South Florida investor sues Nasdaq over $600,000 loss

Steven Weissman, a Cooper City lawyer, is representing himself in an unusual suit claiming that advertisements by Nasdaq influenced his decision to purchase more than $600,000 of stock in WorldCom Inc., mostly in early 2002, just before the telecom giant filed for the biggest bankruptcy in U.S. history. According to this Sun-Sentinel article: "Weissman feels emboldened by the federal court system, which he sees as an equalizer, the rare place where 'a single solitary citizen can get a fair shot taking on the titans,' he says." The case is being heard by Chief Judge Zloch.

Response to Prof. Froomkin

I know we are straying a bit from the purpose of this blog, but as I mentioned below, Prof. Froomkin and I have agreed to debate the legality of DeFede's taping of Arthur Teele. You can read Froomkin's argument here. Fortunately for Mr. DeFede, the good Professor is wrong.

For DeFede to have committed a felony under Fla. Stat. § 934.03, the State must prove beyond a reasonable doubt:

1. DeFede recorded Teele's calls, without Teele's consent.
2. DeFede did so for an illegal purpose or for commercial gain.
3. Teele had a reasonable expectation of privacy in the calls.

I don't believe the State can prove any of these elements.

First, there is no question that DeFede recorded Teele's calls, but how can the State prove that it was without Teele's consent? Perhaps when Teele started to deteriorate on the telephone, DeFede asked him if he could record the conversation. Who knows. In the typical case, the State would call the "victim" to the stand and ask whether the calls were recorded with his consent. Obviously (and unfortunately) that cannot happen in this case; the point is that the State has no way to prove lack of consent.

Second, DeFede did not record the calls for any illegal purpose or for any commercial gain. In fact, he immediately turned the tape over and explained that he recorded Teele because he was truly concerned for the man as he spoke with him throughout the day. Certainly speeding is illegal, but if the purpose of driving in excess of the speed limit was to get someone who just suffered a heart attack to the hospital, then would anyone seriously argue that you had committedd a crime? Here, DeFede panicked and hit record. The State will not be able to prove that he taped the call for some illegal purpose or for commercial gain.

Third, it would be difficult for the State to prove that Teele had a reasonable expectation of privacy in the calls. If Teele placed the call from a public place where others could hear what he was saying, then there is no question that he had no reasonable expectation of privacy. Again (and unfortunately) we just don't know and the State will be unable to satisfy its burden here. More importantly, Teele was talking to a reporter who had written about him for the past 15 years. It would be a stretch to say that he had an expectation of privacy in those calls.

In addition, DeFede could assert an affirmative defense that he was recording the calls in the ordinary course of business. For reasons Prof. Froomkin points out, this isn't the strongest of arguments, but there is some support for it. See here.

Whether DeFede committed a misdemeanor violation of the statute is less clear, but for many of the same reasons outlined above, the State will have a tough time going forward.

UPDATE -- Prof. Froomkin replies here.

Is DeFede a criminal?

Yes, according to Professor Michael Froomkin at the University of Miami School of Law. He explains here at his blog, Discourse. Professor Froomkin and I have agreed to debate the issue and I'll try to post a response -- demonstrating that DeFede did not commit a crime -- by the end of the weekend.

Journalists for DeFede

Peter Wallsten and Charlie Savage have started a blog called Journalists for DeFede. It's an open letter now signed by a number of Herald employees and others journalists asking for the Herald to reinstate DeFede. The letter argues that the taping may not have even been a violation of law, citing to this post. Any thoughts? I've written a little about DeFede's firing here.

UPDATE -- According to this Herald report, DeFede met with the State Attorney's Office today. More from the Sun-Sentinel.

Salvador Magluta news

The 11th Circuit reversed Sal Magluta's conviction for obstruction of justice through juror bribery but affirmed his conviction in all other respects. Judge Seitz initially sentenced Magluta to 205 years in federal prison. The decision has the potential to result in a whole new sentencing. Or not. The 11th Circuit explained:

"If the government elects to dismiss count 8 instead of retry Magluta on that charge, or if a retrial on that count occurs and he is acquitted, the district court shall, at its discretion, either reimpose Magluta’s sentence but with a reduction of 120 months as a result of there being no conviction for count 8, or the court may resentence Magluta on all the other counts for which he remains convicted. If the government elects to retry Magluta on count 8 and he is re-convicted of that charge, the district court shall then re-sentence him on all the counts."

Disclosure: Milt Hirsch and I wrote about the 205 sentence here.

Arthur Teele commits suicide at Herald building

This is a tragic story. Soon after hanging up the phone with Herald columnist Jim DeFede, Art Teele (recently indicted in federal court) committed suicide. The Herald report is here.

One reader notes that the "Miami New Times cover story, which appears in print Thursday but is online tonight here is about Teele and is quite explicit -- looks like he may have gotten a look at it."

On a personal note, I'm just sickened by this. It's an eye-opening reminder that targeting someone (either by the press or by the state or by the feds) has real consequences. I am not suggesting that anyone is to blame for Teele's actions. That said, I have wondered why the feds needed to prosecute Teele after he had been convicted in state court and after he had lost his job and his life. In the end, was it necessary? Even assuming that he committed a crime, there are times when our prosecutors should use discretion. It's easy, of course, to say now that this was one of those cases, but I still wonder why this man (after what he had already gone through) needed to be prosecuted. I'm sure this comment will draw criticism and I'm eager to read and respond to any comments.

UPDATE -- Herald columnist Jim DeFede has been fired for taping his calls with Teele. ''As Teele was becoming unglued [on the phone], I turned on a tape recorder because I could tell that he was distraught and bouncing off the walls,'' DeFede told more than a dozen staffers in the newsroom. "I made an illegal tape and the company decided to fire me.'' DeFede, who did not want to comment further, issued a prepared statement: ''In a tense situation I made a mistake,'' he said. "The Miami Herald executives only learned about it because I came to them and admitted it. "I told them I was willing to accept a suspension and apologize both to the newsroom and our readers. Unfortunately, The Herald decided on the death penalty instead.''

UPDATE 2 -- The Sun-Sentinel caught up with the now unemployed Jim DeFede. Read here.

Former federal prosecutors team up as lawyer/client

Two skilled former prosecutors -- Eileen O'Connor and Michael Tein -- have teamed up, but not the way they used to... Former AUSA O'Connor, now Broward Circuit Judge O'Connor, is represented by former AUSA Michael Tein, now founding partner of Lewis & Tein (and yes, the other founding partner is Guy Lewis, former U.S. Attorney).

Herald reporter Jay Weaver reported in May that O'Connor failed to disclose on her judicial application that two of her employees had filed discrimination complaints against her when she worked for the U.S. Attorney's Office. O'Connor, who managed the U.S. attorney's Fort Lauderdale division, has denied that any ''formal complaints'' were lodged against her by fellow employees. ''Judge O'Connor wants the truth to come out,'' said Michael Tein. "If the JQC wants her file, she will give them everything she gets from the government.'' Read the whole article here.

The new federal courthouse makes waves

It is impossible not to stop and look at the new federal courthouse while walking in downtown Miami. It's huge. It's shaped like a ship. And it has its own waves. Seriously. The feds hired Maya Lin, the famed designer of the Vietnam War Memorial in Washington, to make these waves -- an "earth sculpture." Perhaps you've seen the huge dirt mounds dressed in bright green grass. (A couple of marshals told me that the waves are breaking in the wrong direction -- true?).

According to this Miami Herald article, the lawn around the courthouse is "a work of art, a security buffer and a place to loll on the grass." Criminal defense lawyers have already started joking about the courthouse being in the shape of a ship (i.e., if your client gets convicted, you can tell him Bon Voyage). Now add the green waves... ''It's meant to be inviting to the public,'' said U.S. District Judge K. Michael Moore, who has helped oversee the courthouse project, scheduled for completion at year's end. ``I haven't actually sat on it yet, but the mounds are sculpted like back cushions.''

They say the courthouse is to open by the end of the year. Apparently, all the district judges will be moving in to the new courthouse, the magistrate judges will move into the tower building, the U.S. Attorney's Office will remain in the JLK building, and the folks in the Claude Pepper building will be filling in the old post office and the rest of the JLK. If aynone has more specifics about timing or space or anything else about the new courthouse, please post them in the comments.

Joke charges, Reneau arrested, and Publix settles

Art Teele's defense lawyer, David Garvin, called the federal charges against his client "a joke." See it in this Herald article. Interestingly, Teele spoke to the press on the courthouse steps.

There was also a significant arrest at MIA today. Steve Reneau, 46, was arrested Friday at the airport, said Barbara Gonzalez, a spokeswoman for the Bureau of Immigration and Customs Enforcement. Reneau was linked to the Andrew ``Papa'' Brown cocaine drug smuggling ring. Read about it at this Sun-Sentinel article.

In other SDFLA news -- after seven years, Publix Super Markets has put an end to a class-action lawsuit (in front of J. William M. Hoeveler) charging that the supermarket chain violated requirements of the Americans with Disabilities Act. Publix promised to improve disabled access at its 857 stores and pay up to $260,000 to settle a 7-year-old federal class-action lawsuit. William Charouhis represented the disabled plaintiffs, and Carol Lumpkin represented Publix. Read entire article here.

News and notes

Various items of interest in the news concerning the Southern District this morning:

1. USA v. Serge Edouard, a closely watched trial in front of Judge Moore, resulted in a guilty verdict. According to this Miami Herald article, "A federal jury in Miami convicted a powerful Haitian businessman Thursday of running a conspiracy to export tons of cocaine and pay hundreds of thousands of dollars in bribes to top security officials in the government of ousted President Jean-Bertrand Aristide. Serge Edouard, 43, reputedly one of Haiti's richest men, showed no emotion when the jury found him guilty of 11 counts of cocaine smuggling and money laundering. He could spend the rest of his life in prison." Representing the government, Lynn Kirkpatrick and Matt Axelrod.

2. The drunk pilots ended up with sentences of 5 years and 2 1/2 years. Read about it here. Although this case ended up in state court, it was in federal court for a bit, in front of Judge Seitz, before the 11th sent it back to state court. You can read about the federal proceedings here.

3. Roy Black's new legal reality TV show. The Daily Business Review covers it here (pass through link required).

Southern District snubbed

Ah well... no judge from the Southern District of Florida or from the State of Florida was nominated tonight. Maybe next time... In the meantime, we get Judge Roberts, who easily will be confirmed. And he should be. He's smart and qualified (Harvard College and Harvard Law, clerk to Rehnquist, SG's office, argued 39 cases before the Supremes, Hogan & Hartson, DC Circuit), he's got a great judicial temperment; he was unanimously confirmed for the DC circuit; and the dems (hopefully) aren't crazy enough to cry wolf, when they could have gotten someone much worse. The usual suspects, How Appealing, SCTNomination, Talkleft, and Sentencing Law & Policy, have all the scoop. Here is one recent case of his, which I lifted from SCTNomination: United States v. Mellen, 393 F.3d 175 (D.C. Cir. 2004) - Writing for the majority over a dissent by Judge Henderson, Judge Roberts found that the district court had erred in attributing to the defendant the value of all of the goods stolen by his wife and stored in their shared home. Judge Roberts held that mere knowledge was insufficient to render the defendant responsible for the goods. Instead, the government had to establish that he had agreed to participate in the conspiracy or taken affirmative steps to facilitate the crime.

Justice Altonaga!

An article on CNN.com this morning packs a lot of interesting news about O'Connor's replacement. And we have another Southern District Judge being mentioned -- Judge Altonaga -- as under consideration. The article says a decision could come as early as today. Read it here.

SDFLA news and notes

Two items:

1. In today's Miami Herald: "Detention method defended; Prosecutors took a tough stand as two terrorism suspects held in federal detention in Miami asked a judge to address complaints of poor treatment by prison officials." Veteran lawyer Ken Swartz represents one of the defendants; prosecuting the case is another veteran, AUSA Russ Killinger. Judge Cooke is presiding.

2. Also, congrats to Mark Eiglarsh for his successful defense in a 3 week fraud trial in front of Judge Hurley.

Southern District of Florida Blog on MSNBC?

More than one person has mentioned to me that this Blog was mentioned (about a week ago) on MSNBC (television, not the website) during some sort of tech minute where they discuss interesting posts on blogs. Apparently, the hosts mentioned the post suggesting that the President appoint a Floridian to the Supreme Court. I can't seem to find the coverage, however. Can anyone help?

UPDATE -- Well, someone pointed me to this transcript of Tucker Carlson's show, in which he mentions the op-ed on doing away with peremptories (the post has a number of interesting comments, most of which disagree with me). Here is the portion of the transcript:
TUCKER CARLSON: Anyway, David Oscar Markus writes . . . that race bias needs to be eliminated in jury selection—quote—“Any trial lawyer who says he does not consider race as a factor when selecting a jury is not telling the truth. The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice.” Boy, is that true. And this has been going on really since Edward Bennett Williams brought Joe Louis into the courtroom during the Jimmy Hoffa trial. And the problem with playing the race card is, it works.

Biggest case for this district?

Richard Rosenthal (a soon-to-be contributor to this blog) had a great question: What is the biggest case ever in the Southern District of Florida? I'll post it as a poll soon, but first wanted to see if there were any suggestions. Certainly the following make the list: Bush v. Gore, USA v. Magluta/Falcon, and USA v. Noriega. And maybe some class actions like the HMO litigation and Allapattah v Exxon. Any others? Post them in the comments.

3 months in prison for FEMA Fraud

Here is the most recent story covering the government's FEMA fraud investigation arising from Hurricane Frances. You can read all about it in the Sun-Sentinel here.

Art Teele charged in federal court

According to the Miami Herald, Art Teele was indicted today in federal court with conspiring to defraud Miami-Dade County of millions of dollars in minority contracts at Miami International Airport. Read about it here. His troubles with the law are well documented; he is on state probation for threatening a police officer and he is also awaiting trial in state court for accepting kickbacks from a contractor. With all the state involvement in the case (the case was apparently investigated by the state), one wonders why this was brought to federal court. Thoughts?

UPDATE -- Brian Tannebaum informs me that he just came back from Little Rock, Arkansas, where Teele's lawyer is in the 4th day of a 4 week trial. Anyone know if Teele's lawyer was notified?

FURTHER UPDATE -- Art teele has commited suicide. Read more here.

What would the 11th do?

For our 11th Circuit practitioners who enjoy pounding sand, you may want to challenge the entire AEDPA. The Ninth Circuit is considering just that. SCOTUSblog provides this update about the case and Howard Bashman discusses it here. If anyone raises a similar challenge, please let me know.

Rehnquist Released from Hospital

Read more at CNN.com and at the Supreme Court Nomination Blog.
UPDATE -- And he has silenced rumors about his departure, saying that he will stay as long as he is healthy. The best place to read up on this is the S. Ct. Nomination Blog, which has a number of interesting posts about it, including what it means for the President's nomination strategy. How Appealing always has the latest news.

The Chief is hospitalized

Chief Justice William H. Rehnquist, ailing with cancer, is in the hospital with a fever, a spokeswoman said Wednesday. Read the AP report here and SCOTUSblog's report here.

Strike Three?

Raphael Levy has been to the Eleventh Circuit three times. Each time the court has told him to go away. Most recently, the court told him so even though the Supreme Court told the 11th to reconsider Mr. Levy's claims. How can this be, you wonder? How can the court ignore its superiors? Here's what happened: Before the Supreme Court decided Blakely/Booker -- the cases doing away with the mandatory sentencing guideliens -- Levy filed his initial brief in the 11th circuit. He lost. After Blakely came out, he filed a motion for reconsideration. The 11th said no way, applying a rule that no other court employs -- if you didn't raise the issue in the initial brief, you have forever lost it. But when Levy filed his initial brief, there was no Blakely and such a claimed would have been deemed frivolous. For the 11th circuit, however, that is of no moment; the rule applies rigidly across the board: raise the issue (even frivolous ones) in your initial brief or you're out of luck. Levy appealed this decision to the Supremes and it initially appeared that the Court gave him some relief. It GVRed the case, telling the 11th to reconsider Levy's claim in light of Blakely/Booker. On remand, the 11th maintained that its rule applies and said it need not consider Blakely/Booker because Levy had not raised it in his initial brief. Read the opinion here. Judge Tjoflat has been blasting his brethern for this anomolous rule, in cases like Vanorden. And commentators, like Professor Berman, have written about this strange rule in the 11th Circuit. It looks like the 11th and the Supremes are due for a showdown as Levy is sure to file a new cert petition, asking the Court to fix this. We'll see. One disclosure -- I have a similar cert petition pending in Hogan v. United States.

Shhhhh....

Judge King has now recused himself from all criminal cases twice in the last two months because his secretary (it appears) is the target of a federal investigation. The details can be read here in a Daily Business Review article by Dan Christensen. I'm not sure why this requires his recusal, but that is a matter between the U.S. Attorney's Office, Judge King, and the Chief Judge. It has come to light during this set of recusals that there is an unpusblished and secret local policy manual that only the judges have access to, which apparently trumps the published local rules (available here). We have had other press regarding secret proceedings; remember the stir about secret dockets.

More short lists...

This one comes from the Cuban American Bar Association. Bar Association President Tony Castro wrote a letter to the President suggesting that a Hispanic and a Floridian (the first he points out, perhaps taking a cue from us!) be appointed. On their short list is Raoul Cantero and our own district judges Cecilia Altonaga, Adalberto Jordan, Jose E. Martinez and Federico Moreno.

Judge Moreno makes a short list!

There is, of course, rampant speculation about who the next Supreme Court nominee will be. Many are betting that it will be a Hispanic jurist. The Hispanic National Bar Association has provided a list of eight names to the White House to consider for appointment to the United States Supreme Court. Congratulations to Judge Moreno for making this short list.

Race in jury selection

The Miami Herald published today an op-ed** that I wrote concerning peremptory challenges. I argue that the only way to eliminate racial bias in jury selection is to do away with peremptory challenges. This will draw the ire of criminal defense lawyers, prosecutors, and jury consultants. But I challenge them to say with a straight face that race doesn't play a part in their selection of jurors. It shouldn't. Here's the article:

Posted on Wed, Jul. 06, 2005
JUSTICE
Eliminate race bias in jury selection
BY DAVID OSCAR MARKUS
dmarkus@markuslaw.com

Any trial lawyer who says that he does not consider race as a factor when selecting a jury is not telling the truth. And that includes prosecutors, who -- it has been repeatedly shown -- attempt to exclude minorities from juries.

The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice. Each side in both civil and criminal cases can strike a number of jurors from the panel for no reason. These strikes are called peremptory challenges. The idea behind allowing these sorts of strikes is that if the trial concerns, for example, a lawsuit over a dog bite, the lawyers should be permitted to strike a juror who has had a bad experience with a dog, even if that juror claims that she could be fair.

Peremptory challenges, however, have been used to strike jurors for a whole host of other impermissible reasons, like race, religion, gender and ethnicity. The Supreme Court has been struggling with how to keep race out of the jury selection process for many years.

Back in 1986, the Supreme Court in Batson vs. Kentucky prohibited lawyers from using race in their peremptory challenges. The court's decision in that case was nice as a matter of theory, but has failed miserably in practice. It is nearly impossible to show that a potential juror was stricken for a racial reason. Seasoned trial lawyers explain that they struck a juror for ''race-neutral'' reasons, such as the person gave a hostile look or seemed to have too much or too little knowledge of the subject matter, and so on.

Justice Thurgood Marshall -- the first African-American justice -- wrote a separate opinion in Batson, arguing that peremptory challenges always would be abused and that a just and fair system would abolish them altogether. The only way to ''end the racial discrimination that peremptories inject into the jury-selection process,'' he concluded, ''was to eliminate peremptory challenges entirely.'' No one paid Marshall much attention.

The issue of peremptory challenges again came to the Supreme Court's attention last month in Miller-El vs. Dretke, a death penalty case in which 19 of the 20 black potential jurors were stricken. Finding the prosecution's explanations for its strikes ''incredible,'' the court reversed the conviction, reaffirming the unworkable formula in Batson for determining when peremptory challenges were being used appropriately.

Justice Stephen Breyer, agreeing with the reversal, wrote separately to explain that Marshall had it right almost 20 years ago when he suggested that we do away with these challenges altogether. Breyer points out that lawyers are becoming more savvy in explaining away their juror strikes, going so far as to hire expensive jury consultants to help them base their strikes on the theory de jour regarding a particular group of people. Some jury consultants (as the ones used in the cases of Michael Jackson and Martha Stewart), it has been reported, command as high an hourly rate as the lawyers themselves.

Breyer and Marshall are right -- the only way to cut race out of the jury-selection equation is to do away with the peremptory challenge. To do this, judges need to allow lawyers to conduct a real inquiry into jurors' backgrounds so that jurors who would have obvious biases or problems judging a particular case can be excused for cause by the judge.

The Miller-El case demonstrates the high improbability of ever showing racial discrimination under the Batson formula. Despite the strength of his claim, Miller-El's challenge resulted in 17 years of largely unsuccessful and protracted litigation involving 23 judges, eight judicial proceedings and eight judicial opinions, the great majority of which found no Batson violation.

Amazingly, race still plays a major part in selecting juries. More amazing still is that we continue to ignore an easy solution to this problem. The time has come to do away with peremptory challenges and in so doing, to do away with racial prejudice in jury selection.

David Oscar Markus is a criminal defense lawyer in Miami.

**the picture in the Herald is of another David Markus in Miami! The Herald asked me for a picture, which I emailed. For some reason, this wasn't enough and they printed someone else's picture.... my parents were thrilled.

Justice Cantero??

The Sun-Sentinel has an interesting piece on Justice Cantero's chances on being elevated to the U.S. Supreme Court.

Why can't we all just get along?

So, imagine this -- both the defense and the prosecution agree that a criminal defendant should not be sentenced as a career offender (read, lots of time). Yes, you saw that right -- the defense and the prosecution agreed to something in the Southern District of Florida. First, they jointly recommended to the sentencing judge (Judge K. Michael Moore) that the defendant should be permitted to withdraw his plea because neither side anticipated that the career offender enhancement that probation found. The judge denied that request. The defendant went to state court and convinced the state prosecutor and the state judge that the state convictions should be vacated. After the state judge signed the order vacating the qualifying convictions, the parties went back to Judge Moore and argued that the defendant was no longer a career offender. The judge wouldn't budge and famously called the former U.S. Attorney for the Southern District of Florida "weak-kneed." He then sentenced the defendant as a career offender. The Eleventh Circuit reversed, finding that the defendant was no longer a career offender (as a result of the convictions being vacated) and ordering Judge Moore to resentence the defendant to a reasonable sentence. Hmmmm, what's going to happen next? Congrats to both parties on this initial victory in convincing the Eleventh Circuit that the sentence was unlawful. The case is USA v. Himick. Thanks to Michael Caruso for the info.

Supreme Southern District victories

Hope everyone had a great Fourth of July.

Since we're on the topic of the Supreme Court, let's celebrate two huge Supreme Court victories from the Southern District of Florida.

Paul Rashkind and the Federal Defender's Office for the Southern District of Florida won big in Gonzalez v. Crosby. This was an important issue to habeas practicioners and defendants around the country. Justice Scalia framed the issue this way: "The question presented is whether, in a habeas case, [Rule 60(b)] motions are subject to the additional restrictions that apply to second or successive habeas corpus petitions under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) codified at 28 U. S. C. §2244(b)." Reversing the 11th Circuit, the Court answered the question in the negative. Here is the Court's opinion, Justice Breyer's concurring opinion and the dissenting opinion written by Justice Stevens. Big win for Rashkind and Richard Klugh.

Eugene Stearns of Stearns Weaver Miller in Exxon v. Allapattah Services. Stearns represents a class of Exxon dealers suing Exxon in litigation that has lasted well over a decade. The stakes were quite high as the jury verdict will mean over a billion dollars for the class. The issue was whether a federal court in a diversity action may exercise supplemental jurisdiction over additional plaintiffs whose claims do not satisfy the minimum amount-in-controversy requirement, provided the claims are part of the same case or controversy as the claims of plaintiffs who do allege a sufficient amount in controversy. Civil procedure nerds and class action lawyers have been waiting for this opinion for a long time. In an opinion written by Justice Kennedy, the Court ruled that, if one party satisfies the minimum jurisdictional amount, the claims of others in the case may be decided even if those are for less than $75,000. Here is the Court's opinion, Justice Ginsburg's dissenting opinion and the dissenting opinion written by Justice Stevens. Exxon hired Supreme Court litigators in Washington DC to combat Stearns and co. It didn't pay off. Congrats to Gene Stearns and the Allapattah team (Mark Dikeman and Mona Markus and countless others).

Some disclosures: I was the counsel of record for the NACDL's amicus brief which was principally written by Professors Aya Gruber and Howard Wasserman in Crosby and my wife is on the Allapattah team.

Vote!

In connection with the post below, enjoy the just-for-fun poll to the right.

Appoint a Floridian

What better way to start the Southern District of Florida blog than with a post suggesting that the next Supreme Court Justice come from sunny South Florida. A couple months ago, I wrote an oped for the Miami Herald suggesting just that. I reproduce it below. Although the oped suggests a Floridian in general, the Southern District should be a fertile place for President Bush to look if he is looking (as the rumors suggest) for bright young Hispanic conservative jurists. It was Justice O'Connor, in fact, who suggested that diversity benefited the institution. Here it is:


Appoint a Floridian
BY DAVID OSCAR MARKUS
http://www.markuslaw.com

The nine justices on the U.S. Supreme Court have served together longer than any other nine justices in recent history.

Nevertheless, President Bush may have the opportunity to appoint up to four justices to the court during his second term. Speculation has been increasing ever since Chief Justice William Rehnquist was diagnosed with thyroid cancer, requiring him to work from home and to participate only on a limited basis. The pundits have also pointed to Justices John Paul Stevens, Sandra Day O'Connor and Ruth Ginsburg as potential retirees.

There has been a great deal of discussion about whom Bush should appoint. But perhaps an equally important question is where this jurist should come from. Florida is the best choice.
No Floridian has ever been appointed to the Supreme Court. True, 18 other states are also unrepresented, but Florida's population is more than three times the size of the next largest of the 18, Wisconsin.

The current court is made up of justices from Arizona (Rehnquist and O'Connor), Illinois (Stevens), New York (Ginsburg), Massachusetts (Stephen Breyer), California (Anthony Kennedy), Georgia (Clarence Thomas), Virginia (Antonin Scalia) and New Hampshire (David Souter). Certainly there is a place for a Floridian. Consider the fact that we have produced some of the major cases to go before the court (Bush vs. Gore) and that we have more than 75,000 lawyers and judges to choose from. Only California (55), New York (31) and Texas (34) have more electoral votes than Florida (27).

In 1978, William J. Daniels attempted to discuss why the 19 states were not represented on the court, saying: ``The 19 states which have not yet had a person appointed to the court have tended to be the least populated of their region.''

O'Connor tried to explain it this way: ''The Supreme Court and other appellate courts benefit by having judges from diverse backgrounds and experiences.'' Unfortunately, ``there are fewer people of rural backgrounds to go around, on the bench or elsewhere.''

With all due respect to Idaho and the Dakotas, Florida seems to have bucked the rural label quite some time ago. And as for diversity, there is no more diverse state than Florida.
Back in 1978, Daniels concluded by saying, ``One can reasonably expect that presidents will continue to be concerned with the geographic factor, and that officials from the as yet unrepresented states will continue to call attention to their status when vacancies occur on the court.''

So here's an issue that all Floridians -- Republican, Democrat or independent -- can support: The next Supreme Court justice should come from our great state.

David Markus is a Miami criminal trial and appellate attorney at David Oscar Markus PLLC.