Vol. 12, No. 38	Covering Cases Published in the Advance Sheets through Sept. 19, 2005

The Reporter's Privilege

• The New York Times case is noted for Judge Sweet’s masterly and comprehensive analysis of the reporter’s privilege under the First Amendment - a timely and topical issue that is coming under increasing attack by the Government as it seeks to establish new secrecy limits for its own activities, but outside the glare and the exposure of the press and the media.

Cuba-5 Defendants Granted New Trial Due to Denial of Change of Venue Motions

• In Campa, the Eleventh Circuit issued a 93-page decision that was highly unpopular in the Cuban exile community in Miami. It ordered new trials for the “Cuba-5" defendants who had been accused of spying on Cuban-American leaders in Miami for Fidel Castro, after concluding they could not get fair trials in the Cuban-dominated community of Miami; and that the district court’s failure to grant their change of venue motions constituted reversible error.

Crack-Cocaine Sentencing Disparity

• In Fisher, Judge Scheindlin of the S.D.N.Y. has joined the chorus of jurists who have condemned the “exceedingly harsh sentences” imposed on those who deal in crack cocaine compared with those who deal in the chemically indistinguishable powder cocaine, particularly because the crack cocaine sentences “are disproportionately imposed on young black males.”

Plea Agreements - Miscellaneous Issues

• In Brown, the Ninth Circuit held when the Government agrees to dismiss charges as part of a plea agreement, but does so without stating that it was with prejudice, the appellate may clarify the intent of the parties to reflect that the counts were dismissed with prejudice so as to bar any later attempt to prosecute the claims that were dismissed.
  
  
  
• In Johnson, Judge Kopf of the D.Neb. concluded that, while judges are normally barred from rejecting or modifying a plea agreement once it has been accepted, one “big exception” to that rule exists where a fraud has been committed on the court, such as existed in this case due to the defendant’s perjury.
  
  

Harriet Miers’ Resources

Because of the significance of Harriet Miers’ appointment to the makeup of the Supreme Court, and because so little is known of her views on any of the pressing constitutional issues that may come before the Court, we have included, at the end of this issue, a compilation of various commentaries and views on the growing debate over her qualifications to serve as a Justice.

The New York Times Co. v. Gonzales, 382 F.Supp.2d 457 (S.D.N.Y. 2005) (Judge Sweet)

This is not the case that sent Judith Miller, the reporter for The New York Times (Times), to jail on contempt charges for refusing initially to testify before the Grand Jury that is investigating alleged leaks involving presidential advisor Karl Rove and others. The proceedings in that case took place in the District of Columbia, and were separately reported in a series of decisions, including In Re: Special Counsel Investigation, 374 F.Supp.2d 238 (D.D.C. June 28, 2005) and In Re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C.Cir. Feb. 15, 2005), rehearing en banc denied, 405 F.3d 17 (D.C.Cir. Apr. 19, 2005).

In the instant case, the Government, through an entirely separate Grand Jury proceeding, was seeking to investigate, and perhaps prosecute, an alleged breach of a government secret about the search and seizure of assets by the FBI from the offices of two Islamic charities in the months following 9/11. The Times, in turn, was seeking to keep confidential the identity of the sources known to two of its reporters, Judith Miller and Philip Shenon, who wrote articles about the FBI’s searches during the same period. To enforce that “reporter’s privilege,” the Times was seeking a declaratory judgment concerning the confidentiality of telephone records of its reporters. The Times also asserted four separate causes of action against the Government.

Essentially, the Times argued that its reporters are afforded both constitutional and common law protections with respect to the preservation of the identity of confidential sources, and that, under the facts of this case, the Government had failed to establish that those protections are outweighed by its interest in effective law enforcement. Thus, it claimed violations of both its First and Fifth Amendment rights under the Constitution.

The Government, in turn, argued that the relief sought by the Times was unwarranted and inappropriate, since the grant of the relief requested by the Times would interfere with its investigation; that no basis exists to recognize the reporter’s privilege; and that, even if such a privilege does exist, it does not protect the telephone records in question because protection of those records “is outweighed by the public’s interest in law enforcement, the fair administration of criminal law, and the prevention of misconduct by government agents.” (Id., at 464.) Thus, it sought to dismiss the Times’ complaint.

In the context of that dispute, Judge Sweet has presented a lengthy, important and scholarly analysis of what he called “the proper relationship between two vitally important aspects of our democracy: the free press on the one hand and the fair and full administration of criminal justice on the other.” (Id., at 462).

As a preface to his discussion, Judge Sweet observed that secrecy in government appears to be on the increase; that “it has been reported that in 2001, the number of classified documents rose 18%, and since 2001, three new agencies were given the power to classify documents”; and that “this development may well impact the ability of the press to report the news.” (Id., at 462).

However, citing numerous Supreme Court cases, he also emphasized the essential role that the free press has played in ensuring against abuses of governmental power. He noted, for example, that an “informed public opinion ‘is the most potent of all restraints upon misgovernment’,” quoting from Grosjean v. American Press Co., 297 U.S. 233, 250 (1975). And he quoted from Justice Black’s renowned concurring opinion in New York Times Co. v. U.S., 403 U.S. 713, 717 (1971), where he wrote:

“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. . . . The press was protected so that it could bare the secrets of government and inform the people.”

After reviewing the facts of the case before him, Judge Sweet ultimately denied the Government’s motion to dismiss the Times’ complaint, although he did grant the Government’s motion to dismiss one of the Times’ causes of action - namely that the Government had failed to comply with the Guidelines of the Department of Justice set forth in 28 C.F.R. § 50.10.

What sets Judge Sweet’s decision apart, however, is his amazingly comprehensive discussion of the qualified reporter’s privilege under the First Amendment (pp. 484-513); and his detailed analysis of the holding in Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court’s seminal decision on that privilege, as well as other decisions that have recognized the reporter’s privilege. Based on those precedents, Judge Sweet firmly concluded that the reporter’s privilege does exist and that the telephone records at issue in this case “are protected by the qualified reporter’s privilege.” (Id., at 509).

Significantly, Judge Sweet also noted that the courts or legislatures of 48 states, plus the District of Columbia, have recognized the reporter’s privilege; and he cited the “shield laws” that have been adopted in 31 states, and the decisions in 14 additional states that recognized a reporter’s privilege in both civil and criminal contexts. (Id., at 502-3).

Judge Sweet’s exegesis is lengthy; but it is eminently readable and profoundly important in an era when the Government consistently tries to hide more and more from its populace.

U.S. v. Fisher, No. S3 03 CR 1501 (SAS) (S.D.N.Y. 10/11/05) (Judge Scheindlin)

Judge Scheindlin started this decision by stating: "In the 11 years that I have served as a district court judge, I have been troubled by the exceedingly harsh sentences imposed on those who deal in crack cocaine. I find it unsettling, for example, that a defendant who deals five grams of crack cocaine faces the same sentence as someone who deals 500 grams of power cocaine. This stark disparity is commonly referred to as the ‘100:1 ratio’.”

After a five week jury trial, Otis Fisher was convicted of a conspiracy to distribute crack cocaine (Count I) and use of a firearm during a drug-trafficking offense (Count II). Judge Scheindlin found that the Government had proved, by a preponderance of the evidence, that Fisher was responsible for the distribution of more than 1.5 kilos of crack cocaine. Thus, Fisher had a base offense level of 38 and he faced a Guideline sentence of 235-293 months in prison on Count I, plus a mandatory minimum sentence of 60 months on Count II, for a total sentence of 24½-29½ years.

While Judge Scheindlin noted that she could not change the mandatory minimum sentence on Count II, she concluded that the 235-293 month Guideline sentence on Count I “makes little sense” and “substantially overstates the seriousness of the offense.” Accordingly, she reduced Fisher’s sentence on the drug Count by seven years, imposing a sentence of 151 months on Count I, plus the mandatory 60 months on Count II, for a still severe total sentence of 17½ years in prison.

In explaining the reasons for her departure from the sentence recommended by the Guidelines, Judge Scheindlin first noted that had Fisher distributed powder cocaine, rather than crack cocaine, his base offense level under the Guidelines would have been 26 (rather than 38) and would have called for a sentence of only 63-78 months in prison.

She then reviewed some of the well-documented criticism of the 100:1 ratio. She noted, for example, that the harsh crack-cocaine penalties are “disproportionately imposed on young black males”; and she cited statistics showing that 80 percent of those sentenced for crack cocaine distribution are black while only 25 percent of those sentenced for dealing powder cocaine are black.

She also quoted Judge Lynn Adelman’s telling observation in U.S. v. Smith, 359 F.Supp.2d 771, 777 (E.D.Wisc. 2005) that “courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing.”

While Judge Scheindlin’s criticism of the 100:1 ration is not new, her analysis of the issue represents another powerful call for a change in a law that many have called irrational, unjust and unwise.

U.S. v. Brown, No. 03-10479 (9th Cir. 10/04/05) (Per Curiam)

This brief, per curiam decision is noted for an important principle governing the interpretation of plea agreements. The defendant pled guilty to 44 counts of various fraud charges (a number that, by itself, is obscene overkill). The Government promised to dismiss the remaining unspecified number of additional charges. However, when it moved to dismiss the remaining charges, it do so without explicitly stating it was with prejudice.

The defendant argued that the Government’s failure to dismiss the remaining charges constituted a breach of the plea agreement, and thus voided his appeal waiver. The Court was therefore required to consider whether a dismissal of the additional charges without an explicit “with prejudice” statement constituted a material breach of the plea agreement.

The Court held that the failure to specify whether the dismissal was with or without prejudice was only a technical error that did not constitute a material breach of the plea agreement. However, the Court was also critical of the ambiguity created by the Government’s standard form of plea agreement and it “suggested” that the form be revised.

More significantly, the Court also held that where a dismissal with prejudice is intended but not formally carried out, an appellate court may clarify the dismissal to reflect that it is with prejudice. Thus, the Court interpreted the district court’s dismissal “in accordance with the parties’ clear intent that the dismissal be with prejudice. Any attempt to prosecute any of the dismissed claims in the indictment is thus barred.”

The Growing Debate Over Harriet Miers

The nomination of Harriet Miers to succeed Justice O’Connor on the Supreme Court has set off a maelstrom of emotional, and often vituperative, debates over her qualifications. Because so little is known about Ms. Miers’ views (other than her religious predilections and her abject adulation of President Bush), we have decided, with some very real trepidation, to note periodically some of the commentary about her nomination. Our trepidation stems from our very real concern that, if Ms. Miers’ nomination is defeated, the Senate may not have any fight left to stop the next nominee who may be even worse. Nevertheless, we start this week with a sampling of recent musings about Ms. Miers’ nomination as follows:

• Anthony Lewis of The New York Times has written an interesting Op-Ed column on Oct. 15, 2005, entitled “License to Torture,” in which he asks whether Harriet Miers would give President Bush a blank check on “the most profound issue that will face the Supreme Court in the coming years” - namely presidential power. Political Analyst Dick Polman of the Philadelphia Inquirer was even more blunt. In a column entitled “Key to Choice: Presidential Power,” dated October 16, 2005, he concluded that the nomination of Miers “is about putting somebody on the court who will protect the legacy Bush cares about most: the expansion of presidential power during the war on terrorism.”

• On Oct. 15, 2005, Charles Babington wrote an article for the Washington Post entitled “Miers Hit on Letters and the Law,” in which he chronicled some of the vast outpouring of satirical commentary about Ms. Miers’ unabashed praise for Pres. Bush, whom she once described as “the most brilliant man” she had ever met. One of the best of those satires was Maureen Dowd’s “To Sir, With Love,” a collection of fictional gushings by Ms. Miers that appeared in the New York Times on Oct. 12, 2005.

• Conservative columnist David Brooks of The New York Times wrote an Op-Ed column on September 13, 2005, entitled “In Her Own Words,” in which he analyzed one of the few public sources of Ms. Miers’ views - namely, a series of columns she wrote for the Texas Bar Journal in the early 90's while she was serving as President of the Texas Bar Association. After reviewing those columns (“the largest body of public writing we have from her”), Mr. Brooks concluded: “[S]ad to say, the quality of thought and writing doesn’t even rise to the level of pedestrian.” He also concluded that Miers’ columns convey little more than a “relentless march of vapid abstractions.”

Copyright © 2005 Punch and Jurists, Ltd.