Good luck to the applicants for Judge Huck's seat

The JNC is conducting interviews all day today. Good luck to all 16.

Justice Stevens weekend

Justice Stevens was everywhere this weekend. In the NY Times, discussing the death penalty:

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.
But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.
The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

The whole review by Justice Stevens is worth a read.

Stevens was also on 60 Minutes:



It's amazing to watch him -- he still seems young and vibrant. I didn't know that his father was convicted and that an appellate court reversed the conviction. He discusses how that impacted him as a kid and as a judge. He also was at the game where Babe Ruth called the shot, and he talks about that as well. Great stuff.

UPDATE -- Rumpole has more on the Stevens interview here.

Happy Thanksgiving pardons?

While President Obama pardons a turkey today, he has yet to pardon one human being! On a lighter note, this video is making the rounds again:



Yikes!

In any event, happy turkey day to you all. We have a lot to be thankful for.

Happy Thanksgiving

Most people emailing me this link about the boy who was charged with mutilating and killing cats who was cleared today are saying something like: "He has a lot to be thankful for! They dismissed today."

This kid's life has been ruined by these charges. I think those of us involved in the criminal justice system sometimes forget how much the fact of being charged really affects someone's life. The prosecutors ended up doing the right thing, but now what? How does Tyler Weinman get his life back? He was in high school when he got charged...

Here's the Herald article:

Prosecutors on Wednesday dropped their case against accused serial cat killer Tyler Weinman after two scientific experts determined that an animal, not the teen, was to blame for a string of grisly feline mutilations in South Miami-Dade last year.

That means Tyler Weinman, 19, is now a free man.

``Our job is to seek the truth and the truth is that this was done by an animal predator, not by a human being,'' Miami-Dade State Attorney Katherine Fernández Rundle said Wednesday.

Police and prosecutors -- who initially relied on the opinions of Miami-Dade's Animal Services department -- built a circumstantial and highly publicized case in the mutilations that terrorized pet owners across the upscale cities of Cutler Bay and Palmetto Bay.

Weinman was initially accused of slaying 19 cats in South Miami-Dade, was faced a slew of burglary and cruelty to animal felonies.

``I'm so happy right now,'' said defense attorney David Macey. ``Vindication. I'm thrilled. And Tyler is elated that justice has prevailed.''

No DNA linked Weinman to eight preserved animal carcasses and finally, a defense forensic veterinarian concluded that an animal was to blame for the killings. Two state experts agreed.

``They peeled back underneath the skin and found puncture wounds and that was the end of the case,'' Fernández Rundle said. ``This is a classic case of scientific evidence trumping a circumstantial case.''

Kimba Wood is cool

Check out this motion and Judge Wood's awesome response.

Courtesy of the WSJ Law Blog:

The Manhattan lawyer recently asked New York federal judge Kimba Wood to grant him a day’s reprieve in a criminal trial to attend the bris of his grandson. Epstein’s daughter has not yet given birth — so he doesn’t yet know the sex of the baby. But Epstein wanted to give Judge Wood ample notice to consider his request, given that his daughter’s due date is Dec. 3, smack in the middle of the scheduled trial.
So Epstein was stuck in the slightly awkward position of asking Judge Wood for a day off if, in fact, the baby turns out to be a boy. If it’s a girl, well, no bris, no day off needed.

Wrote Epstein...:

Should the child be a girl, not much will happen in the way of public
celebration. Some may even be disappointed, but will do their best to conceal
this by saying, “as long as it’s a healthy baby.” . . . However, should the baby
be a boy, then hoo hah! Hordes of friends and family will arrive . . . for
the joyous celebration . . . known as the bris. . . . My presence at the bris is
not strictly commanded, although my absence will never be forgotten by those
that matter.

Judge Wood, in a note written at the bottom of the letter, granted the request. But she did Epstein one better. Wrote Wood:

Mr. Epstein will be permitted to attend the bris, in the joyous event that
a son is born. But the Court would like to balance the scales. If a daughter is
born, there will be a public celebration in Court, with readings from poetry
celebrating girls and women.

Federal JNC to interview all 16 applicants (updated)

I have it on good authority that all 16 applicants will be interviewed on November 30. I wonder if we can get Dore to live blog the interviews.

UPDATE -- Confirmed. See here. The 16 interviews start and end with Magistrates (Seltzer & O'Sullivan). Only a 40 minute lunch!

One commenter told me: "There are more JNC members than applicants!"

Unlike Justice Breyer, Justice Scalia is a techie

I posted last week about how Justice Breyer didn't really understand text messaging or Facebook. Well, Justice Scalia is different -- he even has an iPad and an iPod! From ABT:

By this point, the conversation started to shift into the home stretch, so Jan Crawford turned to fun stuff and lighter fare. She asked Justice Scalia: Do you have an iPod?
One might have expected Scalia, whose jurisprudence often involves traveling back in time to when particular constitutional provisions were enacted, to declare that he listens to all his music on a Victrola — but no. As it turns out, he does have an iPod!
This response seemed to catch Crawford by surprise. She asked him if he uploads the music himself; he said that he does, and that his playlist consists mostly of classical music and opera.
(It’s amusing to imagine Justice Scalia, one of the greatest legal minds in our nation, loading up his own iPod like a mere mortal. Couldn’t he ask a staffer to do it, or maybe one of his many grandchildren? But then again, if Justice Elena Kagan can fetch her own pizza, then Justice Scalia can load his own iPod.)
As it turns out, Scalia is more tech-savvy than one might have expected from a 74-year-old. He composes his opinions on a computer (unlike Chief Justice Roberts, who writes in longhand). In fact, said Scalia, “I can hardly write in longhand anymore” — which he’s reminded of whenever he has to write a handwritten condolence note.
When he has to take materials home for work, he uses a thumb drive, or accesses the Court computer system remotely. And perhaps most excitingly, as I previously reported on Twitter, Scalia has an iPad! He uses it for working at home; staff members load the parties’ briefs on to it.

I wonder whether the SDFLA judges are more like Breyer or Scalia. I know many of them email from their phones (I actually saw one judge recently in her car emailing as she was driving), but do they Facebook, Twitter, read the blogs, etc?

There's lots more fun stuff at ABT on Scalia, so go check it out.

Wesley Snipes surrenders

The judge said it was time: "The defendant Snipes had a fair trial; he has had a full, fair and thorough review of his conviction and sentence. ... The time has come for the judgment to be enforced," the judge wrote in his 16-page decision.

From Bop.gov: 1. WESLEY TRENT SNIPES 43355-018 48-Black-M UNKNOWN IN TRANSIT

Baby steps

The 9th Circuit will air the Prop 8 case on TV!

According to SCOTUSBlog:

The Ninth Circuit Court agreed on Wednesday to allow live and delayed broadcasting of the Dec. 6 oral argument on the constitutionality of Proposition 8 — California’s ban on same-sex marriage. In a brief order, the Court cleared live broadcasting by C-SPAN, the cable network. It also gave permission to a San Francisco station, KGO-TV, an ABC affiliate, to provide coverage.

It's something at least. HT: BL

Judge Camp is going to plead guilty today. I'll post the plea agreement as soon as it's public. The Times Herald reports:

Senior U.S. District Judge Jack Camp is scheduled to enter a plea of guilty today in federal court on two misdemeanor counts and one count of aiding and abetting another’s drug possession, according to Newnan attorney Michael Kam, one of the attorneys representing Camp.

What do you think is a fair sentence?

"It's quite clear, we don't have a Facebook page."

That was Justice Breyer at a speech yesterday. More:

If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... 'The Social Network,' which I couldn't even understand," he said.
Oy.

It doesn't get better:

Although Breyer was making a point about judicial philosophy, he also touched on the court's sometimes limited grasp of technological developments. For example, Chief Justice John Roberts in a public employee privacy case before the court earlier this year tried to figure out the role of a text-messaging service in enabling an exchange between two people.

"I thought, you know, you push a button; it goes right to the other thing," Roberts said. Responded Justice Antonin Scalia: "You mean it doesn't go right to the other thing?"

And in a recent case dealing with a California law regulating the sale or rental of violent video games to children, Justice Anthony Kennedy pressed a skeptical state lawyer on whether the v-chip blocking device, rather than a state law, could be used to keep children away from the games.

"V-chips won't work?" Kennedy asked, before the lawyer politely explained they are limited to television programming.
I do agree with Breyer here:

Breyer said he disagrees with those who argue that originalism is "a good system because it will keep the subjective impulses of the judge under control."

"If you want to have history solve everything, let's get nine historians and not nine judges," Breyer said. "And you'll discover that the nine historians are fighting about the various points on which these cases turn anyway."

Adam Liptak from the NY Times has an interesting article today about how vague Supreme Court opinions are and how lower courts are struggling trying to figure them out. Here's a passage from the article dealing with the text messaging case:

In the privacy case that infuriated Justice Scalia and mystified Judge Hull, City of Ontario v. Quon, the Supreme Court ruled that a California police department had not violated the constitutional privacy rights of a member of a SWAT team when it audited the text messages on a pager the city had issued him.

Justice Kennedy took the unusual step of accepting three important points in the case only for the sake of argument, and he spent much of his opinion explaining that the court had taken pains to decide as little as possible.

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” Justice Kennedy went on. “On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.”

Given that, he said, the case should be decided on grounds so narrow that the decision would have almost no precedential effect. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” he wrote.

In his concurrence, Justice Scalia decried this approach.

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Many scholars say there is an important place in Supreme Court jurisprudence for incremental rulings, purposeful ambiguity and the delegation of discretion to lower court judges.

“If the goal is to clear up any conflict in the lower court opinions, then you may want a clearer opinion,” Professor Spriggs said. “But a real bright line may create some injustices in the system.”

We're # 2!!

From the New Times: "MIA Ranked Second Most Hellish Airport in U.S. for Second Year Running". We were bested by Newark. Newark!

I actually like the new D terminal, despite the really long walks. The train 3 floors up isn't really convenient. But at least there are some restaurants along the way.

Howard Stern & Billy Joel

Okay, I know this is way off topic, but I couldn't get out of my car this morning, listening to Howard Stern interview Billy Joel. It was fantastic hearing him play his music in the studio and explaining how the song was written, etc. Here's one of his best to get your Tuesday morning started:




Okay, one more:

Monday morning quick hits

-- No word yet on who has interviews from the JNC. We do know that interviews will take place on November 30.

-- The NY Times covers Miami cyber-criminal Albert Gonzalez in a lengthy article. It's a fascinating piece about how Gonzalez fell back into a life of crime after cooperating with the feds. He explains that he would have been better off just serving his time instead of snitching in the first place.

-- Does anyone really think that we should still have judicial elections? This is ridiculous.

-- First opinions of the Term come out today. Check out ScotusBlog around 10am.

-- Judge Cooke won't be in trial this week. She's in Atlanta sitting as a visiting judge on the 11th Circuit.

UPDATE -- the Supreme Court decided one case, Abbott v. United States, No. 09-479, holding that Section 924(c) and does not preclude the imposition of mandatory minimum sentences for different counts of conviction.

Who's the most at blame here?

The trial judge, the appellate judges, the prosecutor or the defense attorney? Via Volokh, you'll see totally absurd events unfold:

Here’s what happened in the middle of a trial of parents for killing their child through child abuse (felony murder under Georgia law):

[T]he prosecutor, in the final moments of her concluding argument on behalf of
the State, “clicked” her fingers at which signal one of the deputies in the
courtroom turned out the lights and an associate prosecutor “popped out a cake
out of a grocery bag” complete with eight candles, which were then lit with a
lighter brought into the courtroom; the prosecutor and her associate then
proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory
words to “Happy Birthday.”

The dissent (in Smith v. State, decided Monday by the Georgia Supreme Court) argued that this was prosecutorial misconduct that required reversing the convictions, even though the defense lawyer did not object:

There was no legitimate reason for what the prosecutor did. It was neither
argument nor rebuttal, because there is nothing at all in the record about
birthdays and birthday cakes to raise even the slightest possibility that the
prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary
restrictions, that eliminated the possibility of the victim experiencing the
type of birthday event dramatized by the prosecutor. The prosecutor’s birthday
production was not meant to be argument or rebuttal: it was a theatrical stunt
spun out of pure fantasy. Its sole purpose was to prejudice the rights of
appellants before the jury in an impermissible attempt to invoke the jury’s
passions and divert the jury from the evidence. It offended the dignity and
decorum of the court and violated every precept of professionalism and fair
play. Yet the trial court did absolutely nothing. The event played itself out
without the trial judge performing his duty to maintain decorum in the
courtroom. Moreover, after observing this “‘preposterous’” performance, the
trial court took no steps of any kind to minimize the prejudice. There was no
rebuke to counsel; there was no direction to the jury to ignore the spectacle
they had just witnessed; there was no charge to the jury that sympathy for the
victim was to play no role in their verdict.

[Footnote: I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was
deliberately pandering to the television audience observing the proceedings on
Court TV. See defense counsel’s testimony at the hearing on appellants’ motion
for new trial (“I understand the cameras were rolling and everybody wants to be
Nancy Grace’s friend”).]

The majority agreed the prosecutor’s behavior was improper, but concluded that the defense lawyer’s decision not to object was a strategic judgment, and therefore not grounds for reversal. (“Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the ‘Happy Birthday’ song during closing argument. Specifically, Arora thought that the ‘Happy Brithday’ song was so ‘preposterous,’ ‘absurd,’ and ‘over the top’ that ‘it would turn the jurors off,’ and that he should not call any more attention to it by objecting to it.”)

HT: MC

16 Applicants for Judge Huck's seat

Jerald Bagley
Betty Butchko
Mary Barzee
Darrin Gayles
Michael Hanzman
Judy Korchin
Robert Levenson
Peter Lopez
Ana Marie Martinez
Caroline Heck Miller
John O’Sullivan
Robin Rosenbaum
Robert Scola
Barry Seltzer
Will Thomas
John Thornton

I'm struck by the very low number of applicants. Looks like 8 state court judges applied and 3 federal magistrates. Only two private practitioners.

I'll have more soon.



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If a tree falls in a forest and no one is around to hear it, does it make a sound?

Well maybe, if that tree is DOJ... Here's DOJ saying the fraud guidelines need to be updated (from Main Justice). Federal judges were also piping in, with one calling the loss guidelines "a crock."

I'm sure the DOJ officials at this conference weren't staying in the forest though; they were probably staying at the Ritz. Kosher Meatball Blog (I still don't get the name) has more on this OIG report entitled "A Review of U.S. Attorney Travel that Exceeded the Government Lodging Rate." It's not pretty.

Miami Herald cites SDFLA and SFLawyers!

Pretty cool. Meantime, I can't get the CHiPs theme song out of my head.

Over the weekend, Jay Weaver profiled Eric Bustillo, the SEC chief. It's a nice piece. Here's the intro:

A product of Jesuit schools in Latin America, Eric Bustillo entered Tulane University in fall 1981.
Within months, his bright future would take a dark turn: He and his friends were returning to the New Orleans campus one night when their car swerved to avoid another and slammed into a tree. Bustillo's spinal cord was severed, leaving him paralyzed.
Today, as he sits in a wheelchair in his corner office overlooking Biscayne Bay, Bustillo displays only optimism. A lawyer for more than 20 years, he is director of the Miami regional office of the U.S. Securities and Exchange Commission, in charge of protecting investors in a region riddled with fraud, from old-fashioned boiler rooms to newfangled Ponzi schemes.
``I could have wallowed in my misfortune, or worked hard, educated myself and not let it become an obstacle,'' said Bustillo, 45, born in New Jersey to Cuban exile parents who moved the family around to Venezuela, Panama and other countries.

Looks like Ponch is going to have a few solo missions on the California Highway Patrol for awhile

SFLawyers previously covered Larry Wilcox's (Jon Baker in CHiPs) case here. He actually pleaded guilty before Judge Cohn today. Here's the actual plea agreement. He's obviously cooperating in this securities fraud case and his sentence is capped at 5 years. He agreed to all of the enhancements in his agreement for a one month conspiracy in 2009, including amount of loss, abuse of trust, sophisticated means, officer/director, and he agreed not to ask for a variance or appeal. So, he will have to hope the government goes to bat for him on his cooperation. If not, he's looking at 2 years by my count.

Friday

Finally, some good cool weather.

Justice Stevens gave this cool speech -- and he uses trilogies too:

Today I plan to say a few words about memorials, mosques, and monuments. Like Lieutenant Ichikawa, who is being honored today, I served in the Pacific theater during World War II. The Empire of Japan was our principle enemy in that theatre. Lieutenant Ichikawa, like literally thousands of other patriotic Japanese Americans including residents of Hawai'i as well as residents of the Mainland -made a magnificent contribution to our war effort there.

In other news:
Gary Kravitz, Murray Greenberg, and Nathaniel Persily of Columbia Law School, along with the St. Thomas Law Review have put together a symposium next weekend (November 12-13, 2010) entitled Bush v. Gore: A DecadeLater. Panelists inclue Greenberg, Persily, Ben Ginsberg, Kendall Coffey, Ben Kuehne, Joe Klock, Jim Bopp, Justice Fred Lewis, Judge Nikki Clark, Jeff Erlich, Paul Hancock, Kim Tucker and an academic panel including Jim Gibson, Nelson Lund and Edward Foley.

This event will be held at St. Thomas and admission is free. The symposium has been approved for a maximum of 7 CLE credits.

SCHEDULE OF EVENTS:

Friday, November 12, 2010

Welcoming Remarks 4:00-4:15 p.m.

The View from the Litigants 4:15-5:45 p.m.

Saturday, November 13, 2010

Continental Breakfast 8:30-9:00 a.m.

The View from the Administrators 9:00-10:30 a.m.

The View from the Bench 10:30 a.m.-12:00 p.m.

Luncheon Panel-
The View from Academia 12:15-2:00 p.m.

Closing Remarks 2:00-2:15 p.m.

Registration is required prior to November 10, 2010. Please contact the Law Review Office at lawrev@stu.edu or phone (305) 623-2380.

St. Thomas Law Review
St. Thomas University School of Law
16401 NW 37th Avenue
Miami Gardens, FL 33054

Happy Halloween

This press release found its way to my inbox: DEFENDANT CHARGED WITH IMPORTING CANDY LACED WITH COCAINE ON FLIGHT TO FORT LAUDERDALE.

Well, I had to read more:

According to the criminal complaint, on November 1, 2010, Perez arrived into Fort Lauderdale/Hollywood International Airport on a flight from Bogota, Colombia. Perez proceeded to the CBP enclosure and presented himself and his luggage to CBP officers for inspection and entry into the United States. Within the luggage claimed by Perez, there were multiple paper shopping bags containing different articles of clothing. In addition, Perez claimed bags containing various types of candies. CBP discovered that the bottom of these bags contained cocaine. Upon this discovery, CBP gave closer inspection to the bags of candy claimed by Perez. CBP field-tested one of each type of candy and found that each type of candy field tested positive for cocaine. In total, CBP determined that Perez was in possession of approximately 9.6 kilograms of cocaine. Subsequently, ICE special agents arrested Torres Perez on the federal criminal charges.

Yikes, that's a lot of candy!

When you have 5 minutes to kill...

Hat tip: AMM

"If Mr. Rothstein thinks setting up Mr. Settineri is going to get him a get-out-of-jail card, he's sadly mistaken.''

That was Jeff Weiner after Judge Cohen sentenced his client Roberto Settineri to four years (via the Miami Herald):


Defense attorney Jeffrey Weiner and federal prosecutors recommended that Settineri receive four years' imprisonment at his sentencing Wednesday morning in Fort Lauderdale.
The U.S. District Judge James Cohn called it a ``fair resolution.'' The maximum is five years.
In exchange for his guilty plea in August, Assistant U.S. Attorney Cynthia Stone dropped the original conspiracy charges, which carried up to 20 years in prison.
After Settineri's sentencing, Weiner said that his client could actually be released from prison in about two years. Settineri received credit for eight months of detention since his arrest in March. The judge also allowed him to enter a 500-hour alcohol abuse program in prison, which, if completed, would cut an additional year off his sentence.
Weiner said that while his client said nothing at his sentencing, Settineri took full responsibility and apologized for his wrongdoing in a court filing.
``His life was fine until he made this terrible mistake in judgment,'' Weiner said. ``He thought he was helping a friend in need. He's embarrassed about it.''

"Some of the Grimm’s fairy tales are quite grim." -- Justice Scalia during oral argument yesterday

So were some of those election results...

Here's the NY Times article on the violent video game argument in the Supreme Court:

The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”
“What’s a deviant violent video game?” asked Justice Antonin Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?”
“Some of the Grimm’s fairy tales are quite grim,” he added. “Are you going to ban them, too?”
Justice Stephen G. Breyer took the other side. He said common sense should allow the government to help parents protect children from games that include depictions of “gratuitous, painful, excruciating, torturing violence upon small children and women.”

Scalia got the better of Alito in this exchange:

But Justice Scalia said there was nothing in the tradition of American free speech that would allow the government to ban depictions of violence. The thought, he said, would have been foreign to the drafters of the First Amendment, drawing a needling comment from Justice Samuel A. Alito Jr., the lone dissenter in the Stevens case.
“What Justice Scalia wants to know,” Justice Alito said, “is what James Madison thought about video games.”
“No,” Justice Scalia responded, “I want to know what James Madison thought about violence.”

And they better not ban Mortal Kombat!

Justice Elena Kagan, the court’s newest and youngest member, seemed to be the only justice with even a passing familiarity with the genre under review, even if it was secondhand.
“You think Mortal Kombat is prohibited by this statute?” she asked Mr. Morazzini. It is, she added, “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”
Mr. Morazzini said the game was “a candidate” for government regulation.

There was another big oral argument yesterday -- US v. Skilling:

A three-judge appeals court panel grilled attorneys for former Enron CEO Jeff Skilling and the government on Monday, trying to decide whether to throw out or order new trials on any of Skilling's 19 convictions.
His defense lawyer, Daniel Petrocelli, argued the U.S. Supreme Court's decision that the government was wrong to use a particular legal theory in charging Skilling with conspiracy means that charge and the remaining 18 should be thrown out.
The government contends that a rational jury would have convicted even without the faulty theory that he deprived Enron of his "honest services," because evidence overwhelmingly supported Skilling's guilt.
But the hearing, in which each side had 30 minutes to provide oral arguments, was more about the judges' questions than the lawyers' answers.
Judge Edward Prado asked if it would make more sense for the federal district court where Skilling was tried in 2006 to decide the issues raised by the Supreme Court decision.
Determining if the "honest services" theory tainted the other charges would involve digging into the voluminous details of the five-month trial, Prado said.
Petrocelli said nothing would prevent the appeals court from sending the issue to the trial judge, but that the question is one of law.
"The court isn't being asked to act as a 13th juror," or guess what the original jury was thinking, Petrocelli said. Rather it needs to look at the court record and determine if a "reasonable jury" could find Skilling not guilty based on the evidence.
"The record is filled with acquittal evidence," Petrocelli said.

You can access the audio of yesterday's Fifth Circuit oral argument via this link (53.7MB Windows Media audio file). Why don't we have that in the 11th Circuit?

Go vote!

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Monday

What's new on this rainy Monday? Well, the Supreme Court took a bunch of cases, including one concerning Miranda warnings and minors. In the District, Judge Middlebrooks and Judge Graham both started mortgage fraud trials this morning. A bunch of those cases are now starting to go and there have been a bunch of acquittals for straw buyers. What else?