Monday, June 30, 2014

Judge Beth Bloom sworn in

Judge Beth Bloom was sworn in at a small ceremony this morning shortly before 9am.  Below is a picture. Congrats again to Judge Bloom, who is now officially a member of the Southern District of Florida.

Last day of the Term

We'll get Hobby Lobby and Harris v. Quinn at 10am.  SCOTUSblog has all of the coverage.  Here's a brief summary of Quinn:

The Court has also not yet ruled on Harris v. Quinn, in which the Court is considering whether a group of home health care providers who work for the state of Illinois can be required to provide financial support to a union that represents them.  Sahil Kapur previews the decision at Talking Points Memo, describing it as “a landmark case that unions fear could deal a fatal blow to their movement.”  At PrawfsBlawg, Matt Bodie considers how the decision in Harris might play out if, as many people believe, Justice Samuel A. Alito writes for the Court.
And the issue in Hobby Lobby:
Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners. 

There's been a lot of talk about the number of 9-0 opinions this Term.  From the NY Times:

FOR years, particularly after the 2000 election, talk about the Supreme Court has centered on its bitter 5-to-4 divisions. Yet it is worth reflecting on a remarkable achievement: The court has agreed unanimously in more than 66 percent of its cases this term (and that figure holds even if Monday’s remaining two cases, on the Affordable Care Act’s contraceptive coverage and on public-sector unions, are not unanimous). The last year this happened was 1940.
The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases — including the two decisions handed down Thursday, restricting the president’s ability to issue recess appointments during brief breaks in the Senate’s work, and striking down a Massachusetts ban on protests near abortion clinics — should remind us that even in this hyperpartisan age, there is a difference between law and politics. 

Although some of the opinions have been unanimous in result, the concurrences often seem like dissents, especially with Scalia going off, like in the recess appointment case:

Today's Court agrees that the appointments were in-valid, but for the far narrower reason [*38] that they were made during a 3-day break in the Senate's session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate's participation even during short breaks in the middle of the Senate's session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled. The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not "upset the compromises and working arrangements that the elected branches of Government themselves have reached." Ante, at 9.
The Court's decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court's role in controversies involving the separation of powers and the structure of government. I concur in the judgment only. 

Friday, June 27, 2014

30 months for Russell Adler

Paula McMahon has some good coverage of the sentencing before Judge Cohn:

Ponzi schemer Scott Rothstein's former law partner Russell Adler was sentenced Friday to 2 1/2 years in federal prison for illegally funneling campaign donations to Republican presidential and senate campaigns.

Adler began visibly shaking in court as U.S. District Judge James Cohn announced that he deserved a punishment on the high end of the sentencing guidelines, which recommended incarceration for two to 2 1/2 years.

Adler, 52, of Delray Beach and Fort Lauderdale, put his fingers to his eyes and sighed deeply.

Apologizing for his criminal actions, Adler said he regretted that he insisted on having his name added to the law firm's name, making it Rothstein Rosenfeldt Adler, or RRA.

"Being the A in RRA turned into an ironic curse that has ruined my name and haunts and humiliates me to this day," he told the judge.

Supporters, including Senior Broward Circuit Judge Richard Eade, spoke on Adler's behalf and praised his professionalism, ethics and personal generosity. But Judge Cohn said Adler's crimes were serious and warranted punishment.

When the law firm was "awash with cash" in 2008 and 2009, the judge wondered aloud what Adler – an experienced attorney and name partner – thought was happening.

"Mr. Adler was at the epicenter, he was at ground zero. Was he blind and deaf as to what was going on?" the judge asked.

Thursday, June 26, 2014

“You’re an evil dude, man.”

That was accused pimp, Damion St. Patrick Baston, in an exchange with AUSA Roy Altman during his cross-examination.  More from the Herald:

Baston is on trial on sex-trafficking offenses in Miami federal court, charged with using “psychological coercion and physical abuse” against at least seven women he pimped around the globe. The Jamaican national, who was arrested at his mother's New York home in December, continued his defiant testimony Wednesday during cross-examination by federal prosecutor Roy Altman.
Altman accused Baston of lying repeatedly about his past, his relationships with former girlfriends and his theft of an American man’s identity to orchestrate his global prostitution racket.
“I am not a pimp,” Baston testified Wednesday.
At one point, the prosecutor zeroed in on Baston’s prior criminal record in the late 1990s, when he was convicted of possessing stolen property, a conviction that led to a U.S. immigration judge’s order to deport him to his native Jamaica.
Altman pressed Baston to admit that he was ordered removed from the United States, and that he violated that order when he left Vermont, crossed the Canadian border and got caught re-entering the United States.
But Baston refused to admit that he was officially deported from the United States, saying it was a “touchy subject” because he had come to live in New York with his family when he was eight years old.
The prosecutor would not relent, provoking Baston to become visibly angry.
“You’re playing games with my life,” Baston declared. “You’re an evil dude, man.”
One tipster told me of another exchange in which Baston and Altman argued about who was more slick.  Baston accused Altman of being slick with his questions and Altman countered that Baston's Gucci and Louis Vuitton accessories made him slick.

Pimpin' ain't easy...

Wednesday, June 25, 2014

Wednesday News & Notes (UPDATED with Riley v. California)

1.  SCOTUSblog was denied press credentials to the Supreme Court.  A total farce.  Here's Tom Goldstein on the ruling:

It seems a shame to erect obstacles to access when organizations like ours share the values and further the goals of journalism.  We reach a lot of people.  No organization in the nation’s history has devoted nearly the resources we have in covering this important institution.  The Committee does not seem to doubt that our actual coverage is comprehensive and thoughtful. 
Nor does it seem to doubt that our editorial policies are effective in practice, so that our coverage is objective and neutral.  Under the Committee’s interpretation, none of that matters.  Because we actually work in the field in which we write, we cannot be editorially independent about it.  That seems incorrect.
Not even the Committee seems to believe it, truly.  As I discussed in a previous post, under unpublished Guidelines, the Committee freely credentials journalists from state-owned media.  No one thinks that most of those publications are independent of their governments.  And the governments actively lobby the Senate.  But they receive a credential.
The overlap in staff between the organizations – rather than the entities’ actual editorial policies – also seems to be the wrong focus.  As I discussed in that previous post, the Committee grants credentials to several organizations that are direct affiliates of profit-making businesses in their fields, such as energy regulation.  We absolutely don’t begrudge those organizations being recognized.  But it seems hard to say that they have a greater appearance of independence than we do.
We have the very deepest respect for journalism.  Guided by Lyle, we have tried to implement every policy possible to ensure that our coverage adheres to its finest traditions.  We remain very grateful that other members of the press and their representatives – including the jurors of the Peabody Award, the Society of Professional Journalists Award, and the National Press Club Award, as well as the Reporters Committee for Freedom of the Press – accept that we are engaged in journalism.
We obviously have a different conception from the Committee on what it means to be a journalist and what it means to be independent.  At some point, given that the blog has operated for more than a decade, the proof is in the pudding.  You can look and decide for yourself whether we are actually engaged in journalism.
The next step is for us to appeal the Committee’s decision to the Senate Rules Committee.  We do not know how long that will take.
2.  There's a pimp trial going on in federal court, and the supposed pimp testified (via Miami Herald):
Damion St. Patrick Baston, the Jamaican man accused of pimping and beating a string of women from South Florida to the Middle East to Australia, denied the allegations Tuesday when he took the witness stand in his own defense.
Baston said he went to school in New York City, studied fashion, earned a black belt in karate, lifted weights like his hero, Arnold Schwarzenegger, worked as a nightclub dancer and eventually got into the music business as a talent agent.
But Baston, 37, testified in Miami federal court Tuesday that he never forced any of his many girlfriends into his escort service, “Bachelors Club,” never abused them as prostitutes and never took their money.
“I was always nice and kind,” Baston told his defense attorney, David Rowe, in soft, accented English, as the 12-person federal jury listened. “It was love. It was romantic. It was fun.”
Asked if the young women who fell under his spell suffered from Stockholm Syndrome — the phenomenon that they felt attached to him despite his alleged abuse — Baston said: “They all left.”
Baston is on trial on sex-trafficking offenses in Miami federal court, charged with using “psychological coercion and physical abuse” against at least seven women he pimped around the globe. The Jamaican national, who was arrested at his mother's New York home in December, faces cross-examination by federal prosecutors Roy Altman and Olivia Choe on Wednesday.

Read more here:

 3.  No surprises here, but the NY Times covers which Justices vote most often with each other.  One important point that I've been discussing recently on the blog is that Justice Scalia is the most defendant friendly Justice while Justice Breyer is one of the least:

Justice Breyer is by many measures more conservative than the court’s three other liberals. He was more likely to vote with Chief Justice Roberts, Justice Kennedy, Justice Thomas or Justice Alito than any of the other liberals. But there was one stark and telling exception: Justice Breyer was less likely than any of the other liberals to vote with Justice Scalia. Those two justices often tangle at oral arguments and often have differing views of privacy rights, with Justice Scalia joining the court’s liberals in Fourth Amendment cases and Justice Breyer voting the other way.
 4.  How do you say certiorari? The Justices apparently don't really know.

5.  Edward Snowden's lawyer is profiled here. Pretty interesting:

The next morning, Jesselyn Radack is in her K Street office early. She works as national security and human rights director for the Government Accountability Project, a kind of nonprofit clearinghouse for whistleblowers. Her program focuses on whistleblowers from the secret side of the government, which means she spends much of her time dealing with surveillance and torture. She’s been here six years, and the office is thoroughly lived-in. There’s a picture of her husband and three kids behind the desk, as well as a birthday card with two check marks: Kick Ass and Take Names. (Both are checked.) Orchids grow in the corner next to a trophy paddle from the Maine People’s Alliance, awarded for "her work in truth-telling." The secrecy of Radack’s work with Snowden requires two laptops beside each other: one standard Windows, and another running an encryption setup that she asks me not to describe in detail. There’s no Wi-Fi anywhere in the office; it’s too hard to secure. "I joke that I use drug dealer tactics," she says. That means burner phones, paying in cash, meeting in person. "It’s a terrible way to work as an attorney, but you have to."

6. A biggie from the Supreme Court this morning on cell phones.  Justice Roberts for the Court (9-0) finds that you need a warrant before searching. (The search incident to arrest exception does not apply). A good day for the 4th Amendment.  From the opinion:

These cases require us to decide how the search incident now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they werean important feature of human anatomy. A smart phoneof the sort taken from Riley was unheard of ten years ago;a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, SmartphoneOwnership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.

Absent more precise guidance from the founding era, we generally determine whether to exempt a given type ofsearch from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it isneeded for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999). Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.

But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither ofits rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of
individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.

We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.

Tuesday, June 24, 2014