Thursday, October 20, 2016

Bigly delay results in dismissal

Kudos to Judge Scola for dismissing this case (order here) based on speedy trial grounds and to defense lawyer Sam Rabin for raising the issue. We need more judges who are willing to check the government's overreach.  The Herald covers it here:
The judge noted that prosecutors filed the indictment more than six years after Tamas Zafir's role in the alleged crime of washing drug proceeds ended in 2009, then let another year pass before he could surrender on the charges in July.
This week, U.S. District Judge Robert Scola said Zafir's constitutional right to a speedy trial was violated because prosecutors delayed his prosecution while they sought the extradition of the main defendant, Nidal Ahmed Waked Hatum. He was arrested in Bogota, Colombia, in May but has yet to be extradited to Miami.
The U.S. attorney’s office wanted to prosecute Zafir and Waked together, leading to the long delay of Zafir’s trial, according to court records.
Waked is a wealthy and well-connected businessman based in Panama who owned a textile company in Miami-Dade and employed Zafir as its manager. The company, Star Textile Manufacturing, which shut down in 2009, had an account with Ocean Bank in Miami.
Zafir’s defense attorney, Sam Rabin, showed the judge that the government had ample opportunity to arrest Waked because he made 19 international flights from Panama to Canada, Panama to China, and Panama to Colombia, where he was finally arrested earlier this year. As a result of the delay in Waked’s arrest, Rabin argued his client was deprived of his right to a speedy trial.
The judge agreed, saying in his order: “The court finds that, based on the record, the reasons for the delay in arresting Zafir — a delay inextricably linked to the delay in arresting Waked — weigh heavily against the government.”
Scola also noted so many years had passed since Zafir shut down the Miami business, Star Textile, that was allegedly involved in laundering drug money from Panama.
“Zafir is now sixty-eight years old and without business records to rely upon, [he] would be hard pressed to remember details from more than seven years ago to present a defense in the case,” the judge wrote.

Read more here:

Wednesday, October 19, 2016

Judge Martinez reimposes 30 year sentence on cruise ship worker

The guidelines called for 14-17 years, and the 11th reversed because there wasn't enough explanation regarding the 30-year sentence for the following facts. Via Paula McMahon:
A former cruise ship worker who sexually assaulted and tried to kill a passenger told a judge Tuesday that he is having a tough time dealing with the violence he sees every day in prison.
Ketut Pujayasa, 31, has already served 2 ½ years in federal prison for what prosecutors said was an extraordinarily cruel and violent attack on the woman during a cruise that left Port Everglades in February 2014.
Pujayasa admitted he used his master key to sneak into the woman's room, hid on her balcony until she fell asleep and then unleashed an astonishingly brutal assault on her.
 The Valentine's Day attack went on for 30 to 60 minutes and included choking her with electrical cords, hitting her with objects from the cabin and trying to throw her into the ocean from the balcony of the moving ship, according to court records.
 This time, the judge imposed the same sentence with quite a bit more explanation:

He said the extra punishment was appropriate because Pujayasa's actions were so extreme and the effect on the victim was so severe, leaving her with post-traumatic stress disorder, obsessive-compulsive disorder, depression and physical and cognitive difficulties caused by her injuries.
Pujayasa will be deported when he is released and would be barred from returning to the U.S.
Pujayasa told investigators he wanted to punish the woman because he believed she had insulted his mother when he tried to deliver breakfast to her room on the Holland-America Line cruise.
He claimed the woman said "son of a bitch" after he knocked three times. The Indonesian native, who worked on cruises for several years, said he thought she was insulting his mother.
He fumed about it for hours and looked for her on the deck of the weeklong nudist cruise, planning to punch her in the face. When he spotted her, he said there were too many other passengers on deck so he changed his plan.
Seventeen hours after the perceived slight, he used his master key to let himself into her room, hid on her balcony and fell asleep waiting for her to return. The woman later wrote that she woke up to a "human shadow trying to kill me with his bare hands."
Prosecutors said the woman only survived the lengthy, brutal attack — which they described as "torture" — because she had unusual physical strength from her training as an aerial acrobat and gym teacher. The woman, who lives in the U.S., filed a civil suit and reached a confidential settlement with the cruise line last year.
Pujayasa, who had never been in any kind of trouble before, apologized again in court, though the victim did not attend his second sentencing.
"I am deeply sorry for all my actions," Pujayasa told the judge, speaking through a court interpreter.
He said he had never hurt anybody before but was incensed by what he considered an insult to his mother, describing her as the person he loves most in the world.
"[Pujayasa] still does not understand that words do not justify these kinds of actions," the judge said.
If the victim said what Pujayasa claimed she said, the judge explained to Pujayasa that it was not intended to besmirch his mother: "She stated a fairly common expression when you stub your toe or get awakened in the night."

Monday, October 17, 2016

Florida death penalty found unconstitutional

Judge Milton Hirsch's order is affirmed.  And Judge Martinez is vindicated.  The New York Times has the story:

The Florida Supreme Court ruled Friday that the death penalty cannot be imposed without the unanimous support of a jury, deepening the recent turmoil around capital punishment in a state with a long history of executions.
One of Friday’s decisions, in a case that previously reached the United States Supreme Court and upended Florida’s death penalty system, said that the Eighth Amendment, which forbids cruel and unusual punishment, and Florida state law effectively mandated consensus in capital cases. The court said in a separate case that a new state law, which allowed for the death penalty when 10 of 12 jurors agreed, was unconstitutional.
“Requiring unanimous jury recommendations of death before the ultimate penalty may be imposed will ensure that in the view of the jury — a veritable microcosm of the community — the defendant committed the worst of murders with the least amount of mitigation,” the Florida court said in siding with Timothy L. Hurst, a death row inmate whose appeal led lawmakers early this year to rewrite the state’s death penalty law.
Referring to a 1958 United States Supreme Court opinion invoking the Eighth Amendment, the Florida court added, “This is in accord with the goal that capital sentencing laws keep pace with ‘evolving standards of decency.’”

Thursday, October 13, 2016

Vote for Pedro!

and for this blog.

and for Rumpole.


Manrique oral argument summary

From SCOTUSblog is here:
For most of Tuesday’s 53-minute oral argument in Manrique v. United States, the Supreme Court seemed caught between two very different ways of looking at the question presented — whether a notice of appeal from an initial judgment of conviction and sentence in a federal criminal case can also encompass a challenge to the district court’s subsequent restitution determination under the Mandatory Victims Restitution Act. On one hand, as Assistant Federal Defender Paul Rashkind argued on behalf of petitioner Marcelo Manrique, there is a longstanding norm that one notice of appeal suffices in criminal cases, so the court of appeals erred by holding that it could not reach Manrique’s challenge to the amount of restitution ordered in his case because he did not separately notice an appeal from that judgment. On the other hand, as Assistant to the Solicitor General Allon Kedem argued on behalf of the United States, the Federal Rules of Appellate Procedure don’t appear to cover such a situation – and it would be unprecedented to allow a notice of appeal to encompass matters that have not yet been determined. And although predicting a result based upon oral argument is always a fraught proposition, the six justices who asked questions certainly seemed to be leaning toward the government’s view by the end of the session.

And here is the transcript.  Paul Rashkind did a great job arguing with a skeptical bench.  Requiring a defendant to file two notices of appeal seems so formalistic and silly to me.  The simply solution is to have one notice that covers both the sentence and restitution.  But I guess that's too easy?

And what's with Justice Breyer -- he has just gotten so crotchety lately.  Yes, he has been really bad for defendants for a while now, but he used to be polite about it.