Thursday, June 30, 2005

Nino's Dictionary -- or -- The Meaning of "Shall" from Booker to Castle Rock

During Oral Argument in United States v. Booker last October 4, 2004 (transcript here), Justice Breyer and Justice Scalia had the following exchange:
JUSTICE BREYER: All right, if I believe that that is just out of the question, it's so complicated, nobody could do it, it would [*45] be a radical change, Congress could never have intended that, what about a much simpler approach? What you would do is take 3553(b), and you say, "Read the word 'shall' -- i.e. 'shall apply the guidelines' -- to 'may,'" so that the guidelines become advisory, either because the "shall" becomes a "may" or because you give each judge the power to give any reasonable reason at all as to why the Commission's guideline, they didn't actively consider this factor. In other words, read 3553(b) as permissive. And now, assuming I've expressed myself on the underlying Apprendi questions, so I, but suppose Blakely does apply, would you -- is -what would be wrong with taking that approach?

MR. CLEMENT: Assuming I understand the approach you propose, there would be nothing wrong with taking that approach.

JUSTICE BREYER: All right, I have thought of one thing that might be wrong.

JUSTICE BREYER: So I'll ask you about it, if you want.

JUSTICE SCALIA: Could it be that "shall" [*46] does not mean "may"? Right?

JUSTICE SCALIA: Oh, that's not it? "Shall" -

JUSTICE BREYER: All right, well, I -- you see nothing wrong with that. That makes the guidelines advisory, and there are a number of objections -- maybe not, maybe big, maybe small. One objection I was worried about is -- I'm giving you my thought process, you know, and I -- because I'm trying to get a -- your response -- is that if we did take that approach, you'd leave the appellate section in place. That means every time the judge didn't use the guideline, the appeals courts would have to review for reasonableness. Now that would be in place. We would discover judges all over the country having different views on that. Courts of appeals would have different views about was or what was not reasonable. We would be here to review those differences, and we would become the sentencing commission. I thought I had escaped.

JUSTICE BREYER: Now, how, how serious an objection is that? Or do you recommend that, if [*47] you lose on this point, we take the approach of, in that way, making the guidelines advisory?
That was Booker and Justice Scalia was quite cocky as to "shall" does not mean "may." But somehow he found a new dictionary when it came time to write the opinion in Castle Rock v. Gonzales, and decided that he would interpret the Colorado statute at issue so that every shall was magically turned to a discretionary shall or a may. The statute reads in part (taken from Court's opinion):
Nino, you are less than consistent. As a matter of fact, you have done in Castle Rock that which you so much complain of: you made up the law to suit the result you wanted.

Monday, June 27, 2005

Director of the U.S. Marshals Service Resigns reports here that the director of the U.S. Marshals Service, Benigno Reyna, announced his resignation Friday, following strong criticism over inadequate security for federal judges. The resignation is effective July 31, 2005, bringing to a close his tenure in that office since October 2001.

Tuesday, June 21, 2005

On Edgar Ray Killen's Conviction

Justice delayed is justice denied, but there is always a modicum that can be achieved even 41 years later. Such is the case with the conviction of Edgar Ray Killen for manslaughter in the deaths of Andrew Goodman, then 20, and Michael Schwerner, then 24, and James Earl Chaney, then 21, three young, idealistic civil rights workers who were in Mississippi in 1964. The conviction has come 41 years after the murders, and Mr. Killen - what a name - should have been in prison for years now, but it is better late than never.

As a citizen, I like to see justice done. And when proper convictions have been achieved, I like to see them upheld. But as a lawyer I also understand that prosecutors sometimes do things that jeopardize these convictions, and this annoys me because the prosecutor acts in a manner that may deprive a defendant of a fair trial, not to say jeopardizing a conviction that should otherwise stand. I mention this because in an Associated Press article on the conviction, it states that "Prosecutors had asked the jury to send a message to the rest of the world that Mississippi has changed and is committed to bringing to justice those who killed to preserve segregation in the 1960s." Prosecutors should not be asking jurors to send messages to the world. This is absolutely improper argument, and may well jeopardize an otherwise valid conviction. That jury was not there to atone for past wrongs by some of Mississippi's citizens; it was only there to decide the guilt or lack thereof of one man in the deaths of 3 young men 41 years ago. Shame on the prosecutor for making this sort of argument. The end does not justify the means. If it did, someone would have probably murdered -justifiably- Mr. Killen long ago, rather than wait 41 years for a modicum of justice.

Chief Judge Steven J. McAuliffe (D.N.H.) to sit by designation in Marquez-Marin v. Gonzales, et al.

First Circuit Chief Judge Michael Boudin, at the request of District of Puerto Rico Chief Judge José Antonio Fusté, has designated Chief Judge Steven J. McAuliffe, District of New Hampshire, to preside over Marquez-Marín v. Gonzales, et al., Civil No. 05-1619, a case brought by Carmen Marquez-Marín, a former Assistat U.S. Attorney in Puerto Rico, against Attorney General Alberto Gonzales and U.S. Attorney for the District of Puerto Rico Humberto Garcia a/k/a "Bert". You can see the designation here, and our previous post (with link to the Complaint) here.

Friday, June 17, 2005

Marquez-Marín v. Gonzales, et al. - Complaint by Former AUSA

Here is the Complaint in Marquez-Marín v. Gonzales, et al. No. 05-1619 -HL. Most of the stuff alleged therein has been vox populi for some time now. Former AUSA Carmen Marquez-Marín is a straight shooter, incapable of including allegations in a complaint that are not true. The question then becomes: will there be anyone at our U.S. Attorney's Office who will stand up and tell the truth, rather than constantly telling everyone else outside the office how bad things are in there? Carmen's credibility will withstand any attacks from defendants, so I would suggest to defendants they ought to think twice before deciding that the only thing to do is defend at all costs. I doubt they listen to me, so . . . let the games begin.

Wednesday, June 15, 2005

I saw Bert on TV - He's Distracting Us

I actually got to see H. S. "Bert" Garcia, our Texan U.S. Attorney in Puerto Rico, on the TV news last night when they showed a portion of a press conference the U.S. attorney's Office gave to announce a number of indictments in what they call a $4 billions a year money laundering operation and drug trafficking conspiracy. I was going to repress myself and not comment on the case, given that I have a client who is accused, but why should I have to shut up while the U.S. Attorney blabs to the press.

Bert, my client is innocent!

Bert must be thrilled to have some big indictments to put forth after playing with silly putty for more than a year. See our post on "Thin Resources" a/k/a AUSA's in D.PR in which we summed up the Chief Judge's comments to one of the Assistant U.S. Attorney's as to the paltry grand jury returns for the past year in this district.

Moreover, Bert must also be thrilled to have something to distract the attention momentarily from a lawsuit filed against him and others by former Assistant U.S. Attorney Carmen Marquez, who Bert fired. Carmen was a serious prosecutor, and she now has a formidable attorney named Judith Berkan. I would not enjoy being on the opposite side of Judy Berkan.

So, Bert, the distraction will only last for a short while. Enjoy your depo. Maybe I'll help Judy set it up in TrialDirector so that the same can be videotaped and then the transcript can be played along synchronized with the video. And, remember, the truth and nothing but the truth! Can you handle that?

You cannot bully people around and expect all of them to go away quietly. Some will inevitably come back to haunt your life. You cannot sully someone's reputation and expect them to take it in stride. No, Bert, you can't do that. And I believe Carmen any day, just any old day, before I believe you.

To the reader it may seem as if I have something against Bert. Well, I really do not know Bert other than by what gets out to us defense lawyers - but that's usually an earful - and the lousy treatment he gave me the one time I called him directly on a civil forfeiture matter. Bert, you could have been courteous, it would not have hurt much. Arrogance, sheer arrogance!

Wednesday, June 08, 2005

Google celebrates Frank Lloyd Wright

Google celebrates Frank Lloyd Wright.


(CTRL + left click on image) And I again daydream what if's about my architectural career that never happened. But, hey, being a lawyer --particularly a criminal defense lawyer-- is not bad at all.

Tuesday, June 07, 2005

No Entrapment Here

Today the First Circuit decided United States v. Villafañe-Jiménez, No. 03-1230 (1st Cir. June 7, 2005) dealing with an appeal from one of the trials in the "Lost Honor" investigation. As expected, defendants lost on all the important issues to their appeals. I wrote about the "Lost Honor" investigation and prosecutions over at The Best Defense some time back. See When defendants think they know more than the lawyers. While I am not handling the appeal for the client I represented at trial, it all looks too familiar and the result would surprise me if it was any different.

Friday, June 03, 2005

Gal Costa

This year's Puerto Rico Heineken JazzFest is dedicated to the great Brazilian singer Gal Costa. She will be performing Saturday night and I will be right there to enjoy. Lawyers who have gone through the hassle of having to reinstall everything in their computers, and then do innumerable updates, do deserve some leisure time.