Friday, July 29, 2011

Bob Barr and I agree!

Here's an op-ed he just wrote on the over-criminalization problem in America. From the piece:

[F]ailure to address the overcriminalization of America is turning us into a society in which the average citizen is at the mercy of the federal government for fear of running afoul of some criminal law or regulation on any given day, despite having no intention whatsover of doing so.

The explosive growth in the number of federal crimes in recent decades has been nothing short of phenomenal. Three crimes — three — were considered of sufficient importance and of a unique federal nature, to be included specifically in the Constitution. Those three uniquely federal crimes are treason, piracy and counterfeiting. Over the decades, of course, other crimes were added, usually pegged to the infamous “commerce clause.” By 1980, the federal criminal code had mushroomed to about 3,000 separate criminal offenses. What has happened since 1980, however, has been nothing short of phenomenal — the list of federal criminal offenses has exploded to nearly 4,500 offenses; as noted most recently by Gary Fields and John Emshwiller in the Wall Street Journal. This figure does not even include the many more thousands of federal regulations that can be enforced by the government as criminal offenses.


The list of such unfair and outrageous instances of abusive federal prosecutions is depressingly long; with many the result of the explosive growth of “environmental crimes” since the birth of the EPA four decades ago. Yet Congress after Congress continues to add crime after crime to the burgeoning federal criminal code, based often on pressure from interest groups and federal agencies themselves.

Thursday, July 28, 2011

Finalists for U.S. Marshal

They are: James S. Higgins, Eben Morales and Amos Rojas Jr..

Many of you will remember Jaime Higgins, who is an ATF agent, currently on assignment in Vancouver, Canada. His wife is Celeste Higgins, a former AFPD in Miami.

Wednesday, July 27, 2011

Florida drug laws ruled unconstitutional

Today Judge Mary Scriven from the Middle District granted a writ of habeas corpus and declared Florida’s drug law unconstitutional. The case is Shelton v. Dept. of Corrections. NACDL filed this amicus brief . Here's the intro to the order:

On May 13, 2002, the Florida Legislature enacted changes to Florida’s Drug Abuse Prevention and Control law, FLA. STAT. § 893.13, as amended by FLA. STAT. § 893.101. By this enactment, Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense. This case, challenging the constitutionality of that law, was filed following Plaintiff’s conviction for delivery of cocaine without the jury being required to consider his intent in any respect and the subsequent imposition of an eighteen year sentence following his conviction. Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Petitioner’s request for habeas relief (Dkt. 1), and finds that FLA. STAT. § 893.13 is unconstitutional on its face.

Full disclosure: I was one of the co-signors of the amicus brief for NACDL, authored by Todd Foster.

Tuesday, July 26, 2011

BREAKING -- JNC sends 4 names to Senators

Your next federal judge will be one of these four people:

Jerald Bagley
John O'Sullivan
Robin Rosenbaum
John Thornton

Two State Circuit judges and two Federal Magistrates. I'm picturing a cage match -- Bagley and Thornton vs. O'Sullivan and Rosenbaum. Who wins that one?

Update-- happy to report that Judge Moreno's letters were cited yesterday in the Senate. Hopefully they will have some impact. Here's the link:


Monday, July 25, 2011

"Characterizing a government as a pimp is far from advocating violence."

That was Irfan Khan's lawyer Sowmya Bharathi, challenging the strength of the evidence against her client who is accused of helping to finance part of the Pakistani Taliban terror group. Love the quote! Plus it gave me some inspiration for the morning:

More on the case from Curt Anderson's article:

The son of a Muslim cleric in South Florida was a key part of his father's alleged finance network for the Pakistani Taliban terror group and shared the older man's support for violent attacks, an FBI agent testified Tuesday.
Agent Michael Ferlazzo said at a bail hearing that 37-year-old Irfan Khan appears to advocate violence repeatedly on some of the more than 1,000 phone calls the FBI recorded between him and his father, brother and other alleged conspirators.

On one call, Ferlazzo said, Irfan Khan referred to Pakistan's government as “big pimps.”

“They're talking about violent opposition to the government,” Ferlazzo said. On another call, the agent said, Irfan Khan seemed pleased that people feared the Pakistani Taliban “because of how lethal they had become.”
But Irfan Khan's attorney, Sowmaya Bharathi, said most of his comments could be chalked up to passionate political talk about Pakistan's government and its troubles, not evidence of support for terrorism.

“There is absolutely nothing wrong with people exchanging information about horrible events in a part of the world they have a connection to,” Bharathi said. “Characterizing a government as a pimp is far from advocating violence.”

She said nearly two dozen people, including members of Irfan Khan's cricket team, were willing to put up cash and property to secure his release on bail. She noted that he has a wife and two young children in Florida and would be able to get a job driving a taxi if released.

“He is going to stay here and fight the charges,” Bharathi said.
Jordan has not said when he will rule on bail for Izhar Khan, who is imam at a mosque in suburban Margate. Hafiz Khan is imam at Miami's oldest mosque.

Thursday, July 21, 2011

Chief Judge starts letter writing campaign for Kathy Williams and Bob Scola

Congrats to Bob Scola, who received a unanimous voice vote today getting out of the judiciary committee.

Now, Chief Judge Moreno has written letters to Senator Mitch McConnell and Senator Harry Reid urging confirmation by the full Senate of Kathy Williams and Bob Scola before the August recess. The intro from the letters:

As Chief Judge of the United States District Court for the Southern District of Florida, I urge you to expedite the Senate's confirmation of Kathleen Williams and Robert Scola to the positions of district judges in our district. I understand that the Judiciary Committee has sent both nominations by unanimous voice vote and is awaiting a vote by the full Senate. Ms. Williams, our district's Federal Public Defender, has been awaiting confirmation for the longest period of any present nominee to the district court in the entire country. State Judge Robert Scola's nomination is of a more recent vintage but the litigants are eagerly awaiting his confirmation.

The judgeship Ms. Williams has been nominated to fill has been vacant for two years! At the present time, our district has three vacancies. Unfilled positions in our Court present an undue hardship on the citizens residing in the Southern District of Florida, particularly those with cases pending in the affected division of the Court. Our district is huge and heavily populated. It includes the most populous counties in Florida, Miami-Dade, Broward (where Fort Lauderdale is located) and Palm Beach Counties. The district also includes Monroe, St. Lucie, Highlands, Okeechobee, Martin, and Indian River Counties.

Now it's our turn. Please follow Judge Moreno's lead and send letters now to get Williams and Scola confirmed.

Wednesday, July 20, 2011

Why is Lanny A. Breuer attacking the defense bar?

Assistant Attorney General Lanny A. Breuer of the Criminal Division spoke at the National District Attorneys Association Summer Conference in Sun Valley, Idaho today and said the following:

Before I conclude my remarks this morning, and I hope there will be plenty of time left for questions, I want to discuss one other issue with you, on which we are all focused: our ethical obligations as prosecutors.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations. These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward. And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago. And I suspect that is true for many DA’s offices across the country as well.

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct. This kind of gamesmanship is unfortunate. The steps we have taken go further than what the Supreme Court requires. And they go well beyond what any prior Administration has done. That’s a fact. Do we need to remain vigilant? Absolutely. At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

As prosecutors, we occupy a unique role in the criminal justice system. Our job is not just to win cases, but also to do justice in every case. I think prosecutors are more aware of their ethical obligations today than they may ever have been – and, as far as I’m concerned, that’s a good thing.

How strange, no?

Was this a message to the judge in the Roger Clemens case that he should find that the prosecutors simply made an honest mistake? If you were Roger Clemens, wouldn't you want your lawyer to pursue the issue and fight for no retrial? To bar a retrial, part of what the defense must show is that the behavior of the prosecutors was intentional. Clemens' lawyer would be committing malpractice not to argue that it was intentional after the prosecutors disregarded the judge's order by playing the tape and then leaving the image on the screen during the sidebar. Don't prosecutors argue that defendants have acted in bad faith all of time based on far less circumstantial evidence?

In any event, I challenge Mr. Breuer to a debate on the subject of prosecutorial and defense ethics. Just for starters, I would ask Mr. Breuer why DOJ is opposing a change to Rule 16 (as suggested by the ABA and on July 7, by NACDL) requiring what their guidelines merely suggest.

I have written an op-ed on this subject, as have others.

I do like the part where he says prosecutors must seek justice, not a win. Here's part of what I wrote about that (back in May) in connection with the government's discovery obligations:

The AG reminded prosecutors that they were tasked with doing justice, not winning. Ethical standards established by most state bar rules also require disclosure, even if the evidence is not “material.”

All of this sounded very promising, but actions speak louder than words.

Prosecutors continue to keep their files closed, telling lawyers and judges that they need not disclose basic items such as interview reports of witnesses, even when those witnesses lie under oath, because their boss’s guidelines and state ethical rules are not the law and therefore are not binding on them.

Because of these recurring problems, on April 22, 2011, in Miami, the American Bar Association’s Criminal Justice Section passed a resolution “urging” a change in the federal rules to require prosecutors to timely disclose all favorable information to the defense.

Only the Department of Justice member of the section voted against the resolution, arguing that individual prosecutors could be trusted without such a rule. Many judges, including Paul Friedman in Washington, D.C., have explained why the “trust us” argument is flawed: “Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment necessarily is speculative on … many matters that simply are unknown and unknowable before trial begins.”

Based on these guidelines and cases, a simple — and what should have been uncontroversial — change was suggested to the federal criminal rules: prosecutors would be required to turn over all favorable information to the defense, not just “material” evidence.

Despite the ABA’s resolution, the Department of Justice just convinced the Criminal Rules Advisory Committee (the group that recommends changes to the Federal Rules of Criminal Procedure) to vote down (on a 6-5 vote) this proposed rule change.

Perhaps the Department of Justice would like to amend the plaque found in federal courtrooms that reads: “We who labor here seek the truth” with the addition, “only if we think it is material.”

Tuesday, July 19, 2011

This just makes my blood boil

I guess it shouldn't anymore because I really believe that Brady/Giglio violations happen in just about every trial where there isn't open-file discovery. The latest is a pretty shocking violation in the Casey Anthony case, which (I believe) would have resulted in a new trial had she been convicted. From the NY Times:

Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

According to Mr. Bradley, chief software developer of CacheBack, used by the police to verify the computer searches, the term “chloroform” was searched once through Google. The Google search then led to a Web site,, that was visited only once, Mr. Bradley added. The Web site offered information on the use of chloroform in the 1800s.


“I gave the police everything they needed to present a new report,” Mr. Bradley said. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of accessibility to the data.”

Mr. Bradley, chief executive of Siquest, a Canadian company, said he even volunteered to fly to Orlando at his own expense to show them the findings.

Cheney Mason, one of Ms. Anthony’s defense lawyers, said it was “outrageous” that prosecutors withheld critical information on the “chloroform” searches.

“The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.”

“This was a major part of their case,” Mr. Mason added.

In big trial after big trial there continues to be Brady violations. Imagine what happens on a daily basis in state and federal court where there isn't a great deal of scrutiny over what prosecutors do. There really needs to be open-file discovery and more needs to be done when prosecutors do not comply with their constitutional obligations.

Monday, July 18, 2011

Federal Judge interviews in one week

Below is the schedule for next Monday. Any volunteers for a guest blogger to cover the interviews?

Jerald Bagley, 9am
William Thomas, 9:30
Beatrice Butchko, 10
Peter Lopez, 10:30
Robert Levenson, 11
Barry Seltzer, 11:30
John Thornton, Jr. 1pm
Caroline Heck Miller, 1:30
Robin Rosenbaum, 2
Marina Garcia Wood, 2:30
John J. O’Sullivan 3pm

Too many lawyers, not enough judges

The NY Times has the story about the lawyers. The intro:

The basic rules of a market economy — even golden oldies, like a link between supply and demand — just don’t apply.

Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.

It is one of the academy’s open secrets: law schools toss off so much cash they are sometimes required to hand over as much as 30 percent of their revenue to universities, to subsidize less profitable fields.

In short, law schools have the power to raise prices and expand in ways that would make any company drool. And when a business has that power, it is apparently difficult to resist.

And BLT has the story about Obama's judicial appointment team. What's wrong with the administration on this?

The article is part of a 42-page package on “Obama’s Judiciary at Midterm,” by political scientists Sheldon Goldman of the University of Massachusetts at Amherst, Elliot Slotnick of Ohio State University and Sara Schiavoni of John Carroll University. (Click here for the Web site of Judicature, which is subscription-only and published by the American Judicature Society.)

The political scientists write that the White House shut out them, too, as they tried to put together the package. Their work is the latest in a long-running series.

“Tellingly, no one from the White House Counsel’s Office was able or willing to meet with us — the first time in our over 30 years of conducting our research on judicial selection that we have not had cooperation from that office,” the researchers write.

They add: “While the perspective from the White House Counsel’s Office would have been welcome, we believe that our other sources have enabled us to provide an accurate portrait of the successes and failures of the president’s judicial selection team. Other sources included interest group participants from groups along the ideological continuum.”

But too many lawyers and lack of federal judges seems like the same ol' stories again and again, no?

To me, the more interesting story is the Clemens trial and what's going to happen now that there was a mistrial. Here's Maureen Dowd's piece from the weekend:

But the trial had barely begun when those lawyers made what Tom Boswell, the Washington Post sports sage, called “the most shocking, inexplicable error in modern baseball history.” An error, Boswell said, that would cause the sports world and the legal community to “oscillate between pity and ridicule, incredulity and laughter, for years.”

With a high, close pitch at the government team, the judge declared a mistrial. “I think that a first-year law student would know you can’t bolster the credibility of one witness with clearly inadmissible evidence,” he said angrily.

Before the testimony started, Walton had said that an affidavit from Laura Pettitte was inadmissible. She had stated that her husband, Andy, who was Clemens’s teammate, told her that his pal had confided that he used human growth hormone. It was hearsay.

But on day two, the prosecutors played some video of the Capitol Hill hearing in which a congressman talked to Clemens about how compelling Laura Pettitte’s affidavit was. They even left her testimony on the monitors in the jury box while they gathered at the judge’s bench. It was such a chuckleheaded move that no one was sure whether the prosecutors had forgotten the judge’s ruling or were trying to sneak the testimony through a back door. Either way, it was another great day for defense lawyers and their clients who have already been convicted in the public eye.

“Government counsel doesn’t do just what government counsel can get away with doing,” the judge said sternly. “I’m very troubled by this. A lot of government money has been used to reach this point.” He added, “I don’t see how I can unring the bell.”

Friday, July 15, 2011

Should we be going bench more often?

The stats certainly say yes -- there are more federal bench acquittals than jury acquittals on a percentage basis. But the conventional wisdom is to go jury...

In any event, yesterday, Judge Moore said not guilty as the finder of fact in a visa fraud case. AFPDs Vanessa Chen and Helaine Batoff decided to go bench before Judge Moore and after he denied the Rule 29, he said that as the finder of fact he found the defendant not guilty.

Thursday, July 14, 2011

“Government counsel doesn’t do just what government counsel can get away with doing …I’m very troubled by this."

Ouch. That was Judge Reggie Walton declaring a mistrial in the Roger Clemens case:

Judge Reggie B. Walton declared a mistrial in the Roger Clemens perjury trial today.

"He's entitled to a fair trial," said Walton. "He now cannot get it."

Lead defense attorney Rusty Hardin had asked for a mistrial because the prosecution revealed a statement to the jury that violated a pre-trial order. The prosecution also violated pre-trial orders when Assistant U.S. attorney Steven Durham talked about the Yankees' drug use during his opening statement.

Walton scheduled a Sept. 2 hearing to determine whether to hold a new trial for the former baseball star who pitched for four teams, including the Red Sox, during his 24-year career. Walton told jurors he was sorry to have wasted their time and spent so much taxpayer money, only to call off the case.

"There are rules that we play by and those rules are designed to make sure both sides receive a fair trial," Walton told the jury, saying such ground rules are critically important when a person's liberty is at stake.

He said that because prosecutors broke his rules, "the ability with Mr. Clemens with this jury to get a fair trial with this jury would be very difficult if not impossible."

In angry comments directed toward the prosecution, Walton said, “Government counsel doesn’t do just what government counsel can get away with doing …I’m very troubled by this. A lot of government money has been used to reach this point. The government should have been more cautious. I don’t see how I can un-ring the bell.”

By that, Walton meant that he could not figure out how the jury’s exposure to statements by Laura Pettitte, wife of former Yankees pitcher Andy Pettitte, can be erased from their memory so it does not later influence decision-making. Laura Pettitte is someone designed to bolster the credibility of her husband, a former teammate of Clemens who was expected to be a key witness in the trial. Under dispute in the case is whether Clemens mentioned using human growth hormone to Andy Pettitte.

Wednesday, July 13, 2011

Blog makes news

Pretty cool -- Alyson Palmer of the Daily Report in Georgia wrote a nice story about the Rojas opinion disappearing and reappearing on the 11th Circuit website and our coverage of it:

The case of the missing opinion has been solved.
Court watchers had been scratching their heads after a June 24 sentencing opinion by a panel of the 11th U.S. Circuit Court of Appeals vanished from the court's website. Lawyers interested in reading the decision had to go to other sources, such as the Federal Public Defender's Office in Miami or a Miami lawyer's blog.
On Wednesday, more than one week after the Miami blogger noted on June 28 the opinion's disappearance, the decision reappeared on the court's site with the original June 24 date. A few hours later, a revised opinion was issued, mandating the same pro-defendant result and bearing the explanation that the panel had modified the opinion to reflect recent case law developments in other circuits.
According to Clerk of Court John Ley, the original opinion was withdrawn at the request of the judge who wrote it. (The unanimous three-judge panel was composed of Judges Charles R. Wilson and Beverly B. Martin and Senior Judge R. Lanier Anderson, but the opinion was unsigned.) "It happens every now and then," said Ley, "but then they reissued it once they reviewed their citations."
Within days of the opinion's issuance, however, it disappeared from the court's website. Noting the federal public defender's office was fielding requests for copies of the opinion, a University of Miami law professor, Ricardo J. Bascuas, posted the ruling on the blog of Miami attorney David O. Markus.
Lawyers at the federal public defender office that's handling the matter couldn't be reached to discuss what they were thinking when their case appeared in limbo, and federal prosecutors in Miami declined to comment. But others were talking.
"When a decision like that just disappears and there's no explanation and no reason given, it just makes the court look weird—I don't know the right word for it," Bascuas said in an interview Wednesday shortly before the opinion resurfaced on the court's site.
An anonymous comment on Markus' blog mused that perhaps the court was concerned that the upcoming vote by the federal sentencing commission on whether to make changes to the crack sentencing guidelines retroactive, scheduled for June 30, could moot the case. But the commission's decision to extend its guidelines changes even to those who were sentenced years ago didn't, and couldn't, change the mandatory minimums at issue in Rojas' case; the guideline changes would help the many inmates whose crimes involved drug quantities that placed their sentences beyond (often far beyond) the statutory minimums.

Tuesday, July 12, 2011

"If American goes to World War III, I'll be in the front line. This is a great country."

That was Navy officer Elisha Leo Dawkins today after accepting pretrial diversion before Judge Altonaga. Gotta love that quote. Can't imagine a jury would convict a guy like that, but it's almost impossible to turn down diversion. From the Miami Herald:

In a surprise, his court-appointed lawyer Clark Mervis notified Judge Cecilia Altonaga that they had accepted the offer late Monday. Details were still secret Tuesday but his attorney said it did not address the issue of Dawkins’ citizenship. Separately, the U.S. immigration agency has agreed not to detain him on a 1992 removal order.

Experts have said such pre-trial probation packages typically involve rehabilitation, pledges to stay out of trouble and to undertake community service.

Altonaga agreed to abort the trial and send him to the program, provided Dawkins pay $1,600 in jury fees -- $40 to each citizen in a pool of 40 jury candidates assembled Tuesday morning, plus parking and transportation fees.

The debt became part of his probationary agreement.

In court, prosecutor Michael O’Leary said the sailor had a change of heart after hearing the case laid out in trial preparation on Monday. Federal prosecutors had made the offer, said O’Leary, because “his military service did mitigate” any alleged crime.

Outside court, Dawkins declined on the lawyer’s advice to explain if he still believed he was a U.S. citizen.

He declared that “the next project here” is sorting out “that situation” -- but said his experience persuaded him of the need to pass The Dream Act. It lets the children of foreigners who serve in the U.S. military attain American citizenship.

The case of the man who says he grew up believing he was American, that’s why he enlisted, energized pockets of Miami and the military.

Monday, July 11, 2011

Are criminal trials about seeking the truth?

Rumpole discusses the motion that was filed in state court asking that the sign saying "We who labor here seek only the truth." (Herald article here).

Of course, that's not what criminal trials are about at all (the only question is whether the prosecutor proved the case beyond a reasonable doubt), and perhaps that is why the public is so upset about the Anthony verdict. Alan Dershowitz explains it the best in this op-ed:

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That's because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

For thousands of years, Western society has insisted that it is better for 10 guilty defendants to go free than for one innocent defendant to be wrongly convicted. ...
That is why a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.

A civil trial, on the other hand, seeks justice for the victim. In such a case, the victim sues the alleged perpetrator and need only prove liability by a preponderance of the evidence. In other words, if it is more likely than not that a defendant was the killer, he is found liable, though he cannot be found guilty on that lesser standard.

That is why it was perfectly rational, though difficult for many to understand, for a civil jury to have found O.J. Simpson liable to his alleged victim, after a criminal jury had found him not guilty of his murder. It is certainly possible that if the estate of Caylee Anthony were to sue Casey Anthony civilly, a Florida jury might find liability.

Casey Anthony was not found innocent of her daughter's murder, as many commentators seem to believe. She was found "not guilty." And therein lies much of the misunderstanding about the Anthony verdict.

Thursday, July 07, 2011

Jack Thompson takes on Cheney Mason

For this picture:

While we are on Mr. Mason, here's his closing from the Casey Anthony case. I note his reference to our own Milton Hirsch at the 53 second mark.

Pacenti exposes Zloch story

Well, I was hoping that this story wouldn't leak until after Kathy was confirmed, which is expected any day now.

For the life of me, I don't see how Kathy's use of a lawyer in her office could upset anyone:

When [attorney] Menendez's first year was up, all Williams had was an opening for a research and writing attorney, but she still needed lawyers in the courtroom, according to a May 12, 2010, letter of explanation to Moreno in response to Zloch's criticism. She has explained herself to Moreno, the 11th Circuit committee and the Judiciary Committee.

Moreno wrote the Judiciary Committee, saying he had been advised Zloch "has forwarded to the Senate Judiciary Committee various documents that he perceives reflect poorly" upon the nominee.

"It is not the role of a judge to opine whether a nominee should be confirmed," Moreno wrote Feb. 15. "However, since Judge Zloch's memorandum to me has been forwarded to your committee, I must respond to your inquiries."

The issue of Menendez's assignment snowballed in a six-week period last year.

Moreno said the use of a research and writing attorney in court presented no ethical problem to any other judge in the Southern District of Florida when the issue was presented at a district judicial conference May 13, 2010. Zloch was absent.

Williams obtained permission from Moreno to allow Menendez to make court appearances and sign pleadings.

Williams said she also went to U.S. District Judges James Cohn and William Dimitrouleas, two of the four district judges serving in Fort Lauderdale. Neither had a problem with Menendez's assignments, she said in the letter to Moreno.

"At this time we do not have the positions available to make him a permanent assistant public defender," she wrote Moreno in July 29, 2009, memo. "I will directly supervise him and assure that his representations are limited."

No one complained -- not the defendant who was represented by the lawyer, not the district judges (other than Zloch), not the 11th Circuit. No one.

Judge Moreno has been a mensch throughout this thing in his support of Kathy:

Moreno wrote the Judiciary Committee in Williams' defense and dismissed Zloch's concern.

"Ms. Williams is an extraordinary administrator, an ethical lawyer and a fine human being," Moreno wrote the Judiciary Committee. "I hope that your committee will likewise dispose of this 'non-issue' quickly as my court presently has three vacancies and Ms. Williams has been nominated to fill one that has been vacant for two years."

Sources say Williams is collateral damage in a long-running feud between Zloch, former chief judge, and his successor, Moreno.

Zloch has refused to attend judicial meetings since Moreno became chief judge, according to one of the letters. He also wrote an unsolicited memo in 2009 urging Moreno to step down to allow U.S. District Judge Donald Graham to become the first black chief judge in the district's history.

The Judiciary Committee had to investigate because Zloch complained, but they have rejected his claim as well. So now it's up to the full Senate. Here's hoping that Kathy gets confirmed quickly and this issue remains dead. In any event, I will let you all comment and give your thoughts about this.

Wednesday, July 06, 2011

Rojas is back on the 11th Circuit homepage

Very strange. Prior coverage here. And here's the opinion, which still has the June 24 date. Below is a screen shot of the 11th Circuit home page:

UPDATE: The 11th actually issued a revised opinion today with this language starting it off (the link in the initial post above and on the 11th home page is to the old June opinion):

We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v.
Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341,
2011 WL 2120163 (1st Cir. May 31, 2011).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter. We conclude that it does.

Jury sends note to be read after verdict

No, not in that case...

... but in federal court before Judge William Dimitrouleas after an acquittal in which Bill Matthewman argued that the feds policy of not recording a defendant's alleged confession must be rejected. Below is the note.

VALDEZ.jury Note

Tuesday, July 05, 2011

Monday baby!

A couple quick items to start off your week:

1. Cameras in the federal courtroooms in the SDFLA! But only in civil cases for now. We are part of a pilot program for 14 districts. From the press release:

Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946, and by the Judicial Conference since 1972. In 1996 the Conference rescinded its camera coverage prohibition for courts of appeals, and allowed each appellate court discretion to permit broadcasting of oral arguments. To date, two courts of appeals—the Second and the Ninth—allow such coverage.

Districts volunteering for the pilot must follow guidelines (pdf) adopted by CACM. The pilot is limited to civil proceedings in which the parties have consented to recording.

No proceedings may be recorded without the approval of the presiding judge, and parties must consent to the recording of each proceeding in a case. The recordings will be made publicly available on and on local participating court websites at the court's discretion.

The pilot recordings will not be simulcast, but will be made available as soon as possible. The presiding judge can choose to stop a recording if it is necessary, for example, to protect the rights of the parties and witnesses, preserve the dignity of the court, or choose not to post the video for public view. Coverage of the prospective jury during voir dire is prohibited, as is coverage of jurors or alternate jurors.

Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946, and by the Judicial Conference since 1972. In 1996 the Conference rescinded its camera coverage prohibition for courts of appeals, and allowed each appellate court discretion to permit broadcasting of oral arguments. To date, two courts of appeals—the Second and the Ninth—allow such coverage. In the early 1990s the Judicial Conference conducted a pilot program permitting electronic media coverage of civil proceeding in six district courts and two courts of appeals.

As I have previously argued on this blog, I see no good reason why cameras shouldn't be allowed in federal court. The public should see what goes on in our courthouses...

2. The NY Times reviews the Supreme Court Term that just concluded. Justice Kennedy was in the majority more than any other Justice, 94% of the time, followed by the Chief Justice, 91%. Ginsburg brought up the rear.

3. Curt Anderson covers the interesting lawsuit between NASA and former astronaut Edgar Mitchell:

NASA is suing former astronaut Edgar Mitchell to get back a camera that went to the moon on the Apollo 14 mission — a historic device Mitchell apparently tried to sell recently at an auction.

The lawsuit filed in federal court contends that the 16mm Data Acquisition Camera is NASA's property and there are no records showing it was transferred to Mitchell. NASA calls Mitchell, one of only 12 humans to walk the lunar surface, "a former NASA employee who is exercising improper dominion and control" over the camera.

"The United States has made numerous requests to defendant and defendant's counsel for return of the NASA camera to no avail," Assistant U.S. Attorney Christopher Macchiaroli wrote in the lawsuit filed Thursday.

"All equipment and property used during NASA operations remains the property of NASA unless explicitly released or transferred to another party," Macchiaroli added.

Mitchell, 80, has a home in the Lake Worth, just south of West Palm Beach, but a phone listing for him was disconnected. His attorney did not immediately respond to a phone message and email. A message was also left with the Institute of Noetic Sciences, which Mitchell founded in 1972 as an organization dedicated to exploring mysteries of the human mind and universe.

NASA contends in the lawsuit that it learned in March that the British auction house Bonhams was planning a "Space History Sale" that included an item labeled "movie camera from the lunar surface." Bonhams also provided a more detailed technical description and four photos of the camera.

The item, according to the auction house description, "came directly from the collection of Apollo 14 Lunar Module Pilot Edgar Mitchell." The camera was one of two that went to the moon's surface on the mission, during which Mitchell and Alan Shepard spent about nine hours collecting 95 pounds of lunar samples.

Friday, July 01, 2011

Happy Birthday to the blog!

The Southern District of Florida Blog was launched July 4th weekend 2005 with this post. Six years later, this is the 1,863 post. The blog is averaging over 500 visitors a day.

I just wanted to thank all of you (defense lawyers, prosecutors, judges, civil lawyers, and others) for stopping by and reading, and for emailing me tips. The blog wouldn't work without you.

This is the most fun district in the country -- we have the best cases, the most trials, and the most interesting stories.

Have a great 4th of July weekend.


--David Oscar Markus