"Thin Resources" a/k/a AUSA's in D.PR

An Assistant U.S. Attorney shows up before Chief Judge Fusté (D. PR) for what was supposed to be a change of plea hearing. Defense counsel requests additional time because there are additional matters to be resolved before defendant can enter a guilty plea (i.e., defendant wants a better plea offer). Chief Judge Fusté is known to move his cases along, sometimes faster than one would desire. So he sets a trial date and then the Assistant U.S. Attorney informs him that she has another trial and the Judge replies that another AUSA can try this case. Thus far, okay. But then the AUSA tells the Judge that the resources of the U.S. Attorney's Office are already stretched thin. The Chief Judge was surprised, to say the least, at this response, and must have been wondering whether she worked at another U.S. Attorney's Office. He simply said (and I'm paraphrasing): "Have you seen the grand jury returns for this district? Your office has hardly done anything for some time!" With that, he recessed.

What the Chief Judge said is not news to anyone practicing before the District of Puerto Rico. And if they are "stretched thin" it is only because they have been treating people so badly that a whole bunch of Assistant U.S. Attorney's have either resigned or sought transfers elsewhere.

Is there some headcounting going on here?

On May 4th, 2005 the First Circuit sitting en banc heard argument in Igartúa de la Rosa v. United States, No. 04-2186 (1st Cir. Oct. 14, 2004). The 3 judge panel opinion was withdrawn when petitioners' requested rehearing or, alternatively rehearing en banc, and the panel agreed to rehear the case and vacated its opinion and judgment and ordered additional briefing by the parties. With briefing completed, but before rehearing by the 3 judge panel, the en banc Court decided to take up the case. A link to the audio of the en banc oral argument can be found here.

Today the First Circuit has issued a Memorandum and Order (per curiam) with a strong dissent by Circuit Judge Juan R. Torruella, over whether Senior Circuit Judge Levin Campbell, who sat in the initial 3 judge panel, can sit on the en banc panel. The majority concludes that he may, and Judge Torruella argues that he may not. It is abundantly clear that had the Court taken up the matter en banc following the original panel's opinion, Senior Judge Campbell would be qualified to sit on the en banc panel. But Judge Torruella argues (and I'm simplifying a bit here) that because the panel's opinion and judgment had been vacated by the 3 judge panel itself and no rehearing before the panel had taken place when the en banc Court motu propio decided to take over, the en banc Court is really reviewing the district court's opinion and not the opinion by a 3 judge panel, since there was no longer an opinion by the panel at the time of the en banc court's decision to take the case, and in that scenario the Senior Judge cannot sit on the en banc.

Aside from the legal niceties, I wonder whether there is some counting going on here, or merely a discussion of purely legal issues. After all, there are only 6 active Judges in the First Circuit, and Judge Torruella was the dissenting judge in the original panel's decision. Hey! It happens in the Supreme Court, so why would it not happen elsewhere?

Will the First Circuit's en banc Opinion in U.S. v. Councilman Matter?

We have previously posted on the First Circuit's opinion in United States v. Councilman, 373 F.3d 197, 201 (1st Cir. 2004), withdrawn, 385 F.3d 793 (1st Cir. 2004) and en banc ruling pending, in the following:

• The Volokh Conspiracy on US v. Councilman (July 14, 2004)
• Amici Brief in US v. Councilman (September 11, 2004)
• First Circuit Grants Petition for Rehearing en banc in US v. Councilman (Oct. 5, 2004)
• Supplemental Brief filed by Amici in US v. Councilman (November 29, 2004)

For more information see United States v. Councilman at the Electronic Privacy Information Center. Professor Orin Kerr, who wrote the amicus brief on behalf of the Center for Democracy and Technology, The Electronic Frontier Foundation, The Electronic Privacy Information Center, The American Library Association, The American Civil Liberties Union, and the Center for National Security Studies as Amici Curiae in Support of the United States in favor of reversal, has recently pointed out two matters in this post at The Volokh Conspiracy:

1. The First Circuit has yet to decide the case after rehearing en banc (oral argument was held, I believe, on December 8, 2004); and
2. If the en banc First Circuit upholds the panel's opinion, there is already a piece of clarifying legislation that would likely be passed by congress to remedy the situation, so Councilman's holding may have little or no impact beyond the particualr case itself.

There was a strong dissent in the Councilman panel opinion by Circuit Judge Kermit Lipez, which I believe the en banc Court will likely follow. But if it doesn't, it is at least a good thing that Senator Leahy is ready for the outcome with legislation. This should be easy legislation to get passed, as both DOJ and civil liberties groups are in agreement on this one.

Are You a Republican?

I have just checked my health and have been informed that I am doing fine!

I am: 0% Republican.

"You're a complete liberal, utterly without a trace of Republicanism. Your strength is as the strength of ten because your heart is pure. (You hope.)"

Are You A Republican?
Link via TalkLeft.

Should Burger King be preparing for this?

From CrimLaw, Ken Lammers asks : Are you sane enough to kill if you tell the psychiatrist that you're going to go to Burger King after your execution? And I ask, could this have a connection to the body parts that have been appearing in fast food?

Audio of Rehearing En Banc Oral Argument Today in Igartúa-de la Rosa v. United States (1st Cir., Oct. 14, 2004)

I will be posting more on the background and the oral argument held this afternoon in Igartúa de la Rosa v. United States, No. 04 2186 (1st Cir. Oct. 14, 2004)(be sure to read Circuit Judge Torruella's dissent). In the meantime, you can listen to the en banc oral argument here.

P.S. - The case is about whether the rights of more than 4 million U.S. "citizens" residing in Puerto Rico are being violated by not being allowed to vote for electors in U.S. presidential elections. The First Circuit has previously said no in rather stark terms, so I'm wondering what they asked about at oral argument.

Injustice Anywhere - New Texas PD Blog

A Texas Public Defender is publishing a new blog - Injustice Anywhere - that looks promising. Check it out. We have added a link to the sidebar. LV: Ken Lammers' CrimLaw.

New Look

If you are wondering why I changed the template for Macondo Law (again) the only reason was that I wanted a white background to write on, which I think makes it easier to read. If your blog was listed here and now it is not, drop me an e-mail, since I lost some of my links in transition.

Professor Berman on "The Human Face of Retroactivity"

I invite you to read Professor Berman post on The Human Face of Retroactivity at Sentencing Law and Policy. In particular, read the letter from an inmate which is attached at the end of the post. Quite a moving reminder that there are thousands of lives adversely affected by the Courts' reluctance to apply Booker retroactively.

One can't help but wonder at the sense of having been forgotten that these persons imprisoned under sentences that under Booker are illegal must feel. Read that letter.

TrialPrep

Today the Puerto Rico Association of Criminal Defense Lawyers has launched TrialPrep - another PRACDL blog.

Today's Version of a Beautiful Mind?

Not wanting to be outdone by a manure stealing Harvard Prof, a student working toward a doctorate in math at Princeton, was arrested for two counts each of recklessly endangering another person and tampering with a food product, one count of theft and one of harassment.

So what did the student actually do? According to a university spokesperson, the student admitted to campus security he cut women's hair and poured semen and urine into women's drinks when they were not looking. It is believed this has been going on since 2002 until his arrest in March of this year!

See AP report here. Attempts to reach the student have been --understandably-- unsuccessful. Since his arrest, he has been in a mental health ward of a hospital in Trenton.

I always knew that math --beyond the basics-- could really screw you up! Just think of it. A graduate student working on his doctorate in math and goes around campus cutting off girls' hairlocks and pours semen and/or urine into their drinks! I'm sure the Harvard Economics Prof feels at least he's got a half decent explanation: Why should anyone pay for shit?!

Economics 101: Guns and Manure or Manure and Butter?

Give me a break! The Associated Press reports here on a Harvard Economics Professor accused of stealing manure. Is he a candidate for one of those shaming sentences? Perhaps he'll be made to walk around with a sandwich board that has written on it "I'm a thief. I steal shit!"

The Pope and the President on the Culture of Life: Two Very Different Visions

The New York Times has an op-ed by Nicholas D. Kristof titled The Pope and Hypocrisy. It is an excellent op-ed about the talk of the "culture of life" and the inaction of our government as regards the barbarities taking place in Darfur.

Great Teaching Tool: Landmark Supreme Court Cases

We invite you to visit Landmark Supreme Court Cases which we learned of at Robert Ambrogi's Lawsites. The site's description reads, in part, as follows:

This site was developed to provide teachers with a full range of resources and activities to support the teaching of landmark Supreme Court cases, helping students explore the key issues of each case. The "Resources" section features basic building blocks such as background summaries and excerpts of opinions that can be used in multiple ways. The "Activities" section contains a range of short activities and in-depth lessons that can be completed with students. While these activities are online, many of them can be adapted for use in a one-computer classroom or a classroom with no computer.

Depending upon the amount of time you have to teach the case, you may want to use one or more of the "Resources" or "Activities" in conjunction with one or more of the general teaching strategies.

Check it out! The site has been developed through the collaboration of teachers, attorneys, law students, Street Law, and The Supreme Court Historical Society.

Help Wanted for TV Documentary (includes the free legal services of a renowned defense attorney)

I received the following e-mail today, and I'm posting it in case any of the lawyer readers of this blog have information which may be useful to Mikaela Beardsley. I was curious as to who she was, and did a Google search and found the following link most useful:

IMDb Mikaela Beardsley

Now here is the e-mail in case any of you wants to help out in this matter:

Dear Tom,

I am a producer at a New York production company, Stick Figure Productions. We are developing a new television series for Court TV. We are looking for cases for which we will provide - for free – the legal services of a renowned defense attorney in exchange for participation in our show. In terms of the case, we are open to different scenarios; our only stipulation is that it not be rape or murder. The case could be criminal or civil.

Our company’s website (www.stickfigureproductions.com) will give you a sense of the kind of programming we do. We are not “reality TV” producers – this series for Court TV will be all documentary footage and will in effect showcase the towns and townspeople where the case is taking place, as well as follow a case from start to finish.

Can you list my query and contact info on your blog? Or do you have any cases that fit the bill? If you have any questions, I can be reached via email or at 212/277-3600.

Many thanks. I look forward to hearing from you.

Mikaela Beardsley

--
Mikaela Beardsley
Producer
Stick Figure Productions
6 West 18th Street 11th Floor
NY, NY 10011
212/277-3600 (office)
212/277-3611 (fax)
917/716-5231 (cell)

If anyone does get in touch with Mikaela on this matter, will appreciate your letting Macondo Law know of it.

UPDATE: It appears the same e-mail got around to Skelly at Arbitrary and Capricious as well as to Three Generations of Imbeciles are Enough.

UPDATE (3/29/05): Looks as if Stick Figure Productions is really looking for a young lawyer or a 3L to cast. As Robert Ambrogi states here: "First case: Defending Stick Figure in a bias suit for discriminating against older lawyers." I join that class action.

And it's also "Poor Jennifer and Iris!"

How timely! In Rivera v. State of Rhode Island, No. 04-1568 (1st Cir. March 22, 2005) we are once more reminded that there is rarely a duty for the police to protect you from the actions of a non-state actor, certainly not a duty that is actionable under Title 42, U.S. Code, Section 1983, except in very, very rare circumstances. These rare circumstances do not include when the police promise to protect you if you agree to testify against someone in a murder trial, and then don't protect you despite repeated threats against your life and their knowledge of the threats and further promises to protect you, and you are thereafter murdered for your cooperation. As Judge Lynch so aptly puts it:

It would be inhumane not to feel a sense of outrage over Jennifer's death, or a sense of deep sympathy for Iris Rivera who has lost her daughter. But our question is one of federal law, not one of sympathy.

It's all about the Fourteenth Amendment and substantive due process. Hmm! Explain that to Jennifer's mom. When people start realizing that there is no real duty to protect them, they'll stop cooperating, as little Jennifer might have --but for the empty promises of state actors. Then, perhaps, that federal law which Judge Lynch is obliged to uphold will change, if for no other reason than to accommodate the needs of law enforcement.

As Rivera goes on to state:

[...] "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989). That is because the purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other. "The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security," id. at 195, because "[t]he Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes," id. at 196.

Elsewhere, the opinion states:

DeShaney directs that a state's affirmative constitutional duty to protect an individual from private violence arises when there is some deprivation of liberty by state actors. See DeShaney, 489 U.S. at 200 ("The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf."). The state's promises, whether false or merely unkept, did not deprive Jennifer of the liberty to act on her own behalf nor did the state force Jennifer, against her will, to become dependent on it. See Monahan, 961 F.2d at 993 (finding no constitutional liability when the state did not force the plaintiff to become dependent on the state). Moreover, the state did not take away Jennifer's power to decide whether or not to continue to agree to testify. Merely alleging state actions which render the individual more vulnerable to harm, under a theory of state created danger, cannot be used as an end run around DeShaney's core holding.

(footnote omitted)(emphasis added). Somewhere along the writing of this opinion the fact that Jennifer was only 15 years old seems to have lost importance. But then again, "Poor Joshua!" in DeShaney was also a child.

Of course, DeShaney is the very case upon which petioner in Town of Castle Rock, CO v. Gonzales, No. 04-278 relied upon in urging reversal of the Tenth Circuit at oral argument before the Supreme Court yesterday. See our posts here, and here. And see Crime & Federalism post on Rivera v. Rhode Island Illustrates Inadequacy of Current Affirmative Duty Doctrine, which also proposes a solution to current doctrine. See also this post at Appellate Law & Practice, and read the comments to the same.

It Appears it Will Be "Poor Rebecca, Katheryn, Leslie and Jessica"

Judging from this article at Law.com -- High Court Wary of Giving Protective Orders Constitutional Protection by Marya Lucas -- on yesterday's argument at the Supreme Court in Town of Castle Rock, CO v. Gonzales, No. 04-278 (see our post here), it appears that the Tenth Circuit will be reversed. Perhaps Justice Ginsburg can write a "Poor Rebecca, Katheryn, Leslie and Jessica" dissent.

First Circuit Quietly Enters a Booker Remand in Antonakopoulos

In United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005), the First Circuit, after rejecting all of the Blakely/Booker claims actually raised by defendant on direct appeal, stated as follows:

There is another type of Booker argument available but which Antonakopoulos has not made: that there is a reasonable probability that the district court, freed of mandatory guidelines, would have given him a lower sentence. Because this case establishes the standard for such a claim, we think it fairer to give Antonakopoulos and his counsel time to consider whether he wishes to advance the argument. If so, the prosecution must have a chance to respond

At sentencing the defendant sought a downward departure based in part on the fact that his son was brain damaged and he had been his son's caretaker. The court determined that others can also provide care, and indeed have done so during his imprisonment. The main grounds on which he sought remand, under Blakely, are now gone. This ground, that of family circumstances, is still open and is not frivolous.

If defendant wishes to pursue this remaining type of Booker resentencing claim, he should advise this court and submit a supplemental brief within ten days, in compliance with our rules, not to exceed 15 pages. The brief should address the standards articulated in the opinion. The government shall have five days to file a response of no greater length. If the defendant does not make such a supplemental filing within the time allotted, he will be deemed to have waived this option and judgment shall enter accordingly.

Antonakopoulos, slip op. at 29-30.

An examination of the First Circuit's Docket in Antonakopoulos shows that Supplemental Briefs were in fact filed thereafter. The Docket also shows that on March 15, 2005 an Order was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch, which (as per the docket entry) states as follows:

After consideration of the supplemental briefs filed by the parties, we vacate the defendant's sentence and remand the case to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We intimate no view as to what sentence should be imposed on remand. So ordered."

The docket also reflects that on the same date Judgment was entered by Judge Bruce M. Selya, Senior Judge Norman H. Stahl, and Judge Sandra L. Lynch. The corresponding docket entry states as follows:

Consistent with the court's opinion of February 22, 2005, the conviction of Stelios Antonakopoulos is affirmed. After consideration of the supplemental briefs filed by the parties, the defendant's sentence is vacated and the case is remanded to the district court for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). The district court's order for restitution to Mercantile Bank and Trust is, on remand, to be reduced to $100,000. We intimate no view as to what sentence should be imposed on remand.

So Antonakopoulos did in fact result in a Booker remand, contrary to what we had published earlier here at the PRACDL Blog and here in Macondo Law. We thank the folks on the CJAFirstCircuit group for pointing this out to us.

It was "Poor Joshua!" then and will it now be "Poor Rebecca, Katheryn, Leslie and Jessica"?

It is reported that Chief Justice Rehnquist will be back on the bench on Monday, when arguments are heard in Town of Castle Rock, CO v. Gonzales, No. 04-278. Is this the best time for the Chief Justice to be back on the bench, to defend his earlier decision in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989), the one memorable for Justice Blackmun's heart wrenching dissent in which he wrote "Poor Joshua!" - in reference to the child that the Court found had no substantive due process right to protection from private violence.

Castle Rock is a tragic and shocking story of police ineptitude and indifference, one resulting in the murder of three minor girls, Rebecca, Katheryn, and Leslie Gonzales, killed by their own father. If you want some good reading on Castle Rock, over at Crime and Federalism Norm Pattis has written about it here, and Mike has followed up here and here. And over at SCOTUSblog there's an excellent post by Steven Wu here. The ACLU has reported on the case here.

Behind all the legalese, what is truly at issue is the fear that municipalities will be held accountable for money damages for acts of private violence. In Puerto Rico there are no jury trials in civil cases in the Commonwealth Courts. Damages amounts handed down by judges tend to be stingy. Thus, the opportunity to get the cases into federal court is of great importance to plaintiffs in the shoes of Jessica Gonzales, respondent in Castle Rock.

The Merits Briefs:

• Brief for Petitioner Town of Castle Rock, Colorado
• Brief for Respondent Jessica Gonzales
• Reply Brief for Petitioner Town of Castle Rock, Colorado
• Amicus Brief for the United States in Support of Petitioner
• Amicus Brief National Network to End Domestic Violence, et al.
• Amicus Brief of Peggy Kerns
  
• Amicus Brief for ACLU, et al.
• Amicus Brief for The National Association of Women Lawyers and The National Crime Victim Bar Association in Support of Respondent
  

The Tenth Circuit's panel opinion, Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002) is here, and the en banc opinion Gonzalez v. City of Castle Rock, 366 F.3d 1093 (10th Cir. 2004) is here (must scroll down a bit).

The Tenth Circuit got things right. Let's see if the Supreme Court can do the right thing this time around. I believe that this case is clearly distinguishable from DeShaney and that the Court will not have to overrule it for respondent to prevail, as she should.

There's a good article in The National Law Journal - March 9, 2005 on Castle Rock - Supreme Court to Weigh in on Due Process and Domestic Violence – Justices to Decide if Police are Liable, by Marcia Coyle. Thanks to Crime and Federalism for the link. The article has some good observations from Section 1983 guru Sheldon H. Nahmod, whose first ed. (when it was still a single volume) of Civil Rights and Civil Liberties Litigation - The Law of Section 1983 (now in its 4th edition) served as my bible when I worked at the Commonwealth of Puerto Rico Department of Justice - Federal Litigation Division.

From the First: Judges Lipez and Torruella Disagree with a Critical Aspect of Antonakopoulos' Plain Error Standard for Unpreserved Booker Errors

It did not take long for some in the First Circuit express disagreement with at least part of United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005). In United States v. Serrano-Beauvaix, No. 02-2286 (1st Cir. March 4, 2005) (a case involving, inter alia, an unpreserved Booker claim) the First Circuit (in an opinion written by Judge Lynch) holds that no remand for resentencing is necessary because "Serrano has failed to carry his burden that there is a 'reasonable probability' that he would be sentenced more leniently under an advisory Guidelines system." While Judge Lynch's opinion has some portions that appear to us to even go beyond Antonakopoulos, it is the concurrence by Circuit Judge Kermit V. Lipez, joined by Circuit Judge Juan R. Torruella that is of note in Serrano-Beauvaix.

We commence with Circuit Judge Lynch's main opinion, wherein she states:

We have recently set forth the applicable framework for review of unpreserved Booker claims in Antonakopoulos. Utilizing the four-prong test in United States v. Olano, 507 U.S. 725 (1993), there must be (1) an error (2) that is plain, and it (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Antonakopoulos, 2005 WL 407365, at *4. The first two prongs of the plain error test are met whenever the district court treated the Guidelines as mandatory at the time of sentencing. Id. But to meet the third prong of the test, the defendant must persuade us that there is a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." Id. "[I]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice under plain-error analysis." Id. at *6 (citations and internal quotation marks omitted).

Serrano relies upon the district judge's statement at the sentencing hearing: "I have to consider the fact that I cannot sentence him to 60 months. The lowest I can sentence him on that particular situation is 63." This statement, he argues, makes it "clear that the district court would have sentenced [Serrano] to 60 months in prison instead of 63 on count one." Not so. Given Serrano's criminal history category and his role as recruiter, and the amount of drugs involved, the court's statement was a simple statement of fact. The statutory minimum, without the enhancements, was 60 months. He was sentenced to 63 months, out of a possible range of 63 to 78 months. Serrano's argument amounts to an assertion that there was such a reasonable probability that the judge would have totally ignored Serrano's role in the offense and prior conviction and that our confidence in the outcome is undermined by the fact that the judge actually considered these two enhancements. Even post-Booker, the district court "must consult those Guidelines and take them into account when sentencing." Booker, 543 U.S. at __, 125 S. Ct. at 767. And so the court had to consider both role in the offense and his criminal history. Serrano has failed to meet his burden.

This sounds as if the guidelines range were presumptively correct. Was this not one of the examples where the First Circuit in Antonakopoulos would remand for resentencing, i.e., when the District Court expressed that it would have imposed a lesser sentence were it not for the mandatory nature of the guidelines?

In a concurrence in Serrano-Beauvaix by Circuit Judge Kermit V. Lipez, joined by Circuit Judge Juan R. Torruella, while agreeing with much of Antonakopoulos, expresses disagreement with a critical part of Antonakopoulos: the requirement that in cases of unpreserved Booker errors defendant bear the burden of showing prejudice.

I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut. This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred." Id. at *9.

Judge Lipez then goes on to carefully explain why he favors this approach, and his explanation is certainly the more reasonable and convincing one to us. We hope that the approach urged by Judges Lipez and Torruella is adopted by the en banc Court sometime soon.