Sunday, December 30, 2012

Happy New Year!

I just wanted to wish everyone a happy and healthy new year and thank everyone for stopping by and reading, and for sending tips.

The District changed quite a bit this year and will continue to undergo a transformation in 2013. Should be fun to watch -- and blog about.

Thursday, December 27, 2012

Best posts of 2012

Kyle Swenson of the New Times covers local blogs' best posts here, including SDFLA.

I picked the posts about Judge Jordan's confirmation process.  The blog gets lots of traffic when there are posts about new judges and magistrates (thanks to all my tipsters, who get me this information quickly and before the main stream media), and Judge Jordan's confirmation process seemed to get the most attention, including lots of hits from the court family (judges, clerk's office, prosecutors, and defenders) and nationally.

We should have a bunch of new judges to discuss in 2013...

Wednesday, December 26, 2012

"[The] president’s most enduring legacy."

That's what Federal Public Defender Michael Caruso said about the appointment of judges in Jay Weaver's article about "the new generation" of appointees.

There's some good stuff in the article, including Judge Scola joking that he wished he was "king of the world." I'm not sure there is anything closer than being an Article III judge....

Here's a photo from the article from C.W. Griffin:

Thursday, December 20, 2012

Mixed verdicts in B-Girls trial

Three of the four were found guilty of some counts and one was found NG across the board. The Herald coverage is here:
Miami federal jury convicted Stanislav Pavlenko, Albert Takhalov and Isaac Feldman of fleecing hundreds of thousands of dollars from dozens of male customers by racking up bogus bills for champagne, vodka and caviar on their credit cards at Russian-style clubs on Washington Avenue.
A fourth defendant, Siavash Zargari, who did business with Takhalov, was acquitted.
The jury reached its unanimous verdicts on a variety of conspiracy, wire fraud and money-laundering charges after deliberating for five days after an 11-week trial before U.S. District Judge Robert Scola that zigged and zagged with tales about Miami Beach’s underground bar scene. Scola ordered the three convicted men into custody immediately because he found that they gave testimony “I don’t believe was honest.’’ His decision prompted loud wails and crying by relatives in the courtroom. Court security officers had to separate the defendants from their loved ones.

Read more here:


RIP Robert Bork.  Here are some of the highlights (lowlights?) from the confirmation hearing:

Wednesday, December 19, 2012


Two bank-robbers escaped from a federal lockup facility in Chicago through those little slits as windows (4 inches wide) 15 floors up.  Pretty crazy.  From the Chicago Tribune:

Tuesday, December 18, 2012

Be civil

Have you seen the joint resolution of 42 South Florida Voluntary Bar Associations and six chief judges in South Florida (federal and state) regarding lawyer civility?  Check it out here:

The South Florida VBAs jointly resolve that they shall work together to actively promote the Oath of Civility and adherence to accepted standards of professional courtesy across the South Florida VBAs’ respective counties;
The South Florida VBAs hereby resolve to jointly promote the above through a series of articles, seminars, membership lunches, press releases, and correspondence directed to members and non-members of the South Florida VBAs’ respective counties; and
The South Florida VBAs, through their respective Officers, Boards of Directors, and Professionalism Committees, shall work with the Chief Judges of South Florida’s courts to promote the above in a manner most likely to improve civility awareness and adherence to accepted standards of professional courtesy.
The South Florida VBAs resolve to promote the Oath of Civility and adherence to accepted standards of professional courtesy to attorneys appearing before the state and federal courts, government agencies, arbitrators and other quasi-judicial forums throughout South Florida.

Good stuff; I think the "civil" lawyers need it more than the criminal lawyers. 

I particularly like the footnote:  "The Addendum shall be a living document that will be intermittently updated as additional bar associations pledge their approval of this Joint Resolution."

In other district news, Claudio Osorio stipulated to pretrial detention yesterday.  The case is before Judge Altonaga so he won't have to wait too long for a trial (or plea).  Here's Jay Weaver's coverage of the case:

Claudio Osorio once lived in a Star Island mansion overlooking Biscayne Bay.
Today the accused international con man remains stuck in a tiny jail cell in downtown Miami.
Arrested earlier this month, Osorio is awaiting trial on federal charges accusing him of fleecing $50 million from investors and the U.S. government.
Osorio’s defense attorney, Orlando do Campo, said Monday his client chose not to challenge the government’s position that he should be held without bail, citing a recent problem in his bankruptcy case. Osorio, 54, is being held in the Federal Detention Center in downtown Miami.
Magistrate Judge Jonathan Goodman originally granted Osorio a $1 million bond, including a $100,000 deposit to be made by his mother-in-law who lives in his native Venezuela. But the judge put it on hold so that a federal prosecutor, a bankruptcy trustee and Osorio’s bankruptcy lawyer could address a dispute over the source of the defendant’s funds.
The bankruptcy trustee is seeking to have Osorio found in contempt of court for allegedly forging a letter from a Canadian bank that purportedly claimed it had turned over all financial records related to his defunct company, InnoVida Holdings.

Read more here:

Monday, December 17, 2012

B-Girls jury still out

They started deliberating on Thursday and could be heard laughing in the jury room on Friday afternoon.  Not sure what that means... But no verdict yet.  As soon as I hear something, I will post it.

The cat comments are weird, but the comment about Judge Rosenbaum's investiture was nice.

And speaking of investitures, the Senate is confirming more district judges... When will Judge Thomas be confirmed?

Finally, Richard Catalano can now listen to Justin Timberlake as loud as he wants.  Here's Richard:     Lawyer Richard Catalano of St. Petersburg was cited for noise from his car in 2007.

Friday, December 14, 2012

Excellent piece in USA Today on snitching

By Brad Heath.  Almost one out of every eight federal prisoners have had their sentence reduced for cooperation.  That's a huge number.  And here's an interesting graphic on how that breaks down:

Wednesday, December 12, 2012


 The Miami Herald has some tips for managing stress in today's paper, and it includes advice from Judge Gold:

Alan Gold, a federal judge for the Southern District of Florida, also practices mindfulness meditation and has become a proponent of teaching practices for stress reduction to attorneys. Gold has advocated for the creation of a task force on the mindful practice of law with the Dade County Bar Association and the local Federal Bar Association.
Gold says he regularly sees attorneys shuffle into his courtroom on the brink of a breakdown. He links erosion in the degree of civility in the profession with lawyers’ inability to cope with extreme stresses.
They may lash out in anger at a co-worker, assistant, client — or even a judge.
“If you recognize you’re in this situation, the next step is to get out of it. The quickest and simplest way is to slow down and take time to focus on your breathing. This is not something that comes naturally for lawyers. It’s counterproductive to their bottom line way of doing business,” he says.

Read more here:

Lewis and Tein might be breathing easier today after the case against them has suffered another setback. From the DBR:
Another deposition supports Miami law firm Lewis Tein's position in its fight to exonerate itself from accusations that it lied about its fee for representing two Miccosukee tribal members who were sued for wrongful death.
This sparked a deposition of Bert, who previously signed an affidavit that his legal fees were in essence loans. Bert is not fluent in English.
In the deposition, which took place Nov. 27 and Dec. 3, Bert appears confused about what constitutes a loan. He first denies there was a loan agreement between the tribe and Lewis Tein.
Lewis Tein, in a Dec. 7 pleading, accused the Bermudez family attorneys of trying to confuse Bert through semantics. The money extended to him and his daughter wasn't specific to Lewis Tein but for legal representation by any firm or lawyer.
"Those lawyers knew or should have know (sic) that Mr. Bert and Ms. Billie did not obtain loans specific to Lewis Tein but were ultimately responsible to pay back the tribe from their future quarterly distributions," stated the motion filed by attorney Paul Calli, a Carlton Fields partner who is representing Lewis Tein.
But in the second day of the deposition, Bert clarified his answers, saying he was just being truthful when his attorney, Jose M. Herrera of Miami, asked him if the loans were earmarked for Lewis Tein.
"When he asked me the question, when Mr. Herrera asked me the question about the loan, I said 'no' because I did not request a loan or assistance to pay the Lewis & Tein (sic) attorney fee specifically," Bert said.
Rodriguez, in the second day of deposition, also asked: "Mr. Bert, did you ever obtain any loans from the Miccosukee tribe to pay for the legal fees generated by Lewis Tein in their representation of you in the Bermudez case?"
Bert answered, "Yes."
Rodriguez then asked if Bert ever answered to the contrary. He replied: "I'm not sure. But because it went through general council approval, I didn't have a separate loan."
An interpreter translating for Bert said he assumed that because the general council approved his request, it didn't constitute a traditional loan.
Rodriguez continued to press Bert on the subject.
"He has told you three ways to Sunday, despite your best efforts, that he knew of the financial arrangement," Calli said. "And that just like Jasper Nelson, the vice chair of this tribe said, it approved these loan payments, those distributions. And you are trying to confuse him with this issue of loans."

Tuesday, December 11, 2012

Miami cops being investigated for gambling by FBI

According to the Miami Herald:

At least a half-dozen Miami Police officers have been targeted by the FBI for their alleged roles in providing protection for a Liberty City sports gambling operation that was uncovered more than a year ago, according to authorities familiar with the case.
At least one Miami officer has been relieved of duty in connection with the investigation into the bookmaking business, which has been shut down, authorities said.
The initial probe by the FBI, which has been assisted by the police department, evolved into a broader investigation involving some of the officers. Arrests of at least six Miami officers — and possibly more — are expected as early as January, according to authorities.

Read more here:

Appellate action

1.  The Supreme Court denied cert in the Hustler pictures case involving nude photos of Nancy Toffoloni Benoit, who was killed (as was her son) by her husband Chris Benoit.  This was the case where the jury awarded $20 million to the family against Hustler, but the judge reduced it to $250,000.  Then the 11th Circuit threw out the award altogether.  The Supremes denied cert. 

2.  The 11th was also busy deciding the case of the 6-toed Hemingway cats, 907 Whitehead Street, Inc. v. Secretary of the United States Department of Agriculture, Case No. 11-14217 (decided December 7, 2012).

The 11th held that the Department of Agriculture can regulate the Hemingway House because people come to see the cats walking around the grounds.  I wonder how the conservatives feel about the most conservative court in the country finding that more regulation was warranted here. 

Monday, December 10, 2012

I'll see your Holiday Spirit and raise...

Chief Judge Moreno has a holiday spirit order of his own, in which he says "in light of the many upcoming holidays, including Hanukkah, Christmas, New Year's Day, Three Kings, Day, the Bowl Championship Series Game, and Martin Luther King, Jr. Day, the Court GRANTS an enlargement of time for all Defendants."  (emphasis added).

Now we have Judge Cooke and Chief Judge Moreno.  Who's next?

Friday, December 07, 2012

Tis the Season....

Another reason you gotta love Judge Cooke.  Here's an order from the docket sheet of DemeRx, Inc. v. Chrysalis Pharma Partners:

ENDORSED ORDER granting nunc pro tunc 15 Plaintiff's Motion for One Day Extension of Time to File Response to Answer, Affirmative Defense, and Counterclaim. Fortunately, counsel may take advantage of my giving spirit during this holiday season. Generally when I state that no further extensions of a given deadline will be granted, my subsequent orders are consistent with my statement. Nevertheless, Plaintiff may have through and including December 4, 2012 to respond to Defendant's Answer, Affirmative Defense, and Counterclaim. Signed by Judge Marcia G. Cooke on 12/4/2012. (eah) (Entered: 12/04/2012)

That's the spirit! 

Other federal judges have filed a class action seeking higher pay.  Here's the complaint.  From Thomson Reuters:

Pay raises for federal judges is a cause célèbre whose top advocate is the nation's top judge, Chief Justice of the Supreme Court, John Roberts. And, back in October, the movement for higher judicial pay achieved a big victory. As On The Case reported, the Federal Circuit Court of Appeals ruled that the six judges who brought a case demanding their authorized raises were entitled to cost-of-living pay increases that would bump up their base salary by about $25,000. Though that ruling was limited to those six plaintiffs, we noted at the time that other judges looking for similar pay increases could simply bring their own suits and cite the Federal Circuit ruling.
Seven additional federal judges, including Marsha Berzon of the 9th Circuit Court of Appeals and Allyson Duncan of the 4th Circuit, did just that late last week, filing a class action in the U.S. Court of Federal Claims. The proposed class would include the more than 1,000 federal judges who have served during the past six years. The suit, filed by attorneys at Susman Godfrey, dedicates more than a page to the October Federal Circuit opinion, styled Beer v. United States.

Wednesday, December 05, 2012

B-girls trial still ongoing

Some girls flirt with some guys and take them for a bunch of money and we've made a federal case out of it.  And a long one!  It started back in early October!  It's the Energizer Bunny trial. 

David Lat is profiled here in Details. The intro:

Earlier this year, after weeks of hearing rumblings from a network of tipsters, David Lat, the 37-year-old managing editor of Above the Law (ATL), one of the most widely read legal blogs on the Web, published a story he never dreamed possible. In the post, cheekily titled "Where's LeBoeuf? An Update on Doings at Dewey," Lat broke the news that one of most prestigious law firms in the world, Dewey & LeBoeuf, which employed more than 1,300 attorneys in 12 countries in 2007, was on the verge of imploding. "I was flummoxed," says Lat, a former Assistant United States Attorney. "It seemed absurd."
Dewey & LeBoeuf was the child of a 2007 boom-time megamerger between a 100-year-old firm bearing the name of three-term New York governor Thomas Dewey and another old Gotham stalwart that represented some of the nation's biggest utilities and insurance companies. In the legal world, the possible dissolution of Dewey & LeBoeuf was on par with Lehman Brothers' monumental bankruptcy in 2008. Lat, a blogger by trade, had the skinny on what was really happening in those hallowed halls. Armed with a network of inside sources, a dogged reporter's sense, and a good, old-fashioned hunch, Lat dropped the latest in a string of bombs on the beleaguered legal profession.
After that initial post, the doomsday stories—and scoops—came fast and furious: Dozens of partners were leaving (ATL had the names), and an internal memo (leaked to Lat) actually blamed "U.S. legal blogs" for making some of the firm's woes public. That was followed by the announcement of a 60-day-notice policy designed to retain the remaining partners—more than 20 percent had announced their depatures by this time —and reports that Dewey was considering closing three international offices. In late April, Steven Davis was ousted from his role as chairman, and the Manhattan District Attorney's office began a criminal probe to investigate his actions. Finally, on May 28, three months after Lat's first post, Dewey filed for bankruptcy. For Lat and his staff, the story was only just beginning.
"We would get our intel in a number of different ways," he says, citing a flood of e-mails and texts, including information from friends and friends of friends who worked there and a "well-placed source at the firm" who leaked the memo. ATL even unearthed details about the company's downfall in what appeared to be minor stories—like the firm prohibiting lawyers from using Federal Express and not being able to afford black car service. "[Web] traffic during the Dewey period was phenomenal," recalls Lat, whose breaking stories were cited by the Wall Street Journal and the New York Times. Throughout the summer, Lat kept tabs on the key players, digging around for answers about what went wrong and reporting that, even as the firm was sinking, many of its multi-millionaire partners were still pulling in six-figure checks. "They were like pigs at the trough, all muscling each other aside to get a share of the feed," Lat says. "The story delved into a lot of themes, whether it's greed or anxiety or the distribution of spoils in the legal profession." In other words, it was catnip for Lat and the ATL faithful.

The NY Times is covering border searches and whether our devices should be subject to search just because it's the border:

The government has historically had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.
Several court cases seek to limit the ability of border agents to search, copy and even seize travelers’ laptops, cameras and phones without suspicion of illegal activity.
“What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches.
A decision in one of those suits, Abidor v. Napolitano, is expected soon, according to the case manager for Judge Edward R. Korman, who is writing the opinion for the Federal District Court for the Eastern District of New York.
In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after he was handcuffed and detained at the border during an Amtrak trip from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days.
According to government data, these types of searches are rare: about 36,000 people are referred to secondary screening by United States Customs and Border Protection daily, and roughly a dozen of those travelers are subject to a search of their electronic devices.
Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government’s interest in combating crime and terrorism. But Mr. Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography.
“We’re getting more into whether this is targeting political speech,” Ms. Crump said.

Tuesday, December 04, 2012

Big shoes to fill

The Federal Defender's Office and Carlton Fields have some big shoes to fill.  Beatriz Bronis (Deputy Chief of Appeals at the PD's office) and Stephen Bronis (a partner at CF) are starting the next phase of their lives.  From what I hear, neither is retiring, but Beatriz is leaving the office and Steve will be cutting back but still associated with CF.  Congratulations and good luck!  Both are fantastic lawyers and will be missed.

Monday, December 03, 2012

Two words best describe the majority opinion: “wrong” and “dangerous.” UPDATED with hilarious Kozinski video

That's how Chief Judge Kozinski starts his dissent in United States v. I.E.V.  You gotta love his writing style:

My colleagues ignore these intractable realities and focus
instead on irrelevancies. They mention twice (so they must
think it’s pretty important) that the dog didn’t alert to
weapons. Maj. Op. 10, 16-17 n.6. But the dog did alert to
possible illegal activities that are often accompanied by
firearms. The majority also mentions twice (ditto) that the
dog alerted to possible drugs or humans, as if this matters.
Id. at 10, 18 n.6. It doesn’t: If the dog alerts to something

that might be drugs or humans, that something could be
The majority mentions three times (ditto!) that I.E.V. and
his brother were teenagers, as if that matters. Maj. Op. 8, 10,
16. Teenagers are perfectly capable of carrying drugs and
killing people with guns. Teen kills cop, then self, Chicago
Tribune (June 20, 2007), available at
The majority mentions four times (DITTO!!!) that San
Ramon didn’t testify, Maj. Op. 3, 5, 19, 20, and argues that
we may not “assum[e] that [he] ‘might legitimately have been
looking for’ a weapon,” id. at 20 (quoting Miles, 247 F.3d at
1015). ...


From the conclusion:

It’s easy enough, sitting safely in our chambers, protected
by U.S. Marshals with guns and dogs, surrounded by concrete
barriers and security cameras, to say that officers in the field
had no cause to fear for their safety. But if we’d been there

when I.E.V. and his brother pulled up in their car, heard the
police dog alert and seen one of the suspects fidget like he
was reaching for a weapon, I’d have dived for cover into the
nearest ditch, and my guess is I wouldn’t have been the first
one there.

Update:  One of the funniest videos I've seen (h/t AP):

2.  John Pacenti covers the upcoming trial before Judge Scola involving the issue of depos in Pakistan.  They don't have the Federal Public Defender's resources (because their client has been dismissed out of the case), so preparing has been tough:

In interviews with the Daily Business Review, the attorneys for the father-and-son imams talked about the undertaking and gave a preview of what they plan to argue in front of a jury next month.
It's a defense that will partly center on free speech, a government informant who infiltrated the clerics' mosques and whether the defendants knew money sent to Pakistan was earmarked for the Taliban.
"This is like putting on a wedding for a thousand people with a staff of two," said Joseph Rosenbaum, the Miami attorney for Izhar Khan. "This is a tremendous undertaking."
"Surprisingly, it seems no one has had to do live encrypted video depositions from Pakistan to Miami before. Go figure," said Khurrum Wahid, a partner at Wahid Vizcaino in Pompano Beach. He represents the father.

Thursday, November 29, 2012

“He’s not in a black hole in Calcutta.”

That was the government prosecutor to Judge Cooke yesterday about Jose Padilla (via the Miami Herald).  Wiki describes the Black Hole of Calcutta this way:

The Black Hole of Calcutta was a small dungeon in the old Fort William, at Calcutta, India, where troops of the Nawab of Bengal, Siraj ud-Daulah, held British prisoners of war after the capture of the Fort on June 19, 1756.
One of the prisoners, John Zephaniah Holwell, claimed that following the fall of the fort, British and Anglo-Indian soldiers and civilians were held overnight in conditions so cramped that many died from suffocation, heat exhaustion and crushing. He claimed that 123 prisoners died out of 146 prisoners held.
However, the precise number of deaths, and the accuracy of Holwell's claims, have been the subject of controversy.

Well, if he isn't in a small dungeon in the ground where everyone dies, then everything must be just fine...

Padilla's lawyer Michael Caruso responded and got the continuance of the sentencing that he was seeking:

Jose Padilla, the convicted terrorist who once called the Fort Lauderdale-area home before joining the ranks of al-Qaida, won his bid Wednesday to delay his resentencing in Miami federal court.
U.S. District Judge Marcia Cooke granted a defense request to postpone the resentencing from Monday until Jan. 29. His lawyer argued the delay would give Padilla — who seemed more disengaged, gaunt and pale than during his Miami trial more than five years ago — extra time to improve his mental health.

Read more here:
Federal Public Defender Michael Caruso said he believes the government has effectively “tortured” Padilla during his incarceration over the past decade and that he would benefit from visits from his Broward relatives at the Federal Detention Center in downtown Miami, where he was transferred recently. His mother and two brothers attended Wednesday’s hearing, but did not comment.
Padilla, 42, is serving a 17-year prison at the Supermax prison in Florence, Colo., where he’s held in isolation almost all day. He faces up to life in prison at his resentencing, after a federal appeals court last year rejected the judge’s initial sentence as too lenient.
“Since his arrest in May of 2002, the government has systematically attempted to destroy Jose by psychologically torturing him and imprisoning him under the severest of conditions,” Caruso, who represented Padilla at his 2007 trial, wrote in court papers. “Not surprisingly, this psychological torture has taken a toll on Jose.”

Read more here:

Wednesday, November 28, 2012

Former weatherman victimized again? Federal prosecution imminent?

The New York Daily News covers B-Girl "victim" John Bolaris' latest issue (the blog's past coverage of his testimony is here).  Here are some of the tweets:

And from the article:

A former weatherman couldn’t have forecast his latest scandal, in which his fiancé took over his Twitter account while he was sleeping and unleashed a barrage of racy messages for his fans. John Bolaris, who was suspended from his job as a weather anchor for Fox affiliate WTXF in Philadelphia last year amid the bombshell story that he’d been drugged and robbed by beautiful women in Miami in 2010, was back in the headlines on Tuesday after fiancé Erica Smitheman drunkenly took over his Twitter account and repeatedly promised to post nude pictures of herself. The former Playboy model started her Twitter binge on Sunday night, writing, “Hello this is Erica…love John, he loves you all, I guess it’s ok if I send you all a naked photo or two…don’t tell my love.” She continued to write suggestive tweets referring to her modeling past and hinting that she’d taken over Bolaris’s account behind his back. “This is Erica, I did pose in Playboy…so what,” she wrote. “I will post my naked pictures…John Has no clue.” She also shared sexy pictures of herself and took aim at naysayers, as well as bragging that “sex is great” with her fiancé. “I am tweeting, he is sleeping,” she confirmed in a text to, which reached out wondering if the reporter’s account had been hacked. “I am drinkinging and can’t take the haters! Lol,” she wrote, telling the paper she’d been ingesting liquid courage in the form of pinot grigio to write the tweets.

Tuesday, November 27, 2012

Should you be able to record the police?

In Illinois, the legislature wanted the answer to be no, but the 7th Circuit said the law violated the First Amendment.  The Supreme Court just denied cert, so the injunction is still on the books.  From the Chicago Tribune:

The U.S. Supreme Court on Monday declined to hear an appeal of a controversial Illinois law prohibiting people from recording police officers on the job.
By passing on the issue, the justices left in place a federal appeals court ruling that found that the state's anti-eavesdropping law violates free-speech rights when used against people who audiotape police officers.
A temporary injunction issued after that June ruling effectively bars Cook County State's Attorney Anita Alvarez from prosecuting anyone under the current statute. On Monday, the American Civil Liberties Union, which brought the lawsuit against Alvarez, asked a federal judge hearing the case to make the injunction permanent, said Harvey Grossman, legal director of the ACLU of Illinois.
Grossman said he expected that a permanent injunction would set a precedent across Illinois that effectively cripples enforcement of the law.

It reminds me of this YouTube video:

This Good Wife episode was based on that video. It's a fun watch:

Monday, November 26, 2012

WARNING -- do not forward this blog post!

The police my be reading your email.  According to the NY Times:

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.
 A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant. A court in Washington compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws.
In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.
“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”
The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.
A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old. 

When the legislature does act, we get strange decisions from the executive:

 Nearly three years later, in a 190-page ruling, Judge Savage sharply criticized the police.
The first police officer had no right to look at the phone without a search warrant, Judge Savage ruled. It was not in “plain view,” she wrote, nor did Ms. Oliver give her consent to search it. The court said Mr. Patino could reasonably have expected the text messages he exchanged with Ms. Oliver to be free from police scrutiny.
The judge then suppressed the bounty of evidence that the prosecution had secured through warrants, including the text message that had initially drawn the police officer’s attention.
“Given the amount of private information that can be readily gleaned from the contents of a person’s cellphone and text messages — and the heightened concerns for privacy as a result — this court will not expand the warrantless search exceptions to include the search of a cellphone and the viewing of text messages,” she wrote.
Mr. Patino remains in jail while the case is on appeal in the state’s Supreme Court. A lawyer for Mr. Patino did not respond to a request for comment.
Just months before Judge Savage’s ruling, the Rhode Island legislature passed a law compelling the police to obtain a warrant to search a cellphone, even if they find it during an arrest. Gov. Lincoln D. Chafee, an independent, vetoed the bill, saying, “The courts, and not the legislature, are better suited to resolve these complex and case-specific issues.”
 Do we have any privacy any more?

Wednesday, November 21, 2012

Happy Thanksgiving! (UPDATED)

UPDATE -- Judges Carnes and Hill won't be sharing a turkey this holiday.  Check out Judge Hill's dissenting opinion in Rozier v. United States.  A snippet:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.
I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.” On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution. As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”
  Clearly justice is not the intended beneficiary of these procedural safeguards. On the contrary, the safeguards are designed to protect finality. If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional. In any event, I cannot join in this elevation of form over substance; of finality over fairness. Due process is the defining virtue of our system of criminal justice. But we should ask ourselves why. Is it because it achieves finality? Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant. The goal is a correct result – not simply the provision of process. To be sure, we do not guarantee a correct result. But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.
This is especially true where the petitioner is in federal custody, not state custody. We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism. Neither of these considerations is due the erroneously sentenced federal prisoner. It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law. I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin. At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).