in New Trial

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It’s no secret that Florida Governor Rick Scott and Florida’s Supreme Court haven’t been able to get along.  Since he’s taken office, the two branches of Florida’s government have squared off, indirectly, on more than one occasion.  Well, it looks like things are heating up now.  The latest shot came from the office of the Governor, with Scott basically calling for FDLE to begin an investigation of Justices Pariente, Lewis, and Quince, all of whom are up for merit retention votes this November.  You can read more about it here.  The story is even making national headlines on the ABC website.

Now, for South Florida’s  Federal criminal defense lawyers, trial and appellate alike, I came across an interesting post today that I wanted to share.  Apparently, District Judge Altonaga of the Southern District recently granted a new trial in a criminal case after the defense attorney argued that the Government committed a discovery violation by failing to produce e-discovery in a reasonably usable form.  According to the post, even though the Federal criminal rules do not have the same requirements as the Federal civil rules with regard to production of e-discovery, there may be a growing trend by the courts to adopt the Federal Civil rule’s standards in criminal cases.

Practical Tips for Federal Court-Part II

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Just a few more tips for those of you who might find yourselves in Federal court, especially in the Southern District of Florida . . .

1.  You probably know that everything in Federal court gets filed electronically on CM/ECF.  To avoid getting too many nasty-grams from the Clerk’s office for improper filing, it’s probably a good idea to visit the Clerk’s website and download a copy of the Administrative Procedures governing CM/ECF.

2.  If you’re a civil attorney whose case gets assigned to a Judge that runs a “rocket docket,” you should consider consenting to the jurisdiction of a United States Magistrate Judge.  Most often, you’ll have the ability to special set your hearings and trials, and you might get a bit more time to work the case up effectively.  To consent to the jurisdiction of one of the Magistrate Judges (notice that I am NOT referring to them as “magistrates”–that term is for state court only), you can obtain the proper consent form from the Local Rules.  Both sides need to agree, as do the clients.

3.  If you’re a criminal defense attorney who handles a lot of sentencing hearings, you might want to reconsider sending in all those letters extolling the virtues of your client.  Several Judges who were at the Federal Bench Bar conference in West Palm Beach on April 27, 2012, actually said that they are not really persuaded by the letters.  Rather, the Judges would find it more helpful for criminal defense attorneys to focus the court’s attention on the sentencing factors listed in 18 U.S.C. section 3553(a).  As required by United States v. Booker, 543 U.S. 220 (2005), the Judges said they really try to focus on determining a sentence that is “sufficient and not greater than necessary.”  However, if you do find it necessary to submit letters, some of the Judges said that any person submitting a letter should not also be called as a witness.  As for the length of the hearings, the Judges also said that most sentencing hearings should be completed in about 30 minutes.  Finally, several of the Judges said that since Booker, they might be more apt to go along with a sentencing variance, as opposed to an outright departure, since departures are more vulnerable to reversal on appeal.

4.  Finally, whenever you are in the Federal courthouse, as in any courthouse, be nice to everyone.  Negative comments about lawyers spread quickly.  Deputy Marshals will gossip just as much as the CRDs, Clerks’ staff, and chambers staff.  Be nice to everyone there, and they will be nice to you (well, for the most part . . .)

Practical Tips for Federal Court

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If you’ve ever been in Federal court in South Florida, you already know that there is a huge difference between State and Federal Court.  In keeping with the Federal bench Bar Conference that happened in West Palm Beach on Friday, April 27, 2012, I thought some practical tips might come in handy.

1.  If your client gets slapped with Federal criminal charges, or your civil case gets removed to Federal court, DON’T PANIC.

2.  For civil cases, the first thing you should do is familiarize yourself with the Local Rules for the Southern District.  They are available on the Southern District website.

3.  For criminal cases, you’ll need to call the Assistant United States Attorney (AUSA) assigned to the case to determine if he or she will agree to release your client on bond or whether the Government is seeking pre-trial detention.  Unfortunately for criminal defense lawyers and their clients, most criminal defendants, at least those that have their cases assigned to the West Palm Beach courthouse, have historically been detained without bond.  But, there is potentially some good news: with two new Magistrate Judges on the bench this year, maybe things will change.  After all, Magistrate Judge Brannon (already on the bench) is a former Federal P.D., and the next Magistrate Judge to be sworn in, Bill Matthewman, is also a former criminal defense lawyer.

4.  As your case progresses, some other things to keep in mind are:

(a) Try to keep phone calls to chambers to a minimum.  Scheduling of matters is, for the most part, handled through the courtroom deputy (CRD), not chambers. If you have to call chambers, be polite.  After all, the person answering the phone might be a law clerk who will be writing the order on your case!

(b) Don’t call chambers with questions like “what does the Judge want me to do,” or “how would the Judge like me to handle . . .”  As the lawyer on the case, it is your responsibility to figure things out for yourself.  Although many Judicial Assistants in State court will tell you what the Judge would like you to do, many chambers in the Southern District are required by the Judge to answer those kind of questions by simply referring you to the Local Rules.  Don’t take it personally.  Most Judges just want to avoid the possibility of ex parte communications.  Some Judges in the Southern District won’t even entertain calls to chambers or the law clerks.

(c) Don’t presume you’ll get a hearing on anything.  Most matters in Federal court are handled on the written pleadings only.  If you need a hearing, you must file a separate motion requesting the hearing.

(d) Since most matters are handled on the pleadings, put your best effort into your writing.  Say everything you need to say up front.  Acknowledge weaknesses in your case candidly, but then explain why those weaknesses should not affect the result in your case.  Be precise, be succinct, clearly cite all authorities and record references  in support of your position, and conclude.

(e) If a Magistrate Judge handles your motion/pleading, you will have the chance to file an objection within the requisite time frame (14 days).  The objection will then be handled by the District Court Judge, like an appeal.  If your pleading was disposed of by the District Court, you would appeal any rulings to the Eleventh Circuit, according to the Rules of Appellate Procedure.  For criminal cases, bond/detention orders are appealed to the District Court.

More tips to follow next time!

Another Win for the People of Florida, Another Loss for Florida Governor Rick Scott!

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Those of you who follow this blog know that Rick Scott’s policies have been a bit of a target . . .  Well, Rick Scott suffered another loss recently, in the form of a 37 page order issued by District Court Judge Ungaro.  In the Order, Judge Ungaro found that Scott’s policy of random drug testing of Florida’s state employees was unconstitutional.  To read the Order, click here.  To read a recent Miami Herald report, click here.

Happy reading!

Congratulations to Judge Adalberto Jordan on his Confirmation to the 11th Circuit

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It’s been a busy morning, but before the day gets away from me, I wanted to pass along that congratulations are in order for the Southern District’s Judge Adalberto Jordan for his Senate confirmation to serve on the United States Court of Appeals for the Eleventh Circuit.  According to the Miami Herald, Judge Jordan is the first Cuban-born Judge to sit on the 11th Circuit.  If you have a stomach for the political wrangling behind his confirmation, you can read an article from the Miami Herald here.

A Kinder, Gentler Court for Federal Habeas Petitioners? Holland v. Florida, 130 S.Ct. 2549 (2010)

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Since my previous post on the United States Supreme Court case of Maples v. Thomas, No. 10-63, I’ve been wondering if we are seeing a kinder, gentler Court, at least in the area of federal petitions for writ of habeas corpus.  I think the answer is yes.

If you took a few moments to read Maples, you’re familiar with the Court’s exercise of leniency toward Maples, which is somewhat rare in habeas cases.  (As I mentioned in my previous post, habeas petitioners are often penalized for mistakes made by their postconviction attorney).  You’d also recall that in Maples, the Court relied heavily on Holland v. Florida, 130 S.Ct. 2549 (2010).

Holland is another case where the Supreme Court also showed leniency toward a federal habeas petitioner.  In Holland, the Court held, for the first time, that (1) the one year statute of limitations contained in section 2244(d) (governing the filing of section 2254 federal habeas petitions challenging state court convictions) can be tolled for equitable reasons; and, (2) an attorney’s professional misconduct may, at times, constitute “extraordinary circumstances” to warrant equitable tolling.  See Maples, No. 10-63, slip op. at *13 (recalling holding of Holland).  Significantly, in Holland, the Court explicitly stated that the analysis employed by the Eleventh Circuit to determine whether an attorney’s misconduct might warrant equitable tolling was “too rigid.”  See Holland, 130 S.Ct. at 2549.  While the Court didn’t reach the conclusion that the professional misconduct of Holland’s attorney rose to the level of “extraordinary circumstances” sufficient to warrant equitable tolling, the Court did remand the case back to the Eleventh Circuit for such a determination.  See Holland, 130 S.Ct. at 2565.  The Eleventh Circuit, in turn, remanded the matter back to the District Court for a possible evidentiary hearing on the issue.  See Holland v. Florida, 613 F.3d 1053 (11th Cir. 2010).  As of the date of this post, the status and disposition of Holland’s case in the District Court is unclear.  Westlaw does not show any further published opinions subsequent to the Eleventh Circuit remand at 613 F.3d 1053.  However, I suppose if you have time to kill, you could always check PACER for the status of Holland’s case.  His case originated locally, in the United States District Court for the Southern District of Florida, and appears to be assigned case number No. 06-20182-CV-PAS (Judge Seitz).

While I have not yet had the time to review the 2,358 opinions which cite to Holland, I think it’s fair to say that Holland may have begun a new era in postconviction litigation.  While it’s true that habeas petitioners have long argued that they should not be held accountable for the mistakes of their lawyers, habeas petitioners now have a strong case to point to in support of such argument.