Crime & Federalism

Today, a 8-0 Court issued its opinion in United States v. Grubbs (here), a case touching on the use of anticipatory search warrants.  What's an anticipatory warrant?

An anticipatory warrant is a search warrant that is issued before probable cause exists.  Usually some condition will establish probable cause and thus "trigger" the warrant. Thus, as issue in Grubbs was this simple question: Given that the Fourth Amendment does not allow warrants to issue "but upon probable cause," are warrants that are issued before probable cause exists constitutional?

This seemed like a pretty simple question.  No warrant issued before probable cause was established complies with the Fourth Amendment's Warrant Clause.  Justice Scalia, a "textualist," reached the opposite conclusion.  What is most amazing about his conclusion is how he reached it.  Rather than analyzed the Fourth Amendment's text or structure, he writes:

Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, “anticipatory.”

That's disingenuous to say the least.  At the time a traditional search warrant is issued, there actually is probable cause to believe some crime has been committed.  At the time an anticipatory search warrant is issued, there actually is not probable cause to believe a crime has been committed.  We all recognized the difference between "is" and "is not," right?

So an anticipatory search warrant is issued in anticipation of probable cause.  Which means before there is probable cause.  A traditional search warrant is issued in the presence of probable cause.  Get that, Scalia?  It's really very easy when you're trying to be honest.

Or perhaps Scalia's been reading books on quantum mechanics and thus believes that probable cause now is the same as probable cause in the future?  Who knows? 

Whatever his reasons, this case is utterly bizarre.  It's one of the most poorly reasoned and disingenuous judicial opinions I've seen in my lifetime.  The next time someone proclaims the Power and Glory of Nino Scalia, I'm going to ask them to reconcile Grubbs with any understanding of textualism.

Today in United States v. Quattrone (here), a unanimous three-judge panel of the Second Circuit not only overturned Frank Quatrone's conviction; it also ordered that a different trial judge hear the case.  Judge Richard Owen of the Southern District of New York would not be allowed to preside over Frank Quattrone's re-trial.

The panel was quick to point out that Judge Owen was a "dedicated jurist" who wasn't really that biased against Frank Quattrone or John Keker.  (Insiders and those familiar with the case are collectively sighing, "Yeah, right.")

Among other evidence demonstrating Judge Owen's biased behavior, Quattrone's appellate lawyers cited a significant amount of press coverage indicating the media's widely-held believe that Judge Owen was biased.  Although these reports do not prove that Judge Owen was actually biased, they are strong evidence that Judge Owen did not appear impartial.  An ethical judge must be both impartial, and appear to be impartial to reasonable observers.

Of the numerous media reports cited, the panel writes: 

In attempting to argue that numerous media commentators noted the allegedly biased conduct of the trial court judge, Quattrone cites only one newspaper article in the text of his Opening Brief though he collects others in a footnote. 

I'm not sure why the panel expected Quattrone's appellate lawyers to waste precious pages with the exact quotes, given that the judges' law clerks all have access to Lexis-Nexis.  In any event, the panel's footnote omits a material fact (where's the SEC's equivalent for judges?): New York's criminal defense bar cited and quoted numerous articles discussing Judge Owen's unethical conduct.  Simply click here for a collection of citations and quotes from commentators.  Why didn't the panel cite this brief or quote any relevant language?

I suppose it was easier for Judges Wesley, Hall, and Scullin to pretend that that no evidence of judicial misconduct existed, rather than properly and publicy note Judge Owen's judicial misconduct.  For that, Judges Wesley, Hall, and Scullin are almost as worthy of our disapprobation as Judge Owen is. 

Remember, Quattrone, like Martha Stewart and so many others, was prosecuted for the cover-up, not the crime.  It is therefore quite odd that three judges would so quickly cover-up Judge Owen's unethical conduct.

Peter Henning has this excellent summary of the exciting news.

On the heels of stories showing that TSA lawyer Carla J. Martin obstructed justice, violated a sequestration order, and coached witness, comes this memo.  Given to state workers about to testify in DUI trials, prosecutors tell witnesses exactly what to say.  Check it out.

The Miami Hearld has an interesting article on a newish twist on the oldest profession.

I couldn't have said it better myself, so I won't say anything myself.  Check out this post instead.

The nation's most high profile 27-year-old attorney, or so he says.

http://www.myspace.com/robbadonis

Res ipsa ...

Steve Dillard, who blogs as "Feddie" at Southern Appeal, is a Catholic, a Federalist Society member, and a friend of Judge Pryor.  He also just won a pro bono appeal for a criminal defendant.  You mean a person doesn't have to be a left-wing hack to fight for criminal defendants?  Go figure!  Congrats, Steve!

X is a talented and respected businessman, and a member of a local community board. He is not an American citizen.

Politics in his community are vicious. A local gadfly pushed things to the limit for months. One night, while traveling out of state, X does something foolish. He creates an internet account in a false name, and sends the gadfly a frightening and threatening internet message. The gadfly runs to the federal government, and FBI agents connect the threat to X. Before X lawyers up, he admits sending the message and conveys his regret to federal agents.

What crime?

Prosecutors reach out to ask for a waiver of indictment. X is in his forties, has no criminal history, supports seven children, and has a very responsible job. On a plea, he is almost certain to walk.

But the only crime the federal penal code appears to define that fits these facts is a felony, 18 U.S.C. Section 875(c), calling for imprisonment of up to five years for any transmission in interstate commerce of "any communication containing any ... threat to injure the person of another." X cannot plead to this felony, however, without facing deportation to his country of origin.

There is something seriously wrong with this picture. X made a mistake, and admits the error. But should he face deportation, should the seven children he supports be deprived a father, because of an offense that even the prosecution agrees ought not to carry prison time?

The federal penal code is top-heavy. Absent within it is the flexibility of state penal codes, recognizing that some errors should carry minor consequences. It is almost as though Congress does not want to be bothered defining mere misdemeanors.

We have thus far refused to accept a plea to a felony, and have met with senior prosecutors to try to reach a compromise. As yet, all we have found is a state statute defining second degree harassment, a misdemeanor. X would plead to that this moment, if he could get it.

Federal prosecutors have agreed in principle that a felony is too much in this case. We meet again today once more to try to come up with a solution that makes sense. It would be a pity to have to try this case merely because the consequences of a plea are as devastating for X's family as a conviction.

This letter (via Orin Kerr) is funny for two reasons.  First, what type of person hires a lawyer when he's rejected from law school?  Second, what type of lawyer writes so poorly?