"Canine cocaine connoisseurs” would “roam the streets at random, alerting the officers to people carrying cocaine.”

That was William Brennan in a dissent written, fittingly enough, in 1984. Tomorrow, the Supreme Court takes up the dog sniff question again, this time dealing with the home.  Adam Liptak has more:

Alan Diaz/Associated Press

The Florida Supreme Court threw out the evidence in a case involving Franky, a retired narcotics detector dog.

Aldo, a German shepherd, and Franky, a chocolate Labrador retriever, are exceptions. The Supreme Court plans to hear their cases on Wednesday.

The basic question in both cases, said Orin S. Kerr, a leading expert on the Fourth Amendment right against unreasonable search, is this: “What do you think of a dog’s nose?”

It is surely a marvel. But is it also, as the Supreme Court has suggested in previous cases, essentially infallible?

The great thing about dogs trained to sniff out drugs and other contraband, the court has said, is that they cannot invade human privacy because their noses reveal, as Justice John Paul Stevens put it in 2005, “no information other than the location of a substance that no individual has any right to possess.”

As the prosecutors in Franky’s case wrote, “anything else that the dog smells remains private.”

But there is reason to doubt that dogs are, as a brief for two groups of criminal defense lawyers put it, “binary contraband detectors.”

Justice David H. Souter, in a dissent from the 2005 decision, cited a study showing “that dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time.”

“The infallible dog,” he wrote, “is a creature of legal fiction.”

Federal Government closes, except for Supreme Court (UPDATED)

Everyone else in Washington, DC and NY today is closed, except for the Supreme Court (and Howard Stern).  The Court granted cert in four new cases.  Per SCOTUSblog:

The Supreme Court, fully at work while most of the rest of official Washington takes a weather day off, agreed on Monday to hear four new cases, including a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately.  That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan.  The new case on that question is Trevino v. Thaler (11-10870).
The other granted cases involve a test of whether a convicted individual’s claim of innocence of the crime will be treated as an excuse for failing to pursue a federal habeas challenge on time (McQuiggin v. Perkins, 12-126),  clarification of how the Internal Revenue Service calculates the foreign tax credit (PPL Corporation v. Commissioner, 12-43), and whether misconduct by a trustee in bankruptcy has an effect on the debts to be discharged (Bullock v. BankChampaign, 11-1518).

UPDATE-- the Supreme Court will be closed tomorrow (Tuesday).

Mike Scarcella covers how a Romney administration would change DOJ.  A very interesting piece:


Former U.S. attorneys general William Barr and Michael Mukasey are among top ex-DOJ lawyers advising the Romney campaign on law enforcement issues. The team also includes former Criminal Division assistant attorney general Alice Fisher, the head of the Washington office of Latham & Watkins, and George Terwilliger III, a former acting attorney general under President George H.W. Bush, who recently announced that he'll be leaving White & Case to join the D.C. office of Morgan, Lewis & Bockius on November 1.
Business interest groups have pressed DOJ in recent months to provide a better road map for companies to comply with the Foreign Corrupt Practices Act, a powerful anti-bribery tool that has been a boon for Holder's department. Addressing the FCPA and white-collar investigations, Terwilliger last week published a paper through the U.S. Chamber of Commerce's Institute for Legal Reform insisting that DOJ give companies a clearer sense of the foundation when charges are not brought. In short: Corporations want better-defined boundaries, he said.
Some critics see stepped-up FCPA actions as a hindrance to American competitiveness abroad. Not Lanny Breuer, the DOJ Criminal Division leader. In a speech last week in London, Breuer argued the department's FCPA work has helped "level the playing field for U.S. and foreign ­companies, and motivates corporations to create genuine cultures of compliance."
Compliance expert Alexandra Wrage, president of TRACE International and a former chair of the American Bar Association's anti-corruption committee, said any attorney general under Romney would have a difficult time trying to scale back FCPA enforcement considering how much money companies have pumped into compliance in recent years. "The floodgates are open now," Wrage said.
In the False Claims Act arena, Elizabeth Papez, a Winston & Strawn litigation partner in Washington, said DOJ's "unprecedented enforcement agenda and record whistleblower awards" have created a backlog of cases for the department to investigate — whether Holder is leading the agency or another attorney general. Since 2009, according to DOJ, the department has recovered more than $11 billion under the FCA.
"The cost and uncertainty associated with prolonged investigations and delays in government intervention decisions can be a drain on the department and businesses that everyone should want to minimize," Papez said in an email. (Papez, a member of Romney's legal advisory team, said she was not speaking for the candidate.)

Closer to home, Rumpole covers Judge Milton Hirsch's ruling on fingerprints, which prohibits the State's expert from saying that the prints are "a match."  The order is an excellent read.  From Dave Ovalle's article:

In his order on the Borrego case, Hirsch analyzes the origin of fingerprint science, from Shakespeare’s The Second Part of King Henry to Mark Twain’s Life on the Mississippi to the British pioneering of fingerprint evidence in 19th-century colonial India.

In his order, he says that “no one can articulate a principle of anatomy, biology, physiology, pursuant to which two persons cannot have the same fingerprint.”
Attorney Tamara Lave, a University of Miami professor of criminal procedure, said that she believes Hirsch is right. The reason: experts such as those at the National Academy of Sciences — which authored a 2009 study on forensic evidence — say language describing an “absolute” fingerprint match is “unjustified.”
“What is unique is the joy in which he wrote his opinion. Most judges don’t go through the trouble of quoting Shakespeare and great works of American Literature,” Lave said.

Read more here: http://www.miamiherald.com/2012/10/28/3071658_p2/miami-dade-judge-rules-fingerprint.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/10/28/3071658/miami-dade-judge-rules-fingerprint.html#storylink=cpy

Michael Caruso to be sworn in today (UPDATED w pictures)

A big congrats to our new Federal Defender Michael Caruso.  Pictures from the event to follow.

Here are some pictures:

West Palm Beach courthouse closed tomorrow due to Hurricane Sandy

Gupta gets 24 month sentence

I had set the line at 36 months.  Professor Berman nailed it though predicting 24 months. 

Judge Rakoff is a model judge, giving an example of how there should not be a trial tax and explaining that the loss guidelines made no sense.  From law.com:

Rakoff rejected a guidelines range of 78 to 97 months as an irrational result because it was driven by the amount of money involved in Rajaratnam's trades and it was Rajaratnam, not Gupta, who made money on both bad and good news coming from within the secret confines of Goldman Sachs' boardroom. The judge said two years was enough to send a message of deterrence to would-be insider traders.
Rakoff ordered the sentence, set to begin on Jan. 8, after taking into account Gupta's charitable giving through organizations such as the Global Fund to Fight AIDS, Tuberculosis and Malaria. Rakoff said Gupta had extended a "big heart and a helping hand" to millions.

John Errol Ferguson's execution stayed

He was set to be executed last night at 6pm, but the 11th Circuit stayed the execution at 8pm (?!!?) and the Supreme Court upheld the stay.  It's been a roller coaster though for the last few days.  From the AP:

Following a slew of conflicting court rulings, a federal appeals court has blocked the scheduled execution of a mass killer convicted of eight killings that jolted South Florida in the 1970s. The U.S. Supreme Court upheld the stay.
The 11th U.S. Circuit Court of Appeals' decision Tuesday came during a flurry of legal decisions over claims that 64-year-old John Errol Ferguson suffers from mental illness so severe he cannot be executed. Ferguson, a paranoid schizophrenic with delusions he's the "prince of God," had faced a planned lethal injection at 6 p.m. Tuesday in Florida's death chamber.
The Supreme Court rejected an earlier Ferguson emergency appeal Tuesday – as did the 11th Circuit – but the high court would not agree to the state of Florida's request to overturn the later ruling. The appeals court set a schedule for motions that will likely delay the execution at least until the first week of November, if not longer.
Florida Attorney General Pam Bondi's office argued in court papers that the late ruling "makes a mockery of the state's compelling interest in finality" in Ferguson's case. He has been on death row for 34 years.

Judge Carnes, Florida's death penalty, and Shakespeare

Remember that case in which Judge Martinez found Florida's death penalty unconstitutional under Ring?

The 11th Circuit, per Judge Carnes and joined by Judges Marcus and Pryor, decided today that the death penalty was fine and dandy even though it's pretty clear that Judge Martinez is right and that the Florida death penalty can't survive Ring.

But, the 11th says that we have to wait for the Supreme Court to explicitly say so. Judge Carnes starts off this way:

Confident that he knew what the future would bring, one of Shakespeare’s
characters boasted that “[t]here are many events in the womb of time which will be
delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13. On the
subject of lower courts predicting that the Supreme Court is going to overrule one
of its own decisions, however, Judge Hand cautioned against “embrac[ing] the
exhilarating opportunity of anticipating a doctrine which may be in the womb of
time, but whose birth is distant.” Spector Motor Serv. v. Walsh, 139 F.2d 809,
823 (2d Cir. 1943) (Hand, J., dissenting). The Supreme Court has made Hand’s
warning a clear command by repeatedly instructing lower courts that when one of
its earlier decisions with direct application to a case appears to rest on reasons
rejected in a more recent line of decisions, we must follow the directly applicable
decision and leave to the high Court the prerogative of overruling its own
decisions. As will become apparent, those instructions are dispositive of the
State’s appeal from the grant of habeas corpus relief in this case.

Well, this case is off to the Supreme Court and my money is on Judge Martinez getting vindicated.

Judge Bandstra to JAMS

The DBR covers Judge Bandstra's departure to JAMS.  Good luck to him!  There are some good stories about him in the article:

Bandstra’s legal experience includes three years with Katten Muchin in Chicago followed by three more as an assistant U.S. attorney trying 30 cases under Stanley Marcus. He also spent three years at Fowler White Burnett handling medical malpractice for firm shareholder and co-founder Henry Burnett.

“Henry’s my mentor and the person I respect most,” Bandstra said.

He said his experience as a magistrate can help sparring sides see their legal situation more realistically.

“One of the things I’ve enjoyed most as a judge is the settlement of cases where I’ve had some input,” Bandstra said.

After South Florida’s district judges chose Bandstra as a magistrate in 1989, U.S. District Judge Eugene Spellman telephoned to welcome him with two interesting details.

“First of all, you weren’t my first choice,” Bandstra recalled him saying. “That took me back a little bit.

“The other thing was, ‘You should know you got the judges’ vote on the first ballot, which has never happened.’ ”



The debate last night was a good way to show how important facial expressions are during trial.  In the first debate, Obama lost not so much for what he said, but mostly because he kept looking down, writing, and shaking his head.

 Last night, Romney got trounced in part because he had this weird grin on his face all night which didn't seem appropriate.

 Plus, there was this:

Monday news & notes

1. Who wants to go to Pakistan? Apparently the defense does in what was dubbed the "Pakistani Taliban" case when it was filed lots of publicity but which seems much different now.

Jay Weaver covers the government's opposition here:  

Two South Florida Muslim clerics — a father and son separated by more than 50 years in age — are struggling to persuade a Miami federal judge to allow their lawyers to travel to Pakistan to question alleged Taliban sympathizers who might help their defense against terrorism charges. Lawyers for Hafiz Khan and Izhar Khan, former imams of mosques in Miami and Margate, have already lost their first bid to travel with federal prosecutors to the U.S. Embassy in Islamabad to take depositions from five witnesses who do not want to come to Miami to testify at the upcoming trial. Among the potential witnesses are two other Khan family members and another suspected Taliban supporter who were accused in the same case of conspiring to aid the Taliban with money and guns. 

Last week, U.S. District Judge Robert Scola rejected the defense’s initial deposition plan — which was strongly opposed by federal prosecutors — as “unsafe and impractical.” But Scola left open the possibility for the defense’s alternative: allowing the Khans’ lawyers to question the witnesses at a hotel such as the Marriott in Islamabad in a live, videotaped deposition with the prosecutors participating from Miami. “If there is a way for you to take their deposition, I’m going to let you do it,” Scola said, setting the stage for a final hearing Oct. 29. The clock is ticking, however, because the “material-support” trial that initially drew national headlines is scheduled for early January. Bottom line, the defense said: No deposition, no fair trial.


 2. How much time should Rajat Gupta get? He went to trial and was convicted. The government is asking for 97-121 months and the defense is asking for probation.

 The trial penalty has become so absurd in our system. Gupta, I'm sure, was offered very little or no jail time if he had pleaded guilty.

 Does he really deserve 10 years because he went to trial? My prediction is that Judge Jed Rakoff sentences him to 36 months.

Here's the Bloomberg article on the case. If you are interested in the sentencing memos, you can check them out here.

Judge Jordan can't wait to see Lincoln

From his opinion yesterday: 

Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief Case: 11-13117 Date Filed: 10/18/2012 Page: 1 of 29 rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary. 

The issue we address is whether this firing violated Ms. Underwood’s First Amendment rights. In light of our precedent, we conclude, as did the district court, that it did not.

In other news, do you think that a prosecutor should be able to use a booking photo in closing argument with the words GUILTY GUILTY GUILTY superimposed on top?  The Washington State Supreme Court said no in a 5-4 opinion. Via The News Tribune:


The Washington State Supreme Court has overturned four felony convictions of a Pierce County man, saying a deputy prosecutor violated the defendant’s right to a fair trial by superimposing the words, “guilty, guilty, guilty,” over the man’s photo during a PowerPoint presentation in closing arguments.
The state’s high court, on a 5-4 vote, sent Edward Michael Glasmann’s case back to Superior Court for a new trial.
“The prosecutor’s misconduct was flagrant, ill intentioned and we cannot conclude with any confidence that it did not have an effect on the outcome of the trial,” Chief Justice Barbara Madsen wrote for the majority in an opinion released Thursday.
Prosecutor Mark Lindquist said he thought the majority made a bad call.
“The majority opinion is correct in recognizing that prosecutors are quasi-judicial figures,” he said. “We have a duty to seek justice and be fully professional. The opinion takes a strange turn, though, in finding reversible misconduct because a former deputy prosecutor superimposed the word ‘guilty’ on a PowerPoint slide with a booking photo.
“This was unnecessarily melodramatic, but did not affect the outcome.”

Read more here: http://www.thenewstribune.com/2012/10/18/2337016/pierce-man-gets-a-new-trial-over.html#storylink=cpy

Debates

This is pretty funny from Family Guy:

BREAKING -- MAGISTRATE SHORT LIST

The Magistrate Committee has cut the list to five names and now it's up to the judges to pick your next Ft. Lauderdale magistrate.  Here's the list:

Bruce Brown
Patrick Hunt
Corey Steinberg
Alicia Valle
Garth Yearick

Three AUSAs, one AFPD, and one private practitioner.  Good luck to the five.
(And thanks to my tipsters.)

Shameful

Bloomberg has a story today about our country's incarceration rates.  It's jaw-dropping.  We jail more people than any other country... by a lot.  Out of every 100,000 citizens, we jail 730.  To give some perspective, Cuba and Russia are right around 500.  England is about 150.  And how about prisons:

“The model is, if you build it they will come,” said Daniel D’Amico, a professor of economics at Loyola University New Orleans. “Because we have all these prisons and all of these other resources funneled into our criminal justice system, we have this ability to enforce things that would otherwise be unenforceable.”
“That includes the drug war, but it’s also including everything from the Martha Stewart types to immigration policies,” D’Amico said. “The scope of things that are now criminal in corporate law is exponentially higher than it was merely twenty years ago.”
The U.S. also leads the world in the number of prisons in operation at 4,575, more than four times the number of second- place Russia at 1,029. U.S. states spent $52 billion to construct and operate those prisons in 2011, more than quadruple the $12 billion spent in 1987, according to data from the Pew Center on the States. 

Just insane.  We have over 2.2 million people in prison.  That's about the size of Houston.  I hope there is a question about this at the debate tonight.

"The result is that we will end up with a bench populated only by former state court judges and lawyers from government or academia."

That's David Mandel in this article by John Pacenti about the Federal JNC and the process of picking federal judges.  He makes a point.  None of the the last three judges appointed (or the current one being vetted) come from private practice.  Do you think this is a problem?

Is it a problem that private practitioners are not applying to the federal bench?
	Yes, we need judges from all different areas
	Yes, we need judges who remember what it's like to run a practice
	Yes, government lawyers and state judges get "Robe-itis" too easily
	No, government lawyers and state judges are dedicated public servants and are extremely qualified
	No, if private practitioners want to apply, there is nothing stopping them
pollcode.com free polls

Here's the intro from the article:

What do Supreme Court Chief Justice John Roberts, Chief U.S. District Judge Federico Moreno and former U.S. Attorney Roberto Martinez have in common? They were all political footballs when their nominations were caught between the administrations of President George H.W. Bush and President Bill Clinton. The nominations of Roberts to U.S. Court of Appeals for the D.C. Circuit and Moreno to the Eleventh Circuit expired, and Martinez found himself out of a job at the U.S. attorney’s office in Miami. The lapsed nominations were far from career killers. Roberts is now, of course, the head of the U.S. Supreme Court, Moreno runs federal courts in the Southern District of Florida, and Martinez went into private practice where he has built a reputation as one of the most respected legal minds in South Florida. But becoming a federal judge, U.S. attorney or federal marshal can be tricky and political. And it all starts with the Federal Judicial Nominating Commission. Martinez was joined by fellow former U.S. Attorney Kendall Coffey and Tew Cardenas partner Thomas Schultz, a former JNC chairman, for a panel discussion titled “Narrowing the Field” on the commission at a meeting of the South Florida chapter of the Federal Bar Association. They said politics plays a big role in the nominating process but not at the commission level. Martinez, Schultz and Coffey have held leadership positions on the commission at one time or another. Coffey currently chairs the 21-member Southern District Conference. The panel’s consensus was that Florida led the way nationally in trying to take politics out of the task of narrowing the field of applicants for Florida’s senators to consider. Each conference recommends up to four applicants to the senators, who make a recommendation to the White House.

Congrats to Bill Matthewman

Friday news and notes

Today is Judge William Matthewman's investiture at 12:30. Love Judge Matthewman, but 12:30? That's a rough time for an event. What about lunch?

See Rumpole, you aren't the only one with long lines at the courthouse. This was taken this morning:

What about the debates last night? Good stuff. Joe Biden came out swinging and was strong on substance. But what about all the smiling and facial expressions?

We are taught as lawyers to keep a poker face and we tell our clients the same thing. But is that the best advice? Should we be showing emotion in court in front of the jury?

Joe Biden's facial expressions during the debate were:
	distracting
	dislikable
	likable
	a good way to show emotion
pollcode.com free polls

Presidential Thursday

President Obama is in town today and will be speaking at UM around 3:30 and then on Brickell around 5.  Traffic is going to be an absolute nightmare.  Maybe this is one of those days (take a deep breath Tannebaum) that you want to work out of the Starbucks close to home. 

Should be a fun night with the VP debate.  Ryan vs. Biden should have some fireworks...

Meantime, Justice Ginsburg had this crazy party while her 120-year old parents were away:

With her parents leaving town to celebrate their 98th wedding anniversary, Justice Ruth Bader Ginsburg made plans Friday for a major house party, inviting all her Supreme Court colleagues to what she promised would be “a classic Ginsburg throwdown.”
Ginsburg, a Clinton appointee who traditionally votes with the court’s liberal wing and whose 120-year-old parents explicitly told her not to have any friends over, confirmed that she waited until her mother and father had pulled out of the driveway before texting “it’s on” to her fellow justices and telling them to “get ready to drink [their] asses off.”
“My dad is seriously crazy if he thinks I’m not going to throw an epic rager when I have the house to myself all weekend,” said Ginsburg, whose father, a furrier and haberdasher by trade, reportedly wrote down the mileage on his 1928 Ford Model A so he would know if his daughter took it out for a spin. “As far as I’m concerned, when the cats are away, the mice will play.”
“Besides, I’m 79,” she continued as she prepared a tray of Jell-O shots using the mix favored by her supercentenarian mother for its softness on her toothless gums. “They can’t tell me what to do anymore.”
According to sources, Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, Stephen Breyer, and Clarence Thomas arrived first, catching a ride to the party in the open-backed Jeep Wrangler of Chief Justice John Roberts, who had earlier persuaded his older sister Kathy to buy beer. Justices Sotomayor and Kagan showed up shortly thereafter, having taken longer than expected to dupe their parents into thinking they were sleeping over at each other’s houses.

 Yes, that's from the Onion.... 

B-Girls trial to start

Judge Scola will be presiding over this month long trial involving South Beach clubs, booze, and hot women (known as B-girls). According to Jay Weaver of the Miami Herald:

On trial starting Tuesday are four reputed associates, along with a Sunny Isles Beach investor who once dabbled in local politics. They’re accused of orchestrating a fraud scheme to run up the credit card bills of South Beach tourists by hundreds of thousands of dollars.
...
Among those standing trial: Stanislav Pavlenko, 41, Albert Takhalov, 31, Kristina Takhalov, 31, and Siavash Zargari, 48, who live in the Aventura and Sunny Isles Beach area. Longtime Sunny Isles real estate broker Isaac Feldman, 51, is the fifth defendant

What about the alleged victims? More from Jay:

In total, the B-Girls, who received 20 percent commissions for bringing in customers, ripped off about 90 patrons, mostly tourists or businessmen with telltale signs of wealth, such as expensive watches or shoes, authorities say.

One victim from Philadelphia, who was approached by two B-Girls at the Delano Hotel, complained he was taken for $43,000 at Caviar Beach on Washington Avenue. His American Express bill included dozens of charges for booze.

In court papers, the victim is identified as “J.B.” According to lawyers in the case as well as published reports, the victim was John Bolaris, a former Philadelphia TV weatherman who gave an interview to Playboy magazine for an article on the case.

Myles Malman wants to be able to go after JB to show there was no crime here:

But Feldman’s lawyer, Malman, said his goal in questioning J.B. is “to establish that he consciously and intentionally tried to pick up two women at the bar at the Delano Hotel, spent large amounts of money on alcohol in an effort to impress them and/or to induce them to engage in physical relations with him, and is in reality no victim at all,” according to a court filing.

Should be a fun case to follow.

Anyone working today?

Schools are open but courts are closed, so this is a weird Monday morning. Here's what's happening:

1. Judges win cost of living increase case that they brought in the Federal Circuit.

SCOTUSBlog says that the case is likely headed to the Supremes (because, of course, the Executive branch is opposing the COLA increases):

After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday.  If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress.   The ten-to-two decision by the Federal Circuit is here.
The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished.  The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.
Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”
In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court.  Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.

2.  Justice Sotomayor is a nice person.  Here's a letter she sent after eating at a DC restaurant.

3.  Shouldn't federal agencies track whether informants are committing crimes?  According to this USA Today article, many don't:

The nation's top drug and gun enforcement agencies do not track how often they give their informants permission to break the law on the government's behalf.
U.S. Justice Department rules put strict limits on when and how agents at the FBI, Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives can authorize their informants — often drawn from the ranks of the criminals they are investigating — to commit a crime. But both the ATF and DEA acknowledged, in response to open-records requests and in written statements, that they do not track how often such permission is given.
That routine, if controversial, tactic has come under renewed scrutiny in the wake of the bungled "Fast and Furious" gun-trafficking investigation, which allowed 2,000 weapons to fall into the hands of Mexican drug cartels and other criminals. A report by the Justice Department's Inspector General found that ATF agents failed to get authorization from their superiors before they allowed gun dealers to sell weapons to suspected cartel operatives.
The report, delivered in September, is the latest internal probe to find agents ignoring the rules. And the department continues to face accusations that its agents overlook crimes by their informants, including one case this year involving an alleged Boston mob captain who was working for the FBI.
"The way we use confidential informants is a huge aspect of the daily operation and also the legitimacy of the criminal justice system," said Alexandra Natapoff, a professor at Loyola Law School Los Angeles. "It's insane that even the law enforcement agencies that actually carry out this policy may not always know how their operatives are doing it."

 4.  REVOLUTION!  Well, at least another potential sentencing revolution.  The Supreme Court is taking another look at Harris, the case that says that prosecutors need not prove to a jury facts that increase minimum mandatories.  From SCOTUSBlog:

Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent.  The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed.  Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.
At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered.  The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer  — has changed his mind.  There have been signs that he may have done just that.  In any event, there were at least four votes to face the issue anew.
The one facet of this issue that might limit the scope of an overruling of Harris is whether a decision that a jury must find the facts necessary to raise a sentence only applied to an enhancement of a minimum that was mandatory, but not necessarily to any increase in the floor sentence within a range.  The Court might have to confront, if it were to cast Harris aside, whether such a ruling would apply across the board to enhanced sentencing, above any floor even if not mandated as the minimum.   The new case does involve a mandatory minimum.

The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va.   Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery.  The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.

5.  Your moment (hour and a half) of Zen.  The Rumble in the Air-Conditioned Auditorium:

Maybe Obama needs to have his tie cut before the next debate

Debate night (UPDATED)

Should be a fun debate tonight.  I always enjoy watching these debates to see how persuasive speakers work their craft.  Here's a clip from last night's debate between Elisabeth Warren and Scott Brown.  Who do you think gave the better, more persuasive answer:



UPDATE -- I find it really interesting to read the comments to see how people interpret the same video.  So, who do you think got the better of this exchange:

News & Notes

I wish I had a little more District news for everyone, but it's fairly quiet in the SDFLA.  But here's what's up:

1.  Here's a very interesting article from Slate about the two times people snuck cameras into the Supreme Court.  Can you imagine if that happened now?  Here's one of the pictures from 1937. Really neat.

2.  Lots of coverage of the houseboat argument from the High Court.  Here's SCOTUSBlog:

It used to be said that the way to identify whether a stream was navigable was whether a log would float in it.   Seems a bit old-fashioned.  Perhaps it now could be said that the way to know whether a floating structure is or is not a “vessel” is to ask whether, if it were a styrofoam sofa, would it float?   Seems a bit silly, but that is sometimes the way it goes when the Supreme Court Justices try to outdo each other in imagining homely illustrations in order to make legal points.   It was Justice Stephen G. Breyer (usually to be counted upon to go from the ridiculous to the sublime with homely examples) who wondered on Monday about that lightweight sofa bobbing on the surface, perhaps with a retiree sitting back and enjoying being carried along.  At least it was funnier than Chief Justice John G. Roberts, Jr., wondering if an inner tube is a boat.

Breyer and the Chief Justice were reacting to Washington lawyer David C. Frederick, who had urged the Court in Lozman v. Riviera Beach to rule that a floating structure is a “vessel” in a legal sense “if it floats, moves, and carries people or things on water.”  Frederick was going for the purest of simplicity as the Court tried to untangle the case of a Florida floating home that wound up in a maritime court on the theory that it was a “vessel,” legally speaking — even though the only way it could move was to be towed, like a garbage scow.  (A garbage scow did not actually get into the oral argument, but Justice Anthony M. Kennedy made it clear, with abundant sarcasm, that this lowly structure was far from a mansion: said he, it was “a magnificent structure” that had been “mercifully destroyed.”)
The definition of a “vessel,” for purposes of maritime law is, indeed, a very big deal for the maritime industry, for the Coast Guard, and for lawyers who practice in the arcane field of admiralty law.  While the Justices were having boatloads of fun with the Lozman case, they knew that the outcome of it will shape maritime commerce in a very important way.  Because the Court’s precedents on the point seem to meander like so many leaves on a brook, it would be quite important if the Court could say — once and for all — what the word “vessel” means.  That’s why the Court reached out and took the case of the eccentric South Florida millionaire, Fane Lozman, and his floating home — of which, it was said Monday, there was not another like it in all of Florida.

And here's the PBP article, which is also interesting.

3.  How conservative is this Supreme Court?  Very, according to the NY Times, but it could move even further to the right if Romney is elected:

Professors Epstein and Martin have also brought up to date their annual analysis of the justices’ ideologies—their relative conservatism or liberalism based on their voting records. The news is that Justice Samuel Alito Jr. moved even farther to the right.
It’s no surprise that the upcoming presidential election could be very significant for the court. But Epstein-Martin’s ideology analysis allows us to measure how different it would likely be if Mitt Romney gets to replace Ruth Bader Ginsburg compared with President Obama replacing Antonin Scalia or Anthony Kennedy.  A Roberts-Alito-like replacement for Justice Ginsburg would move the court dramatically to the right. But a Kagan-Sotomayor-like replacement for Justice Scalia or Justice Kennedy would move the court to the moderate left, with the center somewhere around Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer.
As this term begins, however, the line-up’s the same as last year, and there’s every reason to expect the court to continue along its conservative path.

SCOTUS Monday

Everyone is covering the first Monday in October today.  I will point out two local cases--

1)  The houseboat question presented by Fane Lozman (previous coverage here).  

John Pacenti has coverage today:

Fane Lozman made a boatload of money off the tech bubble and appropriately decided to live the good life with his dachshund Lady on a houseboat at a Riviera Beach marina.
The city, though, had a $2.4 million redevelopment plan for the public marina with its easy access to the ocean. Lozman stood in the city's way and was determined to fight the city's use of eminent domain.
Now the former Chicago financial trader is a cause celebre for fellow houseboat residents around the country, fighting his eviction all the way to the U.S. Supreme Court. The high court opens its fall session today by hearing arguments in the case.
The question for the nine justices is a simple one: whether a houseboat is a house or a boat. Their answer could have wide-ranging consequences for houseboat owners, floating casinos and government agencies.
"I think it's amazing this little landlord-tenant dispute made it all the way to the Supreme Court," said renowned appellate attorney Jeffrey Fisher, a Stanford University law professor handling the case for Lozman.
Amicus briefs have been filed in favor of Lozman's position by the U.S. solicitor general's office, the American Gaming Association and the floating home associations of Seattle and Sausalito, California.

This reminds me of the question Scalia raised in his recent book about what counts as a vehicle in the park....

2.  The dog sniff question: This one won't be heard till Halloween, but local public defender Howard Blumberg will be arguing it.  Here's his brief.  And here is a nice post by Lyle Denniston explaining the issues presented:

Suppose, though, that police use a dog to check for narcotics on the exterior of a home that they suspect is being used for drug trafficking.  Does the fact that the site of the search is a private home make a constitutional difference?  That is one of the new factual situations that the Supreme Court is now preparing to confront.  In the case of Florida v. Jardines, Florida’s state supreme court ruled that the U.S. Supreme Court’s past rulings on the use of drug-sniffing dogs did not apply at all when a dog was used at a home, even if the dog only sniffed exterior surfaces of a house.   Nowhere is the right of privacy stronger than in a private home, the state court said.
That case originated when police in Miami got a tip from a “crime stopper” source that the home of Joelis Jardines was being used to grow marijuana.  Police went to the home, based on that tip alone, and used a trained detection dog named Franky to check out the front porch of the house.  After circling for a few minutes, Franky sat down, near the front door.  That indicated to his police handler that the dog had detected an odor of marijuana coming from under the front door.  At that point, the officers obtained a search warrant, which the officers then carried out, finding a marijuana-growing operation inside the house.  Jardines was charged with growing illegal marijuana plants, but his lawyer contended that the search was unconstitutional because it intruded on the privacy of the home.
The state’s highest court relied primarily upon a 2001 Supreme Court decision, in the case of Kyllo v. United States, a ruling that it is unconstitutional for police to use a heat-sensing device aimed at the outside walls of a house, to check to see if marijuana was being grown inside with the use of high-intensity lamps.   When the government uses a device that the general public does not employ, and the police use it to explore the details of a home, the state court said, that is a “search” under the Fourth Amendment.   A trained dog’s sniff test fits into that category, it concluded, adding that such a test reveals not only the presence of something illegal, but it also is capable — when carried out in public view — of exposing the homeowner to public humiliation and embarrassment, and further is capable of being used in a discriminatory way.   Before police may conduct such a sniff test, it ruled, they must be able to show in court — after the fact — that they had more than mere suspicion that a crime was being committed in the crime; they had to have information indicating that it was ”probable” that there was such criminal wrongdoing taking place in the home.   The bottom line of the ruling: the use of Franky at the Jardines home was “unreasonable,” so the marijuana evidence could not be used against him.
That ruling is being challenged by state officials of Florida in their appeal to the Supreme Court.   They have the support of the federal government for their challenge.   Their basic claim is that a sniff test by a drug is not a search at all, at a home or elsewhere.

3.  Also congrats to SCOTUSblog for 10 years of blogging.  No one covers the High Court better than Tom Goldstein and Amy Howe.