A question about the Justice Safety Valve Act of 2013

In an earlier post regarding the Justice Safety Valve Act of 2013, I suggested that it might be a good idea to make the standard of review on appeal from sentences under the statutory minimum less deferential so as to insure that we trial judges don’t go too nuts.  Does anybody know whether there is any discussion about the standard of review on appeal under the Justice Safety Valve Act of 2013?  If someone has an answer, I would be most interested in knowing the details.  While I am all for lessening the impact of statutory minimums in some cases, I am also very, very concerned that our zeal to do the right thing may have the unintended consequence of injecting even more unwarranted sentencing disparity into the calculus.


On matters of perspective and toilets

As a district judge, and a senior district judge at that, I admit that my perspective on what is important is skewed.  That admitted, I find United States v. Strong, No. 12-1842 (1st Cir., July 19, 2013) utterly mystifying and amazing.

In Strong, the defendant was convicted of three misdemeanors, and received a sentence of seven days in jail, for literally messing up a bathroom in a federal court-house.  He claimed to have a problem with his bowels, but the government saw his conduct in a more malicious light.  This is the way the bathroom looked to the cleaning lady shortly after Strong left the bathroom:

The supervisor of the courthouse’s cleaning company,
Christina Mason, arrived to clean the restroom after receiving a call requesting that it be cleaned. She smelled feces from the hallway, and when she opened the door she could not enter the restroom because feces were on the floor where one would need to step to get inside. The restroom was unusable because it was so soiled. She saw that seventy-five percent of the floor was covered in feces, in chunks. She also saw feces smeared in spots on several walls in different areas. In fact, some of the feces were
smeared more than two feet up on the walls. Feces were smeared on the paper towel and toilet paper dispensers, on the toilet paper itself, and on part of the toilet seat and the left side of the toilet bowl. There was also urine in the toilet, which had not been flushed; no feces were inside the liquid in the bowl. Mason testified that the feces were not only all over the bathroom but were “smear[ed] in spots,” and not splattered. Strong’s plaid blue boxers, which were covered in feces, were found by Mason draped over the wastebasket where Strong admits he placed them because they were “destroyed.”

The state of the bathroom was so bad that Mason, who had
fourteen years’ experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to clean the restroom. She devised a plan and first used paper towels and disinfectant to remove the feces from the floor. She then cleaned the restroom three times with a bleach and water solution, and discarded the soiled underpants, the potentially soiled rug that had been outside the restroom, and the clothes she had been wearing using a biohazard bag.

Id. at slip op. pp. 5-6.

Strong appealed. If you include the dissent, and the photographs attached to the decision, the discussion on whether the defendant had been proven guilty goes on for 57 pages.  Two judges voted to affirm the conviction, and one judge voted to reverse.

I don’t know much.  But I do know this:  No misdemeanor case about a soiled toilet and a seven-day jail sentence is worth 57 pages of attention from a United States Court of Appeals. That’s true even if you, like me, are a freak about toilets.


PS.  Thanks to How Appealing (July 23, 2013).

More on Federal Public Defenders and the sequester

If you care about federal criminal law, please read “Sequestration’s Biggest Victim: The Public Defender System.”  It appeared in the Huffington Post yesterday.  While the Huff Post is not my favorite, the article is a very good one, and well worth reading.


Mobster machines and a federal trial judge who loves them

I love history and I love old cars.  I particularly enjoy reading history about mobsters and their snazzy machines.

Al Capone drove an armored 1928 Cadillac until he lost it to the feds after a tax trial. President Franklin D. Roosevelt used that confiscated machine shortly after Pearl Harbor and until 1942. Before that, the President’s vehicle was just a regular car.  After the beginning of the War, the Secret Service worried that German or Japanese assassins might try to kill the President.  So they took Al’s car out of federal storage. Then, they devoted it to the protection of the President.

The story is told here and the photo below of that wonderful vehicle is credited to Federal Times.com.

1928.cadillacI have my own version of Al’s wonderful machine.  The 2005 Cadillac is pictured below.  I just bought the used beauty with about 10,000 miles on it. If I told you that I bought it from a mobster, you might not believe me.  So, let’s leave the origin to the mists of time.  (Truth be told, I stole it from an old lady with whom I am related by marriage–I have no shame.)

Anyway, displaying the photo will probably drive our judicial security guy absolutely crazy, but have no fear. Just like 1928 Cadillac, I am pretty sure my 2005 Cadillac is armored.  It certainly drives that way.

But even if it isn’t able to withstand a rocket-propelled grenade, no sane person could pass up a dark blue buggy that is roughly the size of the Titanic particularly when you realize that it is adorned with faux gold ornaments, gold striped tires, and a ridiculous but really cool tan cloth top featuring a string of wonderfully garish “golden” snaps. Capisce?


photo (1)

When the money ends

I have given Vince, a really great local plaintiff’s trial lawyer and all around good guy, a bunch of grief about why civil jury trials are drying up in federal court. I lay the “blame” mostly on changes taking place in the legal economy. OK, for a moment, let me get off Vince’s back.

If civil jury trials are drying up in federal courts, what is going to happen to the high and mighty defense firms?  For a penetrating review of “big law” and the fear that the economy as it regards lawyers has fundamentally changed (and not for the better), please read the utterly absorbing cover story The Last Days of Big Law: You can’t imagine the terror when the money dries up in the New Republic issue out today on the news stands. Noam Scheiber wrote the piece. He is a wonderful writer and a brilliant fellow.

The times they are a changing. Plaintiffs’ lawyers are not the only ones that should fear the coming “dark ages.”


PS Hat tip to How Appealing (July 21, 2013).

Riding the rails

Photo credit: http://www.ganzelgroup.com/

Photo credit: http://www.ganzelgroup.com.  Lincoln, Nebraska rail yard with Capitol in the background.

My family has been involved with railroads for a long time. Brother Kip was a locomotive driver all of his professional life. My nephew followed his dad and “steams” up and down the rails between Chicago and Pittsburgh as we speak.  The man I regarded as my grandfather (Gordo was his nickname) served as a brakeman.  (He was also adept at taking vacations on the railroad under the FELA, but that’s another story.) I worked in the rail yards walking among the moving cars helping the trainmen make up trains.

Rail yards are very dangerous places, particularly for transients. My brother remains troubled by the transient he ran over and killed as the sad drunk lay on the rails as Kip pulled a two-mile long coal train into the yards one dark night.  Even at very slow speeds you can’t stop a train quickly even when the huge high beam clearly framed the poor guy’s drunken body in the stark glare hundreds of yards ahead. A blaring, but ignored, horn simply punctuated the horror.

Yesterday, in the Lincoln Journal there was a story about a transient and the railroad.  The article was short, but poignant.  I reproduce it in toto here:

July 20, 2013 11:27 am • By the Lincoln Journal Star

A transient man lost his right hand and was likely to lose a foot after being dragged 400 feet by a Burlington Northern Santa Fe train in west Lincoln early Saturday.

The man, who is 23, was in critical condition but is expected to survive.

Police say he was with a woman and two dogs when one of the dogs, a puppy, ran under a stationary train west of the Hobson Yard shortly before 2 a.m. The man reached under the train, which then started moving.

The woman accompanying him was able to flag down a person on the train.

The train severed the man’s right hand, causing serious damage to his right arm and left leg and foot, Lincoln Police Capt. Michon Morrow said.

Morrow said she wasn’t sure where the man is from. The 24-year-old woman who was with him is from New York.

The puppy is OK, Morrow said.

There is good in the world. We sometimes find that good in very odd places. In our cynical business of the law, little stories like these are worth savoring. They are good for our poor depleted souls.


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