Friday, May 29, 2009

Killing your Friday afternoon...

And more fun Friday afternoon stuff here.

Ruining summer vacation

palesq2.jpg.jpegNo one respects childhood anymore, you know? Nowadays, it's all about pushing and prodding the kids to get ahead of the brats next door or the Chinese or whomever. And now we're doing that to our incoming batch of UM 1Ls. This showed up in my inbox just about the time my SDFla blogging wrapped up:
This summer we plan to use our orientation blog to begin to explore some ideas about the law through books and films. ... Each week we will have by Monday some discussion questions posted on the blog, and we will see where the conversations take us.
The idea seems to be to use a blog as a diabolical weapon that targets summer fun. Needless to say, I hit "delete" as fast as I could—which is what I gather just about all of my colleagues did because a couple of weeks ago we started getting phone calls. Long story short, I was prevailed upon, as they say, to do this for a little while.

Now, my being a team player doesn't mean I'm not going to do everything my way. I obviously can't work in an oppressive password-protected website cut off from the outside world that doesn't even allow people to post their coarsest thoughts and pejoratives anonymously. As my grandmother says, "Me fuí de Cuba por menos." So, I'm hijacking the kids over to an unofficial open forum called What's the point of having tenure if you never color outside the lines? (Or sentence below the guidelines?) This way all you members of the Innominate D.O.M.inati—particularly those who are UMSoL alums—can share your comment-space insights on life and law with the wide-eyed eager pups. Go check it out and engage the future of SDFla.

Thursday, May 28, 2009

Justice Scalia and Rumpole

Rumpole is getting all hot and bothered by Justice Scalia's recent decision in Montejo v. Louisiana, overruling Michigan v. Jackson. I don't agree with the result either, but I have taken issue with Rumpole's attack on Scalia as a "dangerous" Justice and with Rumpole's defense of stare decisis.

As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:
  • Crawford v. Washington -- Justice Scalia breathed life back into the Confrontation Clause and did away with some really bad cases allowing prosecutors to get away with convictions based on hearsay.
  • Blakely v. Washington (Apprendi, Booker, etc) -- criminal practitioners rejoiced when Scalia started the revolt against the mandatory federal sentencing guidelines.
  • Arizona v. Gant -- Scalia rules in favor of criminal defendant on 4th amendment issue concerning a car search, overruling NY v. Belton.
  • Begay v. United States -- finding in a concurring opinion that DUI was not a violent felony based on the rule of lenity.
  • United States v. Gonzalez-Lopez -- Scalia finds (5-4) that a criminal defendant has a right to counsel of his choice. This was his quote at oral argument: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”
  • United States v. Santos -- Scalia finds that the money laundering statute is ambiguous and rules for criminal defendant that it means proceeds, not profits.
  • I'll end with Sorich v. United States in which Scalia dissents from denial of cert on honest services case. Here's part of his opinion:
[T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City ofColumbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). . . . It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.

(A couple weeks after Scalia wrote this dissent, the Court granted cert in the Conrad Black case to figure out the reach of the honest services statute. I'd bet Rumpole that Scalia will rule for Black, but he still hasn't paid me on the last $100...)

And these are just a few off the top of my head in the last few years. I'm happy when Justice Scalia isn't a prisoner to stare decisis. If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia. Yes, criminal defendants are going to lose some too -- like Michican v. Jackson -- but I'll take the above cases with that one. (Has any lawyer ever even filed a Jackson motion to suppress?)

If I had to rank the Justices in order of defense friendly, here's my list:

Scalia, Stevens, Souter (for another couple weeks), Ginsburg, Breyer, Kennedy, Thomas, Roberts, Alito.

Wednesday, May 27, 2009

Congrats to Alex Acosta

New Dean at FIU.

Congrats Alex.

"Alas, once a sea cow, always a sea cow."

Check out this motion to dismiss filed by John Kallen of Badiak, Will & Kallen, counsel for MarineMax in CLEAR MARINE VENTURES, LTD., v. BRUNSWICK CORP. The case is assigned to Judge Moreno... My bet is that the Chief isn't going to find this too funny. Here's the first section of the motion:


Defendant MarineMax moves to dismiss Count X of plaintiff’s second amended complaint pursuant to Rule 12 (b)(6), Fed.R.Civ.P.

I. Nature of the Action

He first saw the model on line and in a promotional brochure (para. 13-15). [Footnote 1: The following is not intended or meant to titillate, but illuminate the unique relationship that an individual has with a vessel and the special, discriminating and demanding wants and needs of a wealthy individual, who was disappointed and dismayed with his purchase; who, in the eyes of the law. stands in the same crocs as the common consumer who was disappointed that the new Kenmore front-loader washer didn’t eliminate the grass stains on the kids’ shorts as was promised and warranted.] Her glossy exterior, sculpted body, sophistication, bloodlines, not to mention the accolades of how she could perform, intrigued him, piqued his curiosity (para. 13-15; Exs A. and B. to second amended complaint). Needless to say, he needed to know more, meet her, ride her. He was excited (para. 22).

Suitable arrangements were made. Not wanting to push her too fast, he rode her easy (para. 36, 37). With her prominent front pushed up, her rear somewhat down, her performance was somewhat hesitant and resistant. But he was told she was a maiden, that he’d be her first owner (para. 40, 47).

He knew that with the right master, the right equipment, and with promises of better things to come, her performance could only get better, would be as promised (para. 45). Michael Krieger was hooked (para. 43).

However, as others before him had learned in dealing with her identical sisters, (para. 60), he would soon come to the realization that in her family, beauty’s only skin deep. She had been born with a fatal defect (para.26).

When he realized that despite the glamourous exterior, her performance was as fleet and nimble as a manatee, his interest in her waned. Discontented and having spent a significant amount of money to buy, outfit, maintain and service her (para. 46, 113), he complained. Krieger was instructed to take her in for extensive surgery to correct her imperfections -- not once or twice, but three times (para. 53, 61, 67).

Unfortunately, these procedures, which were designed to decrease her weight and trim, and thereby enhance her performance, failed miserably. She got hot and wet, but too wet. (para. 97, 110, Ex. D to second amended complaint). Just as disturbing, what had at one time been a pleasing, cosmetically acceptable body, had now been transformed into a ghastly and unpleasing specimen.

Alas, once a sea cow, always a sea cow.

Disappointed, dismayed and downhearted (para. 112), Michael Krieger sued to get back the investment he had made in a dream that turned into a nightmare.

So dear readers, is this effective lawyering? Talk to me.

UPDATE -- AbovetheLaw has picked up on our post and has interviewed the author.

Tuesday, May 26, 2009

A Hispanic judge is nominated to the Court...

...but alas not one from Florida. Sonia Sotomayor is the pick.... No real surprise here.

I was rooting for Harvard (Elena Kagan) instead of Yale, but another spot will open up soon.

Sotomayor has more courtroom experience (she was a prosecutor and a district judge) than any of the other justices and many are calling her the liberal Sam Alito (both went to Princeton and Yale, both were prosecutors, both were Circuit judges, and both were appointed by Bush I). Sotomayor would be the only Justice who was a district judge. Still no former criminal defense lawyers on the Court...

The blogosphere is unbelievable when you want instant information, especially about legal news. Tom Goldstein at ScotusBlog has a ton of stuff, including this interesting post. Jan Crawford Greenberg has this scoop about the interview process and the 4 finalists. The right already is gearing up to fight her (using videos like this) but as Goldstein explains, she easily will be confirmed. Volokh has a bunch of posts about the nomination and How Appealing has every article written about Sotomayor. And if you are a baseball fan, Judge Sotomayor is your pick.

It's amazing to me that the interest groups are claiming that she isn't smart enough to be on the Court. What else can she do to prove herself -- she finished first in her high school class, second in her college class and was the editor of the Yale Law Journal.

Even though she is being compared to Alito, I sure hope she is more intellectually honest than he is. Today, the Supreme Court, 5-4, overruled Michigan v. Jackson -- a case on the books for 23 years. Justice Scalia wrote the opinion and Justice Alito concurred. His concurrence was remarkable because just a couple of weeks ago, he dissented in Arizona v. Gant. There, Justice Scalia again wrote the majority opinion, receding from the holding in New York v. Belton. Belton had been on the books for 28 years, and Alito's dissent focused on stare decisis. So this time around, he would dissent againt, right? And find that stare decisis required a finding that Jackson was still good law, right? Forget it -- Alito joined Justice Scalia in overturning a long-standing precedent. Why? Because this time he was ruling against the criminal defendant. Unlike Scalia who often rules for criminal defendants (and is still in my view the most pro-defendant Justice -- although that theory took a hit today), Alito has never once ruled in favor of a criminal defendant. Not once! When stare decisis helps the government, he invokes it. When it's bad for the government, what's stare decisis. Bizarro world!

Anyway, back to Sotomayor -- from what I've read about her, she seems like a solid (and safe) pick. She's obviously qualified and she will get confirmed. I think at the end of the day, she'll end up very similar to Souter, so the Court won't change that much.

Monday, May 25, 2009


So dear readers, now that Helio Castroneves has won the Indy 500, Dancing with the Stars, and his federal criminal case, I have this question for you:

What was more difficult to win?
The Indy 500
Dancing with the Stars
Federal Criminal Case free polls

Friday, May 22, 2009

``The jury finds him not guilty, then he wins the pole position at Indy, and now the government drops the case completely..."

"...All he has to do now is win the race and climb the fence.''

That's Roy Black's reaction after the government announced today that it would drop the final charge pending against Helio Castroneves. Jay Weaver has the details here.

The government did the right thing, as I explained before:

I would be really surprised if the feds chose to retry this one count. The sense is that Helio won the trial and was vindicated, so a retrial would look petty and vindictive. Plus, there's no reason to believe that the next jury would have any more reason to find Helio guilty after the first jury rejected almost the entire case.

Plus, now I get to post another Helio/Julianne picture.

It's Friday!

Long weekend ahead! Woohoooo! But the weather......
Looks like downtown is abandoned today, doesn't it?
Just be careful driving this weekend, especially because Florida drivers rank 43rd out of the 50 states on driving knowledge. (New York is the worst.) I may be checking out early today, so go check out SFL pacer surfing or Rumpole bashing the PD's office.

Thursday, May 21, 2009

Bonanno crew busted

Curt Anderson covers the infiltration of the South Florida crew here. The intro:

An FBI agent posing as a crooked businessman with ties to shady bankers was key to the indictment announced Thursday of 11 people on charges they ran a South Florida racket for New York's Bonanno organized crime family.
The unidentified agent was able to gain the trust of the crew and its leader, Thomas Fiore, by seeming to provide them with access to foreign bank accounts to launder criminal cash as well as help with drug trafficking and sale of stolen goods, according to the indictment.
All the while, the undercover agent wore a hidden recording device that captured their conversations. The FBI also recorded numerous telephone conversations between Fiore, other members of the crew and senior Bonanno bosses.

Wednesday, May 20, 2009

"I've sentenced boys younger than you to the gas chamber. Didn't want to do it. I felt I owed it to them."

I don't know who Magistrate Wallace Dixon is (apparently he's from the Middle District of North Carolina) but I he's jumped up my favorite judge list. Apparently Rudy Giuiani's son, Andrew Giuliana, got kicked off the Duke golf team and sued in federal court for breach of contract. The team countered that he got dropped because he assaulted a teammate, defied coaches, and violated "both the rules and the spirit of the game of golf." He lost, of course, but Judge Dixon had a lot of fun writing the R&R -- even citing Caddyshack*:

Plaintiff's promissory estoppel claim... brings to mind Carl Spackler's analysis from the movie Caddyshack (Orion Pictures 1980): "He's on his final hole. He's about 455 yards away, he's gonna hit about a 2 iron, I think."

*And for those non-Caddyshack people out there, the title is another great line from the movie.

Tuesday, May 19, 2009

The Sun-Sentinel *sucks*

I had a lot to post about tonight -- from Paris to dumb associates to heavy Cuban accents -- but instead I'm going to tell you how stupid the Sun-Sentinel is. That paper, which has always given the Herald a run for its money, had one of the young star reporters in South Florida: Vanessa Blum. And it fired her today.


Well, the Sun-Sentinel let Vanessa go today because it has partnered up with the Herald and decided that it could simply buy the Herald federal court coverage for its paper. The Herald will use some Sun-Sentinel coverage of local school board stuff for its paper. And on and on. Rumpole made the point about the dying newspaper business here when he was covering the Herald's firing of Susannah Nesmith:

Here's the point with the BBC stuff- if these trends keep up, local news will soon be gone. No one to report on County Commissioners doubling dipping into their expense accounts; no one to wander the hallways of the courthouse at 2PM and write about all the Judges missing; no one to write about the cops accused of misconduct and no one to write about the injustice of trying defendants over and over until the government gets a conviction.

We can function without Susannah Nesmith. We cannot function without the Susannah Nesmith's of the world. It's a scary thought that the free press is fading away not with an assault against the first amendment, but because the morons who made the business decisions for newspapers didn't see five years ago Craigslist was about to cripple their classified ad income.

President Obama recently referred to a quote from the nation's third president, Thomas Jefferson: "If he had the choice between government with newspapers or newspapers without government, he'd choose the latter." (Rumpole, I just cited to you, Obama, and Jefferson to make a point. What's wrong with that picture?)
Now, this is no knock on Jay Weaver and Curt Anderson, who are also friends of the blog, but they can't cover the entire District by themselves. And of course we have the DBR, which is committed to covering the federal courts. But while they are covering a big case in Miami, who will be tending the store in Lauderdale? What about Palm Beach and Ft. Pierce? And Vanessa broke her share of Miami stories as well -- the latest being the sealing issues in the Mutual Benefits case, which everyone is now looking in to.
I understand budgets and the crisis facing the newspaper industry. But what's the point of having a paper if you are giving up your local coverage? The whole reason people buy the Sun-Sentinel is because of reporters like Vanessa. Without that local coverage, why do we need a Ft. Lauderdale paper?
Vanessa will land on her feet -- she's smart, personable and a great reporter. I wonder where the Sun-Sentinel will land if it keeps this up.

Monday, May 18, 2009

“While some of the tales of woe emanating from the court are enough to bring tears to the eyes... is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

That was John Roberts' response in 1983 to White House counsel Fred Fielding, who asked Roberts to evaluate a proposal then in circulation to create a kind of super appeals court to assist the Supreme Court with its ostensibly pressing workload. The New Yorker has a lenghty and compelling article about Roberts here, called "No More Mr. Nice Guy." It's certainly worth a read and has lots of inside stories about Roberts.

Speaking of the Supreme Court, it just granted cert in Conrad Black's case to decide the reach of the "honest services fraud" component of the mail fraud statute.

Or, if it's really a slow day, you can check out how much the airport can see when it does "whole body imaging."

Sunday, May 17, 2009

Jay Weaver covers Liberty City verdict

Check out the interesting piece in the Herald today.
Here's the intro:

Did booting a holdout juror off the panel seal the fate of the Liberty City Six?

That is a central issue in the courtroom documents released last week after the five guilty verdicts that attracted national attention.

Known only as Juror No. 4, the woman was accused by 11 fellow jurors, prosecutors and the judge of refusing to deliberate in the federal terrorism-conspiracy case. However, in jury notes the woman said she wanted to ''see this trial to the end'' but could not withstand the pressure she was facing to change her stance -- presumably ``not guilty.''
Had she held out, prompting a third mistrial in the controversial case, the five men now facing lengthy prison sentences could have walked out of the courtroom free, because the U.S. attorney's office in Miami had already said it wouldn't try them a fourth time.

U.S. District Judge Joan Lenard's removal of the juror will be the centerpiece of defense appeals, based on claims that their clients didn't receive a fair trial. After Juror No. 4, a black woman, was replaced by a black male alternate, the 12-member panel convicted five of the six defendants Tuesday on charges of conspiring with the notorious global terrorist organization al Qaeda.

''Her note clearly shows that the other jurors tried to convince her to change her beliefs about the case,'' said attorney Richard Houlihan, who represented the sole acquitted defendant, Naudimar Herrera.
''They didn't agree with her, but that doesn't mean she wasn't deliberating with them,'' Houlihan said. 'Her factual beliefs were at odds with the other jurors'. Absolutely it was going to be a hung jury if she had been allowed to stay on.

The article even has a Moran/Abbell reference, citing back to when Judge Hoeveler dismissed a juror:

To follow up, Judge Lenard reviewed a precedent-setting appeals court decision from a 1998 trial in which a Miami juror was removed from a 12-member panel because she refused to deliberate. U.S. District Judge William Hoeveler removed the woman because she spent the time working on her nails.

Lenard heeded Hoeveler's example, first by questioning the 11 other panelists about Juror No. 4. They all said she was turning her back on them when they sought her opinion, and most quoted her as saying that she doesn't believe in or trust the law.

Appellate lawyer extraordinaire Richard Klugh got all Survivor on us and had this to say about the law:

An appeals expert in South Florida said the ultimate question is whether a juror is doing his or her job.

''It seems that the jurors in this case tried to make that decision themselves, as they appeared deadlocked,'' said attorney Richard C. Klugh Jr., who reviewed the notes. ``What you don't want is a situation like [the TV show] Survivor, where the majority of the jurors vote to kick a juror off the island just because of preference.''

Klugh said the removal of the juror will be a ''substantial issue'' in the defense team's motion for a new trial and eventual appeals.

Thursday, May 14, 2009

Justice Moreno??

Obama's short list for filling Justice Souter's seat on the Supreme Court has been leaked. And there's a Moreno on the list. Unfortunately, it's not our Moreno -- it's California Supreme Court Justice Carlos Moreno (that's him on the left). Here's the rest of list:

Solicitor General Elena Kagan
Michigan Gov. Jennifer Granholm
Homeland Security Secretary Janet Napolitano
U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood

Wednesday, May 13, 2009

This and that

1. Mike Tein is in the NY Times today, discussing the Liberty City verdict: “If you sledgehammer the square peg three times, eventually you’re going to blast it into the round hole. This isn’t a terrorism case; it’s an overcharged gang case.”

2. Judge Daniel T.K. Hurley imposed death sentences today on Daniel Troya and Ricardo Sanchez Jr. in the Turnpike murder case. It is the first federal death penalty case in the District. A snippet from the AP article:
"I must confess I have no confidence that Mr. Troya would not do this again if the opportunity presented itself," the judge said before reading the sentence.
Troya was shackled around the waist and guarded by four bailiffs. He offered an apology during the hearing, .
"First and foremost, to the victims and family members, I would like to apologize," he said. "Basically, I'm sorry to my family, the people that put faith in me to be good."
He also apologized for throwing a plastic water bottle at prosecutors in March after a jury recommended the death penalty for Troya and co-defendant Ricardo Sanchez Jr.
As he was led from the courtroom, Troya nodded to his mother, father and sister, who were silently crying.
The judge said Troya grew up in a "wonderful family" and added, "I have no idea how Mr. Troya got to be the person he is today, but he is an enormously dangerous person who has no regard for the taking of a human life."
3. And Jason Taylor re-signed with the Fins today.

Tuesday, May 12, 2009

Sentencing question

So will the Liberty City 7 6 5 get more or less time than Jose Padilla? Remember that Judge Cooke sentenced Padilla to 17 years and his co-defendants to less time. (The over-under line was 20 years). Certainly the Liberty City defendants will be citing to Padilla's case and arguing that they should get way less time. We'll set the over-under in this case at 17 years, the same sentence that Padilla received, for the lead defendant. What do you all think the appropriate sentences are now that they have been convicted?

Five of six convicted in Liberty City 6 case

Naudimar Herrera was acquitted (represented by Richard Houlihan). The rest, including lead defendant Narseal Batiste, were convicted. Initial Herald article here.

UPDATE (4:24pm): South Florida Lawyers has a funny post on the verdict. The Sun-Sentinel covers the case here. And the AP is also covering the case. Sentencing for the 5 convicted is set for July 26.

What an unbelievable case. Press releases by the Attorney General. Three really long trials. Two hung juries. Tens of millions of dollars spent. Two acquittals. An acquitted defendant being deported. Five convictions. Sick jurors. Replaced jurors. And now the appeals...

Monday, May 11, 2009

Should prosecutors hire jury consultants?

Michael Froomkin, blogging at Discourse, raises the very interesting question here. From his post:

If the US Attorney’s office uses jury consultants to tell them how to select a prosecution-friendly jury, that would seem to me to be not just unsavory, but to raise some due process and right to jury trial issues.

But, I have to say that based on a cursory survey of the literature, it seems my instincts here may be misplaced: I’ve found half a dozen academic articles that just report on this phenomenon as if there is nothing odd or unsavory about it; if anything the drift is that the poor under-resourced prosecutors (the ones who just spent $5-10 million on the Liberty Six trials) need consultants to level the playing field.

I suppose if all the consultants are doing is helping the prosecution spin better then that doesn’t raise a constitutional question, although I still think that it is not a good use of public money. But if they are helping prosecutors identify pro-prosecution jurors, even by attitudinal rather then demographic factors, that seems to to me to take us yet another step away from the jury system we would wish for.

Some surely would say that the government is only responding to an arms race started by wealthy criminal defendants and, who knows, there may be something to that in some cases. But in this case the defendants are not wealthy. Has the public defender’s office got jury consultants too? If they do, couldn’t they make a non-aggression pact on the jury consultants and save us all some money?

Prosecutors use jury consultants in high-profile cases all of the time. Other than the cost, I had never thought that it was an issue, but Froomkin raises some interesting points. Thoughts?

FBA lunch this Wednesday

Judge John Gleeson is speaking at the Federal Bar Luncheon this Wednesday at the Banker's Club at 11:45. Please RSVP to Celeste Higgins at

Gleeson is a District Judge in the Eastern District of New York, and was a former federal prosecutor -- the same John Gleeson that prosecuted John Gotti.

Gotti's defense lawyer, Albert Krieger, will be in attendance. Should be fun...

Sunday, May 10, 2009

Back from the West Coast

It was a fun week in San Francisco (I can't believe I missed the Father Cutié drama)...

I see the blog was in good hands while I was away. Rick was great and we hope to have him back on a regular basis.

Just a couple of quick hits before we get going for the week:

-- The Liberty City 6 jury (the latest version of it) will continue deliberating this week. That case is truly jinxed... (In his post on last week's LC6 happenings, Rick missed Mike Tein -- who, of course, is the most quotable lawyer in the District -- from the Blum article: "What a shameful waste of our taxes at the worst possible time. Just think what $10 million could have done for our schoolchildren in Liberty City.")

-- The District now has a Wiki page. It's interesting to look at the historical makeup of the Court. (Some trivia pointed out on the page: "This federal district has the dubious distinction of having had more judges removed through impeachment than any other district, with a total of two, one-third of all federal district judges so removed.")

-- Justice O'Connor had this to say about judicial elections: "They're awful. I hate them." More here.

-- Rick posted on the FIU faculty vote for Dean, and FIU law professor Howard Wasserman has a lot to say about the vote and the coverage here. Howard criticizes the open proceedings and compares it to watching sausages being made. Gotta disagree with Howard here -- we wanna know how sausages are made. Open proceedings are a good thing. Better to have the press in there and reporting (even if the coverage in this case wasn't complete) than the alternative of having the doors closed.

-- Rumpole demonstrates why the Ben Kuehne case needs to be dismissed.

Friday, May 08, 2009

D.O.M. canned me

Honestly, I don't know how D.O.M. does this and runs a practice. It's like being Dick Vitale and Coach K for the same game. Anyway, a week of wearing just one hat was nearly more than he could take. And this morning's little joke certainly didn't help. As soon as he saw that, my blogging was done. He was all, "You're totally out of hand," and, "You're not taking blogging seriously," and, "People depend on this," and the whole nine. I know, I know: It's like Stewart firing Colbert for being too silly, but he was pretty mad.

"Did you say you were going to apply to be U.S. Attorney?"

"I said I was thinking about—"

"And you're not going to apply, are you?"

"Of course not, but I'm pretty sure people got that."

"And did you not use my PACER account for a post about Paris Hilton?"

"Sure, but—"

"And did you not ignore all the comments from my readers?"

"Stop crossing me, D. I'm not some government agent," I said. "At least as far as you and Acosta know."

D.O.M. went slackjawed. He had the exact look that Carrie Underwood's boyfriend must have had when he saw what she did to his truck.

"What?" I said. "Too soon?"

Let's all get together for some legal research

swiss_flag-715766.jpg.jpegJudge Gold set an evidentiary hearing for July 13th to sort out whether treaties or Swiss law prevent UBS from divulging account holder names to the IRS, reports the DBR. (The link is for subscribers only.) According to the article by John Pacenti, Gold ordered the Attorney General to explain by June 30th whether the IRS position is correct. Anyone making assertions about what Swiss law says needs to be in court for the hearing.

Game on

Dear Curt, David, and Willie—

I'm thinking about applying for that U.S. Attorney gig. I wanted you guys to hear it from me.

Thursday, May 07, 2009

Money is no object

I was getting a little desperate for something on the Liberty City 6 trial. Jay Weaver has been redeployed to the Herald's team on the scandal over Father Television's day at the beach. Fortunately, Vanessa Blum came through with something on theme for the SDFla Blog. It's a nice piece on the extraordinary cost of trying money.jpg.jpegthis case three times. Grossman Roth's Seth Miles, who was once across the aisle from me during my long stretch in Judge Ungaro's courtroom, has a nice quote, which is good to see. UF Professor Michael Seigel's kicker pretty much nails it, I think: "It's worth it if they are, in fact, terrorists. It's not worth it if they were a bunch of street kids saying stupid things."

Of course, a lot of what we do is relatively expensive. Back in the day, I used to marvel at the extraordinary expense that the U.S.A. put into a simple airport swallower case. If you added up the judge time, AUSA time, AFPD time, USPO time, agent time, court reporter time, interpreter time, and whatever else I'm forgetting, it was probably a good bit of money. But that's what makes our system of justice better than some system of summary or inquisitorial justice, which would be anathematic to the Republic. Anyway, it's not like the government would find a better use for this money. So, might as well let the lawyers, jury consultants, and graphic designers have it.

P.S. The New Times has this short post on its blog about the case.

Wednesday, May 06, 2009

Paris to answer questions from The Chief's witness chair?

The media are giddy over poor Paris' deposition in connection with Goldberg v. Paris Hilton Entertainment, Inc., a case pending before The Chief. Tew Cardenas represents the receiver for a local company that invested in a movie Paris was in but allegedly did not do enough to promote. Judging from some of the excerpts, I don't really know what they expected her to do. I can't even tell from her answers whether the questions that presumably instigated these were asked by her lawyers or the receiver's:
"Any chance I got, any red carpet, any press, if I was doing something for another product ... I would just bring it up, 'Oh, my new sorority film, it's going to be sexy, it's going to be really hot girls'—like I really, you know, did my best."
About her role as an executive producer:
"I'm not sure what a producer does, but—I don't know, help get cool people in the cast."
And the quote that everyone is jumping on, in response to who paid her cell phone bill:
"I don't know. I'm assuming, like, whoever pays my bills. I never ask about that stuff."
paris.jpg.jpegSeems like she's her own worst enemy, doesn't it? I mean, look at her—she's wearing heels on South Beach, and that hipster she's with is too self-involved to let her know that just isn't safe.

Even though this is being reported all over the Internet, only the Associated Press appears to have done original reporting, so these quotes are all we have of her deposition. But SDFla Blog doesn't just pilfer other people's news. We look into these important matters to put our own unique spin on them. (For this, we use D.O.M.'s PACER account.) Here it is:

Apparently, it's going to be a bench trial, if it comes to that. Can you just imagine what this will be like for The Chief? Or for this poor Paris creature? Incidentally, I love that The Chief denies Paris Hilton Entertainment's motion to seal certain documents with this flourish of rhetorical questions:
Many of the documents in Exhibit 1 are not financial records. For example, what is the need to file under seal the resume of CPA David Nolte, the list of his appearances in other court proceedings and his publications? Certainly those items need not be filed under seal. Also, how do the parties intend to proceed to trial and discuss the financial concepts in this case? Will it not be done in an open courtroom? If so, then why should it be sealed now?
That's basically the entire order. Classic stuff. I mean, you can almost hear his voice, can't you?

The birds and the Indians

It turns out D.O.M. reads the comments. I know, I know. I couldn't believe it either. He says to me, "You need to write about civil cases. And someone said you're posting too much. Also, some people want to see pictures of handsome men."

"D, those are anonymous. There's no accountability. They can say anything. You have to treat them like fortune cookies."

Anyway, there's no convincing him, so here's one about a civil case with a picture of a cute bird. That's as far as I'm giving in:

Your gambling losses may help save an endangered Everglades species of hawk from the government's efforts to save an endangered Everglades species of sparrow. The Miccosukee Indians sued the Fish & Wildlife Service alleging that its efforts to protect the sparrows were flooding the hawks' habitat, a third of which happens to be on tribal lands. Picture 1.pngThe Eleventh Circuit affirmed on Tuesday most of Judge Moore's decision in favor of the government. It agreed with the Tribe, however, that the Service had to specify a low-point in the population of hawks that would trigger further review. The Service had claimed that the birds were too hard to count and elected to use water levels as a trigger instead. Noting that the Service seems to have counted the birds every year since 1969, Judge Carnes vacated that part of Judge Moore's decision and remanded the case:
The goal of the Endangered Species Act is to protect populations of species, and using habitat markers when population data is available is like turning on the weather channel to see if it is raining instead of looking out a window.
It's a pretty entertaining read as these things go. The Tribe was represented by Lehtinen Vargas & Riedi.

Zarabozo sentenced to life

joecoolcharterboat.jpgJudge Huck imposed five consecutive life sentences plus 85 years on 21-year-old Guillermo Zarabozo for his role in the murders and other crimes committed aboard the Joe Cool. Zarabozo maintained that his accomplice Kirby Archer, who is serving a life sentence, was solely responsible for the killings.

Tuesday, May 05, 2009

Faculty disapproves Acosta's bid for FIU deanship

The FIU College of Law faculty recommended that the university not offer the deanship to U.S. Attorney R. Alexander Acosta, reports the DBR (whose article is available only with a paid subscription) and the Sun-Sentinel. The faculty endorsed two candidates, Beto Juarez, dean of the DU Sturm College of Law—a fantastic place to spend spring semester teaching criminal procedure and skiing—and Joel Friedman, a Tulane Law professor. The recommendations are not binding on the FIU president and provost but traditionally are seriously considered.

The "maybe-nots" have it (updated)

250px-The_Parent_Rap.gifHave a rough day at the office ahead of you today? I bet Judge Lenard can sympathize. Apparently, "sternly order[ing]" the jurors in the Liberty City 6 trial "to follow the law and obey her instructions regarding their duty to deliberate" (as Curt Anderson put it for AP) did not do the trick. But she is not giving up on them yet. Motion for mistrial denied.

UPDATE: Deliberations are starting again with a new alternate subbing-in for the person now known as "the recalcitrant juror".

A tiresome rant on grammar but you get a free DFW essay out of it

So, the other day I'm at the gym over at the U and one of the undergrads who works there is all excited about his LSAT score and can't wait to apply to law school. I ask him how he feels about grammar and diagramming sentences, and he looks at me like I'm some kind of walking non-sequitur because what he's really good at is arguing.

Picture 1.pngIf only I'd had a copy of yesterday's Flores-Figueroa v. United States in my pocket. This was reported under such headlines as "Justices Limit Use of Identity Theft Law in Immigration Cases" and "High court removes tool for deporting illegals." Those are, of course, much more grabby than the more accurate, "Court rules adverb 'knowingly' modifies entire predicate and its object." Few under 35 would have any idea what that headline meant. (The late, great David Foster Wallace explains why in this brilliant piece that takes a little while to download because it's a pretty big file but is completely worth it.) I can't imagine what they would make of the crux of Justice Breyer's reasoning, which was this:
In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.
Dismaying as it is, a world where judges and lawyers don't have a command of grammar—the kind you get from diagramming hundreds of sentences—is anarchic.

The Court's other decisions yesterday would probably reinforce the point (if I had a really good reason to slog through them) because they all involve "statutory interpretation," which is legalese for grammar. Two are about civil procedure issues—a remand of state claims to state court is appealable even though the statute says it isn't and the circuit courts of appeals have jurisdiction to review a denial of a stay of arbitration. One is about liability under CERCLA. (Shell won; that's as far as I want to get into that one.)

Monday, May 04, 2009

Too much democracy

Go here right now and type in David Oscar Markus. Or copy and paste it. I've made it easy for you.

P.S. If you are interested in keeping up with every pundit's musings on who should get Souter's seat, How Appealing has enough links to suck up your whole work day.

Help Wanted


So, D.O.M. calls and he's all, "Why haven't you posted anything all day long?" and I'm like, "Dude, I've been working like a dog, yo," and he's all up in my face with, "Doing what?" like he's the boss of me or whatevers and I'm like, "Grading papers and exams," and then he busts out with, "What's all that wind?" like if he doesn't know I like to grade on the Bay and now that's gonna be a thing because, "Think of the Blog!" and everything.

Anyway, the races are on. Applications are now being taken for district judges, U.S. Attorneys, and U.S. Marshals. Here's the official announcement:
Pursuant to the instructions set forth in the attached letter from Senator Bill Nelson and Senator Mel Martinez, dated April 30, 2009, the Florida Federal Judicial Nominating Commission is now accepting applications for the following positions:
U.S. District Judge, Southern District of Florida
U.S. District Judge, Middle District of Florida
U.S. Attorney and U.S. Marshal, Northern District of Florida
U.S. Attorney and U.S. Marshal, Middle District of Florida
U.S. Attorney and U.S. Marshal, Southern District of Florida

The revised Rules of Procedure for the Judicial Nominating Commission, dated April 30, 2009, application forms with incorporated instructions, and the names and addresses of the members of the Commission are available at the following Web sites:

1) The Florida Bar; 2) the U.S. District Court for the Northern District of Florida; 3) the U.S. District Court for the Middle District of Florida; and 4) the U.S. District Court for the Southern District of Florida.

In addition, these materials may also be obtained from the Commission Chair, John M. Fitzgibbons, The Law Offices of John M. Fitzgibbons, 707 North Franklin St., Suite 700, Tampa, FL 33602.

Completed applications must be received by the Commission Chair and commission members in the manner specified by the Rules of Procedure by 5 p.m., Friday, June 5, 2009. Applicants who are selected by the commission for personal interviews will be subsequently notified as to the date, time and location of the interviews.
You have to figure they'll be about this careful, so this can't be fun. And above is what the SDFla looked like today if you were busy grading papers like I was.

Sunday, May 03, 2009

"Please help us, judge."

MIB.jpgIt didn't take. The mind-wipe, I mean. It didn't work.

Friday afternoon, deliberations over the fate of the Liberty City Six hit a new snag, according to reports by the Associated Press and the Miami Herald. Here's the abridged version of the AP report:
A few hours after an ill juror was replaced, a note signed by the jury foreman in the "Liberty City Six" case said a female juror "refuses to engage in discussions based on the evidence or the law" and that this could be "unfair to the defendants," according to U.S. District Judge Joan Lenard. The note said the juror was disruptive and had made comments offensive to others.

"Please help us, judge," the note said, adding the juror "feels deliberating is a waste of time."

In court Friday, the juror accused of not wanting to deliberate also sent her own note, complaining that she feels under "attack" from the others and hinted she may have made comments about the law that were "misinterpreted."

After summarizing the notes in court, Lenard summoned the jurors back into court and sternly ordered them to follow the law and obey her instructions regarding their duty to deliberate. Lenard told the panel to return Monday.

"This may clear up the problem," Lenard said outside the jury's presence. "Maybe not."

SDFla Blog Origins

This month Hollywood brings us the career-beginning adventures of Wolverine and the mutants and (way more importantly) the crew of the Starship Enterprise. So I thought I'd stay on theme and screen the clip of how D.O.M. came to start this blog.

And that's how it happened.

Saturday, May 02, 2009

Judge Altonaga feted in New Haven


The Latino Law Students Association at Yale Law School is awarding SDFla Judge Altonaga (YLS '86) its Public Service Award tonight at New Haven's Union League Café. Dean (and Supreme Court Candidate®) Harold Koh is scheduled to attend. Last year, LLSA honored Judge (and Supreme Court Candidate®) José Cabranes (which we know because they have yet to update their web site). Maybe they'll post some pictures or a nice blurb on their blog or Facebook page.

The photo is YLS's Sterling Law Building in 2006 and the guy who wouldn't get out of my shot.

Bern backs UBS


The government of Switzerland filed an elegantly understated amicus brief for Judge Gold's consideration on Thursday (according to PACER) or yesterday (according to the media). The upshot of it is that enforcement of the United States' summons—which it implies (but refrains from outright saying) is just a "fishing expedition"—circumvents the applicable treaty and violates Swiss law. Here is the very abridged version:
The Government of Switzerland has a strong interest in the preservation of the integrity of Swiss law and sovereignty and in promoting respect by the United States of its international treaty obligations to Switzerland.
If the Court were to order UBS to produce evidence from Switzerland, and backed that order with coercive powers, the Court would be substituting its own authority for that of the competent Swiss authorities, and therefore would violate Swiss sovereignty and international law.
The Wall Street Journal reports that an IRS agent speaking at a financial conference in Miami confirms that more "John Doe" summonses are in the works.

Friday, May 01, 2009

Souter succession speculation


ABC News Supreme Court correspondent Jan Crawford Greenberg canceled her scheduled appearance today at the Eleventh Circuit Judicial Extravaganza in Birmingham. Instead, she stayed in Washington to contribute to the frenzy of speculation about Justice Souter's successor. (The President is chatting with Souter in the photo, which is from the White House's new Flickr photostream.)

The Wall Street Journal has a fun graphic with scary mugshots of leading contenders. The Economist includes former President Clinton among the hopefuls. CNN lists seemingly everyone imaginable except Bill—including SDFla's Judge Jordan, whom this blog has previously all but endorsed.

As for Souter, he's not yet gone but already seems to be forgotten. Justice Stevens wrote today about Souter that "the Court will suffer a far greater loss than many now realize." That's almost certainly true as even the illuminati of constitutional law seemed at a painful loss today to dig up even one defining, signature Souter opinion in United States Reports. Professor Powe of Texas summed it up: "He couldn’t be my favorite for what he wrote; he was my favorite for what he was." (Souter did write one that shows how crafty he is—Brendlin v. California (2007)—but I'm apparently not on the New York Times' speed-dial.)

"I direct you to wipe your minds clean."

That was Judge Lenard instructing the Liberty City jury to start over with its deliberations, after replacing a sick juror with an alternate. Here is Jay Weaver's article.

Guest Blogger

Professor Ricardo Bascuas has agreed to guest-blog next week. Have fun!