Here is his intro in Michigan v. Bryant:
Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the Peoplea dopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.
The conclusion is strong too:
Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
Justice Ginsburg also dissented in a short opinion.
Justice Sotomayor, a former prosecutor, wrote the majority opinion, which held:
[The witness] Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause.
Yikes. I stick to what I have said before that Justice Scalia is the criminal defendant's best friend on this Court. I know that's not saying much, but it's true.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Monday, February 28, 2011
Clarence Thomas is pissed
Check him out here, via Politico:
From the article:
Supreme Court Justice Clarence Thomas – his impartiality under attack from liberals because of his attendance at a meeting of conservative donors sponsored by the Koch brothers and his wife’s tea party activism – struck a defiant tone in a Saturday night speech in Charlottesville, Va., telling a friendly audience that he and his wife “believe in the same things” and “are focused on defending liberty.”
Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”
He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.
“You all are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties,” he said, according to a partial recording of the speech provided to POLITICO by someone who was at the meeting.
“And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”
Meantime, the Supremes have decided to take up an arbitration case from our District. More from Pacenti:
A scam targeting law firms is the nexus of a Miami case heading to the U.S. Supreme Court to determine when businesses waive their right to arbitration in consumer litigation.
The U.S. Supreme Court has taken a liking to arbitration and arbitration cases, often siding with businesses that make binding arbitration part of their contracts in the interest of judicial efficiency.
From the article:
Supreme Court Justice Clarence Thomas – his impartiality under attack from liberals because of his attendance at a meeting of conservative donors sponsored by the Koch brothers and his wife’s tea party activism – struck a defiant tone in a Saturday night speech in Charlottesville, Va., telling a friendly audience that he and his wife “believe in the same things” and “are focused on defending liberty.”
Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”
He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.
“You all are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties,” he said, according to a partial recording of the speech provided to POLITICO by someone who was at the meeting.
“And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”
Meantime, the Supremes have decided to take up an arbitration case from our District. More from Pacenti:
A scam targeting law firms is the nexus of a Miami case heading to the U.S. Supreme Court to determine when businesses waive their right to arbitration in consumer litigation.
The U.S. Supreme Court has taken a liking to arbitration and arbitration cases, often siding with businesses that make binding arbitration part of their contracts in the interest of judicial efficiency.
Saturday, February 26, 2011
Housewives and The Boys
Jay Weaver explores the connection between the Miami Housewives and Willy & Sal:
Long before they made their debuts in The Real Housewives of Miami this week , they played bit parts in a drama with a lot more reality: the life and times of legendary cocaine cowboys Willy and Sal.
Three of the new Bravo show’s trophy wives – Alexia Echevarria, Marysol Patton and Lea Black — shared six degrees of separation with Willy Falcon and Sal Magluta, dubbed “The Boys” during the real Miami Vice era.
Echevarria, 43, was once married to a codefendant who pleaded guilty and cooperated as a government witness in the 1990s drug-trafficking prosecution of Falcon and Magluta.
Patton, 44, was the girlfriend of a convicted, big-time cocaine distributor who also was a cooperating witness in the marquee federal case.
And Black, 56, is married to the famed lawyer Roy Black, who was paid millions to represent Magluta.
On Friday, Roy Black chuckled when a reporter brought to his attention the connections between the reality TV show – the latest incarnation of Bravo’s Real Housewives series — and the Willy-and-Sal case: “It’s so Miami, that’s for sure,” he said.
Long before they made their debuts in The Real Housewives of Miami this week , they played bit parts in a drama with a lot more reality: the life and times of legendary cocaine cowboys Willy and Sal.
Three of the new Bravo show’s trophy wives – Alexia Echevarria, Marysol Patton and Lea Black — shared six degrees of separation with Willy Falcon and Sal Magluta, dubbed “The Boys” during the real Miami Vice era.
Echevarria, 43, was once married to a codefendant who pleaded guilty and cooperated as a government witness in the 1990s drug-trafficking prosecution of Falcon and Magluta.
Patton, 44, was the girlfriend of a convicted, big-time cocaine distributor who also was a cooperating witness in the marquee federal case.
And Black, 56, is married to the famed lawyer Roy Black, who was paid millions to represent Magluta.
On Friday, Roy Black chuckled when a reporter brought to his attention the connections between the reality TV show – the latest incarnation of Bravo’s Real Housewives series — and the Willy-and-Sal case: “It’s so Miami, that’s for sure,” he said.
Thursday, February 24, 2011
Rogue snitches
It should come as no surprise that snitches sometimes go rogue. And today, John Pacenti has an article saying that Scott Rothstein may have gone on a frolic and detour:
Scott Rothstein started out in Plantation as an employment lawyer representing police officers in internal affairs investigations and disputes with the department.
Facing arrest in a $1.2 billion Ponzi scheme, Rothstein again turned to his former Plantation police clients — only this time as potential targets for an FBI sting, according to court documents and defense lawyers in a $16 million mortgage fraud case.
"It was great speaking with you. I think I can help you with your problem," Rothstein said on accused ringleader Joseph Guaracino's voice mail. "Maybe we can hook up for a little Monday Night Football tonight for a little while. Catch a martini, smoke a cigar and catch up on shit."
Defense attorneys want to talk to Rothstein about his weeks spent as a confidential informant in November 2009 shortly before his arrest. They say federal prosecutors have told them the disgraced law firm chairman didn't have authority to contact his former clients or target seven current and former law enforcement officers charged in the mortgage fraud case last June.
But Miami criminal defense attorneys Michael D. Walsh and Jordan Lewin — who represent Guaracino and his brother, Dennis, respectively — say only Rothstein can confirm whether he went rogue while working as an FBI informant.
Scott Rothstein started out in Plantation as an employment lawyer representing police officers in internal affairs investigations and disputes with the department.
Facing arrest in a $1.2 billion Ponzi scheme, Rothstein again turned to his former Plantation police clients — only this time as potential targets for an FBI sting, according to court documents and defense lawyers in a $16 million mortgage fraud case.
"It was great speaking with you. I think I can help you with your problem," Rothstein said on accused ringleader Joseph Guaracino's voice mail. "Maybe we can hook up for a little Monday Night Football tonight for a little while. Catch a martini, smoke a cigar and catch up on shit."
Defense attorneys want to talk to Rothstein about his weeks spent as a confidential informant in November 2009 shortly before his arrest. They say federal prosecutors have told them the disgraced law firm chairman didn't have authority to contact his former clients or target seven current and former law enforcement officers charged in the mortgage fraud case last June.
But Miami criminal defense attorneys Michael D. Walsh and Jordan Lewin — who represent Guaracino and his brother, Dennis, respectively — say only Rothstein can confirm whether he went rogue while working as an FBI informant.
Thursday news and notes
1. DOMA ban now invalid. Via ScotusBlog:
With the approval of President Obama, U.S. Attorney General Eric H. Holder, Jr., notified Congress on Wednesday that the federal government will now argue in court that it is unconstitutional to withhold all federal benefits from same-sex couples who are legally married under their own state’s law. While the government will continue to enforce that part of the Defense of Marriage Act of 1996, Holder said a new evaluation has convinced officials that it violates the Constitution’s guarantee of legal equality. The new position will be advanced first in two new cases pending in federal courts in New York and Connecticut, but also will be put forth in other DOMA cases elsewhere. (A Justice Department news release discussing the new development is here.)
2. Roberts Court says suits against Mazda for bad seatbelts can go forward. Via Jan Crawford:
One of the big raps on the Roberts Court is that it's too sympathetic to Big Business. Today, we got a decision that counters that storyline.
Ever since the Supreme Court made a conservative turn in 2006, critics have pointed to rulings that shut the courthouse door to the little guy--especially the little guy who's trying to sue a giant corporation, such as a manufacturer of medical devices or drugs. In those cases, the Court has said product liability lawsuits are barred under federal law. The rationale is that since federal regulators had approved the devices and the drugs in the first place, the companies aren't liable for defective designs.
What critics don't mention is that some of the liberal justices have been on board with some of those decisions favoring the corporations. And today, the Court showed once again that simplistic narratives aren't always accurate. In a unanimous decision, the justices paved the way for a lawsuit against Mazda Motor Corp., rejecting the company's argument that it should not be subjected to lawsuits over its failure to install shoulder belts in the back seats of its minivans.
3. Pill Mill Mania. Via the Miami Herald:
Narcotics agents across South Florida descended on more than a dozen pain clinics Wednesday, arresting at least 20 people — including five doctors — in the most dramatic effort yet to curb the region’s booming business of illegal prescription narcotics.
The raids from Miami to West Palm Beach were the culmination of a two-year investigation by a task force of federal, state and local investigators, an operation dubbed “Operation Pill Nation.” Undercover agents were dispatched to storefront pain clinics to buy potent painkillers such as oxycodone without any medical justification for the pills, investigators said.
Broward Sheriff Al Lamberti called Wednesday’s raids a new front in a “new kind of drug war”: A war on the massive trafficking of prescription drugs through pain clinics operating with the outward appearance of legitimacy — though inside the clinics, doctors hand out pills without taking medical exams, and armed guards patrol the lobbies.
“Nowadays, the drug dealers are operating out of strip malls,” Lamberti said at a press conference announcing the busts.
Here's the indictment. I have a lot to say about these cases and the new war on drugs. I will post more on this later.
With the approval of President Obama, U.S. Attorney General Eric H. Holder, Jr., notified Congress on Wednesday that the federal government will now argue in court that it is unconstitutional to withhold all federal benefits from same-sex couples who are legally married under their own state’s law. While the government will continue to enforce that part of the Defense of Marriage Act of 1996, Holder said a new evaluation has convinced officials that it violates the Constitution’s guarantee of legal equality. The new position will be advanced first in two new cases pending in federal courts in New York and Connecticut, but also will be put forth in other DOMA cases elsewhere. (A Justice Department news release discussing the new development is here.)
2. Roberts Court says suits against Mazda for bad seatbelts can go forward. Via Jan Crawford:
One of the big raps on the Roberts Court is that it's too sympathetic to Big Business. Today, we got a decision that counters that storyline.
Ever since the Supreme Court made a conservative turn in 2006, critics have pointed to rulings that shut the courthouse door to the little guy--especially the little guy who's trying to sue a giant corporation, such as a manufacturer of medical devices or drugs. In those cases, the Court has said product liability lawsuits are barred under federal law. The rationale is that since federal regulators had approved the devices and the drugs in the first place, the companies aren't liable for defective designs.
What critics don't mention is that some of the liberal justices have been on board with some of those decisions favoring the corporations. And today, the Court showed once again that simplistic narratives aren't always accurate. In a unanimous decision, the justices paved the way for a lawsuit against Mazda Motor Corp., rejecting the company's argument that it should not be subjected to lawsuits over its failure to install shoulder belts in the back seats of its minivans.
3. Pill Mill Mania. Via the Miami Herald:
Narcotics agents across South Florida descended on more than a dozen pain clinics Wednesday, arresting at least 20 people — including five doctors — in the most dramatic effort yet to curb the region’s booming business of illegal prescription narcotics.
The raids from Miami to West Palm Beach were the culmination of a two-year investigation by a task force of federal, state and local investigators, an operation dubbed “Operation Pill Nation.” Undercover agents were dispatched to storefront pain clinics to buy potent painkillers such as oxycodone without any medical justification for the pills, investigators said.
Broward Sheriff Al Lamberti called Wednesday’s raids a new front in a “new kind of drug war”: A war on the massive trafficking of prescription drugs through pain clinics operating with the outward appearance of legitimacy — though inside the clinics, doctors hand out pills without taking medical exams, and armed guards patrol the lobbies.
“Nowadays, the drug dealers are operating out of strip malls,” Lamberti said at a press conference announcing the busts.
Here's the indictment. I have a lot to say about these cases and the new war on drugs. I will post more on this later.
Tuesday, February 22, 2011
Bob Scola tapped to fill Judge Huck's seat
Although it's not official yet, a number of reliable tipsters have emailed me that Circuit Judge Robert Scola Jr. is being vetted to fill Judge Huck's seat. Remember that Scola, along with Jerald Bagley and John O'Sullivan made the JNC's cut to three. Now, the White House is apparently doing its background on Judge Scola. Congratulations!
Judge Scola should have no issues fitting in -- he's close friends with many of the federal judges, including Chief Judge Moreno and Judge Huck. From his bio page:
■Bachelor of Arts, Brown University, 1977
■JD, Boston College School of Law, 1980
■Honors - Cum Laude
■Admitted to Florida Bar, 1980
■Circuit Court Judge, 1995
■Previous Division - Circuit/Criminal
■Private Practice - Criminal Defense, 1986-1995
■Assistant State Attorney, Deputy Chief Assistant/Major Crimes, 1980-1986
Scola has an excellent reputation on the state bench, and he is a great addition to the federal bench. Now let's see if we can get Kathy Williams and Bob Scola confirmed before the end of the year. Plus, there is still one more seat to fill -- Judge Gold's seat. The JNC has not yet solicited applications for that slot.
Monday, February 21, 2011
Sunday, February 20, 2011
Back to blogging
Thanks Jeff Marcus for a very entertaining week of guest blogging.
In taking the bridge back this weekend, I see that the Herald interviewed Lea Black (Roy Black's wife) for her upcoming role in Real Housewives of Miami. She looks great and here's one funny exchange:
Are your friends and family ready for the scrutiny?
I didn’t tell anybody that I did the show until I finished it, and then I denied it up until Bravo said that they had announced it. So I’m getting a lot of people mad at me. I guess I was shy about it. My husband’s law partner, I think he’s ready to call 911 for oxygen.
Friday, February 18, 2011
What Do You Wear to a "Charting Party"?
No, I don't have big weekend plans. And it's a slow pre-holiday weekend news day. So, let's talk healthcare and the Medicare "charting party" case unsealed this week in the SDFLA. DOJ's Medicare Strikeforce has indicted 3 doctors and 17 others, in what the government has dubbed the "nation's largest mental health racket," alleging that unneeded group therapy sessions and sleep studies were being routinely provided at several community mental health centers. Judge Seitz, whose courtroom was my second home as a young AUSA, has drawn the case. The charges stem from an ongoing probe into Miami-based American Therapeutics Corp. Last October, the company and four executives were charged with defrauding Medicare out of more than $200 million dollars. The government claims that medical records were altered at "charting parties" as part of the scheme. [Ok, it's not the go-go "Cocaine Cowboys" days.]
Having spent a lot of time defending and prosecuting health care cases, this case stands out to me for a few reasons. First, doctors have been arrested. You don't see doctors charged very frequently and the stakes could not be higher for them. A conviction, in almost all likelihood, will cost them their medical license and livelihood (not to mention debarment from Medicare). Second, the government is going after medical services provided to patients that are alleged to be unnecessary. Such medical necessity cases focus on medical judgment and proving criminal intent on the part of the physician can be difficult. In the case of mental health services like group therapy, where diagnoses are not black and white, it is even harder. As a defense lawyer, those are facts I like.
Thursday, February 17, 2011
SDS, It's Not.
Above the Law has a funny article about our beloved UM School of Law (again). From Cairo to Coral Gables, revolution is in the air. Apparently, there are stirrings (no doubt inspired by Tahir Square) of a student movement to adopt a "Student Bill of Rights." What rights you wonder, since most of the really good ones (the ones people are dying for in Bahrain and elsewhere) already are covered in our real Bill of Rights. What noble selfless cause has gripped the student body politic? Well, fairer grading of course and less "professor autonomy" in the classroom (the obvious problem in higher education). There are 12 "amendments" posted at ATL but here are my 3 favorite with suggestions in italics:
1) The right of students to be given an unbiased legal education shall not be infringed. [And enforced by a well regulated militia. Amend. II]
2) The right of students to take exams that proportionally cover the material discussed in class and presented in the required reading shall not be contravened. [Or Else Cruel and Unusual Punishment Shall be Inflicted on the Professor. Amend. VIII]
[To reduce professor autonomy in the classroom, all professors shall blow a foghorn in class before lecturing on any tested material.]
3) The right of a student to receive a clear explanation from the professor as to how the student received their grade on any graded assignment. [And then petition the Administration for a redress of grievances. Amend. I]
Hey, I'm all for student energy but let's breathe a little. Yes, UM, like a lot of law schools, has a large student class in a depressed job market. So, I have a lot of sympathy for those hard-working students knee-deep in loan debt stressing about their future. Grades matter. I get that.
But, here's the teachable moment. Law students learning how to succeed under a professor's rules in the classroom is great training for . . . being a lawyer. We practitioners have our own professors (they're called Judges) and they lecture us on courtroom practice, not the other way around.
Wednesday, February 16, 2011
Barry Bonds On Deck; Clemens, Armstrong to Follow?
New developments in the Barry Bonds case now set for trial next month centering around Bond's childhood friend, trainer, and alleged PED pal Greg Anderson. You may recall that Anderson spent a year in the pokey for refusing to testify against Bonds before the grand jury. And Anderson, literally the strong silent type, has not budged since despite a promise from the bench that he'll be jailed for the duration of the trial. All of which posed a major "empty chair" problem for prosecutors or did it? In a surprise, Judge Susan Illston ruled yesterday that portions of an audiotape between Anderson and Bonds' former business partner in which Anderson discussed giving Bonds "the cream" and "the clear" were admissible despite the hearsay nature of the evidence. Judge Illston also has recently suggested that she will tell the jury "something" about why Anderson is not a witness at trial without explicitly mentioning his refusal to testify. Hard to say anything in that spot that isn't downright misleading or prejudicial to Bonds (hmm, "The dog ate our witness"?). So, it looks like an 0-2 count for Barry with Clemens due up later this year. You'd think at some point these guys would listen to some good legal advice and shut up. It's the testifying, stupid. The substance itself, juicing without a prescription, is not the stuff a federal case makes. Everyone knows they're users not traffickers.
Which brings us to today's "Retirement 2.0" announcement by Lance Armstrong, a decision he attributed in part to his "off field" issues (can you say Jeff Novitzky). Rumors have been swirling since the fall about potentially "imminent" charges in the federal investigation. But I am hard-pressed to see a viable charge absent any perjury. Defrauding the U.S. Postal Service out of sponsorship monies? C'mon. Trafficking PEDs to racing teammates? A stretch. Plus, how do you even charge a procedure like blood spinning?
Tuesday, February 15, 2011
Justice Breyer at the DCBA
Great DCBA Event this afternoon at the Hyatt where Justice Stephen Breyer spoke to a packed audience about his new book, "Making Our Democracy Work: A Judge's View," published last September. In the book, Justice Breyer lays out his theory of "pragmatic" jurisprudence, an intellectual counterweight to Justice Scalia's textualist approach. At the talk, Justice Breyer actually credited conversations with Justice Scalia for inspiring him to write the book (now those sessions would be pay-per-view worthy). Justice Breyer was on his game and quite funny at times. You can see why he was known as a great law school professor back in the day. For those that missed or enjoyed like I did, here's a link to a transcript of a Terry Gross ("Fresh Air") interview with Justice Breyer from last September on the book and more.
Monday, February 14, 2011
Yo Ho Ho
You know you've been a bad boy when your lawyer agrees to a low-end sentence of 27 years. Abduwali Muse, the sole survivor of a four-person Somali pirate gang that hijacked the Maersk Alabama in April 2009, will be sentenced Wed. in the SDNY. Muse and his cronies kidnapped 53 people in a five-week stretch before a daring Navy Seal raid freed the hostages. The plea deal avoided a conviction for federal piracy which carries a mandatory life sentence. Muse was somewhere between 16 and 18 years of age at the time of the spree. Prosecutors are arguing for the high-end range which is just shy of 34 years. The NYT has coverage here.My Kingdom for a Home
Ok, it's not quite Shakespeare but the SDFLA criminal trial of former Lancer hedge fund impresario, Michael Lauer, is inching closer to DDay and love is most definitely NOT in the air. They're up to docket entry #917, which is worth the read, and Judge Jordan (who seems to get more than his fair share of big paper cases) is umpiring. It's been a rough go for Lauer who had his assets frozen in a 2003 SEC enforcement action and his Greenwich home auctioned off by the IRS. The asset freeze also cost him go-to lawyer, Norman Moscowitz (always on my speed-dial), but luckily for Lauer the Court qualified him as indigent and appointed an FPD team ably led by Chief Assistant Michael Caruso.
Lauer, now living in NYC, is trying to get the government to pay for his housing during the expected two-to-three month trial in Miami slated to begin at the end of the month or else transfer venue to SDNY. As part of his down-and-out pitch, Lauer pointed to the total asset freeze and ongoing eviction proceedings against him for failure to pay for his NYC apartment rental. Which got the government digging into gumshoe landlord-tenant terrain. In its papers, the government paints Lauer as a closet John Le Carre fan who obtained the said apartment by posing as one "Misha" or "Michal Lauer" with an identity card from, of all places, "the Republic of Poland." The pleading also contains this deadpan scholarly footnote from AUSA Harry Schimkat who gets in the Valentine's mood: According to one internet dictionary, 'Misha' is a Russian nickname for Mikhail. It also means little bear or teddy bear. If the government can prove this up, Lauer may be feeling like this when all is said and done.
Lauer, now living in NYC, is trying to get the government to pay for his housing during the expected two-to-three month trial in Miami slated to begin at the end of the month or else transfer venue to SDNY. As part of his down-and-out pitch, Lauer pointed to the total asset freeze and ongoing eviction proceedings against him for failure to pay for his NYC apartment rental. Which got the government digging into gumshoe landlord-tenant terrain. In its papers, the government paints Lauer as a closet John Le Carre fan who obtained the said apartment by posing as one "Misha" or "Michal Lauer" with an identity card from, of all places, "the Republic of Poland." The pleading also contains this deadpan scholarly footnote from AUSA Harry Schimkat who gets in the Valentine's mood: According to one internet dictionary, 'Misha' is a Russian nickname for Mikhail. It also means little bear or teddy bear. If the government can prove this up, Lauer may be feeling like this when all is said and done.
But beyond the bear humor, there are real issues raised with pre-trial asset freezes. It's been more than 20 years since a 5-4 Supreme Court found, in a drug trafficking case, that depriving a criminal defendant of his ability to pay for a private attorney through an asset freeze does not violate the 6th Amendment. The majority's reasoning was that "a robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his." Of course, the argument presupposes guilt, prior to adjudication, and is a particularly awkward fit in many white collar cases where a defendant earns income from a legitimate financial sector job but stands accused of some type of workplace fraud. In the civil context, a defendant is not even entitled to appointed counsel leaving some once-wealthy defendants to have to go pro se against the SEC and federal regulators. And though in today's climate there is little public sympathy for those accused of financial fraud, the truth is these complex heavy-document cases require hefty resources to adequately defend. To have the Lauers of the world swallow up large amounts of taxpayer-financed indigent defense resources has never made much sense to me. Here's hoping the Supremes revisit this case law in the white collar context soon.
And then there's the added question of trial detention. To detain a defendant, who has complied with bond conditions and has been found to not be a flight risk, during a lengthy out-of-state trial because he cannot afford a hotel, seems unfairly punitive. Well, there's certainly plenty of local foreclosure vacancy. Maybe Judge Jordan will get creative.
Stay tuned . . .
Happy V Day!
The (much) less famous Marcus (but more importantly better Beth Am basketball player) in the house covering for the Big D. I haven't won a grammy or anything but I'm feeling pretty good this morning. At the shiny controls of the Blog mothership, my spiritual journey from prosecutor to defense lawyer is now complete. And the week already is a personal success because I learned the important stuff like inserting pics. Time to put the toys down and figure out something to write for you all. Feel free to email me noteworthy items this week at jeffmarcus@bellsouth.net.
Saturday, February 12, 2011
Welcome a new guest blogger
Starting Monday, I'm excited to announce that we'll have Jeff Marcus guest blogging for the week.
Enjoy!
Enjoy!
Friday, February 11, 2011
Friday
Last night was an unbelievable event for the FBA. Congrats to Brett Barfield for the most well-attended event in recent history.
The District just updated its website, but now there is a push to have all the district courts conform to a template. Not sure why this is what our government should be spending money on. Does it matter if our District's website is the same as the District of Oregon's website? This example of inconsistency doesn't really persuade me:
The home page for the U.S. District Court for Alabama's middle district cheerily offers a "Kids' Corner" where "kids of all ages" can find out more about the federal court system. But if you go to the court's home page for information on filing a judicial misconduct complaint, you'll only find it if you click on the "judges information" tab.
Nebraska's federal district court site, on the other hand, has a tab specifically labeled "judicial misconduct and disability" on its home page. But its "kids' corner" is pretty well hidden under a "community/educational outreach" tab.
Those randomly picked examples of inconsistency between federal trial court Web sites may become a thing of the past because of a recently created "website toolbox" that went out to all 94 district courts late last month.
In other news, Mr. Melendez-Diaz of Supreme Court fame, just won an acquittal. From the Boston Globe:
A Jamaica Plain man has been acquitted in a retrial of a cocaine trafficking case that went to the US Supreme Court and resulted in a landmark decision affecting evidence in criminal trials around the country.
Melendez-Diaz’s appeal of his 2004 cocaine trafficking conviction led to a ruling by the Supreme Court in 2009 that the US Constitution’s Sixth Amendment guarantees defendants in criminal cases the right to confront forensic experts in court.
The ruling invalidated a Massachusetts law that allowed prosecutors to present forensic experts’ reports as evidence without giving defendants a chance to cross-examine them.
During Melendez-Diaz’s retrial, prosecutors followed the new regime laid out by the high court. On Wednesday, they called to the stand a chemist from the state Department of Public Health who testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men in 2001 had tested positive for cocaine.
Margaret Fox, defense lawyer for Melendez-Diaz, said the verdict was “an enormous relief.’’
“It was a case that really seemed to be about guilt by association,’’ she said. “He’s very thankful he was given a second trial and that the jury got it right.’’
The District just updated its website, but now there is a push to have all the district courts conform to a template. Not sure why this is what our government should be spending money on. Does it matter if our District's website is the same as the District of Oregon's website? This example of inconsistency doesn't really persuade me:
The home page for the U.S. District Court for Alabama's middle district cheerily offers a "Kids' Corner" where "kids of all ages" can find out more about the federal court system. But if you go to the court's home page for information on filing a judicial misconduct complaint, you'll only find it if you click on the "judges information" tab.
Nebraska's federal district court site, on the other hand, has a tab specifically labeled "judicial misconduct and disability" on its home page. But its "kids' corner" is pretty well hidden under a "community/educational outreach" tab.
Those randomly picked examples of inconsistency between federal trial court Web sites may become a thing of the past because of a recently created "website toolbox" that went out to all 94 district courts late last month.
In other news, Mr. Melendez-Diaz of Supreme Court fame, just won an acquittal. From the Boston Globe:
A Jamaica Plain man has been acquitted in a retrial of a cocaine trafficking case that went to the US Supreme Court and resulted in a landmark decision affecting evidence in criminal trials around the country.
Melendez-Diaz’s appeal of his 2004 cocaine trafficking conviction led to a ruling by the Supreme Court in 2009 that the US Constitution’s Sixth Amendment guarantees defendants in criminal cases the right to confront forensic experts in court.
The ruling invalidated a Massachusetts law that allowed prosecutors to present forensic experts’ reports as evidence without giving defendants a chance to cross-examine them.
During Melendez-Diaz’s retrial, prosecutors followed the new regime laid out by the high court. On Wednesday, they called to the stand a chemist from the state Department of Public Health who testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men in 2001 had tested positive for cocaine.
Margaret Fox, defense lawyer for Melendez-Diaz, said the verdict was “an enormous relief.’’
“It was a case that really seemed to be about guilt by association,’’ she said. “He’s very thankful he was given a second trial and that the jury got it right.’’
Thursday, February 10, 2011
“This was a murder case. His vacation schedule trumped everything. You don’t make decisions based on [when you will be] sipping piña coladas.”
That was Alan Dershowitz, criticizing a judge (during an appellate oral argument) for forcing a defense lawyer to give a closing so that the judge could get to his vacation.
Dersh did give props to the appellate court: Afterwards, Dershowitz said, "The court was extremely well prepared. ... No one can predict the outcome of an appeal."
Dersh did give props to the appellate court: Afterwards, Dershowitz said, "The court was extremely well prepared. ... No one can predict the outcome of an appeal."
Wednesday, February 09, 2011
Omar is coming
Does it count as a win in the 11th Circuit if you get a reversal because the district judge didn't staple his findings on the defendant's objections to the PSI?
What else is going on?
Professor Ogeltree has come up with the coolest law school class ever: “Race and Justice — The Wire.” The Wire has to be a top 5 show of all time, no?
What else is going on?
Professor Ogeltree has come up with the coolest law school class ever: “Race and Justice — The Wire.” The Wire has to be a top 5 show of all time, no?
Tuesday, February 08, 2011
Not a good way to start an opinion if you are a criminal defendant
This appeal involves the reasonableness of the sentence for the robber of a post office who thrust his revolver close to the face of a postal clerk, demanded money, and shouted a racial slur and obscenities and had a history of violent criminal behavior. Harold Leroy Housley Jr. challenges his sentence of 120 months of imprisonment, which is 42 months above the guidelines range of 63 to 78 months, for robbery of money belonging to the United States. 18 U.S.C. § 2114(a).
Odds on whether the next sentence in the opinion is "We affirm" or "We reverse"?
Odds on whether the next sentence in the opinion is "We affirm" or "We reverse"?
Monday, February 07, 2011
Friday, February 04, 2011
“Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction"
It's almost impossible for a criminal defendant to win in the 11th Circuit. But the pro se prisoner who filed the above pleading in the court of appeals did just that. From the opinion's intro:
Luis Camejo-Rodriguez seeks relief from his 1995 guilty plea to various cocaine and firearm offenses. In the instant appeal, he argues that the document he filed on September 11, 2009, entitled “Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction,” is an application to this Court for an order authorizing him to file a second or successive habeas petition. We conclude that Camejo-Rodriguez does not need such an order because the district court failed to properly notify him of the consequences of re-characterizing an earlier motion as his first § 2255 habeas petition, as required by Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786,
792 (2003). Therefore, Camejo-Rodriguez is entitled to file a habeas petition that is not subject to the restrictions placed on second or successive petitions.
UPDATE--Congrats to AFPD Janice Bergman who was appointed by the 11th to represent Mr. Camejo-Rodriguez.
Luis Camejo-Rodriguez seeks relief from his 1995 guilty plea to various cocaine and firearm offenses. In the instant appeal, he argues that the document he filed on September 11, 2009, entitled “Notice of Appeal Rule 4(a) of Federal Rules of Appellate Procedure. Request Permission to Appeal My 17 Years of Wrongful Conviction,” is an application to this Court for an order authorizing him to file a second or successive habeas petition. We conclude that Camejo-Rodriguez does not need such an order because the district court failed to properly notify him of the consequences of re-characterizing an earlier motion as his first § 2255 habeas petition, as required by Castro v. United States, 540 U.S. 375, 383, 124 S. Ct. 786,
792 (2003). Therefore, Camejo-Rodriguez is entitled to file a habeas petition that is not subject to the restrictions placed on second or successive petitions.
UPDATE--Congrats to AFPD Janice Bergman who was appointed by the 11th to represent Mr. Camejo-Rodriguez.
Interesting post about D.C. Circuit nominee
Before Kathy Williams' confirmation hearing, the judiciary committee heard from D.C. Circuit nominee Caitlin Halligan. There's an interesting post from the BLT on how that hearing went. Here's the intro:
Caitlin Halligan followed an often-used script today during her confirmation hearing for the U.S. Court of Appeals for the D.C. Circuit, telling a Senate committee that if confirmed, she would defer to Supreme Court precedent and to the Framers' intent.
But her hour-long testimony made clear that Republicans are laying the ground for possible opposition to her nomination. They questioned Halligan, a longtime New York appellate lawyer, about statements she’s made or signed on to, and they renewed a long-running debate about whether the influential D.C. Circuit has more judges than it needs.
If confirmed, Halligan, 44, would quickly be on the short list for the next Democratic nominee for the U.S. Supreme Court. Four sitting justices are alumni of the D.C. Circuit, and she is President Barack Obama’s first nominee for the D.C. Circuit.
Sen. Chuck Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, warned it might not be easy for Halligan to get there.
“This committee has multiple precedents establishing a heightened level of scrutiny given to nominees for the Court of Appeals of the D.C. Circuit,” Grassley said at the opening of Halligan’s hearing. He listed President George W. Bush’s six nominees for the court — only four of whom were confirmed. “All had a difficult and lengthy confirmation process. This included delays, filibusters, multiple hearings and other forms of obstruction,” he said.
Democrats responded by lauding Halligan’s credentials, including as New York’s state solicitor general and as head of the appellate practice at Weil, Gotshal & Manges. Early in her career, she clerked for former D.C. Circuit Chief Judge Patricia Wald and for Justice Stephen Breyer. She’s now general counsel in the Manhattan district attorney’s office.
“The remarkable thing about Caitlin’s experience is her unique depth of knowledge about the practicalities of government,” said Sen. Chuck Schumer (D-N.Y.).
Under questioning, Halligan, pictured above, kept her answers short and emphasized judicial modesty. She called the Constitution an “enduring” document and echoed conservative jurists’ language about originalism. “If faced with a constitutional question, a judge has to look to the text and attempt to understand the original intent behind those words,” she said.
Caitlin Halligan followed an often-used script today during her confirmation hearing for the U.S. Court of Appeals for the D.C. Circuit, telling a Senate committee that if confirmed, she would defer to Supreme Court precedent and to the Framers' intent.
But her hour-long testimony made clear that Republicans are laying the ground for possible opposition to her nomination. They questioned Halligan, a longtime New York appellate lawyer, about statements she’s made or signed on to, and they renewed a long-running debate about whether the influential D.C. Circuit has more judges than it needs.
If confirmed, Halligan, 44, would quickly be on the short list for the next Democratic nominee for the U.S. Supreme Court. Four sitting justices are alumni of the D.C. Circuit, and she is President Barack Obama’s first nominee for the D.C. Circuit.
Sen. Chuck Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, warned it might not be easy for Halligan to get there.
“This committee has multiple precedents establishing a heightened level of scrutiny given to nominees for the Court of Appeals of the D.C. Circuit,” Grassley said at the opening of Halligan’s hearing. He listed President George W. Bush’s six nominees for the court — only four of whom were confirmed. “All had a difficult and lengthy confirmation process. This included delays, filibusters, multiple hearings and other forms of obstruction,” he said.
Democrats responded by lauding Halligan’s credentials, including as New York’s state solicitor general and as head of the appellate practice at Weil, Gotshal & Manges. Early in her career, she clerked for former D.C. Circuit Chief Judge Patricia Wald and for Justice Stephen Breyer. She’s now general counsel in the Manhattan district attorney’s office.
“The remarkable thing about Caitlin’s experience is her unique depth of knowledge about the practicalities of government,” said Sen. Chuck Schumer (D-N.Y.).
Under questioning, Halligan, pictured above, kept her answers short and emphasized judicial modesty. She called the Constitution an “enduring” document and echoed conservative jurists’ language about originalism. “If faced with a constitutional question, a judge has to look to the text and attempt to understand the original intent behind those words,” she said.
Wednesday, February 02, 2011
Live blogging Kathy Williams' confirmation hearing
Coincidentally, I'm here in DC on a case and am lucky enough to be able to attend Kathy Williams' confirmation hearing, which is about to start. Below is her with Senators Nelson and Rubio.
2:10 Senator Coons is introducing everyone.
2:12 Senator Grassley is reading a statement. Fast reader. He says Kathy's seat has been vacant for two years. That's bad. He also says Clinton's people got confirmed faster. But he says it is time to confirm judges.
2:17 Sen. Nelson: bipartisan effort to move vacancies. Urges speedy consideration of Ms. Williams. Tradition in Florida w JNC to screen and interview. Then suggest 3 names and senators can tell WH if any objections or recommendations. It has always worked in Florida because broad support of legal and non-legal communities.
Now he talks about Kathy's background. Nice remarks about her.
2:22 Sen. Rubio: Kathy went to Duke and "more impressively" UM. More background and awards. Respect of peers. Shout out to CJA committee.
2:25 Sen. Schumer then discusses other nominees. They took Kathy first because Sen. Rubio and Nelson had "pressing business" in the Senate. Schumer said Nominee Halligan won 2 and lost 2 cases in Supreme Court, which shows she is balanced. Grassley quips that she has a better record than the 9th.
3:12 Still on the DC Circuit nominee.
3:21 Okay, on to Kathy! She thanks committee and Florida senators. Also former Florida senators. Thanks family with her. Colleagues. Office peeps. Says her office is back home "multitasking." "The love of her life Mike Mullaney." Her dad, William Williams. Still watching her. Beautiful intro remarks.
Sen. Coons asks KMW about her judicial philosophy: Fair and impartial arbiter. Treat everyone w dignity and respect. Listen well to all parties. Apply law to achieve just resolution.
Coons now asks how being a PD got her ready to be a judge: entire career in fed courts. Will help her substantively and in administration of justice.
Grassley: quotes her speech before federal bar in 2005 re death penalty and foreign law. Kathy says no to using foreign law in applying constitution and says she was trying to provoke thought.
Grassley: Speech before ACLU in 2003 re secret proceedings and evidence. And another speech in 2008 re indefinite detention. Kathy responds with the law from Supreme Court. Also says she would have to recuse in a terrorism case because of Mike Mullaney being chief of anti-terrorism division. Grassley says what about in 20 years. Kathy says she will apply the law.
Coons: what deference would you give to sentencing guidelines? K: start w accurate calculations to guidelines. Would do that in sentencing defendants.
3:50 done! Kathy did awesome!
2:10 Senator Coons is introducing everyone.
2:12 Senator Grassley is reading a statement. Fast reader. He says Kathy's seat has been vacant for two years. That's bad. He also says Clinton's people got confirmed faster. But he says it is time to confirm judges.
2:17 Sen. Nelson: bipartisan effort to move vacancies. Urges speedy consideration of Ms. Williams. Tradition in Florida w JNC to screen and interview. Then suggest 3 names and senators can tell WH if any objections or recommendations. It has always worked in Florida because broad support of legal and non-legal communities.
Now he talks about Kathy's background. Nice remarks about her.
2:22 Sen. Rubio: Kathy went to Duke and "more impressively" UM. More background and awards. Respect of peers. Shout out to CJA committee.
2:25 Sen. Schumer then discusses other nominees. They took Kathy first because Sen. Rubio and Nelson had "pressing business" in the Senate. Schumer said Nominee Halligan won 2 and lost 2 cases in Supreme Court, which shows she is balanced. Grassley quips that she has a better record than the 9th.
3:12 Still on the DC Circuit nominee.
3:21 Okay, on to Kathy! She thanks committee and Florida senators. Also former Florida senators. Thanks family with her. Colleagues. Office peeps. Says her office is back home "multitasking." "The love of her life Mike Mullaney." Her dad, William Williams. Still watching her. Beautiful intro remarks.
Sen. Coons asks KMW about her judicial philosophy: Fair and impartial arbiter. Treat everyone w dignity and respect. Listen well to all parties. Apply law to achieve just resolution.
Coons now asks how being a PD got her ready to be a judge: entire career in fed courts. Will help her substantively and in administration of justice.
Grassley: quotes her speech before federal bar in 2005 re death penalty and foreign law. Kathy says no to using foreign law in applying constitution and says she was trying to provoke thought.
Grassley: Speech before ACLU in 2003 re secret proceedings and evidence. And another speech in 2008 re indefinite detention. Kathy responds with the law from Supreme Court. Also says she would have to recuse in a terrorism case because of Mike Mullaney being chief of anti-terrorism division. Grassley says what about in 20 years. Kathy says she will apply the law.
Coons: what deference would you give to sentencing guidelines? K: start w accurate calculations to guidelines. Would do that in sentencing defendants.
3:50 done! Kathy did awesome!
Tuesday, February 01, 2011
Great events
This Thursday, February 3, from 11:30-1:30 in Courtroom 13-3, the SDFLA will be having an unveiling ceremony for a Black History Exhibit called: "Milestones: A Legal Odyssey."
Later this month there will be a civil rights panel discussion and reception on February 23 from 4-6 pm in the jury room (5th floor), moderated by Professor Charles Ogletree.
You can RSVP at 305-523-5905.
Good stuff.
Later this month there will be a civil rights panel discussion and reception on February 23 from 4-6 pm in the jury room (5th floor), moderated by Professor Charles Ogletree.
You can RSVP at 305-523-5905.
Good stuff.