... and Justice for All: January 2015

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January 2015

January 31, 2015

Federal Judge Resigns in Protest From Forensic Evidence Commission

U.S. District Judge Jed Rakoff has resigned his position on a forensic evidence commission in protest over the Justice Department's interference with the commission's work. Judge Rakoff was the only judge on the commission, whose purpose was supposed to be improving the use of forensic evidence in court proceedings. The Justice Department refused to permit the commission to make any recommendation that the government share more information regarding its forensic evidence and experts prior to trial. The Washington Post reports, U.S. Judge Quits Commission to Protest Justice Department Forensic Evidence Policy.

Judge Rakoff last year authored a somewhat controversial article on Why Innocent People Plead Guilty.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 31, 2015 in criminal justice | Permalink | Comments (0) | TrackBack (0)

Tags: forensic evidence, Judge Rakoff

January 28, 2015

Toxic Pollution of Kentucky's Waters Approved by Sixth Circuit

Selenium is a naturally occurring substance toxic in high concentrations. As a result its discharge into our Nation's waters including our Commonwealth's waters is regulated by the Clean Water Act. According to the Sixth Circuit, "the Clean Water Act is a comprehensive water quality statute designed to restore and maintain the chemical, physical and biological integrity of the Nation's waters." But of course absolutely clean water is impossible so the Clean Water Act allows for issuance of permits allowing the discharge of pollutants like selenium within prescribed limits.

So what happens when (a) a toxic pollutant is discharged into our Commonwealth's waters for which there is no permit; and, (b) those discharges are so high that they would not be permitted in any event? So the discharge is something that could never be legal or permitted. Nothing, a majority opinion of the Sixth Circuit holds today in Sierra Club v ICG Hazard, 13-5086 (Jan. 27, 2015).

The majority opinion of the Sixth Circuit's decision was authored by Circuit Judge Julia Gibbons and joined by Circuit Judge David McKeague, who both were appointed by former President George W. Bush.

Circuit Judge Gilbert Merritt dissented opening his opinion with the following observation:

The majority allows the silence of local Kentucky environmental regulators to turn the Clean Water Act on its head. They do this, despite the undisputed fact that illegal toxic discharges of dirty selenium water occurred, because they believe we must assume that Kentucky's "general permit" tacitly authorizes toxic discharges of selenium.

Here's the problem and what's going in this case. The Kentucky Department of Water chose to essentially sanction the toxic discharges, even though it had not (and could not given the high concentrations of the discharges) granted any Clean Water Act permit. KDOW is vulnerable to political pressure from the Kentucky coal industry so it looks the other way. So too does the Sixth Circuit and adopts the following rule: if you have any kind of permit to discharge toxic pollutants, you can get away with discharging any kind and any amount of other toxic pollutants, no matter that they were not and never could be actually and lawfully permitted. If it weren't already, it is open season on clean water in our Commonwealth.

To be helpful join or contribute to Kentuckians for the Commonwealth.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 28, 2015 in Clean Water Act, toxic substances | Permalink | Comments (0) | TrackBack (0)

Tags: Clean Water Act, Kentuckians for the Commonwealth, Sixth Circuit

January 25, 2015

Should Judges Be Able to Personally Solicit Campaign Contributions?

Before the Supreme Court is a case asking whether judges running for election (or candidates running for election as judges) should be able to personally solicit campaign contributions. The case is Williams-Yulee v. Florida Bar and involves a fundraising letter signed by a candidate for a state court judgeship in Hillsborough County, Florida.

The Court appeared to be having trouble with the reality that campaigns are an actual, real feature of judicial races in those 39 states including Kentucky that have some form of judicial election, appearing to believe that judicial power is special, which means that they think they are special and above reproach.

There are good reports by Adam Liptak for the New York Times, A Judicial Fund-Raising Case Causes Justices to Reflect On Their Own Jobs, and by Amy Howe for SCOTUSblog, Justices Debate Limits on Solicitations By Judges.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 25, 2015 in judicial campaign contributions, judicial elections, justice system | Permalink | Comments (0) | TrackBack (0)

Tags: campaign contributions, judicial campaigns, Scotusblog, Supreme Court

January 24, 2015

What Happens When A Prosecutor Lies Under Oath and Presents Knowingly False Testimony From A Witness?

So far, as this video from an oral argument in the Ninth Circuit shows, not much, but we shall see. You can watch the whole thing but the heat really turns up for this faultless appellate lawyer holding one bad bag of you know what at about 17:00:

Thanks to Hercules and the Umpire.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 24, 2015 in justice system | Permalink | Comments (0) | TrackBack (0)

Tags: Baca v Adams, Ninth Circuit

January 12, 2015

Blood Money - South Carolina Killed A Mentally Disabled Inmate by Holding Him Naked in Solitary Confinement for 11 Days and Will Pay $1.2 Million

Sometimes it is hard to believe the depths to which our humanity can descend -- like when people are killed for no reason other than nobody, including the organs of state government, gives a damn that a human being is involved. The State of South Carolina held Jerome Laudman, a mentally disabled inmate, naked in solitary confinement for 11 days and killed him by freezing him to death -- hypothermia being the cause of death.

But South Carolina has a law that makes sure that it won't be held too responsible for killing people. It will pay Laudman's family a total of $1.2 million in blood money, which is all that the law allows.

You can read about this deplorable story in The State, South Carolina Pays $1 Million Plus To Inmate's Estate After He Died In Custody.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 12, 2015 in justice system | Permalink | Comments (0) | TrackBack (0)

Tags: blood money, South Carolina

January 11, 2015

Unjust Sentencing Guidelines and Ineffective Assistance of Counsel

A prior post discussed Judge Gilbert Merritt's scathing criticisms in his dissent in United States v. Walters of the sentencing guidelines applicable to child pornography offenses, "Injustices That Are Going On Every Day In the Federal Courts." Also very interesting is the concurring opinion of Judge Helene White, who suggests that the defense counsel's failure to raise with the district court the Sentencing Commission's own condemnation of these guidelines could constitute ineffective assistance of counsel:

... Walters' counsel did not bring to the district court's attention, or argue on appeal, that the Commission considers the sentence recommended here to be excessive. In the context of a sentencing proceeding in a child pornography case, competent counsel should be expected to bring to the district court's attention that the Guidelines do not, as in other contexts, reflect the presumed superior expertise and breadth of information of the Commission, and in fact are contrary to the Commission's considered judgment. That, however, is a matter Walters must properly raise in a petition under 28 USC 2255.

This point would appear to apply to the sentencing guidelines applicable to all federal drug cases, since the Supreme Court observed in Kimbrough v. United States, 552 U.S. 85 (2007), that the drug offense guidelines represented departures from the Commission's usual expertise and information.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on January 11, 2015 in justice system, sentencing guidelines | Permalink | Comments (0) | TrackBack (0)

Tags: ineffective assistance of counsel, Judge Merritt, Judge White, sentencing guidelines

January 06, 2015

"Injustices That Are Going on Every Day in the Federal Courts"

Few at most will feel any sympathy for the defendant in United States v. Walters, a child pornography case. But consider the following:

Walters downloaded a group of photos from the large inventory of child porn photos on the Internet. He is not a pedophile. He has not physically abused anyone. He is a young man with a wife and children whom he has not abused. He did not, in fact, past the photos onto anyone else; and he did not, in fact, have anything to do with their production. He paid nothing to download the photos. He did not enter the commercial market for child porn.

What he did is to look at photos that we would find disgusting and criminally produced. For someone to presumably enjoyed looking at them offends us, although we do not know his state of mind for it is a strict liability crime. To assert, however, that the defendants "caused" the production of the photos fabricates "causation." It is a rationalization arising from our discussed and disapproval.

Walters' sentence was 12 years, 7 months (151 months) in accordance with sentencing guidelines that it appears have been condemned by everyone but Congress:

Many of the groups of officials and experts who have looked into the problem of Internet child porn have reached the conclusion that the sentencing guidelines that the District Court and our Court have now enforced in this case should be greatly reduced. Most importantly, these groups include the sentencing commission itself, which has conducted an extensive study and then issued a 350 page Report in 2012 entitled "Federal Child Pornography Offenses." The Report asks Congress to remove the harsh Protect Act provisions that ordered the Sentencing Commission in 2003 to write guidelines recommending to judges the imposition of sentences such as the 12-plus year sentence in this case. The report is based in part on the refusal of a sizable majority of judges to follow the guidelines and the opinion of experts in the field, including psychologists, medical experts and legal scholars who have studied the problem. The Commission's study arrived at the conclusion that the present child porn guidelines have "no rational basis," are "outmoded," not "distinguish adequately among offenders based on their degrees of culpability," and have "enhancements," like the ones in this case, that are "outmoded and disproportionate." The disagreement with the guidelines for nonproduction offenders is widespread. The Report at page xxi concludes in part:

Numerous stakeholders – including the Department of Justice, the Federal Defender community, and the Criminal Law Committee of the Judicial Conference of the United States – have urged the Commission and Congress to revise the nonproduction sentencing scheme to better reflect the growing body of knowledge about offense and offender characteristics and to better account for offenders' varying degrees of culpability and dangerousness.

Unfortunately, the Department of Justice has not adequately communicated its position to its United States Attorneys, and so we keep getting cases like this one.

It seems obvious that nothing is going to soon change the injustices such as this one that are going on every day in the federal courts – unless the courts themselves find a solution that at least ameliorate the problem for the time being.

The foregoing appears in the dissenting opinion of Senior Circuit Judge Gilbert Merritt, who has served -- and served with great distinction -- on the Sixth Circuit since 1977. That a federal appeals judge of this tenure and distinction would refer to injustices going on every day in the federal courts is more than a little disturbing.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com