Monday, June 30, 2008
Thursday, June 26, 2008
2. The Sun-Sentinel also covers this shocking case here. According to the civil defendants in this case, Florida is an "anti-gay" state. Here's the intro from the article:
The family vacation cruise that Janice Langbehn, her partner Lisa Marie Pond and three of their four children set out to take in February 2007 was designed to be a celebration of the lesbian couple's 18 years together.But when Pond suffered a massive stroke onboard before the ship left port and was rushed to Jackson Memorial Hospital, administrators refused to let Langbehn into the Pond's hospital room. A social worker told them they were in an "anti-gay city and state."Langbehn filed a federal lawsuit Wednesday charging the Miami hospital with negligence and "anti-gay animus" in refusing to recognize her and the children as Pond's family, even after a power of attorney was faxed to the hospital within an hour of their arrival.The case raises questions about the way hospitals deal with same-sex or unmarried partners of patients, which has led to controversy in the past. Hospital industry officials say they are constrained by patient privacy laws that can restrict giving visiting access and medical information to nonrelatives, a stance that some patient advocates have branded as discriminatory.
But a report was issued this week, explaining how during the Bush Administration, the Honors Program became politicized, screening out qualified applicants because they were members of organizations that appeared to be liberal (like American Constitution Society or Greenpeace) or had other items on their resumes indicating that they weren't staunch right wing Republicans.
There was one bright light, highlighted in the report -- Dan Fridman, a then-AUSA who was doing a detail at Justice in DC (in full disclosure, Dan is a friend of mine and I have blogged about him before here.). Dan was part of the committee chosen to screen applicants for interviews. Dan wanted to screen ... (take a deep breath!) ... based on merit (!!), but was told his job was to weed out the "wackos" (read: the liberals). Dan refused and continued to recommend candidates for interviews based on merit, not on ideology. The money quote of the 100+ page report:
In addition, we believe that various employees in the Department
deserve credit for raising concerns about the apparent use of political or
ideological consideration in the Honors Program and SLIP hiring
processes. For example, Daniel Fridman deserves praise for reporting
his concerns about the process in 2006 to both his supervisor and
Elston and for avoiding the use of improper considerations in his review
of candidates for the Honors Program and SLIP. A few DOJ political
employees also objected to the apparent use of political or ideological
considerations in the hiring process, such as Assistant Attorneys
General Peter Keisler and Eileen O’Connor, and they should be credited
for raising their concerns. Certain career employees, particularly in the
Tax Division and the Civil Division, also pressed concerns about the
hiring process. By contrast, we believe that others in the Department,
such as Acting Associate Attorney General William Mercer and OARM
Director Louis DeFalaise, did not sufficiently address the complaints
about the deselections.
There's a ton more here to read. I enjoyed reading the"Fridman criteria" for receiving an interview:
To identify a subset of highly qualified candidates, we relied on
criteria that one of the Screening Committee members, Daniel Fridman,
described as an indication that the candidates were so highly qualified
that they merited just a quick check before he approved them. Fridman
said that if candidates attended a top 20 law school, were in the top
20 percent of their respective classes, or were at a school that did not
rank students, he tended to approve them automatically unless they
had a C on their transcripts.30 We refer to these criteria as the
Here's Keith Olbermann on the whole thing (and he mentions Dan by name):
Of course, anyone who knows Dan, knows he would do the right thing. In fact, see our post here from January 2006:
Congrats to AUSA Daniel Fridman (from this District). He has accepted a special assignment to work with the Acting Deputy U.S. Attorney General Paul McNulty (the #2 guy at DOJ in DC) on shaping the administration's criminal and civil rights policy. Those that know Dan, know that he is a good and fair prosecutor and I hope he uses the time in DC to promote his even-tempered philosophy.
Dan is now at working at Lewis Tein. Congrats to him on how he handled himself in this mess...
Wednesday, June 25, 2008
Here is SCOTUSBlog on the child rape case:
Barring the death penalty for any crime that does not take the life of an individual victim, the Supreme Court ruled Wednesday that it is unconstitutional to impose the death penalty for the crime of raping a child. If the victim does not die and death was not intended, capital punishment for that crime violates the Eighth Amendment, the Court ruled in an opinion by Justice Anthony M. Kennedy. The case was Patrick Kennedy v. Louisiana (07-343). The broad declaration that death sentences should be reserved “for crimes that take the life of the victim” will apply, the Court said, to crimes against individuals — thus leaving intact, for example, a possible death sentence for treason.Part of the Court’s rationale for nullifying a death sentence for raping a child was that the child victim gets enlisted, perhaps repeatedly, to recount the crime, forcing on the child “a moral choice” that the youngster is not mature enough to make. “The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system,” Justice Kennedy wrote.
The decision split the Court 5-4. It nullified a Louisiana law that provided capital punishment for raping a child under age 12. The law was since amended to apply to raping a child under age 13. Five other states have similar laws.
At the close of Wednesday’s public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday. The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290). The others still pending are cases on the constitutionality of the so-called “Millionaire’s Amendment” on campaign finance (Davis v. FEC, 07-320), and on federal regulators’ power to undo wholesale energy sales contracts (Morgan Stanley Capital v. Public Utility District, 06-1457, and a companion case).
Justice Kennedy’s majority opinion in the Louisiana capital case was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Samuel A. Alito, Jr., wrote for the dissenters; he was joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas.
Justice Alito, rejecting the majority view that there is now a national consensus against executing one who rapes a child, argued that the focus should not be on the fact that only six states now have such laws. More might have taken the step, Alito argued, if the Supreme Court in barring execution for raping an adult in 1977 had not given state legislators “good reason to fear” that they never could pass such a law. The broad dicta in that case, Alito said, was not supported by all of those in the majority in Coker v. Georgia. Since then, the Justice added, state courts have read the Coker opinion in its widest sweep, “stunting legislative consideration” of the death penalty when a child was the victim.
Tuesday, June 24, 2008
Apparently, the Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment. According to this DBR article:
The Florida Supreme Court is questioning a proposed settlement brokered by The Florida Bar in a disciplinary case against a Fort Lauderdale criminal defense attorney for his critical comments about a judge. The court asked for more information from The Bar and attorney Sean Conway on Monday. It issued an order directing them “to show cause” by July 14 whether “any of the respondent’s comments should be considered protected speech under the First Amendment.”
I hope the Florida Supreme Court does the right thing in the end and dismisses the case brought by the Florida Bar. Kudos to the Court for not rubber-stamping this deal.
He lost his pension. He lost his eye. And it appears that he even lost his will to live. Very sad...
Dan Christensen explores the issue here:
After retired police officer William Hames finally came clean about the gun-planting coverup that rocked Miami this decade -- and helped federal prosecutors convict seven fellow dirty officers -- he sought to pick up the pieces of his life.
Instead, they fell apart.
Two city pension funds voted to strip Hames of retirement benefits, citing his 2004 felony convictions in a case in which his cooperation spared him from prison. They demanded Hames, 60, repay the $548,000 he had received since leaving the force in 1998 after 25 years.
Hames, stocking shelves full-time at Publix to comply with the terms of his probation, hired an attorney and tried to fight back, but the law was against him.
On Feb. 21, two weeks before a Miami appeals court upheld a city forfeiture order, the Vietnam veteran and recovering alcoholic pointed a 9mm handgun toward his face and pulled the trigger in his Orlando-area home.
The blast blew out his left eye, but Hames lived.
''Hames advised when the gunshot did not kill him, he waited a few hours before finally driving himself to the hospital,'' says a Volusia County Sheriff's Office report.
Sunday, June 22, 2008
The U.S. Attorney's Office was still working though, indicting this high-profile case (via the AP):
A 22-year-old Miami Beach man whose company had a contract to supply the U.S. military with ammunition for forces in Afghanistan has been charged along with three others with providing prohibited Chinese-made ammunition and saying it came from Albania.
Efraim Diveroli and two others charged in the case made their first appearance Friday afternoon in federal court in Miami. A fourth man was being charged in Utah.
Diveroli's company, AEY Inc., was paid more than $10 million for 35 shipments of ammunition that prosecutors say was manufactured in China.
Prosecutors contend AEY Inc. removed markings from containers to hide the fact they were manufactured in China. In each instance, Diveroli certified that the ammunition was manufactured in Albania and submitted an invoice for it, they said.
Diveroli's company was given a $298 million contract by the U.S. Army in 2007 to provide several types of ammunition. It was not clear how much of that contract had been paid, but the first shipment of ammunition listed in court documents was from June 2007.
Here's Alex Acosta, who is getting pretty good at the soundbite:
At a news conference, U.S. Attorney R. Alexander Acosta said that quality control is one reason the government wants to know the manufacturer and origin of ammunition.
He said Diveroli's company "intentionally cut corners" and that it was "risking the lives of our troops and allies." He also said that the ammunition was "old" but did not say when it was manufactured. He said the defendants could face more than ten years in prison if convicted.
Defense lawyer Howard Srebnick (he is co-counsel with Hy Shapiro) responds:
Diveroli's attorney, Howard Srebnick, said in an e-mail that the government has "misconstrued" the law his client is accused of breaking. He said the government knew Diveroli bought the ammunition from the Albanian government and that it was made in China before a munitions embargo.
If you are looking for some time to kill on Monday morning, check out EW's top 100 movies, TV shows, books, videogames, tech, (and others) of the past 25 years here. Pulp Fiction is a fair choice for #1, but my top TV show is Seinfeld. As for video games, I agree with Tetris, but you gotta move Tecmo Bowl way up...
Thursday, June 19, 2008
I haven't covered all the latest twists and turns in the Kozinski case (if you want all of that, see AboveTheLaw).
From the Onion:
"That's nothing. Have you ever seen the stuff on Justice Scalia's website?"
And here's The Daily Pulp's coverage of the Carlos Miller trial.
Tuesday, June 17, 2008
Yup, you can read about photographer Carlos Miller's trial in state court from Miller's perspective.
I find it fascinating. Apparently, the prosecutor asked Judge Joe Fernandez (in state county court) to prohibit Miller from blogging about the trial. Fernandez denied that request.
Interesting that in a trial about First Amendment rights that the prosecutor would ask for the defendant not to be able to blog about the case....
Good for Judge Fernandez.
Hat Tip Rumpole.
UPDATE -- Well, the trial is over. And blogger/defendant Carlos Miller is not happy with the result. And apparently, Judge Fernandez is not happy with Mr. Miller, sentencing him to more probation than requested by the prosecutor.
Monday, June 16, 2008
1. Jack Thompson hand-delivered a letter to Chief Judge Moreno.
2. That letter said in part: "We find yesterday that enemy combatants at Guantanamo are to get more due process from federal judges than what I am to have. I guess my "mistake" was not killing 3000 people to make my point... I demand a hearing."
3. After receiving the letter, Moreno sent U.S. Marshals to Thompson's house.
4. Thompson then wrote this letter to Moreno, which said in part:
I was visited today by two U.S. Marshals who were nice gentlemen, and very professional and courteous in their dealings with me. My complaint is not with them...
I have been asking the Justice Department simply to meet with me about [the video game industry's] criminal targeting of me for harm... Our US Attorney here has obstructed that effort... Instead of being afforded the Justice Department investigation to which I am entitled, I get today harassment from that same Justice Department...
When you and the Justice Department dispatch U.S. Marshals to my home because of a letter I wrote you last week complaining about misconduct by District Court Judges here in the Southern District, the purpose of that visit was to intimidate and harass me...
The notion that I pose some sort of physical threat to you or to the judiciary or to anyone else down here is a cruel joke. The two Marshals said, “If you had actually hand-delivered the letter to Judge Moreno, we would be concerned.” To that I said, “But I did. I did that last week because the gentlemen at the metal detectors would not deliver it, and THEY TOLD ME TO DELIVER IT TO YOU. I buzzed into your inner offices on the thirteenth floor, and I politely handed the letter to your clerk, who politely took it.
If I were a danger to anyone, that would have been the time for me to have proven it, right? In fact, I have never threatened anyone in my entire life, and you know that, and the Marshals said they knew that. They were apologetic about being dispatched to my home. This is outrageous, Judge. Simply outrageous.
5. Thompson then sent this letter to the House Judiciary Committee.
Is all this for real?
Thompson always manages to weave in to his letters and motions the current event of the day and then somehow make those events about him. He has material from the Supreme Court Guantanamo case, the Kozinski stuff, and other current events. Sorry for ruining the next half hour of your day as you go read this stuff. You won't be able to turn away....
Judge Martinez had this to say: "I was perfectly happy where I was. I don't like high-rise buildings. If it was up to me, it would have been an old-fashioned courthouse. But I'm not in charge of the world today."
If federal judges aren't in charge of the world, then who is in charge!?!
Friday, June 13, 2008
Judge Alex Kozinski's statements about the stash of sexually explicit images he collected and that the public (until this week) could view on his website have been varied, although not necessarily inconsistent: He thought the site was for private storage and offered no public access (although he shared some of the material on the site with friends). People have been sending him this stuff for years (implying that it just accumulates, like junk mail). He might accidentally have uploaded the photos and videos when intending to upload something else. His son did it. There's a different statement we'd like to hear from him, and no, it's not an apology, an expression of regret or even an explanation. It's this: "So what?"Not everyone may like it, but pornography is freely available on the Internet, whether it be from a commercial site dedicated to adults-only material or from the personal site of the chief judge of the U.S. 9th Circuit Court of Appeals. Any adult has, and ought to have, the right to view those sites and to download those photos and videos -- subject, of course, to the strictures of copyright law. People who don't want to see such images can, and should, avoid them. Scolds who argue that judges should uphold a higher standard of decorumthan the common citizen and should somehow be prevented from engaging in such private activity as gathering subjectively amusing or even appalling smut should recall that the 1st Amendment is not limited to high-minded endeavors. The controversy about the site, to which Kozinski blocked public access after a story by Times reporter Scott Glover, would be less engrossing were the judge not so highhanded when holding forth on judicial propriety or taking apart a legal argument. The story might have a higher profile on TV and radio if he were a supposedly typical 9th Circuit liberal, rather than one of the nation's most brilliant conservative legal scholars. But it makes no difference whether the person with the porn site is left or right, smart or dull, a judge or anybody else. It is also true that judges are charged with administering justice and instilling public confidence in the law. Under the circumstances, it makes sense for Kozinski to recuse himself from the obscenity trial he was assigned to hear -- not because there is any readily apparent conflict but because the website controversy has become a distraction and will undermine public trust in the verdict.
Thursday, June 12, 2008
David [Lat]: I can't comment on the trial.
As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.
I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.
Here's the latest from the LA Times.
UPDATE -- There are a number of sites that have collected the images from Kozinski's website. See here, for example. Ann Althouse discusses those images and the controversy at this link.
Apparently the Mayor tried to get out of prison early by faking an alcohol problem. In federal prison, you can be released early if you have a drug or alcohol problem (and otherwise qualify)and participate in an intensive rehab program. Campbell participated and was released early, but when the Atlanta prosecutors found out, they flipped and informed BOP that Campbell was making it all up. BOP yanked him back into custody.
Campbell filed suit in front of Judge Ursula Ungaro, but he then withdrew the suit. He's now back in...
Wednesday, June 11, 2008
One of the highest-ranking federal judges in the United States, who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as "funny."
Other stuff found on the site:
The sexually explicit material on Kozinski's site earlier this week was extensive, including images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear. There were also themes of defecation and urination, though they are not presented in a sexual context.
How did Kozinski end up doing a trial (he's the Chief Judge on the 9th Circuit):
The judge said it was strictly by chance that he wound up presiding over the Issacs trial in U.S. District Court in Los Angeles. Appeals court judges occasionally hear criminal cases when they have free time on their calendars and the Isaacs case was one of two he was given, the judge said.
The money quotes:
Kozinski said he didn't think any of the material he posted on his website would qualify as obscene."Is it prurient? I don't know what to tell you," he said. "I think it's odd and interesting. It's part of life."Before the site was taken down, visitors to http://alex.kozinski.com were greeted with the message: "Ain't nothin' here. Y'all best be movin' on, compadre."Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski's essays and legal writings as well as music files and personal photos.The judge said he began saving the sexually explicit materials and other items of interest years ago."People send me stuff like this all the time," he said.He keeps the things he finds interesting or funny with the thought that he might later pass them on to friends, he said.
And Fred is not happy that Conway settled: "Resolving the case was not my position, and it was not the position that I ever took," Haddad said Tuesday. "However, the lawyer does not make all the decisions." Haddad had said in December that Conway's blog posting was protected speech and that Bar rules restricting attorneys' criticism of judges was overly broad, vague and unconstitutional.
What say you dear readers? Is this the right result? A public reprimand for speaking your mind on a blog? I agree with Haddad on this issue, of course.
Also I reproduce here from the comments section of our last post:
Dear Former Students of Swan,
As a former student and long time friend of Alan Swan, I will be speaking at his memorial service on Saturday (Plymouth Congregational Church in the Grove, 11:30). If you have a good Professor Swan story, I would love to hear from you today or tomorrow. Please feel free to respond to email@example.com.
Mary Barzee Flores
Tuesday, June 10, 2008
With unemployment high, with people desperate for jobs, we may be seeing more instances of alleged puffing or fraud in the job search process. But one doesn't expect the government to be spending its time prosecuting individuals based upon alleged fraud in the job search.
But Martha Graybow, Reuters, U.S. Businessman Accused of Fraud in Job Search reports otherwise. And to make matters even worse, the government wanted the job seeker detained. The magistrate judge in Miami responded with a $25,000 bond, which the government then sought to stay. And when that was denied, the government headed to New York to secure a stay. Again a denial for the government.
Monday, June 09, 2008
DEVIL’S ADVOCATE - Every lawyer needs another lawyer to bounce ideas off of, and even to be a devil’s advocate, challenging your ideas even more thoroughly and incisively than your opposing lawyer would. If you welcome robust, well-grounded debate as the best way to make your arguments razor-sharp, then call me. George Zadorozny, Attorney-at-Law, Florida Bar ’82, Carlton Fields ’82-’86, J.D. Northwestern ’82, B.A. Yale ’78. $100 per hour. Legal research and writing (pleadings, motions, memoranda, appeals) also available. (727) 389-5973; firstname.lastname@example.org. AV rated. Office: New Port Richey, Florida.
I shot the Devil's Advocate an email with a couple of questions and got the following responses.
What gave you the idea for being a Devilʼs Advocate?
As to how I got the idea for my "Devil's Advocate" ad: It came to me a few months ago. For over 20 years now I've been doing contract work for lawyers, doing legal research and writing. Naturally we discuss these projects over the phone. Sometimes in these conversations the lawyer I'm working for advances an idea or an angle or a theory that strikes me as promising but vulnerable--and so I point that out, that is, I point out how the other side could attack us through what looks to me like a weak spot. We usually go on to debate the point vigorously until we're satisfied that we've cast out the vulnerabilities.
Because these debates are conducted in a spirit of mutual respect, with both of us aiming at the same goal--making the arguments for the client as strong and sharp and unbeatable as possible--we find them not draining at all, but invigorating and cheering.
I've been doing this for many, many years now, and I knew that I was playing devil's advocate, but it wasn't until a few months ago that I suddenly realized that it would be a good thing for me to tell prospective lawyers that that is something that I can offer them--much more than just legal research and writing per se. Of course I still do that too. It all depends on what the lawyer I'm working for wants. Unsurprisingly, lawyers who practice solo particularly value this opportunity for well-reasoned strengthening of their arguments through debate.Has anyone hired you?
Yes, I've been hired by some lawyers in response to my "Devil's Advocate" ad.
Do you enjoy your work?
I enjoy my work very much--see the second paragraph of the above answer to your first question.
Friday, June 06, 2008
Jenne, convicted of corruption last fall, talked briefly about his new duties in a three-hour deposition taken six weeks ago in a federal civil rights lawsuit in which he's a defendant.
...''I work in what is called the garden planting various vegetables,'' Jenne, 61, told Fort Lauderdale lawyer Barbara Heyer.
2. Prosecutors object to Joe Cool polygraph. (via Sun-Sentinel):
Federal prosecutors are fighting to make sure jurors never hear that one of the suspects in the murders of four people at sea passed two lie detector tests saying he did not take part in killing any of the crew members on the Joe Cool.Guillermo Zarabozo, 20, of Hialeah and Kirby Archer, 36, of Strawberry, Ark., who were passengers on the boat's ill-fated charter voyage in September, are charged with four counts of first degree murder and could face the death penalty. Their trial is expected to begin this fall.Zarabozo's lawyers say his favorable polygraph results should be allowed as evidence because they corroborate Zarabozo's version of events--that he was lured onto the boat under false pretenses by Archer and did not know anything illegal was going to happen until Archer fired the fatal shots.At a hearing in Miami federal court Wednesday, prosecutor Karen Gilbert said the polygraph evidence should not be allowed because it is not reliable and could have too much influence on jurors.
U.S. District Judge Paul Huck said he would rule after government officials conduct a separate polygraph exam of Zarabozo--a procedure defense lawyers said they welcomed.
Wednesday, June 04, 2008
Haven't had a chance to read it yet, but it's a 1-1-1 opinion. Pryor writes opinion affirming convictions and vacating sentences for 3 defendants. Birch concurs, but states that case should go to Supreme Court on venue issue and that murder issue is very close. Kravitch dissents on whether evidence was sufficient on the murder conviction.
I have a funny feeling this case isn't over...
Tuesday, June 03, 2008
After my post about the HBO movie Recount yesterday, I received an email from Suzanne Schmidt, Joe Klock's PR person, informing me that he and Katherine Harris would be on Hannity & Colmes to "discuss how Harris was unfairly portrayed in the film and how the film could be nothing further from the truth." Harris and Klock do a nice job on the show (see above for a short clip), but....
I'm still ready to give Laura Dern an Oscar...
In other lawyer news, Goeffrey Fieger was acquitted yesteday. His lawyer, Gerry Spence, remains undefeated! Fieger had this to say (apropos of the above case): "I'm very pleased with the American system and the jury. I thank the jury for listening. I hope this puts an end to political prosecutions in the age of Mr. Bush."
And finally, attorney Mel Weiss was sentenced to 30 months (3 months below the advisory guideline range agreed on by the parties).
Monday, June 02, 2008
A guy named Phillip Nolen played Ben Kuehne, but he didn't wear the bowtie! Bruce Altman played Mitchell Berger. Laura Dern was an excellent Katherine Harris. The other main players were also very well cast. I may be mistaken but I thought I saw Kendall Coffee sitting as an extra in the Supreme Court scene at the end...
Anyway, if you want to relive some of those moments, it's well worth it.