Puerto Rico Association of Criminal Defense Lawyers

First Circuit Orders Recusal of District Judge at Government's Request

In a rather unique set of circumstances, the First Circuit has today granted a petition for mandamus by the United States in a public corruption case, reversing a district court's denial of a motion by the United States for the trial judge to recuse himself on grounds of actual prejudice, albeit not on grounds of actual prejudice but of a "reasonable basis for questioning the impartiality of the district court judge."  The appellate court also orders the investigation into government misconduct in violation of Fed.R.Crim.P. 6 cease, unless new claims arise, and that trial (which had been stayed pending the district court's investigation into government misconduct in relation to the grand jury) be promptly scheduled. See In Re: United States, No. 06-1136 (1st Cir. March 24, 2006) (per curiam).  The appellate court describes the claim that the District Judge exhibited actual bias against the government as "overreaching" by the government.

The lead prosecutor in the case at the district court level is Mary K. Butler, of DOJ's Public Integrity Division, although she did not argue the appeal. Ms. Butler also has been in the news for the Jack Abramoff cases. See The Hill.  On appeal the government's case was argued by Kathleen Felton, of the Criminal Division's Appellate Section.  Appearing for defendants were PRACDL members Edgar Vega-Pabón and Francisco Rebollo-Casalduc, together with Florida defense lawyers Howard Srebnick and Richard Straffer. Howard Srebnick argued for defendants.

S. COTUS at Appellate Law & Policy has more on this opinion here.

Is this why we cannot have cellphones inside the courthouse?

Assistant U.S. Attorneys are allowed to have their cellphones inside the courtroom (under a court-created "law-enforcement duties" exception to the general ban), and I can only imagine that agents are allowed to do so as well. Up until now I always thought that it had something to do with one of two matters:

• Court security
• Judges either not wanting to hear a phone ring in the middle of a proceeding or in the lobby, or simply not wanting someone calling a radio station to have the court proceedings broadcast over the airwaves.

Well here is a new one I had not thought of. It appears that there was a rumor in some courthouse that someone from inside the courtroom was sending text messages (either using a blackberry or a cellphone) to a sequestered witness regarding testimony inside the courtroom. See Text Messaging and Trials: A Volatile Mix at law.com.

But what most caught my eye in that article was the following:

Most recently, wireless gadgets caught the ire of the Judicial Conference of the United States, which recently sent letters to chief judges in all federal courts warning them of the security risks associated with wireless technology. The Judicial Conference, which does not have a policy specifically on wireless communication, advised judges to adopt policies to regulate the use of such technology in the courts.

I do not know whether the District of Puerto Rico has adopted any such policy beyond the banning of all cellphones by attorneys (unless you happen to be an AUSA) and the public. That has been in effect for some time now, and I do not know when the communication from the Judicial Conference took place. It seems to me, however, that there should be no disticntion between Assistant U.S. Attorneys and other attorneys. The law enforcement rationale is not convincing. After all, they could have a beeper if someone needed them that badly, and then they could call at the next available moment ... from the pay phones, just like we have to do.

Update: For a good reason why the Court should allow all attorneys - or none at all - to use and have their cellphones inside the courthouse (or at the very least to have) see my post at Macondo Law: There's a Crook at the Federal Court's Security Checkpoint. To this day the theft remains unsolved.
 

The 9th Reverses on Prosecutorial Misconduct

Today we have a good case for defendants from the 9th Circuit. Yes, I know that you are reluctant to cite those 9th Circuit cases to the judges in our district, but save this one anyway.  In United States v. Weatherspoon, No. 03-10551 (9th Cir. May 6, 2005) the 9th Circuit reverses a conviction due to prosecutorial vouching and urging the jury to cure society's ill by convicting defendant of a felon in possession charge. The prosecutor is a repeat offender and two previous convictions were thrown out by 9th Circuit panels for similar conduct.  The Court points to it in the following passage:

In that respect we stress that the ethical bar is set higher for the prosecutor than for the criminal defense lawyer—a proposition that has been clear for at least seven decades (see Berger v. United States, 295 U.S. 78, 88 (1935); and see also such cases as United States v. Modica, 663 F.2d 1173 (2d Cir. 1981) as well as the ABA Standards for Criminal Justice § 3-5.8(b)). Although to be sure no lawyer, either public or private, should lay his or her own credibility on the line by expressing his or her own opinion about a witness’ believability, the difference is that a private lawyer’s impropriety in that respect carries no implication of official governmental support. And in this particular instance, it is surely worth noting that the selfsame prosecutor has engaged in exactly the same kind of vouching conduct in two instances that has led other panels of this court to upset convictions obtained by that prosecutor (see the unpublished opinions in United States v. Williams, 2004 WL 2370557 (9th Cir. Oct. 21, 2004) and United States v. Green, 2004 WL 2984356 (9th Cir. Dec. 28, 2004)). To label such recidivist conduct as “unremarkable” [the dissent's description] is itself remarkable.

Weatherspoon, at 4913.  To the criminal defense bar practicing in the district of Puerto Rico an opinion such as Weatherspoon offers little solace.  After all, we practice in a district where the U.S. Attorney's Office has been repeatedly warned and slapped on the hand by the First Circuit Court of Appeals for improper comments and misconduct, only to be warned and slapped on the hand again, with no reversals. If any Judges from the First Circuit read this blog, let me state loud and clear that your method of dealing with this has not been helpful at all. Make them really pay a price, such as a few convictions being reversed, and then --and only then-- will the prosecutors who are prone to misconduct start to get their act together.

Puerto Rico Capital Case Results

Yesterday the jury returned its verdict as to the second defendant facing death in the first capital case to be tried to a penalty phase in Puerto Rico's recent history with the federal death penalty, and the Court then announced the penalty phase verdicts as to both defendants. See previous posts here and here. As to the first defendant, whose penalty phase verdict had been kept sealed pending the presentation of penalty phase evidence and deliberations as to the second defendant, the jury voted to impose a life sentence.  As to the second defendant, the jury deadlocked, resulting in an automatic imposition of a life sentence.

The U.S. Attorney in San Juan, Puerto Rico --a Texan-- grabbed the deadlock to make a statement to the effect that no longer should people consider that it is not possible to get a jury to vote for the death penalty in Puerto Rico.  One of the defense attorneys answered that only someone from Texas where they execute people regularly could view the results of the case as an indication that the death penalty would be imposed by a jury in Puerto Rico.

Congratulations to Steve Potolsky, Gustavo Del Toro, Don West, and Juan Alvarez!

"Bert, we hardly knew ye."

U.S. Attorney H.S. "Bert" García has been at the helm of the U.S. Attorney's Office in Puerto Rico for some three years now.  Rumor has it that he was brought in from Texas to put the house in order, and that a judicial appointment would be likely at the end.  If you ask defense attorneys, none seem to have ever met him in those three years.

For whatever reason, Bert has now decided he wants to try a case. So he makes an appearance in a case that already has a trial date scheduled (and has had some three previous prosecutors), and then moves to have the trial continued because (1) he has already purchased tickets (nonrefundable, he says) to travel to his home in Texas during part of those dates, and (2) he must also attend a meeting with the Attorney General in Phoenix between April 20-23, which means he will be out of Puerto Rico for most of April.  Well, Bert, didn't you know about this when you decided three years into your stay in Puerto Rico that you wanted to have a showboat trial?

The article reporting this appeared in the Spanish language daily El Nuevo Día Interactivo.

Update & Correction: One defense attorney has contacted us to tell us he has actually met Bert.

Judge Pérez-Giménez Rules on Attorney's Fees Inquiry

I strongly suggest reading Judge Pérez-Giménez's Opinion and Order in U.S. v.  Angel González-Méndez, Cr. No. 04-217 (PG) (D.PR January 14, 2005) concerning the Government's interest in inquiring as to the source of attorneys fees --pretrial-- in a case involving the robbery of a financial institution and in which none of the stolen funds have been recovered. Defendants apparently have no legitimate income either.  Judge Pérez-Giménez tells the Government that they cannot use the procedure set forth for so-called "Nebbia hearings" (after US v. Nebbia, 357 F.2d 303 (2d Cir. 1966)) for this sort of pretrial investigation. However, and this is important, take a careful look at n. 3 of the opinion.

OOPS or DOPES - take your pick

This, picked from a list-serve, really made me laugh today:

Just a thought ... maybe the Department of "Justice" should be renamed the "Office of Prosecutorial Services"... Justice is beyond the comprehension of most career prosecutors.

That way whenever you see an AUSA you just go OOPS! But just think of the Department of Prosecutorial Excesses Services, or DOPES.

What do you expect? The Supreme Court didn't come through with Booker/Fanfan today and I'm frustrated.

Practitioners' Advisory Group Proposal to USSC Makes the Most Sense

As we wait for the Supreme Court to decide Booker & Fanfan, we have competing proposals before the US Sentencing Commission. At the one end, is the idea of starting from a clean slate, an unlikely event.  At the other extreme is the idea of nullifying any decision applying Blakely to the federal guidelines, initially proposed by Professor Bowman in his submission to the Senate Judiciary Committee back in July, and now having apparently become DOJ's darling - to move the top of each offense level to the statutory maximum and thereby make ashes of Blakely's holding, ... maybe.

The best proposal we have seen thus far comes from the Practitioners' Advisory Group, and it is a worthy read in that it is rather comprehensive and specific. One may argue about various aspects of this proposal, but it is the best we have seen to date.

Professor Bowman now says that his so-called "topless" proposal was only meant as an interim fix. It was a lousy idea then and it is a lousy idea now. It shows too much worry about possible windfalls to some defendants, forgetting the obvious: that the government has been receiving windfalls since November 1987 as a result of draconian guidelines, each day more and more in the control of the prosecutors.

There certainly are more options being offered, but we focus on these as the two primary market forces: one to skirt Blakely altogether; the other to have guidelines that give life to the Sixth Amendment right to jury trial and proof beyond a reasonable doubt.

Download practitioners_advisory_group_11.04.04 proposal.pdf