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.

First Circuit Reverses Judge Gertner's Order to Empanel Two Juries in Capital Case (One "Non-Death-Qualified" for Guilt Phase, Another "Death Qualified" for Penalty Phase)

Today in US v. Green, No. 05-1014 (1st Cir. May 12, 2005) the First Circuit reversed Judge Gertner's decision in US v. Green, Criminal No. 02-10301-NG (D.Mass) (see Memorandum and Order Re: Bifurcation of November 3, 2004 and Additional Findings Re: Bifurcation of December 29, 2004) to empanel 2 juries in a capital case, one non-death-qualified to hear the guilt phase, and another death-qualified to hear the penalty phase if necessary.

Another Circuit to address this issue was the 5th Circuit in  U.S. v. Williams, No. 05-20080 (5th Cir. Feb. 14, 2005). See our previous posts on Williams here, and on Green here and here.

Update: As noted by Appellate Law & Practice here, the First Circuit did decline the Government's "invitation to review to pass upon the validity of the district court's suggestion that it might defer death-qualification altogether until after it takes a verdict on the issue of guilt or innocence." It concluded there was no live controversy as to that issue at the moment. Will Green be back to the First Circuit if Judge Gertner decides to postpone death-qualifying the jury until after the guilt phase? I would venture to say yes.

Fifth Circuit Rejects Order of Bifurcation with non-death-qualified jury for guilt phase and death qualified jury for penalty phase as contrary to Federal Death Penalty Act

In a capital case, the Fifth Circuit has rejected a district court's order of bifurcation with a non-death-qualified jury to hear the guilt phase and a death-qualified jury to hear the penalty phase if necessary.  See U.S. v. Williams, No. 05-20080 (5th Cir. Feb. 14, 2005). The Fifth Circuit rejected such procedure as contrary to the Federal Death Penalty Act.  As we all know, Judge Nancy Gertner from the District of Massachusetts started this ball rolling with her decision in  United States v. Darryl Green, et al., 343 F.Supp.2d 23 (D.Mass. 2004), Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004), which we posted on here, and here.  The Fifth Circuit in Williams makes reference to Green at n. 4, stating as follows:

Williams’s pleadings in the trial court also purported to rely on a recent federal district court decision, now on appeal, that authorized a bifurcated jury in a death penalty case. United States v. Green, 343 F. Supp. 2d 23 (D. Mass. 2004), appeal filed, No. 05-1014 (1st Cir., Jan. 27, 2005). The Green court justified its ruling in part on a statistical proffer concerning the probability of exclusion of black jurors in Massachusetts from a death-qualified jury. Williams suggested that, given a chance for discovery, he would make a similar proffer in this case. It is too late. He made his initial motion for a bifurcated jury last October. He has forfeited this claim of error by failing to pursue it further in the district court or in this court.

Keeping the lid on Pandora's Jar - by the Bard of the Short Circuit

Circuit Judge Selya's opinion for the First Circuit panel  in United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004) turns down -rightfully so- a Government interlocutory appeal from a district court's order refusing to grant the Government a trial continuance in a three year old case. Finding that the Appellate Court lacked jurisdiction, Judge Selya refuses to construe 18 U.S.C. § 3731 in a manner "that otherwise would open Pandora's jar, [n.2] ..." Id. at 9.

[n. 2] Although the more common allusion is to "Pandora's box," that usage is apparently erroneous. Zeus, determined to avenge himself on Prometheus, presented this femme fatale to Epimetheus (Prometheus' brother), first arming her with a jar containing all the evils of the world. After Epimetheus foolishly accepted the gift, Pandora proceeded to open the jar, thereby loosing a panoply of torments upon humanity. See R. Warner, Encyclopedia of World Mythology 29-31 (1975). As with so many things in life, however, there is another view. See Edith Hamilton, Mythology 86 (1942).

United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004), at n. 2 (p. 9). The government through it's own "Executive Branch faux pas de deux" caused the conundrum, by allowing, in fact causing, a necessary witness (Spera) to be deported to Italy. The prosecutor did not realize this until shortly before the scheduled trial (3 years in the making), and requested a continuance to depose the witness in Italy. The district court did not oblige, denying the requested continuance.

As said, the denial of the continuance left insufficient time to depose Spera abroad, and so the district court sensibly denied as moot the government's ancillary request for leave to take such a deposition. In its reply brief, the government recasts its argument to focus on this point. It seems to suggest that the district court artfully avoided ruling on its request to depose Spera by couching its decision in terms of the denial of a continuance. Government's Reply Br. at 4. This is empty rhetoric: it was the government that framed the central issue around its perceived need to postpone the trial. Thus, the suggestion that the court, by some thaumaturgical [means magical] feat of legal legerdemain [means sleight of hand, tricks of a stage magician, trickery of any sort, deceit], used the denial of a continuance as a masking device to insulate its exclusion of Spera's testimony from appellate review, is totally unfounded.

Id. at 20-21. This is a good case for the defense to have at hand.  And for your vocabulary as well.