Puerto Rico Association of Criminal Defense Lawyers

First Circuit Request for Comments on Reappointment of Joseph Laws, Federal Public Defender for the District of Puerto Rico

The Court of Appeals for the First Circuit has published a Request for Comments Relating to the Reappointment of Joseph C. Laws, Jr., Federal Public Defender for the District of Puerto Rico.

Joe is a Charter Member of PRACDL and was our first President. At that time Joe was in private practice, having already served his own stint at the Federal Public Defender's Office years back under the stewardship of the Grand Master - don Gerardo Ortíz del Rivero.

The relationship between the Federal Public Defender's Office for the District of Puerto Rico and PRACDL was built into our own by-laws, by assuring that the Federal Public Defender was a permanent Board member of PRACDL. Article III, Sec. B of PRACDL's By-Laws establishes that:

The Board shall consist of nine (9) directors. One of the directors shall be the Federal Public Defender or a designee, provided that this person fulfills the requirements set forth in section D(6) of Article II of these by-laws. The remaining eight directors will be elected by the members eligible to vote at the annual meeting.

After all, it was at the Federal Public Defender's Office in Old San Juan where a group of nineteen criminal defense lawyers met for a number of days to organize PRACDL. Joe Laws and I also met with Alan Ellis -then NACDL's President- who traveled to Puerto Rico to assure that PRACDL got off to a good start.

We have grown, and that special relationship between PRACDL and the Federal Public Defender's Office has continued. We co-sponsor CLE courses, and try to always maintain a common front in addressing issues in which there is a commonality of interest, such as addressing concerns with the U.S. District Court and the U.S. Attorney's Office to help us in our work. As the Federal Public Defender, Joe Laws has been instrumental in maintaining this common front to the problems facing all criminal defense lawyers practicing before the District of Puerto Rico. Because he has worn the various hats of an Assistant Federal Public Defender, a private practitioner and more recently that of the Federal Public Defender, Joe has made it a point to look out for the well-being of all. Even as a member of the Court's CJA Committee, where I have the privilege of serving with him, he has always looked out for the interests of CJA Panel members, understanding the problems we face, while at the same time constantly insisting that CJA Panel members must be highly qualified.

I will be writing my comments in support of Joe's reappointment as the Federal Public Defender with pleasure, and I invite all criminal defense lawyers practicing in our district to take the time to write their own comments as well.

District of Puerto Rico Administrative Order re: Implementation of Crack Retroactivity Guideline

Chief Judge José A. Fusté, District of Puerto Rico, has entered an Administrative Order dealing with the implementation of the Crack Retroactivity Guideline in the District of Puerto Rico. See Misc. No. 08-31 (JAF) (Dkt. 1).
 

Sentencing Guidelines Seminar

The U.S. District Court for the District of Puerto Rico will be sponsoring a Sentencing Guidelines seminar on August 5, 2005 from 9:00 a.m. to 4:00 p.m.  If you want to make sure your seat is reserved, send an e-mail to Carmen Serrano with your full name and District Court Bar Number as soon as possible (no later than July 26th 29th),* since there are space limitations. It will be held at the Los Chavales Banquet Room and lunch is on the Court. Here is the Notice to Counsel announcing the seminar.

The speakers will be from the U.S. Sentencing Commission, so I imagine that's why it is a sentencing guidelines seminar rather than a sentencing seminar. Then again we had our great Booker and Crawford seminar earlier this year with great speakers.

* Update: The deadline to register for the Sentencing Guidelines Seminar has been extended through Noontime July 29.

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.
 

PRACDL Request for Sentencing Information

All PRACDL members are urged to submit information as to each sentencing  hearing they attend, so as to give us all a better idea  of how Judges are sentencing post-Booker. The following information will be helpful:

• Offense
• Judge
• Nature of plea agreement (if any), i.e., type C, etc., and sentencing recommendations agreed to
• PSR's Guideline Computation (including Criminal History Category)
• Judge's Guideline Sentencing Range Calculation
• Sentence imposed (including any particular reasons stated by the Court if the sentence varies from the advisory guideline's sentencing range)
• Indicate whether the case went to trial or not

Please send an email with this information to PRACDL (email link at top left sidebar). This will be helpful to all of us.  We will organize and disseminate the information to all members periodically.

PRACDL Seminar on Booker & Crawford

PRACDL will be holding a one-day seminar on the application of Booker and Crawford on February 24, 2005 from 8:30 a.m. to 5:00 p.m. at the amphitheater of Inter-American University School of Law.

The guest speakers for the seminar are nationally renowned judge and attorneys:

• The Honorable Nancy Gertner, U.S. District Judge, District of Massachusetts - a member of Sentencing Law and Policy's Sentencing Judges Hall of Fame; see also PRACDL's posts on her opinion in U.S. v. Mueffleman, et al. (D.Mass., July 26, 2004): Guidelines Unconstitutional  and Not Severable - Judge Nancy Gertner and on her Order for Empanelment of 2 Juries for Capital Case: One non-Death-Qualified for Guilt Phase, the Other Death-Qualified for Penalty Phase in United States v. Darryl Green, et al.,Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004), with a further post on her Additional Findings to Justify 2 Juries for Capital Case.

• Peter Goldberger, of Ardmore, Pennsylvania - Just to mention a few of the good things about Peter, he was one of the players in NACDL's amicus brief in Booker and Fanfan.

• Richard Strafer, Miami, Florida - Many will know of him from having  played a leading role in NACDL's amicus brief in US v. Fermin Hilario, No. 00-1406 (1st Cir. July 17 2000), but his claim to recognition reaches far beyond that.

These are three speakers who should provide some very interesting insight in subject areas that are of great importance to all criminal defense lawyers.

This seminar is being co-sponsored by the U.S. District Court for the District of Puerto Rico, and all CJA Panel members who attend will receive CLE accreditation.

Here is the PRACDL Booker / Crawford Seminar flyer. You should confirm attendance either by e-mail or by telephone (both e-mail and telephone listed in flyer).

It is very likely that most Judges will not schedule any criminal matters for this day, so as to allow as many in the defense bar to attend the seminar.

Attorney's Lounge Now has Internet Access

The District Court has today sent out a Notice that it is now providing free internet access in the Attorney's Lounge.  That is very good news. But like the spoiled kid who can never be satisfied, I can only wait for the Courtrooms to have WiFi or some other internet connection. After all, a lot of money was spent in making all the courtrooms have much of the latest tech-tools, so why not take the final step?

PRACDL Lawyer's Assistance Strike Force in Action

PRACDL's Lawyer's Assistance Strike Force moved into action a few days ago in the case of US v. Adalberto Brito, Crim. No. 03-146 (DRD). Attorney Juan R. Acevedo-Cruz filed PRACDL's Motion to Intervene, and attorneys Linda Backiel and Rachel Brill filed a Motion to Vacate Order for Hearing and for Other Relief on behalf of counsel Esther Castro-Schmidt. Both motions have been added to the sidebar under "PRACDL Lawyer's Assistance Strike Force" and the background facts are detailed in the Motion to Vacate Order for Hearing and for Other Relief.

You will realize that the Government is simply acting improperly in seeking this investigation, and has -in my view- abused the Court's trust by misleading it and seeking an unfounded and vindictive investigation. The matters raised involve not only the Government's obviously vindictive purpose, but also -and likely more important- the defendant's right to counsel of his choice.

Note: If you have trouble opening the Motion to Vacate Court Order for Hearing and for Other Relief, just try reloading the page, and if that does not work, email PRACDL  and we will send you a copy. For some reason I was able to open it in Acrobat Reader when I got it, but had a hard time opening it from the link after uploading it.

Wrong severability analysis, again --and-- why would you use an unconstitutional guideline as advisory?

I have been informed that Judge García-Gregory has held that Blakely applies to the sentencing guidelines and has held them unconstitutional in their entirety, but will use them as, well, "advisory." This is all hearsay information, but Rachel promised a real run-down on each Judge's stance and I'm still waiting for her report to be posted.

Now, why would a Judge use the guidelines as "advisory" if he finds them unconstitutional? What exactly does a Judge mean when he says he will consider the guidelines as "advisory"? And I have a further question: Why is the severability analysis being done solely on the sentencing guidelines, rather than on the statute (the Sentencing Reform Act)? If we view the guidelines as agency regulations, the ususal thing that happens when the Courts examine a regulation and find it unconstitutional is that they simply they simply discard it, period. The agency will come up with a new regulation that will comply, or none at all. And if the Courts do any severability analysis it is not within the regulations themselves, but in the statute, here the SRA. So why are all these courts not doing this? Am I missing something here?

And to say you will continue to use an unconstitutional regulation as "advisory," to me, is highly questionable. Will the Court be advising all defendants that in their case the guidelines will not apply at the time of a change of plea? This is doublespeak. It reminds me of the responses to the assertions that the guidelines penalized the exercise of the right to jury trial: "Of course not. The guidelines merely recognize acceptance of responsibility as a factor that merits a lower sentence."

Cell phones at the US District Court

PRACDL is in the process of requesting approval of the use of cell phones by counsel in the courthouse lobby for emergencies and to simply contact one's office an take care of other client-attorney matters. We strongly feel that if prosecutors and federal public defenders can have such privilege, panel and non-panel defense counsel should be entitled to equal treatment. We will be updating this notice.