"I bear no animosity toward the prosecutors, even though they pursued false charges based on fabricated evidence."

Ben Kuehne is the only person I know who could say such a thing and actually mean it.  Ben is quoted in Jay Weaver's article about John Sellers, who prosecuted Ben and who also prosecuted banker Sergio Masvidal. 

Masvidal was represented by Joe DeMaria, who was able to get his client's name cleared.  Although OPR concluded that his conduct was "reckless," the Justice Department let him keep his job:

Five years after unsuccessfully targeting two prominent Miami figures — one a banker, the other a lawyer — in separate cases, a Justice Department prosecutor faces a July disciplinary trial by Maryland Bar regulators.


John W. Sellers left the Justice Department in 2010 amid an internal probe concluding that he committed “reckless” misconduct in a money-laundering case against Miami-based American Express Bank International, which was headed by banker Sergio Masvidal.
***
Masvidal’s Miami lawyer, Joseph DeMaria, said the Justice Department should have fired Sellers after concluding that he had committed reckless misconduct, according to the agency’s internal probe in 2010.

Sellers now works as a Treasury Department attorney on the federal bailout program for the banking industry.

“The Justice Department let him sneak out the back door to the Treasury Department so he could keep his same salary, benefits and pension,” DeMaria said. “And now he’s working as an attorney on the federal bailout. How ridiculous is that?”

Indeed. 

The article ends with this quote from Ben:  “Lawyers reap what they sow. He will need to answer for his own conduct.”   But prosecutors who engage in misconduct rarely have to answer for their conduct.  That's part of the problem.  OPR rarely does anything, and the few times it does do something, it's a slap on the wrist.  See, e.g., Ted Stevens' prosecutors. 


In this case, the Maryland Bar has initiated a case against Sellers, so it will be interesting to see what happens. (Here's the Maryland complaint).  The problem is that even when the Bar tries to disclipline prosecutors, DOJ claims that they are immune even from Bar rules, and of course, civil remedies are not available.

Welcome to Amercia!

It's just a typo for goodness sake.





In more important news, what do you think of the 30-day sentence on the Rutgers student convicted of the hate crime?  Not surprisingly, the prosecutors weren't happy, but the judge defended the sentence:

No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”

***

On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate. The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice. 

 ***

 While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing. Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.  

In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend. Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.

Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said.

But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.” That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.

In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail. Under state statute, Mr. Ravi could serve as little as 20 days, if he earns work credits and rewards for good behavior in jail.

The judge said he had relied on the statute’s recommendation in imposing the fine, and set it at an amount he considered “affordable, impactful and proportionate.”

Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.”

He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy.

“I also know his age,” Judge Berman added, calling it a mitigating factor.

“I believe justice compels me to deviate from the guidelines,” he said.

Back in business

A big thanks to Rumpole, SFL, and Jeff Marcus for their wonderful blogging while I took a break.

Nothing much happened while I was gone -- there was naked face eating, the Heat kept on winning, and Heath Bell blew some saves. 

More importantly:

-- Lewis Tein was cleared.

-- Interesting maneuvering in the 11th Circuit with the recent judges taking senior status.  More here.

-- The Unabomber gets into the Harvard alumni book.

-- The Vatican is in chaos because a butler released some documents.

If you want something really interesting to read, check out this article in the WSJ about why we lie.  It's a wonderful piece that explains, in part, that stiffer jail sentences don't really deter criminals.  From the intro:

Not too long ago, one of my students, named Peter, told me a story that captures rather nicely our society's misguided efforts to deal with dishonesty. One day, Peter locked himself out of his house. After a spell, the locksmith pulled up in his truck and picked the lock in about a minute.
"I was amazed at how quickly and easily this guy was able to open the door," Peter said. The locksmith told him that locks are on doors only to keep honest people honest. One percent of people will always be honest and never steal. Another 1% will always be dishonest and always try to pick your lock and steal your television; locks won't do much to protect you from the hardened thieves, who can get into your house if they really want to. The purpose of locks, the locksmith said, is to protect you from the 98% of mostly honest people who might be tempted to try your door if it had no lock.
We tend to think that people are either honest or dishonest. In the age of Bernie Madoff and Mark McGwire, James Frey and John Edwards, we like to believe that most people are virtuous, but a few bad apples spoil the bunch. If this were true, society might easily remedy its problems with cheating and dishonesty. Human-resources departments could screen for cheaters when hiring. Dishonest financial advisers or building contractors could be flagged quickly and shunned. Cheaters in sports and other arenas would be easy to spot before they rose to the tops of their professions.
But that is not how dishonesty works. Over the past decade or so, my colleagues and I have taken a close look at why people cheat, using a variety of experiments and looking at a panoply of unique data sets—from insurance claims to employment histories to the treatment records of doctors and dentists. What we have found, in a nutshell: Everybody has the capacity to be dishonest, and almost everybody cheats—just by a little. Except for a few outliers at the top and bottom, the behavior of almost everyone is driven by two opposing motivations. On the one hand, we want to benefit from cheating and get as much money and glory as possible; on the other hand, we want to view ourselves as honest, honorable people. Sadly, it is this kind of small-scale mass cheating, not the high-profile cases, that is most corrosive to society.

"PROSECUTOR'S RUN OUR SYSTEM"

One last word from Rumpole before your beloved blogger returns from wherever "elite criminal defense attorneys" go when they are not partying at Urban Weekend on Miami Beach. 


Federal judges have had enough with the powers prosecutors wield in federal sentencing, and they are starting to write freely about their frustrations the NY Times reported on Sunday. 

“Prosecutors run our federal justice system today,” Judge William G. Young of Federal District Court in Boston wrote in this
sentencing memorandum.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.”

On the twenty year anniversary of his closing argument in USA v. John Gotti, former federal prosecutor and current United States District Judge for the Eastern District of New York Judge John Gleeson is also at his wits end over the decisions of federal prosecutors to seek lengthy minimum mandatory sentences for small time drug offenders. “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

From the Times article on the case before Judge Gleeson:
The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.

“We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time....  The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Rumpole says: There are similar problems in state court. We have written many times before of the strange scenario played out countless times in state courts where the legislature has invested more power and discretion in the hands of a twenty five year old prosecutor two years out of law school than in the hands of a fifty five year old judge appointed by the Governor or elected because of his/her (supposed) wisdom, experience and abilities. 

Strange. Sad and frustrating, but strange nonetheless.  

Welcome back DOM.  

Another Vacancy on the 11th Circuit -- Is a Compromise Near?

Hi there, SFL filling in for DOM as we hit the long holiday weekend.

It's true our own Judge Jordan was elevated without too much drama, discord, or delay, but that's not the case with Jill Pryor, who was nominated in February to fill Judge Birch's seat but has yet to be confirmed.

Now comes word that Judge J.L. Edmondson plans to go senior, possibly paving the way for a deal:

An intriguing possibility is that Edmondson's decision could allow the White House and the senators to compromise on a package of two nominees to the Eleventh Circuit — namely, Pryor and Troutman Sanders partner Mark Cohen.

Earlier this year, Chambliss and Isakson sent White House Counsel Kathryn Ruemmler a letter indicating they would return blue slips on Pryor and U.S. Magistrate Judge Linda Walker for district court spots and Cohen for the circuit seat.

The Daily Report previously reported that Cohen was vetted late last year by FBI agents and the U.S. Justice Department for the Eleventh Circuit post, an indication the White House had considered him for Birch's seat. Cohen has Democratic connections — he served as Governor Zell Miller's executive counsel and chief of staff.

But, acting as a special assistant attorney general for the state, he defended challenges to Georgia's voter ID law, a statute that Democrats generally consider anathema. Pryor, a partner at the Atlanta litigation boutique Bondurant Mixson & Elmore, previously was a member of the American Civil Liberties Union of Georgia's legal committee.

But it's by no means clear that either the White House or the senators would go for such a package.

Hmm, a Troutman Sanders partner who defended Georgia's voter ID law --  I think that makes you a moderate in the Peanut State.

Funny Bunny Money? Edwards Jury: Four Days and Counting

It's the old axiom: $400 hair cuts never pay.  Senator Edwards's hairgate episode has resurfaced during the trial in the form of a key handwritten letter written by FOJ heiress, Rachel "Bunny" Mellon, to former Edwards aide and star government witness, Andrew Young.  The letter written in response to negative hair press has been dubbed by trial followers as the "haircut letter."  In it, Mellon wrote, "From now on, all haircuts, etc., that are a necessary and IMPORTANT PART OF HIS CAMPAIGN, please send the bills to me. It is a way to help our friend WITHOUT GOVERNMENT RESTRICTIONS."  Over the next 8 months, Mellon sent Young more than $700,000 in checks made out to Young's wife -- payments to support and stash Edwards's mistress and love child.  Another large donor, Fred Barron, also made similar payments.  Neither Mellon (101 years old) nor Barron (deceased) were available to testify at trial.  The jury has been poring over the letter as well as two related letters written by Mellon's personal attorney during its now-four days of deliberations.  The jury is likely stuck on whether payments made to hide Edwards's affair can be reasonably classified as illegal campaign contributions.  Many legal commentators already have poked holes in the government's novel theory of prosecution so I won't bore you with my defense musings.  You can read more here.

Btw, there is a local angle to the case.  Pictured above (stage center just behind D.C. defense superlawyer Abbe Lowell) is the always-dapper DOJ prosecutor and SDFLA alum, Jeff Tsai.  In my former life, I had the pleasure of second-chairing one of Jeff's first trials in the office.  Jeff is a good trial lawyer (and an even better dresser).  His perfect Windsor knots in an office of government schleps were the stuff of legend.  In a different world, he and Senator Edwards would have a beer summit over hair coif tips.  

College Student to Plead Guilty for Obama Facebook Threats

Hi folks, SFL here.

My knowledge of crim law is limited to booking crim pro in law school about forty thousand years ago, plus sitting through multiple plea hearings as the lawyers wait to finally get in front of a federal judge on one of our civil matters.

Speaking of plea hearings, this kid is set to plea out on his cute Facebook musings which evidently involved our President:

A Miami college student plans to plead guilty in federal court to threatening President Barack Obama on Facebook.

A plea hearing is set for Wednesday afternoon for 20-year-old Joaquin Amador Serrapio Jr.

His attorney says he intends to plead guilty to one count of threatening to kill or harm the president.

Federal prosecutors say Serrapio posted threats on Facebook in February when Obama was in Miami to give a speech.

The posts threatened to put a bullet in the president's head and asked if anyone wanted to help in a presidential assassination.

Oh, the kids today and their social media -- why don't they want to go outside and throw the football around anymore?

(You can read the probable cause affidavit here.)

 

Feeling the Heat

The "other" Marcus in for the King.  I'll try not to pull a James Jones this week.  Let's Go Heat! 

I SPY

DOM asked us to help out this week and we've put together a little Supreme Court update. The Supreme Court agreed to return to the arena of terrorism Monday when they granted cert in 
Clapper v. Amnesty International  which challenged the constitutionality of  the Foreign Service Intelligence Surveillance Act. 
The second circuit found that the plaintiffs- a collection of lawyers, journalists and the odd activist- had standing to challenge the Foreign Intelligence Surveillance Act, and it is this point only that is on appeal. The second circuit then  refused to re-hear the case en banc, prompting Chief Judge Jacobs to issue a rare dissent on the denial to re-hear the case en banc.
The CJ's attack on the veracity of the  plaintiffs/lawyers is startling, and the CJ's comparison of the plaintiffs to a disturbed pro se plaintiff suing the CIA for thought control is downright amusing. From the CJ's dissent (you can read it all here): 


      An assortment of lawyers, journalists and activists, 
and organizations representing such people, facially  challenge the constitutionality of § 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”... Their claim is that the FAA lowers the standards for obtaining warrants to surveil foreign persons abroad, which has caused the plaintiffs, who are not foreigners, to develop a reasonable fear of being surveilled when communicating with foreigners around the world who are their journalistic sources, clients, human rights victims, witnesses and so on--all of whom are, in plaintiffs’ estimation, potential objects of surveillance. The plaintiffs contend that this fear compels them to communicate with their clients or foreign contacts only in  person, at such trouble and expense as to constitute injury that supports standing. ..
To support the otherwise-mysterious idea of injury to these plaintiffs (and causation), the panel opinion relies entirely (even credulously) on affidavits submitted by the plaintiffs, describing their supposed anxieties. But these affidavits employ all the lawyer’s arts to convey a devious impression...
At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake--for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel’s and plaintiffs’ only perceptible interest is to carve out for themselves an influence over  government policy--an interest that the law of standing  forecloses. For the foregoing reasons, I conclude that the plaintiffs suffered no injury, and certainly none that can  be redressed by this Court. In part, that is a function of the frivolous nature of the claim. In that respect, it bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar. But, as to the standing analysis, there is this difference: The pro se plaintiff is actually suffering, is truly hoping for redress, and is not bringing suit as a  pretext to weigh in on government policy. 
Rumpole says: Wow. It's not often the Chief Judge of the Second Circuit Court of Appeals writes with  sympathy for pro se plaintiffs suing the CIA for thought control. "Politics and standing make strange bedfellows, eh?" 

1. 
   
   
   
   
   
   
   
   
   
   
   

Lawyers behaving badly

Everyone's all aflutter about the depo drawings leading to sanctions against lawyers.  Here's the order by Judge Altonaga. 

South Florida Lawyers and ATL cover the story. 

Civil lawyers are so funny.  All this fighting about discovery.  Try coming to criminal land -- no depos, no witness statements, no nothing.  And when something does get buried, no sanctions are allowed. 

Anyway, I'm taking the week off from blogging next week, and leave you in the capable hands of Rumpole, SFL, Jeff Marcus, and a potential mystery blogger.  If something really exciting does come up, I'll pop my head in.

For now, I'm going to go and try to get in on some of this Facebook action.

Have a nice weekend.

"There are consequences for disobeying the word of God."

That was Christian school administrator John Ellis when he fired a teacher for conceiving a child three weeks before marriage. Oy vey.

 The 11th Circuit explained that there are also consequences for violating the law.  From Thomson Reuters:

Hamilton sued the school in 2010 under a federal law that bars discrimination based on pregnancy, seeking compensation for lost wages and emotional distress. A federal district court ruled in the school's favor before a trial, finding that Hamilton failed to establish that she was fired for her pregnancy rather than moral concerns over her premarital sex. But a three-judge panel of the 11th Circuit disagreed on Wednesday.
The court pointed to evidence that the school was more concerned about Hamilton's request for maternity leave than her admission to having premarital sex. Ennis expressed concern over finding a replacement teacher, Hamilton testified.
"Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide," Judge Edward Carnes wrote for the unanimous panel, sending the case back to the lower court for a trial.
At a late stage in the appeal, Southland had tried to argue that the separation between church and state prevents courts from applying discrimination laws to churches' employment decisions. The school pointed to a recent Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which upheld religious groups' right to choose their ministerial employees without government interference.
But the 11th Circuit found that the school had waited too long to raise that argument and even admitted in a court filing that it did not consider Hamilton a "minister" with religious duties.
David Gibbs, a lawyer for Southland Christian School, said in a statement that he would defend the school's religious rights before the district court. The school "is protected under the First Amendment to hire and fire its ministerial employees according to its sincerely-held religious beliefs," he said.

I like the way Judge Carnes crisply starts the opinion (which was joined by Judges Martin and Jordan):

A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal.

Wednesday News & Notes

1.  Is Scalia becoming too much of an advocate on the bench?  Via Bloomberg:

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up.
Over the next 3 1/2 months, Scalia asked whether federal immigration policy was designed to “please Mexico,” fired off 12 questions and comments in 15 minutes at a government lawyer in a case involving overtime pay, and dismissed part of Solicitor General Donald Verrilli’s defense of President Barack Obama’s health-care law as “extraordinary.”


Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism over the temperament of a justice who has always relished the give-and- take of the Supreme Court’s public sessions. Some lawyers say Scalia, a 1986 appointee of Republican President Ronald Reagan, is crossing the line that separates tough scrutiny from advocacy.
“His questions have been increasingly confrontational,” said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.”

2.  Rusty Hardin is crossing the Roger Clemens' snitch (via BLT):

Cross-examination began late Tuesday with Rusty Hardin, Clemens' top lawyer, noting how "subdued" and "down" McNamee has appeared on the witness stand the past couple of days.
"Do you consider yourself a victim?" Hardin asked McNamee.
"A victim of my own doing," he said.

 Meantime, the jurors are sleeping through portions of the case, and are getting booted (via the NY Times):

But it seems that for all the care and caution that went into scrutinizing the Washingtonians who would end up determining Clemens’s fate, one fundamental question was overlooked: can you stay awake during the trial?

The trial of Clemens is in its fifth week — with Brian McNamee, the government’s star witness, now on the stand — and already, two jurors have been dismissed for falling asleep.

The first juror excused by the judge, Reggie Walton of United States District Court, was a 27-year-old chronically unemployed man who was let go last week. During juror questioning, he told prosecutors that he would “rather be asleep” than serve on the jury. In the end, he tried to do both but failed.

Walton then warned the remaining 15 jurors and alternates: “Stay alert. We don’t want to lose anybody else.”

But another juror, a young woman who works as a cashier at a supermarket, failed to heed that warning. She nodded off on Monday — the day McNamee, Clemens’s former trainer, began his testimony — and was dismissed by Walton on Tuesday.

It was just last week that Walton scolded the prosecutors and the defense lawyers for asking too many unnecessary questions and boring the jurors so much that they had begun to discuss the case among themselves, which they were told not to do. He even threatened to put a time limit on the trial.

3.  Bond condition: read and write book reports.  No joke (via SF Chronicle):

One of three men indicted for allegedly trying to sell a grenade launcher during a deal that led to gunfire in Richmond was ordered released on bond Monday by a federal judge, who allowed him to remain free so long as he reads each day and completes book reports.
Over the objections of federal prosecutors, U.S. District Judge Yvonne Gonzalez Rogers granted a request by 23-year-old Otis Mobley Jr. to be released before trial. She ordered him to "read and complete book reports," spending an hour every day on books and at least a half an hour writing.
The judge said she plans to provide a reading list for Mobley as he awaits trial.

4.  Is John Edwards going to testify (via Washington Post):

Many people watching the case believed Edwards would testify so the jury could hear directly from the former U.S. senator and trial lawyer, who had a reputation for his ability to sway jurors. But putting Edwards on the stand was also a gamble: It would have exposed him to withering cross-examination about his past lies and personal failings.
Most experts were convinced calling Hunter to testify would have dredged up more negatives and lies. The defense also elected not to question Edwards’ oldest daughter, Cate, who has sat behind Edwards nearly every day of the trial and could have helped humanize him.

UPDATE -- He didn't testify.

Americans for Immigrant Justice expanding to DC

They used to be called FIAC -- Florida Immigrant Advocacy Center.  From the new and improved website:

AI Justice was founded in 1996 as the Florida Immigrant Advocacy Center when federal funding restrictions prevented Legal Services Corporation (LSC) agencies from representing most immigrants, unless they already had legal status.  The organization was cofounded by its current executive director, Cheryl Little, Esq., along with two Catholic nuns, Sr. Maureen Kelleher RSHM and Sr. Catherine Cassidy HM.  In its first year of operation, the staff inherited over 3,000 cases that LSC agencies in Florida were no longer allowed to handle.
Since its inception, AI Justice has represented immigrants from all over the world.  Beginning with ten employees and a $400,000 budget, it has grown to a staff of 38 and a $3.5 million budget.  Since 1996, its lawyers have closed over 80,000 cases, and AI Justice has become a national trendsetter in the immigration field.

 Holly Skolnick is the current President and one of the leaders, helping to expand the group to DC (where she started as a public defender).  She's a good choice as she has a long history with public service (President of the Greenberg Fellowship Foundation and a member of UM's Center for Ethics and Public Service).

Monday Morning

Nothing much new to report....

The Heat looked pretty good yesterday, even after Bosh got hurt.  Indiana is pesky but shouldn't be a problem.

Rumpole covered the FACDL banquet.  It was a very nice event at the Biltmore.  Judge Gold was honored as was Judge Hubbart.  Roy Black did a nice job introducing Hubbart and explained what it was like to be a PD before he took over (i.e., no jury trials and only part-time PDs).

Barack Obama may be the first president in 30 years to have more judicial vacancies at the end of his first term than when he started.

The John Edwards trial is still going.  Will Rielle take the stand?

Anyone in trial down here?

Judges read blogs

Even Justices do:

Supreme Court justices – most recently Elena Kagan – routinely cite Bashman's blog as a must-read, and visitors to the chambers of Chief Justice John Roberts Jr. have spied How Appealing displayed on his computer screen. A federal appeals judge once chided a prosecutor in open court for not following the blog and not knowing about a case Bashman had cited.

Judge Jordan answers questions at the Bankers Club

It was a good talk -- Judge Jordan is extremely patient and answered everyone's questions, even the silly ones that drag on and on where lawyers just want to hear themselves say something.  Judge Marcus even joined in on one answer and explained that the judges on the court do not engage in "collective bargaining." 

While we had two circuit judges in attendance (which is about 20% of the court!), there is a fight brewing over President Obama's most recent nomination to the 11th Circuit -- Jill Pryor.  From the AJC:

The 11th Circuit opening, created by Judge Stanley Birch in August 2010, also has been declared a judicial emergency. The circuit has jurisdiction over cases in Georgia, Florida and Alabama.
No pick for any of the vacancies has made it to the committee hearing stage and the process typically slows in an election year, with Republicans hoping for a new administration with more friendly nominees.
But the tango between Georgia’s senators and the White House has been odd even by the standards of the often contentious judicial nomination process, according to longtime observers.
Chambliss and Isakson refuse to say why they are blocking President Barack Obama's nomination of Atlanta attorney Jill Pryor for the 11^th Circuit appeals court, after both senators said they would approve her if she were nominated to the district court.
In January Chambliss and Isakson wrote to the White House saying they would approve Pryor and U.S. Magistrate Linda Walker for the district court openings, and Atlanta attorney Mark Cohen for the appeals slot.
Obama nominated Walker for the district court judgeship in early 2011, but as is often the case with multiple nominees from the same state the White House demanded she be included as a package with federal public defender Natasha Perdew Silas, whom Isakson and Chambliss blocked without giving a reason.
The Senate returned both nominees to the White House at year's end, and Obama has not renominated anyone for the district court openings.
The two senators also have not given "blue slips" to the Senate Judiciary Committee to allow a hearing on Pryor, a longstanding courtesy for home-state senators. Representatives of both senators said they do not comment on judicial nominees.
“They need to explain publicly why they’re holding up her nomination, which has been vacant for a long time,” said University of Richmond law professor Carl Tobias, who studies the confirmation process. “They’re sort of turning the Constitution on its head. The senators don’t nominate and give the president a chance to reject.”
Party politics is a potential motive. According to campaign finance records, Pryor often donates to Democrats, and last year she gave $2,500 to Obama’s re-election campaign.
Cohen, the senators’ preferred appellate pick, served as executive counsel and chief of staff to Gov. Zell Miller.

Glenn Sugameli calls out the senators:

Glenn Sugameli, who tracks judicial nominations for the environmental group Defenders of Wildlife, noted that Georgia's two senators were outspoken in opposing filibusters of President George W. Bush's judicial nominees. In a 2005 joint op-ed in The Atlanta Journal-Constitution Chambliss and Isakson wrote “denial of an up-or-down vote goes against basic principles of fairness."
Sugameli said the turnaround is striking, considering that the senators are preventing a hearing, much less a filibuster.
“To pervert that into a situation where you’re essentially demanding the right to make all of the nominations for all of the slots is outrageous, unwarranted, and ... it really hurts the people not only in Georgia but in the rest of the circuit for whom justice delayed is going to continue to be justice denied,” Sugameli said.

State vs. Feds

Who doesn't love a good fight between the federal and state governments?  Yesterday, the en banc First Circuit decided a fascinating case in which the Government of Rhode Island refused to turn over a murder suspect to the feds because they were seeking the death penalty.  The Providence Journal has more:

If Chafee were to prevail, "Pleau could be permanently immune from prosecution ...," the judges wrote, continuing, "Instead of a place of confinement, the state prison would become a refuge against federal charges."
Chafee had refused to surrender Pleau based on what he called Rhode Island's longstanding opposition to the death penalty. He could face the death penalty for his crimes under federal law.

And here's your moment of zen for the day:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Newt Gingrich & Mitt Romney Alliance Analogies
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive

Jackie Shapiro hosts Mark Wahlberg and the Rock...

... during filming of Pain and Gain, a film based on this Miami New Times article.

Here are some pictures:

May the 4th...

...be with you.

"You're taking positions that are totally absurd to me."

That was Judge Reggie Walton to the prosecutors during the Roger Clemens' trial yesterday.  What got him so upset?  According to SI:

Pettitte, Clemens' longtime friend and former teammate, was on the stand for a second day in the trial that is to determine whether Clemens lied at a 2008 congressional deposition and hearing when he denied taking steroids and human growth hormone.
During cross-examination, Clemens' lawyers got exactly the answers they wanted.
Might Pettitte have misunderstood when Clemens supposedly acknowledged using human growth hormone to Pettitte in a conversation during the 1999-2000 offseason?
"I could have,'' Pettitte answered.
Is it fair to say there is a "50-50'' chance that Pettitte misunderstood?
"I'd say that's fair,'' Pettitte replied.
The government tried to salvage their witness, but prosecutor Steven Durham's follow-up questions were lacking - at least in the minds of Clemens' lawyers and, more importantly, U.S. District Judge Reggie Walton. Clemens' lawyers moved to strike Pettitte's testimony about the 1999-2000 conversation as "insufficiently definitive.''
The judge seemed to agree, openly wondering why Pettitte wasn't asked for a current, definitive recollection of the conversation. He repeatedly berated Durham, who was also part of the government team last July when prosecutors showed the jury a snippet of inadmissible videotaped evidence, prompting the mistrial.
"I was waiting for you to ask, and you didn't ask that,'' Walton said.
"My understanding is that (Pettitte's) position is at this time, he is conflicted. ... His testimony now before the jury is `I don't know,''' the judge continued. "I thought that what we would hear is, `Mr. Pettitte, currently, what is your memory of what Mr. Clemens told you back in 1999?'''
In other words, the jury might have concluded that maybe Pettitte did "misremember'' the conversation, as Clemens has claimed.
Durham tried to contend that he addressed the matter in a different way. The defense will file a brief in support of its position, and Walton could rule on Pettitte's testimony as early as Thursday.

It didn't get much better with the next witness:

Prosecutors had planned to call Steve Fehr, an attorney for the Major League Baseball players' union. Fehr was supposed to help show, in an indirect manner, that Clemens was aware that former Sen. George Mitchell had tried to contact Clemens when putting together the 2007 Mitchell Report on drug use in baseball. Clemens was named in the report, prompting Congress to call the February 2008 hearing at which Clemens testified.
Walton said he didn't understand what Fehr's testimony would accomplish and that it could amount to "trampling on the attorney-client privilege'' because it relies on Fehr's conversations with Clemens' lawyers. Walton said the government should use other evidence to show that Clemens was aware of the Mitchell request.
"Maybe I'm dense,'' Walton said, his voice rising. "I'm starting to think that maybe I just don't understand the law - because you're taking positions that are totally absurd to me.''
The government kept trying to argue its case, but Walton would have none of it.
"You're beating a dead horse, and you're not going to make it come alive,'' Walton said. "You're not going to win this one.''
Nevertheless, Walton said he would allow the government to do some research and file a brief before making a final decision.

11th Circuit sides with Hustler

Yesterday we discussed dirty words.  Today Hustler: The case involves the publication of 20-year old nude photos of Nancy Benoit after she and her child were murdered by her husband Chris Benoit.  The jury awarded $19 million in punis against Hustler, which the judge reduced to $250k. 

The 11th Circuit said no punitives were permissible:
 

There was substantial, consistent, and uncontroverted testimony from numerous LFP employees showing that they honestly and reasonably (albeit mistakenly) believed at the time that the photographs fit under the newsworthiness exception to the right of publicity.

***

The strongest evidence supporting our conclusion that this mistake on LFP’s part was reasonable is the fact that the district court in this case initially dismissed Toffoloni’s case because the court agreed with LFP that the photographs met the newsworthiness exception. Toffoloni v. LFP Publ’g Grp., No. 1:08-cv-421-TWT, 2008 WL 4559866, at *2-3 (N.D. Ga. Oct. 6, 2008). Although that decision of the district court was ultimately reversed in Hustler I, we do not believe that publishers should be held to a higher standard than that of the learned district judge.

"Deliver me not over unto the will of mine enemies..."

"...For false witnesses are risen up against me."  That was The defense attorney for Colombo crime family street boss Thomas “Tommy Shots” Gioeli during his closing arguments yesterday.  The NY Post has more:

Perlmutter implored the Brooklyn federal court jury to be careful in weighing the source of the evidence amassed against Gioeli.
"You must evaluate the credibility of these witnesses to decide if you can believe them," the attorney said.
That's when the spiritual tone evaporated in the silent courtroom, as Perlmutter described the ex-mobsters who testified against Gioeli as government witnesses, calling them "untrustworthy, unreliable, desperate individuals."
"You know what else they are? Rats!" Perlmutter said of the FBI informants.
Furthermore, even if Gioeli admittedly was at the scene at one of the premeditated mob hits, the attorney argued, that doesn't mean that he played a role in the killing.
"Simply because he was there, he is not guilty of that murder," Perlmutter said.

2.  The NY Times discusses bad words in the Supreme Court:

The most versatile of the classic Anglo-Saxon swear words has, diligent research reveals, made just one appearance in oral arguments before the Supreme Court. The cursing, in 1971, probably won the case, which concerned the prosecution of a vulgar protest against the draft during the Vietnam War. By repeating the word in court, the protester’s lawyer showed that it could have a role in public discourse. Over the next two decades or so, the word was used in nine Supreme Court decisions, typically in quotations of something a criminal had said. Its last appearance was in 1993.

Popular culture has grown coarser over the years, and the word is commonplace in hit songs and ubiquitous on cable television. The Supreme Court has moved in the opposite direction.

The justices do not want to hear the word even when the case before them turns on it. In arguments in 2008 and 2011, they considered two aspects of a case about whether the government may punish the broadcasting of four-letter words from four-letter celebrities like Bono and Cher, but no lawyer or justice said the words. When an appeals court first heard the case in 2006, judges uttered and examined the key word, considering whether its every permutation had a sexual connotation. 

3.  Looks like John Goodman is going to get a new trial.  Roy is doing a great job (via the PBP):

One juror in the panel that convicted polo mogul John Goodman of DUI manslaughter last month said he was not convinced of Goodman's guilt.

Juror Michael St. John made the revelation this afternoon as Circuit Judge Jeffrey Colbath interviewed the six jurors and two alternates on the case in response to allegations of juror misconduct in the case surrounding the Feb. 2010 drowning death of 23-year-old Scott Wilson. St. John said that he was pressured by other jurors to find Goodman guilty of DUI manslaughter.
"So when I asked you at the end of the case whether the verdict was your verdict, and you looked at me and said yes, why did you say that?" Colbath asked St. John.
"I didn't look at anyone," St. John responded. "I didn't look at him, I didn't look at any of the other jurors. I just looked at the floor when you asked me."

4.  Former NFL players are charged with ID-theft (via Jay Weaver):

 Three former National Football League players have been arrested by the FBI on federal charges in connection with an alleged scheme to steal people’s identities and file false tax returns in others’ names to collect thousands of dollars in refunds, according to authorities.

The three ex-NFL players charged with defrauding the federal government and ID theft are: William Joseph, a University of Miami defensive tackle drafted in the first round by the New York Giants in 2003; Michael Bennett, a University of Wisconsin running back also drafted in the first round by the Minnesota Vikings in 2001; and Louis Gachelin, a Syracuse University defensive tackle who was drafted by the New England Patriots in 2004.

Joseph and Gachelin are Miami natives; Bennett was born in Milwaukee. All three were questioned after their arrests Monday by FBI agents at the bureau’s North Miami Beach regional office. They were then transferred to the Federal Detention Center in downtown Miami for court appearances Tuesday afternoon before U.S. Magistrate Judge Robert Dube, according to the clerk’s office. Details of the alleged scheme are expected to be disclosed in a criminal complaint to be released later Tuesday.