Monday, October 31, 2011

Happy Wet Soggy Halloween

It's always fun driving on US1 after a rainstorm. Sheesh.

Anyway, eat some candy today, and let's hope it dries up for tonight.

Here are a couple stories to get your Monday going:

1. Leonard Pitts thinks the Fourth Amendment should still have some teeth:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . — Fourth Amendment to the Constitution of the United States

Just in case you forgot.

There has been, after all, an appalling amount of forgetting where that amendment is concerned. And New York City has become the epicenter of the amnesia. Yes, the “stop and frisk” policy of questioning and searching people a cop finds suspicious is used elsewhere as well. But it is in the big, bruised apple that the issue now comes to a head.

Federal agents recently arrested a New York City cop on charges of violating the civil rights of an African-American man. Officer Michael Daragjati allegedly stopped the man in April and threw him against a parked van to search him. No drugs or weapons were found, but Daragjati reportedly became angry the man questioned his rough treatment and requested the officer’s name and badge number. So Daragjati ran him in on a charge of resisting arrest. Later, talking on the phone to a friend, he bragged that he had “fried another nigger” and that it was “no big deal.” This was overheard by the feds, who had him under surveillance in a separate investigation.

Let no one fix his or her mouth to pronounce themselves “surprised.” Blacks and Hispanics have complained for years about the selective attention they get from police. Giving cops the power to randomly stop and search pedestrians they find suspicious could not help but exacerbate the problem.

Last year, about 600,000 people were stopped and frisked in New York. Though blacks and Hispanics account for just over half the city’s population, they represent about 85 percent of those stopped. The Center for Constitutional Justice, a civil rights group, says drugs or weapons are turned up in less than two percent of those stops.

It bears repeating: less than two percent.

2. Can lawyers be ineffective during the plea process? Seems like the answer is obviously yes, but the Supreme Court will hear oral argument on the question today:

Anthony Cooper shot a woman in Detroit in 2003 and then received laughably bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.

At least Mr. Cooper heard about his plea offer. Galin E. Frye’s lawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When Mr. Frye did plead guilty after the offer expired, he was sentenced to three years.

On Monday, the Supreme Court will hear arguments in the two cases, which ask how principles concerning bad legal work at trial should apply to plea bargains. The question is of surpassing importance, since a large majority of criminal cases are settled at the plea stage.

3. The U.S. jails way too many people:

As a means of controlling crime, America’s prisons are notoriously inefficient and only minimally effective, often creating hardened criminals out of first-time offenders. The United States has 5 percent of the world’s population, yet 25 percent of the world’s prisoners. In the past generation, the imprisonment rate per capita in this country has multiplied by five. There are 2.3 million Americans in prisons and jails. Spending on prisons has reached $77 billion a year.

Thursday, October 27, 2011

Congrats to Judge Kathy Williams

Her investiture was just spectacular. The speakers were really good -- Her friend Cathy Dee, Michael Mullaney, Reuben Cahn, Michael Caruso, Judge Seitz, Judge Moreno, and others. And Judge Williams' remarks showed why she was a great trial lawyer and leader. Here are some pictures from the event:

At Kathy Williams' investiture

- Posted using BlogPress from my iPhone

Wednesday, October 26, 2011

Judge Gold's speech for Judge Hoeveler receiving the Ned Davis award

As I mentioned before, Judge Gold's speech at the Federal Bar dinner last week was fantastic, and I got a copy of it, which I reproduce below:

William M HoevelerSpeech

Tuesday, October 25, 2011

Congrats to Judge Bob Scola

Judge Scola was just informally sworn in. Here he is celebrating with his wife Judge Jackie Scola and Chief Judge Fred Moreno. Congrats!

Maple Agriculture Protection and Law Enforcement

Not enough federal crimes for you? Check out the MAPLE Act which makes it a felony to sell fake maple syrup. Apparently, having a federal misdemeanor for this offense wasn't enough. From the LA Times:

"Vermont iconic maple syrup -- painstakingly produced, and prized across the nation and beyond -- is one of our state's fine, high-quality, natural products," Democratic Sen. Patrick Leahy said in introducing the legislation. A growing number of people are claiming to sell genuine Vermont maple syrup when "they are in fact selling an inferior product that is not maple syrup at all,'' he said, adding that the misrepresentation undermines a key part of Vermont's economy.

"We are very proud of the high-quality maple syrup produced in Vermont," independent Sen. Bernie Sanders said in a news release. "Some of us think it's the best in the world. We think it is terribly wrong for people to produce a phony product and call it Vermont maple syrup."Leahy, who as chairman of the Senate Judiciary Committee is well positioned to advance the legislation, introduced it in the wake of a recent U.S. Food and Drug Administration investigation that found a Rhode Island man had been selling cane sugar-based syrup as maple syrup.

Under existing law, fraudulently representing something as maple syrup is a misdemeanor punishable by up to a year behind bars.

"Too often, those who are willing to endanger our livelihoods in pursuit of their profits see fines as just a cost of doing business," Leahy said in the statement. "We need to make sure that those who intentionally deceive consumers get a trip to jail, not a slap on the wrist."

Monday, October 24, 2011

Some quick hits for Monday afternoon

1. Justice Stevens has written this interesting review of William J. Stuntz's intriguing book, The Collapse of American Criminal Justice. It starts out this way:
William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.
2. Magistrate Judge Seltzer is skeptical of this skeptic (via Sun-Sentinel):
Pena, 49, and Randi, 83, have remained high-profile figures in the world of skepticism for decades, and Randi is famous around the world for debunking people who profess to have paranormal powers. He runs the James Randi Educational Foundation dedicated to skepticism.The deal to get Pena — whose full name is Deyvi Orangel Pena Arteaga — out on bond was worked out at the last minute Thursday night by Assistant U.S. Attorney Bertha Mitrani and Pena's defense attorney, Susan Dmitrovsky.U.S. Magistrate Barry Seltzer asked the attorneys if there was any paperwork — a passport or travel visas — to show Pena was who he said he was."Do we have anything to confirm this his true identity?" the judge asked. "I can't release a defendant unless I have some idea who he is."Mitrani said she and the federal agents working on the case had not had time to check for immigration records, but that she was comfortable Pena was his actual identity and that he would not try to flee the country if released on bond."We are going to verify and vet the information he gave us," Mitrani told the judge.
3. The NY Times has this piece on Justice Thomas. From the intro:
Justice Clarence Thomas was sworn in to the Supreme Court 20 years ago today. After two decades on the bench, he remains a legal outlier even on the conservative court. The results he reaches are often radical, and where his ideas come from even more so.

favors cutting back the authority of the federal government and letting states “decide for themselves how to safeguard the health and welfare of their citizens.”

believes that “the Constitution left religion to the states” and that the First Amendment’s prohibition against Congress’s enacting laws on the establishment of religion “was intended to protect” the right of states to do as they please.

wants to roll back what most Americans consider racial progress because the “Constitution abhors classifications based on race” and even when the government uses them to solve problems and confer benefits, “it demeans us all.”

Extreme as those views are, the most extreme part of Justice Thomas’s record is not what he decides, but how. Justice Antonin Scalia told a
biographer of Justice Thomas, Ken Foskett, that Justice Thomas “doesn’t believe in stare decisis, period.”

Friday, October 21, 2011

Federal Bar Gala

It was a nice evening last night at the Biltmore. Brett Barfield was sworn in for a second term, and Bernie Pastor is President-Elect. Judges Williams and Scola were toasted. And Judge Hoeveler received the Ned Davis Award, which was presented in a moving speech by Judge Gold. It was a huge turnout, and Brett has really done a fantastic job with the organization. It's an exciting time in the District...

Wednesday, October 19, 2011

Congrats to Bob Scola!

He was confirmed today as our newest federal judge. Well done!

Eddie Dominguez leaving DBR

He's done amazing things with that paper, and it's too bad he is leaving. While most newspaper readership is declining, the DBR has been flourishing under Eddie's leadership. He's made the paper relevant and interesting, and he's been able to keep good, talented reporters. Not easy in this environment.

He's headed to City National Bank as Senior VP in charge of Communications, Marketing, and Community Relations, and I wish him well. Now he can take me, and his other sources, out to lunch...

His going away party is this Friday at Bin 18 if you want to see him off.

Tuesday, October 18, 2011

Everything is a crime these days

The Supreme Court decided to hear a case involving the Stolen Valor Act; i.e., whether it is a crime to lie about prior military service:

The court said Monday it will rule on the constitutionality of a law that makes it a federal crime for people to claim falsely, either in writing or aloud, that they have been awarded the Medal of Honor, a Silver Star, Purple Heart or any other military medal.

The Stolen Valor Act, which passed Congress with overwhelming support in 2006, apparently has been used only a few dozen times, but the underlying issue of false claims of military heroism has struck a chord in an era in which American soldiers are fighting two wars.

At the same time, the justices have issued a series of rulings in recent terms in favor of free expression, striking down California's violent video restrictions and a federal law involving cruelty to animals. It also upheld the right of protesters to picket military funerals with provocative, even offensive, messages.

The federal appeals court in California struck down the military medals law on free speech grounds, and appeals courts in Colorado, Georgia and Missouri are considering similar cases.

The Obama administration is arguing that the law "serves a crucial purpose in safeguarding the military honors system." The administration also says the law is reasonable because it only applies to instances in which the speaker intends to portray himself as a medal recipient. Previous high court rulings also have limited First Amendment protection for false statements, the government said.

This was the case that Judge Kozinski said went too far because everyone lies:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for
career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy
is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social
intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

While the U.S. Supreme Court is hearing that case, the Florida Supreme Court is going to decide whether loud music is a crime or not:

The Florida Supreme Court will soon rule on whether regulating car stereo volume is a violation of drivers' First Amendment rights, possibly eliminating local noise ordinances in one fell swoop.

The court announced Monday that it will hear arguments in State vs. Catalano in February, a case that began when police in St. Petersburg ticketed a corporate lawyer for exceeding the noise limit by blasting a little Justin Timberlake at 7:34 a.m. on his way to work.

Richard T. Catalano fought the $73.50 ticket, and he's fought it all the way to highest levels of state law.

Really Mr. Catalano? Blasting Justice Timberlake?!

In other news, Cain is polling ahead of Obama...

Monday, October 17, 2011

Monday Morning

Nothing much happening this Monday morning, except rain and Siri. Here's some quick news and then your moment of Monday zen:

1. Justice Kagan speaks in Tampa and explains that the Justices don't email:

She also revealed that the justices "ignore 25 years of technology" in communicating with each other.

"The justices do not e-mail each other," she said. "The clerks e-mail each other, but the justices do not." Instead, the justices send each other memos, hand-delivered by clerks. Kagan said she prefers the old-fashioned way of communicating.

2. Drug charges were fabricated in NY. This is a crazy story:

Anderson, testifying under a cooperation agreement with prosecutors, was busted for planting cocaine, a practice known as "flaking," on four men in a Queens bar in 2008 to help out fellow cop Henry Tavarez, whose buy-and-bust activity had been low.

"Tavarez was ... was worried about getting sent back [to patrol] and, you know, the supervisors getting on his case," he recounted at the corruption trial of Brooklyn South narcotics Detective Jason Arbeeny.

"I had decided to give him [Tavarez] the drugs to help him out so that he could say he had a buy," Anderson testified last week in Brooklyn Supreme Court.

He made clear he wasn't about to pass off the two legit arrests he had made in the bar to Tavarez.

"As a detective, you still have a number to reach while you are in the narcotics division," he said.

3. Still waiting to hear who made the cut from the Magistrate interviews last week. Please email me if you know and I will keep your name confidential.

And now your moment of zen:

Thursday, October 13, 2011

Judge Jordan voice vote with no opposition

Congrats to Judge Jordan who took the next step today in getting to the 11th Circuit. The judiciary committee's voice vote was unanimous today on Judge Jordan. Senator Sessions even congratulated President Obama on nominating Judge Jordan, who said he had met with him and was impressed with his "12 good years as a district judge" and his prior experience. Cool!
HT: Glenn Sugameli

Feds decide not to retry lawyer and police officer in mortgage fraud case

It's the right decision. After two really long mortgage trials before Judge Cohn, the government needs to cut its losses. From the Sun-Sentinel:

Federal prosecutors said Wednesday they are dropping all criminal charges against a Fort Lauderdale lawyer and a former police officer arrested last year in a mortgage fraud investigation.

The decision to dismiss the cases against attorney Steven Stoll and former Plantation Police Officer Dennis Guaracino comes a month after a Fort Lauderdale federal jury deadlocked on the charges against them.

The two men and Joseph Guaracino, who is Dennise Guaracino's brother, spent more than five months on trial defending themselves against allegations resulting from "Operation Copout" — an inquiry into a group of police officers involved in suspicious real estate transactions.

The U.S. Attorney's Office will continue pursuing its case against Joseph Guaracino, whose first trial also ended in a hung jury, federal prosecutors told U.S. District Judge James I. Cohn.
Not a good day for Joseph Guaracino though... I wonder why the different decision. Anyone have the scoop here?

And I know I'm being annoying on the press release issue, but shouldn't the feds issue a release about its decision to drop the case against the other two. If you google their names, the arrest press release still comes up... If the USAO can do a release on every illegal lobstering arrest (there seems to be a bunch of those on the website), then certainly they can do one here, no?

Wednesday, October 12, 2011

Telling a story

Roy Black has had quite a bit of great stuff on his blog recently about opening statements and telling a story. He explains why lawyers need to start strong and be dramatic. And of course, he is right on.
I was watching the Republican debate last night and it was evident why Herman Cain is gaining steam with his 999 plan -- it's dramatic, it's easy to understand and it resonates with people. Lawyers could learn a lot from watching Cain in these debates.
Check out this video (embedded below) from the debate at the 54 minute mark where Cain takes on Romney and Romney's 59 point plan (in 160 pages) while describing his own plan as simple and efficient. Romney has a good strong beginning with his answer, but you can see why Cain is doing well and is a good cross-examiner. At the end of Romney's answer, Cain says: So the answer to my question is no, it's not simple.

Bachman tries to go after Cain's plan by saying to flip 999 upside down (which makes it the number of the devil!) and Huntsman tries to say it's the price of pizza. Not so effective... Someone needs to come up with some easy to understand talking points about why 999 doesn't work. If not, Cain is going to keep gaining momentum -- not because the plan will necessarily work. But because he is telling a better story than the rest.

Monday, October 10, 2011

Columbus day reading

Here's some fun reading for those of you at work, like me:

1. The first of the Cuban 5 is out. Now what do we do with him? (Via Curt Anderson)

2. The Glass Ceiling doesn't apply to my law firm. (Via NY Times)

3. Judge Denny Chin talks about the difficult time he had sentencing defendants. (Via NY Times)

4. Justices Scalia and Breyer talk to Congress. (Via NPR) Here's an interesting exchange:
Scalia said he tries to figure out how the framers themselves understood the rights they outlined, and then carry those forward to today. Anything beyond that, he said, would be drafting new rights into the Constitution.

"I don't trust myself to be a good interpreter of what modern American values are. I have very little contact with the American people, I'm sorry to say. You do, and the members of the House probably even more," Scalia said. "So if you want to keep the Constitution up to date with current American values, you ought to decide what it means, and you can kiss us goodbye."

Then Breyer actually helped Scalia make an argument, explaining Scalia's worry that Breyer will end up substituting what he thinks is right for what the Constitution actually says.

"What I say is, yes, you are right about that — and all I can do is be on my guard, write my opinions, try to look to objective circumstances," Breyer said, "and I see the opposite danger — the opposite danger is called rigidity. The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century — work in the way those framers would have wanted them to work had they been able to understand our society."

Then, in a moment of remarkable collegiality, the liberal justice prompted Scalia to make an argument Breyer knew would trump what he had just said. He reminded Scalia about a familiar joke.

Two old friends are camping, Scalia said. When a great, big grizzly bear comes after them, the slower, pudgier friend says they will never outrun the bear. The friend running in front says, "I don't have to outrun that bear. I just have to outrun you."

"It's the same thing with originalism — I just have to show it's better than his [idea]," Scalia said.

It was clear the two justices had debated this hundreds of times. Wednesday's argument just happened to take place before a group of powerful senators. Because of that, the session became a kind of master class in the philosophy of law — and the art of "comity."

5. Scalia also says that the drug laws have hurt the judiciary (Via The Atlantic):

Supreme Court Justice Antonin Scalia isn't a supporter of legalizing drugs. But he does believe that passing federal laws against them has done harm to the U.S. government. "It was a great mistake to put routine drug offenses into the federal courts," he told the Senate Judiciary Committee Wednesday. The Wall Street Journal went on to report Scalia's belief that the laws forced Congress to enlarge the federal court system, and diminished "the elite quality of the federal judiciary."

6. The Sun-Sentinel got the Mangione search warrants.

Friday, October 07, 2011

Judge Jordan’s nomination delayed and will join dozens awaiting Senate Floor votes


David Oscar Markus lives in a rational world. Thus, he reasonably believed that the U.S. Senate Judiciary Committee would vote today on the nomination of S.D. Fla. District Judge Adalberto José Jordán to be a United States Circuit Judge for the Eleventh Circuit.

After all, Judge Jordan is strongly supported by his Florida home-state U.S. Senators, The Palm Beach Post Editorial Board urged a truce to avoid any delay of his confirmation, his hearing was uneventful, he was on today’s Committee’s agenda, and Chairman Pat Leahy’s statement explained that:

“Federal judicial vacancies across the country remain above 90. This is the longest extended period of high vacancies in the last 35 years. More than one of every 10 Federal judgeships remains vacant. Today the Committee has the opportunity to make progress and vote on 10 of President Obama's judicial nominees to fill vacancies in California, Missouri, Montana, Nebraska, New York, Washington, West Virginia and Utah, as well as on the 11th Circuit and the Federal Circuit.”

Judiciary Committee Republican senators, however, nearly always exercise their right to delay votes on every judicial nominee until the next week’s Executive Business Meeting the first time they are listed. Today, they delayed Judge Jordan and four others until Oct. 13.

Moe importantly, the fact that Judge Jordan is moving through Committee does NOT mean that he will get a Floor vote anytime soon. True, he has (bipartisan) home state senator support and should be approved without opposition in Committee. But that is also true of nearly all of the many other stalled nominees.

Anonymous and unexplained objections from GOP senators have created an unprecedented backlog of consensus judicial nominees who could and should be approved very quickly. As Senate Judiciary Chairman Pat Leahy explained in July, "we will still have 25 nominees sitting on the calendar who could be disposed of within an hour, yet they are blocked week after week after week.”

Even the most consensus district court nominees are only confirmed after inexcusable and unexplained delays. For example, the New Orleans Times-Picayune’s Oct. 5 Editorial described how

“Nannette Jolivette-Brown will be the first African-American woman to serve on the federal bench in Louisiana, following a unanimous vote by the U.S. Senate Monday confirming her nomination. . . . She had the backing of both Sen. [Mary] Landrieu and Sen. David Vitter, who was a law school classmate at Tulane University. Both urged the Senate Judiciary Committee and the full Senate to confirm her quickly at her confirmation hearing in May.”

There were 27 Committee approved judicial nominees awaiting Floor votes before the Senate belatedly confirmed Jolivette-Brown and five others unanimously. When the Committee approves Judge Jordan and the other delayed nominees next week, there will once again be 27 awaiting Floor votes.

A sweeping nonpartisan push to fill federal judgeships extends from Supreme Court Chief Justice Roberts and Justice Anthony M. Kennedy, to the American Bar Association and Federal Bar Association, to countless editorials boards and commentators from across the nation.

Justice delayed is justice denied, as more than 200 million Americans live in areas where the U.S. Courts have declared vacant judgeships to be judicial emergencies.

-Glenn Sugameli, Staff Attorney, Judging the Environment, Defenders of Wildlife

Thursday, October 06, 2011

Juror charged with soliciting bribe from defendant

This complaint is worth a read. From the government's press release:

According to the complaint filed in federal court today, Campagna was a sworn trial juror in the federal criminal case of United States v. Arturo Marrero, pending in the United States District Court for the Southern District of Florida, Case No. 10-60244-CR-COOKE. Campagna allegedly approached the father of the defendant outside the U.S. Courthouse in Miami, Florida and stated that he had information about the case. Campagna gave the father a piece of paper with a telephone number on it, but did not identify himself by name or explain that he was a juror.

The complaint further alleges that later that afternoon, the defendant’s brother called Campagna and arranged to meet with him in Miami Beach to discuss the case. At that meeting, Campagna revealed to the brother that he was a juror in the case and that some of his fellow jurors were inclined to convict. Campagna offered to persuade other jurors to vote not guilty in exchange for a payment of between $50,000 and $100,000. The brother expressed skepticism at Campagna’s claims, and added that money was tight, that he would think about Campagna’s offer, and that he would get back to him the next day.

On October 5, 2011, the brother began to cooperate with the FBI and made a recorded telephone call to Campagna to follow up on his discussions of the day before. The brother asked whether Campagna was still willing to help influence the outcome of the case, and Campagna answered yes. The brother then proposed a meeting at the same time and place to discuss money and other details. Campagna agreed. The brother stated that he had been able to get some money together but wanted to negotiate a final price.

Later that day, the brother participated in a recorded meeting with Campagna near the same Miami Beach location. Campagna reiterated that he could influence the jury and prevent a guilty verdict. The brother and Campagna then began to negotiate over price, and eventually settled on $20,000, which is the amount the brother said that he had brought with him. Campagna followed the brother to his vehicle to obtain the cash payment. The brother then handed Campagna what appeared to be a bundle of cash in a brown paper bag. At that point, Campagna was arrested.

Marrero's lawyers are Dore Louis, Marcia Silvers, and Joe Rosenbaum. Does Marrero get reprosecuted after this or do the feds say thank you and move on?

Wednesday, October 05, 2011

RIP Steve Jobs

I remember my first computer -- an Apple IIe. I was the happiest kid in Kendall when we got it. There was no internet then, but I started a BBS called The Shire with a dial-up modem and two floppy disc drives. I'll never forget how cool I thought it was to be able to get baseball box scores from Compuserve right after the game ended. The lines would stream across the screen, one by one. I've never been able to throw that computer away. Much to my wife's chagrin, it still sits in our garage...

Here's Jobs' commencement speech from Stanford in 2005. It's worth watching for some inspiration:

Tuesday, October 04, 2011

Judge Jordan's nomination to be heard by Judiciary Committee on Thursday

Thankfully, his nomination is moving quickly. After the vote this Thursday, it will go to the full Senate.

En banc day

The 11th Circuit has decided to hear the Fair Sentencing Act cases (Rojas and Hudson) en banc. The Federal Public Defender's office represents both defendants. The two en banc orders are here and here.

Rojas was the case that was on the 11th Circuit webpage and then off and then on again. Should be interesting...

In other news:

-- Justice Stevens has a new book out, Five Chiefs, that looks really interesting.

-- Kenneth Starr says open up the Supreme Court to cameras. He's 100% right. Why not:

The benefits of increased access and transparency are many. Democracy’s first principles strongly support the people’s right to know how their government works. This would seem to be underscored by this court’s stubborn insistence on freedom of communication in a democratic society. Recall that earlier this year, the court held that the First Amendment protected the right of protesters to hector a military family during a funeral service for their son, who was killed in Iraq. And the court decided that the same societal interest in free speech outweighed California’s interest in protecting minors from extremely violent video games. These are but two of many examples in which the current court has made plain its view that, in extreme cases, the force of First Amendment rights shall outweigh all else.

Year after year, the court issues decisions that profoundly affect the nation. Think of civics classes. The retired Justice Sandra Day O’Connor is one of many who have lately lamented the apparent collapse of civic literacy in public schools. Think of older Americans affected by President Obama’s health care program. Think of women or other groups affected by important class-action cases, like the Wal-Mart discrimination case last term. These citizens should have a chance to hear what the justices think about important questions that touch their lives.

The issue of cameras in the courtroom is one of precious few on which conservative Republicans, like Senator John Cornyn of Texas, and liberal Democrats, like Representative Henry A. Waxman of California, agree.

Monday, October 03, 2011

First Monday in October

Law nerds like you and me love this day. And it looks to be a great Term. There are lots of stories covering this Term's cases, but I like Adam Liptak's article here. Seems like a bunch of interesting criminal law cases:

The court will decide whether the police need a warrant to use advanced technology to track suspects, whether jails may strip-search people arrested for even the most minor offenses, whether defendants have a right to competent lawyers to help them decide whether to plead guilty, when eyewitness evidence may be used at trial, and what should happen when prosecutors withhold evidence.


In United States v. Jones, No. 10-1259, the justices will consider whether the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time. Some appeals court judges have said that such surveillance put them in mind of George Orwell’s novel “1984.” Prosecutors say that electronic enhancement of the ability of the police to stake out and track suspects raises no constitutional concerns.

A second Fourth Amendment case, Florence v. Board of Freeholders, No. 10-945, asks whether people arrested and held for minor offenses may be routinely strip-searched.

The court will also consider, in Maples v. Thomas, No. 10-63, whether a mix-up in the mailroom of a big New York law firm should mean that a death row inmate in Alabama must lose an opportunity to appeal a decision against him.

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

And the justices will return to a subject that sharply divided them in last term’s Connick v. Thompson case, which threw out a $14 million jury award to a former death row inmate who was cleared after prosecutorial withholding of evidence in New Orleans came to light. The new case, Smith v. Cain, No. 10-8145, also comes from New Orleans and concerns similar claims of prosecutorial misconduct.

And the First Amendment:

The court will continue its intense engagement with the First Amendment. But where earlier cases involved quirky issues like dog fights, funeral protests and the Seven Aphorisms of a fringe church called Summum, the marquee First Amendment cases this term involve issues of sweep and consequence.

In one, the court will rule on whether the government may ban swearing and nudity on broadcast television. In another, the justices will decide for the first time whether there is a “ministerial exception” to employment laws that allows religious institutions to discriminate in ways others employers cannot.

And that little health care case might come along too:

The health care case is not the only juggernaut looming on the horizon. In the next term or two, the court may well address same-sex marriage, affirmative action and illegal immigration. For now, the justices are focused on criminal cases, especially ones concerning the Fourth Amendment’s protections against unreasonable searches and the Sixth Amendment’s guarantee of a fair trial.