The McMichaels Deal
Travis and Greg McMichaels were sentenced to life without parole in November in state court in Georgia for murdering of Ahmaud Arbery. They are charged in the Southern District of Georgia with federal crimes arising out of the same conduct.
Yesterday (that being Sunday, January 30, 2022) the Government announced (pdf) that the parties had reached a plea agreement. The details of the agreement were not released, but the plea was to be under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Under a “C” plea, the prosecutor may
agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
It appears that the agreement was to a specific sentence—thirty years. The judge rejected that, because
I can’t say that 360 months is a precise … fair sentence in this case. … It could be more, it could be less, it could be that. But given the unique circumstances of this case and my desire to hear form all concerned regarding the sentencing before I pronounce sentence, I am not comfortable accepting the terms of the plea agreement.”
If you listened to the lawyer for Arbery’s family, you’d know that the plea agreement included an agreement that the McMichaelses serve their time in federal prison first, and that that was why the family blew up the plea agreement:
But the judge does not appear1 to have mentioned any agreement as to where the sentence will be served, and Rule 11(c)(1)(C) does not permit a binding agreement as to such a term.
And while one of Travis McMichaels’s lawyers expressed the hope that the federal plea would allow Travis McMichaels to serve his 30 years in federal prison …
… this is not the way things work in federal court.
The State of Georgia has primary jurisdiction over the McMichaelses because it detained them first, and did not thereafter release them. If the feds had filed a detainer and Georgia had let the McMichaelses out of jail (for example, on bail pre trial) then the feds would have primary jurisdiction. Instead, the state held them through sentencing, and the feds borrowed them from the state under a Writ of Habeas Corpus Ad Prosequendum (“WHCAP”). That order expires, at the latest, when post-trial litigation is completed, which could be four or five years.
The rule is that a defendant serving sentences from separate sovereigns does his time first in the prison of the sovereign (state or feds) with primary jurisdiction, and only transferred to the prison of the other sovereign when he is released from the prison of the first.
In other words, because they were in Georgia custody when the federal court borrowed them with a WHCAP, the McMichaelses will start doing their time in Georgia prison. Only once their Georgia sentences are up (“never”) will they be transferred to federal prison.
They might get credit on their federal sentences for their time in state prison: if the federal judge requests that the federal sentence run concurrently with the state sentence, the Bureau of Prisons will honor the request (the borrowing court, and not the court with primary jurisdiction, gets to decide whether the sentences are concurrent).
Exceptions to the rule exist (pdf):
There are several ways the Federal Bureau of Prisons may accept a prisoner in
primary state custody. First, under a contract pursuant to 18 U.S.C. § 5003, the state
authority could request transfer of the prisoner to federal authorities with the
understanding that the cost of incarceration [be] reimbursed to the United States. A
request to transfer under a contract is usually initiated by the correctional authority of the state with primary jurisdiction. The existence of a contract between the state in question and the Bureau must be determined. Secondly, the United States Attorney's Office may sponsor the placement of a state prisoner in the witness protection program under 18 U.S.C. § 3521. Finally, the Federal Bureau of Prisons will accept a state defendant when the state authorities relinquish primary jurisdiction by parole, bail, dismissal, etc.
A contract between Georgia and USBOP pursuant to 18 USC § 5003 would not be part of a plea agreement between McMichaels and USDOJ.
The USAO is not going to sponsor either McMichaels into the witness protection program. It’s extremely costly and difficult, and is not a perquisite handed out to induce guilty pleas.
And Georgia authorities are not going to relinquish primary jurisdiction—they cannot. Even if they could and were going to, that wouldn’t be part of a plea agreement between McMichaels and USDOJ.
Even if the U.S. Attorney wanted to make a deal that included the state relinquishing primary jurisdiction to the feds, and even if they could, and even if they did, that deal would not be binding on the court. Rule 11(c)(1)(C) has a short list of things that the prosecutor can bind the court to, and “where the defendant will serve his sentence” is not one of them.
So there is zero chance that the description of the effect of the federal plea agreement by Arbery’s family’s lawyer Lee Merritt (who happens to be running for Texas Attorney General) is accurate.
Below the payline: What I think is really happening here.
Charlie Jones Case: Game Over
Before I took the case, I wrote to the District Attorney on January 21, 2019:
Kim,
Happy New Year to you.
Charlie Jones is a 55-year-old black man whom you are prosecuting in cause number 2207538 for misdemeanor harassment because he called the Houston Police Department Auto Theft Division too many times to try to get them to pursue charges on what he considered the theft of a vehicle.
A copy of the Complaint is attached.
Your office is applying the harassment statute to punish someone for petitioning the government for redress, which is protected by both the U.S. and Texas Constitutions.
If your office is going to defend this unconstitutional use of its power in court and in the press, I will come on the case.
If, on the other hand, your office is going to remind the police that being annoyed by the customers is part of their job, please dismiss this thing before I have to spend any more time on it.
Let me know.
Thanks,
MB
Kim responded:
Mark,
We”lol [sic] look at the case and one of our prosecutors will contact you.
I am out of the office on a family emergency, so I don’t yet know who it will be but I will make sure it’s someone in leadership.
The decision will be evidence based.
Best Regards,
Kim
Nobody ever contacted me.
I filed an application for writ of habeas corpus, the Chronicle wrote about the case, the trial court denied relief, I appealed, the Court of Appeals affirmed, Lane Haygood and I filed a petition for discretionary review. That’s been pending for 18 months now; the issue—the constitutionality of Texas’s Harassment statute, section 42.07 of the Texas Penal Code, is at issue in several other cases now before the Court of Criminal Appeals.
Now, three years after my initial letter asking Kim Ogg to take a look at it, someone in that incompetent District Attorney’s Office has taken a look at Charlie Jones’s case, and dismissed it.
The Court of Criminal Appeals and Separation of Powers
Another incompetent state lawyer, Texas’s Attorney General Ken Paxton, has called on his supporters to pressure Court of Criminal Appeals Judges over their opinion in State v. Stephens:
"Call them out by name," Paxton said in an interview on the show of Mike Lindell, the My Pillow CEO and prominent Donald Trump supporter. "I mean, you can look them up. There's eight of them that voted the wrong way. Call them, send mail, send email."
Not only does calling on people to communicate ex parte with the court violate Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct …
Rule 3.05. Maintaining Impartiality of Tribunal
A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;
(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:
(1) in the course of official proceedings in the cause;
(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;
(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
(c) For purposes of this rule:
(1) “Matter” has the meanings ascribed by it in Rule 1.10(f) of these Rules;
(2) A matter is “pending” before a particular tribunal either when that entity has been selected to determine the matter or when it is reasonably foreseeable that that entity will be so selected.
… but it’s going to entrench the judges of the Court of Criminal Appeals—probably the rightmost appellate court in the country, a Republican stronghold for decades—even more deeply. Nobody in Texas wants to be seen being pushed around by this slackjawed moron.
As always, Paxton should have kept his mouth shut and let smarter people do the work.
Paxton’s motion for rehearing, asking that the Court of Criminal Appeals change its (8–1) mind, drew several amicus briefs, including one from fourteen of Texas’s 31 senators, and the Lieutenant Governor:
Both the Attorney General and district attorneys are attorneys in the courtroom and thereby participate in the judicial branch of government. Both civil courts and criminal courts are part of the judicial branch. To claim that the Attorney General is violating the separation of powers clause because the Attorney General prosecutes in both the civil and criminal courts is factually incorrect. There is no separation of power issues between the Attorney General and district attorneys in regard to the enforcement of election crimes. Separation of powers between the Attorney General and a district attorney cannot be the reason to prohibit the Attorney General from prosecuting election crimes.
The Senators confuse “going to court” with “belonging to the judicial branch” (actually Judicial Department, according to the Texas Constitution). They confuse the argument that the Legislature violated the Separation of Powers Clause by purporting to give the Attorney General powers that the Constitution does not allow it to give him, with a claim that the Attorney General is violating the separation of powers clause. And they confuse “is” with “are.”
Perhaps they too should have let the smart people work.
When the Court of Criminal Appeals last held that a statute related to the Attorney General violated separation of powers, in 2013’s Ex parte Lo, the Texas Legislature amended the Texas Constitution to give the Legislature authority to pass that specific statute. I expect that the same will happen here: when they next meet, the Texas Legislature will adopt a ballot measure giving the Attorney General authority to investigate and prosecute violations of the Election Code, and the voters of Texas—who already think the Attorney General is the chief law-enforcement officer of the state—will shrug and pass it.
History Repeats
A man is charged with murder for a killing caught on camera. His family hires a high-profile California personal-injury lawyer to represent him. The lawyer, who has no criminal-defense experience, takes the case for a small fee and the likelihood of publicity. He screws things up.
No, not Kyle Rittenhouse. This dude. He was sentenced to death, but his case was reversed on appeal, and he died awaiting retrial:
Rittenhouse’s Bail
There was some dispute, remember, about the two million dollars in bail money that had been deposited on Kyle Rittenhouse’s behalf in Kenosha, Wisconsin. Now that Rittenhouse has been acquitted, his bail is discharged, and that money has to be returned. But to whom?
John Pierce, Rittenhouse’s high-profile California personal-injury lawyer, held the receipt.
Lin Wood, Rittenhouse’s Georgia rightwing-grifter lawyer, claimed an interest in the bail.
A hedge fund out of Nevada, which had loaned Pierce $2.5 million in litigation financing, claimed an interest in the bail (error-riddled pdf). The hedge fund claimed Pierce’s interest in the bail money.
Judge Schroeder told them to go home:
The Patent and Trademark Hedge Fund Trust filed a motion Thursday laying claim to the $2 million. The fund's co-trustee, Mariel Johnson, argued in an affidavit that the fund had given as much as $2.5 million to Pierce to finance his cases and has been trying to recoup the money after Pierce's law firm dissolved. Johnson noted that the fund gave him $300,000 to put toward Rittenhouse's bail and is entitled to every dollar Pierce used to cover Rittenhouse's bond.
Schroeder denied the motion, ruling that the fund's attorneys aren't licensed to practice in Wisconsin.
By agreement, the bail money will be split between Rittenhouse’s trial lawyers, and Wood’s #FightBack Foundation, with $150,000 to actor Ricky Schroder, who had contributed to the bail fund.
Lukla
My brother, Dad, and I flew in and out of Lukla on one of these Twin Otter airplanes on a trek in the Everest region in 1987:
Gratuitous Home Espresso Photo
The machine is a Flair, like this. It’s a lovely addition to my morning routine. Highly recommend.
“Seeing That Justice Is Done”
Prosecutors are told that their duty is to do justice:
Consider: your average Texas prosecutor is maybe 30 years old, went from high school to college to law school to government service. What does she know about justice?
Maybe she’s got a career-prosecutor mentor in the office. 35 years old, went from high school to college to law school to government service. What does he know about justice? Nothing. That’s what they know about justice.
I subscribe to Clarence Darrow’s view of justice:
We have heard talk of “justice.” Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves—whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.
Knowing how to justly punish strangers would require godlike wisdom, and the belief that you have such wisdom is hubris. We may be able to identify injustice—as when, for example, someone is punished for something that someone else did—but that ability does not translate to the wisdom to know what justice is.
Stories become memories
The truth cannot endure the lies your tell yourself. If you tell yourself a story enough times, it will become true to you. The narrative becomes the fact; feelings become knowledge.
If you are a 25-year-old baby prosecutor, told to do justice but with no guidance on what justice is, you will do what feels right to you, and call it justice. Soon “justice” will be “what feels good to you”—which, since you were prosecutorially inclined in the first place, might be “hurting people,” or might just be “doing the things that your supervisors reward.” When you are the mentor, this is what you will teach your protégés.
Why is this topic worth my attention?
The Word of the Year a few years back was attention. I try to come back to it occasionally. Why am I paying attention to what I’m paying attention to? Does it make me better? Make my world better?
Does it entertain or educate me?
Not only that, but could I be spending the attention on something else that would be more rewarding?
I don’t spend a lot of time making this administrative judgment, but it’s a concern.
Applying statistics to individual cases
Statistically, the more guns there are, the more shootings there will be and the more people will require expensive healthcare, which we all will pay for one way or another.
If I own a gun, safely stored, how does it change the likelihood that I or mine will get shot? It does not. If I never shoot anyone (I promise not to unless absolutely necessary), how does it raise the cost of healthcare for you and your family? It does not.
Statistically, a 200-mile drive is thirteen times as likely to kill a person as an airline flight of any length. Should this affect my behavior? Well, it does not. The odds of my dying on a 200-mile drive with a random driver, about one in 4,500, are not enough for me to pay a lot of attention to; and I pride myself in being a safer-than-average driver.
Of course, everyone prides himself in being a safer-than-average driver, and more than half of them are wrong. But this is a better way of seeing the world than the idea that the statistics apply to you and me and there’s nothing we can do about it.
“Your gun ownership affects me because that’s what the statistics say” is magical thinking. Your statistics don’t affect me because I am high in conscientiousness (except sometimes when it comes to writing this newsletter) and high in competency.
Everyone should aspire and strive to be high in conscientiousness and competency, and if everyone were more conscientious and competent, everything would be less dangerous.
So maybe instead of spending your attention trying to get other people to comply with the statistics, pay some attention to getting better at life, and encouraging others to do the same.
Special interest does not translate.
Andrew Branca has a great deal of knowledge about the law of self-defense, less about other aspects of trying a murder case. He writes “that Alec Baldwin could be looking at life in prison for his having shot dead Halyna Hutchins.”
“I’ll preface this analysis,” he writes, “by noting up front that it involves the making of inferences from Alec Baldwin’s infamously poorly-controlled temper over a period of many years.”
The idea is that “it may be reasonable to infer from Alec Baldwin’s infamous history of poor anger management that his manipulation of the firearm that led to its (presumably unintentional) discharge was itself an intentional act done out of anger and frustration, and not merely some kind of an accidental slip of the trigger finger or thumb.”
At this point the trial lawyer says, “Whoa there hold it,” and whips out Rule 404 of the Rules of Evidence—New Mexico’s Rule 11-404:
RULE 11-404. CHARACTER EVIDENCE; CRIMES OR OTHER ACTS
A. Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(a) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(b) subject to the limitations in Rule 11-413 NMRA, a defendant may offer evidence of a victim's pertinent trait, and if the evidence is admitted, the prosecutor may
(i) offer evidence to rebut it, and
(ii) offer evidence of the defendant's same character trait, and
(c) in a homicide case, the prosecutor may offer evidence of the victim's trait of
peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 11-607, 11-608, and 11-609 NMRA.
B. Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. In a criminal case, the
prosecution must
(a) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial, and
(b) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.
Branca’s post is blatantly saying that Baldwin’s character or character trait—poor anger management— is admissible to prove that on a particular occasion Baldwin acted in accordance with the character or trait, and that evidence of Baldwin’s other acts is admissible to prove Baldwin’s character for poor anger management in order to show that on this occasion Baldwin acted in accordance with that character.
This is simply nonsense, and any criminal lawyer would recognize it as such. There’s this ecosystem of lawyers—Branca, Viva Frei, Nick Rekieta, and others—who feed off each other’s grift: “Incidentally, I’m a huge fan of VivaFrei’s work generally, so I encourage you to watch the entirety of his video from yesterday that I just referenced, click here for that, as well as to subscribe and otherwise support Viva’s efforts on YouTube, Twitter, Locals, and elsewhere.”
Where there’s grift there’s misinformation. Branca’s generally pretty good about educating people, but when he’s bad, whoo boy he stinks.
White men need not apply
President Biden has announced that his nominee for the Supreme Court seat being vacated by Steven Breyer will be a Black woman.
Five percent of U.S. lawyers are Black; about 40% of U.S. lawyers are women.
The gender breakdown among Black lawyers could be different in either direction: the proportion of Black lawyers who are women could be greater than 40% (because the reduction of obstacles to a Black person becoming a lawyer concomitantly reduces the obstacles to a woman becoming a lawyer) or could be less (because overcoming two independent obstacles is harder than overcoming one). There have, since at least 2020, usually been more Black women than Black men enrolled at Harvard Law School, which is one of the Court’s feeder schools.
Also, the percentage of lawyers who are Black women is likely higher in 2022 than it was in the past. Supreme Court Justices generally have 25–35 years of experience when they are appointed. Justice Thomas was 17 years out of law school when he was appointed. Seventeen years ago, Black lawyers constituted 3.8% of the U.S. lawyer population.
Black women might be qualified for the Supreme Court in higher proportions than white or Asian or Hispanic men or women, because they had to be smarter to get where they are—I know a lot of truly mediocre white men practicing law—or they might not.
Assuming that Black women are qualified for the Supreme Court in the same proportion as other demographics are, Biden is limiting his selection to about 2% of the otherwise-qualified population. Is that wrong?
Explicitly selecting a Supreme Court Justice based on the color of her skin sends an unfortunate message, I think, about what the court is about. The public is largely under the mistaken notion that more democracy is ipso facto better—a notion that the Founders soundly rejected, and one that should not be encouraged to grow.
The Seventeenth Amendment, which allowed the People to choose Senators, was a mistake because it gave many voters the misconception that their Senators represent them, rather than representing their state. This has led to much public gnashing and rending over the fact that each state gets two Senators, regardless of how many people it holds.
Along with the Senate, the Supreme Court is one of the last antidemocratic bastions of the Republic, a necessary check on majoritarian tyranny.
If “make the Supreme Court look more like America” becomes the norm, will it have a Seventeenth Amendment effect on the voting populace, leading them to believe that the Court represents them? I hope not (and I doubt it) but we’ll check back in ten or twenty years.
(Edit: I spoke too soon. Popular American online clown-lawyer personality Elie Mystal is already calling for the Court to be expanded to “accurately reflect America.” Accurately reflect is not exactly represent, but I doubt that the voting populace will recognize the fine distinction.
)
Even assuming that Biden, with his affirmative action, is eliminating 98% of the (very small) qualified pool, all he needs to do is find one qualified Justice. If that one qualified Justice happens to be a Black woman, that choice ought to cause nobody in 2022 any heartburn.
For that Justice, I want to see someone who has life experience outside government work. Ideally, I’d see Biden choose a Supreme Court Justice who had represented human beings, and had done so in trial. I’d rather he chose a public defender: not since Thurgood Marshall retired in 1991 has the Supreme Court had a criminal-defense lawyer—a real lawyer, you might say—on it. I’d rather he chose a lawyer who’d been a small-firm lawyer. If that lawyer happens to be a Black woman, I’ll be ecstatic: everyone wins!
Meet Judge Ketanji Jackson. Fifty-one years old. Impeccable academic credentials. All the right clerkships, including on the Supreme Court for Breyer. Five years in private practice (my guess is “time away from firms for the kids,” on her own or in a small firm, though it’s not clear). Service on the Sentencing Guidelines Commission (the smartest lawyer I know, Brent Newton, served on the Commission). Trial-court judge. Confirmed by the Senate for the D.C. Circuit (the most-respected appellate court). Appellate Federal public defender.
She looks really good on paper. (Other potential nominees with PD experience: Circuit Judge Candace Jackson-Akiwumi, and Circuit Judge Eunice Lee.)
A lawyer who has stood up against the government for human beings will, I hope, have a perspective that the Court lacks, will bring that perspective to her opinions, and will make things better for the accused—for the People. So all else being equal, I would prefer a public defender of any race or gender over another government lawyer.
It may be that Biden and his voters would, all else being equal, prefer a Black Woman government lawyer over a public defender who doesn’t tick those demographic boxes. They may think that the perspective that a Black woman brings to the Supreme Court qua Black woman will make things better for the People.
I could be wrong—Judge Jackson’s stint as a PD may have been a cynical résumé-builder, her heart may actually be in prosecution, and so forth—those who think that a Black woman will make the Court better for the People are likely to be wrong. In Judge Jackson’s words:
“I don’t think that race plays a role in the kind of judge that I have been and that I would be, in the way that you asked that question,” Jackson responded. She said her race “would be inappropriate to inject in my evaluation of a case.”
Jackson did say, though, that she felt her experiences, including her different professional background than most nominees and her service as a district judge, “would bring value.”
Below the Payline:
What’s Really Going On With the McMichaels Deal
Black Girl Magic
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