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.