"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right."

That was Justice Thomas' first question in over 10 years.  Apparently he asked a bunch of questions.  From the Huffington Post:

Justice Clarence Thomas, near the end of a little-noticed criminal law case involving issues of domestic abuse and the potential loss of gun rights, asked his first question from the Supreme Court bench in 10 years.
"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right," Thomas asked of the federal government's lawyer, who was arguing that a federal ban on gun ownership for certain persons who are convicted of domestic violence offenses at the state level should apply if the offense was committed "recklessly."
Ilana Eisenstein, the assistant solicitor general arguing the case, had asked if anyone had more questions for her. That's when Thomas, in his booming baritone, spoke up, asking a lengthy string of questions about an issue so far unexplored in the hearing.
He wanted to know "how long" the suspension of Second Amendment rights was for persons prohibited under federal law to possess firearms, and he pressed Eisenstein to name any other legal analog where the federal government could permanently curtail constitutional rights following a conviction for an unrelated offense.
"Let's say that a publisher is reckless about the use of children ... in indecent displays," he said, and wondered if the government then could suspend that publisher's right of free press permanently.

"Senator Rubio is reviewing it and deciding how to proceed."

That was Marco Rubio’s spokesman Alex Burgos about the nomination of Mary Barzee Flores to the federal bench.  But his statement makes no sense since Rubio supported the nomination in the first place.  Presidential politics stink.

The Miami herald covers it here:

It's no wonder U.S. Sen. Marco Rubio recommended seasoned Miami lawyer Mary Barzee Flores to fill an opening on the busy federal judiciary in South Florida more than a year ago.
She worked her way through the University of Miami and its law school, spent more than two decades as an assistant federal public defender and state circuit court judge, then joined a top commercial law firm before applying for a coveted federal judgeship.
“What a spectacular judge,” said Miami lawyer Edward Blumberg, a former president of the Florida Bar Association, recalling his experience trying a complex medical malpractice case in front of her. “She's one of the best judges I've seen statewide.”
Rubio thought so, too. But since Barzee Flores' nomination by President Barack Obama a year ago, the Miami Republican now running for his party's presidential nomination has held up her confirmation by not allowing the Senate Judiciary Committee to move forward with it.
Rubio, who had recommended Barzee Flores along with his Florida colleague, U.S. Sen. Bill Nelson, has not submitted a so-called blue slip that would set the wheels in motion for her confirmation — a decision seemingly in lockstep with the GOP-led Senate’s strategy to “slow-walk” the Democratic president’s judicial nominees since early last year. Only 16 federal district and appellate judges have been confirmed since last year by the Senate, including four nominated after Barzee Flores. The president nominated her on Feb. 26, 2015, and Nelson, a Democrat, returned his blue slip for her confirmation immediately.
Rubio's critics, including some in the Republican Party, say his dilatory strategy is indefensible because, in Barzee Flores, the senator is blocking an ideal candidate for a federal judgeship that has been vacant for almost two years. Indeed, the position has been deemed by the court as a “judicial emergency,” leaving other federal judges with heavier caseloads in South Florida.
“I've been honestly shocked by his lack of responsibility as a U.S. senator,” said Miami lawyer Tom Spencer, a Republican who supported Rubio against Democratic challenger Charlie Crist for the Senate in 2010, but backed former Florida Gov. Jeb Bush during this presidential primary season. “She's an excellent judge. There is absolutely no reason for him not to move forward with her confirmation. It's an absolute outrage and slap in the face of the people of Florida.”

Read more here: http://www.miamiherald.com/news/politics-government/article63008137.html#storylink=cpy

Trial happenings

Most of the white collar bar was watching the criminal trial involving the BP oil spill case in New Orleans.  Yesterday the jury found the engineer that the government was trying to hold responsible not guilty in less than two hours.  From the AP:

A former BP rig engineer was found not guilty Thursday (Feb. 25) on a charge of negligence that contributed to the 2010 Gulf of Mexico oil spill.
Robert Kaluza was a rig supervisor aboard the Deepwater Horizon offshore rig when it exploded, killing 11 workers and resulting in millions of gallons of oil spewing into the Gulf and fouling wetlands and beaches.
Kaluza was charged with a single count of violating the federal Clean Water Act. Jurors got the case Thursday afternoon and reached a verdict after less than two hours of deliberation.
Prosecutors told jurors Kaluza and a former co-defendant, Donald Vidrine, botched a crucial pressure test indicating oil and gas could be flowing from deep beneath the sea floor into BP's Macondo well, which was thought to be securely plugged with cement and mud.
"All of the red flags in front of him should have told him that it was a bad test," Assistant U.S. Attorney Gary Winters told jurors after showing them projected images of smoke billowing from the flaming, crippled rig, followed by pictures of oil-coated coastal land.
Defense attorney Shaun Clarke cast Kaluza as a scapegoat. He said federal prosecutors failed to make their case.
Clarke said Vidrine, who has pleaded guilty in the case, was the rig leader who declared the test a success — after Kaluza's watch aboard the rig had ended.
"The Macondo well was under control during every single second of his watch," Clarke said.
Clarke also said other rig workers with 97 years of combined experience in drilling agreed with Vidrine. Clarke disputed Winters' statement that the test was a simple one, saying there were no government standards for the test the prosecution is citing.
"There is no dispute that others were negligent," prosecutor Jennifer Saulino argued later. But Kaluza shared in the negligence that caused the disaster and he should be held criminally accountable for the pollution, she said, as a video of oil flooding from the sea floor flashed on a screen behind her.
Another defense lawyer, David Gerger, argued that failure of multiple, redundant safety systems and equipment caused the explosion, not the interpretation of a test. He pointed to rig crew members failing to notice a "kick" or influx of oil and gas into the rig hours ahead of the spill, a captain's failure to timely operate an emergency system that would have disconnected the well from the rig ahead of the explosion and the failure of a crucial device known as a "blowout preventer" that had not been property certified.

Some of you may remember the prosecutor from the big ATC case here before Judge Seitz.  The defense team involved some of the best lawyers I know -- David Gerger, Robert Hirschhorn, and Jennifer Johnston* to name a few.  Before the trial, the lawyers--with some great lawyering in court and in negotiations with prosecutors--were able to convince DOJ to drop the more serious charges:

Although Kaluza could have faced a year of prison on the pollution charge, he once faced more serious charges. He and Vidrine had been indicted on federal manslaughter and "seaman's manslaughter" charges — 22 counts apiece — stemming from the 11 deaths on the rig. But the seaman's manslaughter counts were thrown out by the courts and government prosecutors late last year backed away from the remaining manslaughter counts.
Prosecutors have recommended no prison time and 10 months of probation for Vidrine. He is set for sentencing in April.

He testified for the prosecution early in the trial, telling jurors that Kaluza never gave him information that prosecutors say was critical. The information dealt with a test meant to show whether two cement plugs, other structures and drilling mud below the ocean floor could stand up to the pressure of oil and gas farther down.

Congrats to the defense team.  What a win.

*Full disclosure -- Johnston used to work with my firm.

President Obama, Guest Blogger on SCOTUSblog

Wow, this is so cool. Check out the guest post by President Obama, titled "A Responsibility I Take Seriously":

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

 

A bad day for Broward lawyers

First is this report from Paula McMahon about a lawyer charged in a horrific child porn case:

Broward lawyer, arrested on federal child porn charges, is also accused of abusing two underage girls, according to court records.

David Rothenberg, 47, was arrested Saturday at his Margate home. An undercover investigation revealed he was logging on to a "daddaughtersex" chat room from the Internet protocol address of his Fort Lauderdale law firm and trying to persuade a stranger to let him have sex with her 13-year-old daughter, authorities said.

Rothenberg did not realize he was communicating with an undercover officer for about six weeks.

Authorities said they moved swiftly to arrest Rothenberg on the child porn charges when they found evidence he was sexually abusing a real teenage girl.

When agents from the Florida Department of Law Enforcement and the FBI's taskforce on crimes against children went to arrest him, they uncovered evidence that he was abusing a second underage girl in Broward County, according to the criminal complaint.

Rothenberg, who said he is married but has no children, has not yet indicated if he will fight the charges.

***

Rothenberg came to the attention of law enforcement Jan. 13 when he chatted online with an undercover officer from the Vermont State Attorney General's office, authorities said. The officer was posing as a divorced mother with two children in the "daddaughtersex" chat room.

Rothenberg, using online nicknames that included "D Roth," asked if the "mother" would "be accepting of" letting her 13-year-old girl be "sexually explored and cultivated by a more strong man in her life," investigators wrote.

In the chats, Rothenberg told the undercover officer he had sexually exploited an underage girl and said the abuse was ongoing. He also explained how he had access to her, agents wrote.

Investigators traced the online Internet protocol address he was using to the Fort Lauderdale law firm where Rothenberg worked. During chats that continued into February, he revealed he was a lawyer and gave the undercover officer his birth date when he said he was celebrating his birthday. Investigators said he also sent a beach scene photo they traced to South Florida.

Oh, and then there was this lawyer who was forging judges' signatures on order. Not good:

Miami lawyer is facing multiple forgery charges after investigators found he forged the signatures of seven different Broward County and Circuit judges on documents related to civil cases involving structured settlements, according to court records.

Jose Manuel Camacho was arrested in October after Broward County Judges Marina Garcia-Wood and Carlos Rodriguez found their forged signatures on legal documents filed with the clerk of courts.

After the judges complained, Broward Sheriff's Detective John Calabro interviewed them and five other judges. In all, Camacho, 46, was accused of forging 114 signatures. The other judges were Eileen O'Connor, John Luzzo, John Bowman, Thomas Lynch and Mily Rodriguez Powell.

Camacho worked for the Miami-based Camacho Law Group and graduated from the University of Miami Law School. He was admitted to the Florida Bar in April 2000.

In structured settlement cases, someone expecting a large payout in installments over a period of time will negotiate a deal with a buyer who agrees to pay a lump sum immediately in exchange for the future payments. Judges have to sign off on the transactions and will reject them if they conclude the original recipient of the payments is not getting a fair deal.

According to an arrest report, Camacho admitted forging the judges' signatures and filing the orders with the clerk of courts.

The case against Camacho was originally assigned to Broward Circuit Judge Matthew Destry, but because it involved other judges as victims, Destry recused himself. He asked Broward Chief Administrative Judge Peter Weinstein to have it transferred to another jurisdiction.

The case is now being handled by Miami-Dade Circuit Judge Ellen Sue Venzner. Assistant Broward State Attorney Ryan Kelley is continuing to prosecute.

Government asking for life sentence for convicted fraudster (Updated)

Update-- Judge Martinez sentenced him to 40 years. 

Original post:

According to this Herald article:

The former chief of the failed Clubs Resorts and Marinas will learn his sentence in a 9:30 a.m. Monday hearing at the Key West federal courthouse. Maximum combined sentences for the counts carry a potential 200 years behind bars, prosecutors wrote in a filing last week.

A life sentence "would be reasonable" for convicted bank-fraud defendant Fred D. "Dave" Clark, former chief of the failed Cay Clubs Resorts and Marinas, federal prosecutors say.

Clark "has repeatedly advanced his view that everyone is to blame for his conduct but himself," prosecutors wrote. The "defendant has exhibited a decades-long pattern of making up his own rules and avoiding responsibility for breaking the law. Until now."

The 11-page sentencing memo describes prison terms in other financial fraud cases, including the 50-year sentence imposed on disgraced Fort Lauderdale attorney Scott Rothstein.

Clark was convicted Dec. 11 after a five-week retrial, after a jury could not reach a verdict in his first trial.

Federal authorities say Cay Clubs was a $300 million Ponzi scheme.

Yikes, a life sentence for this crime... when Rothstein -- the supposed worst of the worst -- gets 50. That seems way too high. What say you?

Meantime, it's the first oral argument without Justice Scalia this morning, in this exclusionary rule case: "Should courts suppress evidence obtained from a suspect after a police officer executes a valid arrest warrant, if the officer first illegally detained the suspect?"

Big Federal Bar Shindig tonight

It's the 35th annual judicial reception.  It's so big that you can win a free iPad Air!!

FREE iPad Air GIVEAWAY! We will be conducting a membership drive. If you sign up for membership in the Federal Bar Association at the federal judicial reception, you will be entered into a raffle to win an Apple iPad Air. 

Hopefully, it won't be able to be backdoored...

Good for Tim Cook and Apple.

"The bottom line is that President Obama’s nominee is not getting confirmed before the election."

That's SCOTUSblog's Tom Goldstein in this post about who might get the nomination.  His latest thinking is Ketanji Brown Jackson, a district judge in D.C.:

Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia.  She was confirmed by without any Republican opposition in the Senate not once, but twice.  She was confirmed to her current position in 2013 by unanimous consent – that is, without any stated opposition.  She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).
She is a young – but not too young (forty-five) – black woman.  Her credentials are impeccable.  She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School.  She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.
Her family is impressive.  She is married to a surgeon and has two young daughters.  Her father is a retired lawyer and her mother a retired school principal.  Her brother was a police officer (in the unit that was the basis for the television show The Wire) and is now a law student, and she is related by marriage to Congressman (and Speaker of the House) Paul Ryan.
Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years.  One person whom I know who has been deeply and directly involved in prior confirmations is confident the president would not nominate someone from the district court.
I disagree because these are special circumstances.  It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.

 Another reason to support her -- she is also a local, having gone to Palmetto High School.  If I remember correctly, she won nationals in oratory, which was a big deal to us debate nerds back then. I also knew her in law school, so if it's Judge Ketanji Brown Jackson, I hope Tom is wrong about the nominee not getting confirmed.

Adalberto Jordan makes SCOTUS shortlist

Yesterday I raised the possibility of President Obama nominated 11th Circuit Judge Adalberto Jordan:

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

Today, the New York Times also lists Jordan as a potential candidate:

Adalberto J. Jordan

AGE 54.

CURRENT ROLE Judge on the United States Court of Appeals for the 11th Circuit.

BACKGROUND Hispanic man. Born in Cuba. Attended University of Miami School of Law. Clerked for Justice Sandra Day O’Connor, a Reagan appointee. A former federal prosecutor. Appointed to Federal District Court by President Bill Clinton in 1999 and elevated to the appellate court by Mr. Obama in 2012. Confirmed 94 to 5, with 41 Republicans voting in favor.

DISCUSSION Judge Jordan would be the second Hispanic and first Cuban-American justice on the Supreme Court. The White House may calculate that a decision by Republicans to block him could have political consequences in places with sizable Latino voting populations — including his home state of Florida, a swing state in presidential elections, which also has a Senate election this year.

SCOTUSBlog's Tom Goldstein hasn't mentioned Jordan yet.  His money is on Loretta Lynch.  But he does say this:

Minority voters are a different matter.  Traditionally, black and Hispanic turn-out has trailed white turn-out.  In the 2004 election, the percentages were white 67.2%, black 60.0%, and Hispanic 47.2%.  In 2008, they were white 66.1%, black 64.7%, and Hispanic 49.9%.  The 2012 election was the first in which the proportion of black turn-out exceeded that of whites.  The percentages were white 64.1%, black 66.2%, and Hispanic 48.0%.
Overall, in 2012, the white proportion of the voting population decreased to 71.1% and the minority proportion increased to 28.9% (22.8% black and Hispanic).  For that reason, many attribute President Obama’s reelection to minority turn-out.
The best candidate politically would probably be Hispanic.  Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers.  In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court:  Sonia Sotomayor, the Court’s first Latina.

Some quick thoughts on Scalia and going forward

Love him or hate him, he was the most gifted (and entertaining) writer we have ever seen on the Court. "Applesauce" "Jiggery-pokery" "Argle-Bargle" "SCOTUScare"

And he was not at all predictable (like Alito/Thomas). In fact, he jokingly called himself the "best friend" of criminal defendants. And he was!  He was the lone vote to strike down he sentencing guidelines many years before Booker. 

He led the charge on the confrontation rights of those accused of crimes. See, e.g., Melendez-Diaz v. Massachusetts (5-4 opinion where Scalia was deciding vote in favor of criminal defendant).  He was much more defense oriented than Breyer or Kagan, that's for sure.

Even on 4th Amendment issues, he was much better than the so-called liberals.  Check out his dissent in Maryland v. King (the DNA case): "The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. These DNA searches have nothing to do with identification. ... If the Court’s identification theory is not wrong, there is no such thing as error. ... The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence." 

He also has written majority opinions rejecting infrared surveillance, GPS tracking of cars, and dog sniffs of our homes.  

Of course, he wasn't perfect (see gay marriage, Bush v. Gore, etc), but he was by far the most interesting Supreme Court Justice in our lifetime. RIP.

But now the fight comes.  Who can get confirmed?

Donald Trump said last night in the GOP debate that he would nominate someone like Judge William Pryor.  Judge Pryor and I had this case where we butted heads.  He's also had this recent battle with Judge Jordan.  

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

So, what do you think?  Is Judge Jordan a viable choice for President Obama?

RIP Justice Scalia

Wow, this is sad news. Everyone is talking replacement right now, but we should give the guy his due. He will be remember as the best writer ever on the Supreme Court. And, although Rumpole and I disagree on this, he is one of the best Justices for criminal defendants and criminal justice issues. More to follow...

BREAKING -- Judge Abdul K. Kallon nominated to 11th Circuit

This is big news.  The nomination comes out of Alabama to fill Judge Dubina's seat.  This would be the first African American judge to serve on the 11th Circuit out of Alabama.  More to follow...

(H/T Glenn Sugameli).

Huge win for the FPD's office...

...in the Florida Supreme Court for Tracy Dreispul who raised the issue in the 11th Circuit.  This is going to affect a lot of cases.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In United States v. Clarke, 780 F.3d 1131 (11th Cir. 2015), the court certified the following question to this Court:

Florida law prohibits a person from “own[ing] or . . . hav[ing] in his or her care, custody, possession, or control any firearm . . . if that person has been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a “convict[ion]”?

Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes it a criminal offense for a person to own or have in his or her care, custody, possession, or control any firearm if that person has been convicted of a felony in the courts of this state.1 Thus, this Court is asked by the Eleventh Circuit to determine if, under Florida law, a person is “convicted” for purposes of that statute if the person has entered a plea of guilty to a felony offense but adjudication for that offense has been withheld. For the reasons that we explain, we answer the certified question in the negative and hold that for purposes of section 790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does not qualify as a “conviction” under that statute.

WOW!

Love is in the air...

... at the PD's office!  Check out this nice Herald article about two APDs:

It was not love at first sight, no. Brad Horenstein and Daniela Torrealba met when they were taken to lunch by their respective bosses while working as interns at the Miami-Dade Public Defender’s Office. Their reaction was … well, meh.
"I got a very bad reading," recalls Horenstein, 35. "She was so serious. I didn’t talk to her for a year after that."
From Torrealba, 29: "I didn’t even remember meeting him at the lunch until he reminded me about it. I was in my final semester of law school and I had blinders on."
A few months later the assistant public defenders were singing a different tune — quite literally. On a road trip to Orlando for a legal conference, they realized how much they loved the same music. They sang along to Kavinsky’s Nightcall and Radiohead’s Idioteque and Crystal Castles’ Vanished. They talked. And talked. And talked.
Horenstein was smitten, but it still took him four months to ask her out. Their first date, in February 2013, was at Scarpetta, a high-end Italian restaurant in Miami Beach’s Fontainebleau. They finished the night at The Corner, a hip bar downtown. Soon they became inseparable.
"I knew he was a wonderful guy who was genuinely concerned about his clients and his work, but I had never dated a friend before," Torrealba says. "When he asked me out, it opened my eyes.”
Two years and four months later, Horenstein popped the question. They’re getting married February 2017.
In the meantime the couple has lived together for 16 months in a Brickell area apartment. They spend most of their work hours together, too. They believe the closeness has helped burnish their new love.
He says: "She’s incredibly bright and quick-witted and positive. She’s so much fun to be around."
She says: "He has what people call good moral fiber."

Cool story!   This one from the 6th Circuit, not so much:

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

Oh boy.  Big brother is watching!

Read more here: http://www.miamiherald.com/living/health-fitness/article59222768.html#storylink=cpy

Legal debates...

First: "What's harder, for a man to do 30 pushups or a woman to do 14?"  That's from Althouse discussing the 4th Circuit case of Bauer v. Lynch, which addresses the requirements for the FBI:

"Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness.... [T]he numbers of push-ups men and women must complete are not the same, but... the fundamental issue [is] whether those normalized requirements treat men in a different manner than women.... [A]n employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each."

Second, is Cruz eligible to be President?  From Harvard Law Today:

“Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe, who taught Cruz when he was a student at HLS in 1994.
The crux of the matter is that the Constitution, in Article II, Section 2, Clause 5, states that “no person except a natural born citizen” can be president.
Under English common law, upon which U.S. law was based, a “natural born citizen” would be someone born on American soil. For Tribe, according to this definition, Cruz does not qualify. He compared Cruz to Alexander Hamilton, a founding father who was born in St. Croix, Virgin Islands, but qualified as a U.S. citizen at the time of the adoption of the Constitution, and former presidential candidate John McCain, who was born in the Panama Canal Zone when it was under U.S. control.
“Unlike Cruz, McCain was born in U.S. territory,” said Tribe. “And unlike Cruz, McCain was born to two U.S. citizens, parents who had been deployed to the Panama Canal Zone by the military to serve the country.”
But for Jack Balkin ’81, a constitutional law professor at Yale University, Cruz is a “natural born citizen” because under U.S. immigration law in 1970, he automatically became an American because his mother was one. The law grants birthright citizenship to a child born overseas if one parent is a U.S. citizen.

I think question 1 might get more commenters' blood boiling...

Monday morning update

So like the rest of you, I watched the Super Bowl and the commercials.  zzzzzzzzzzzzz

What a snoozer.  Seemed more like a Thursday night Raven/Titan game than the Super Bowl.

Politics this weekend was far more entertaining.

Of course, you had SNL with Larry David/Bernie Sanders:


But the better comedy was at the GOP debate:



In terms of the actual debate, I thought Marco got crushed in this exchange:

Docs v. Glocks going en banc

Here's the order.

The third opinion was back in December.

Jordan and Pryor agree...

...that sleeping during a murder trial is not ineffective.  After a strenuous debate earlier in the week (Jordan v. Pryor), we get this per curiam unpublished doozy (Julie Carnes also joined):

We issued a certificate of appealability to address Williams’s argument that “he was denied his Sixth Amendment right to counsel when his counsel allegedly dozed or slept during a part of [his] trial.” Because it was not an unreasonable application of clearly established federal law for the state trial court to conclude that Williams was not prejudiced by counsel “[falling] asleep a couple of times” while the state replayed a recording of an interview that was cumulative to earlier testimony from the interviewee, we affirm.

Despite Rumpole's objections, the opinion starts with a description of the crime:

When Austin Joseph Paine intercepted burglars in his home, they shot and killed him. Chad Michael Leon afterward overdosed on morphine and checked himself into a hospital, where he implicated himself, Williams, and Randy Carter Jr. in Paine’s murder. Leon later showed officers where in the ocean he had discarded a revolver and a semiautomatic firearm used by Williams and Carter.

 Here's the analysis:

In the absence of controlling precedent, fairminded jurists could disagree about whether a defendant is entitled to a presumption of prejudice because defense counsel, who was otherwise actively engaged in the trial, “fell asleep a couple of times” while the jury listened to a recorded interview that was cumulative to testimony earlier provided by the interviewee.

Wow.  All I have to say is: zzzzzzzzzzzzzzzzzzzzzzz

It's a very old Supreme Court

Four Justice are older than 75.  This op-ed wonders whether that's a problem.  It certainly will be a big deal for the next President.  From the conclusion:

The problem of an aging judiciary extends beyond the Supreme Court to the hundreds of elderly federal judges across the country. The average age of these jurists is now over 70, with many in their 80s and 90s. The 94 U.S. district courts and 13 courts of appeals decide more than 98% of all cases with federal jurisdiction, so the continued mental acuity of these jurists should be a concern for all of us who use interstate commerce or expect due process.
If there's a silver lining, no pun intended, it's that some of these jurisdictions have implemented programs to promote sharpness in judges as they age. The 9th Circuit Court of Appeals, for instance, offers a battery of mental health assessments, hosts discussions with neurological experts and has created a hotline where staff may report signs of cognitive decline in their colleagues. Such measures are necessary because it's hard for friends and family members, let alone the individual in question, to know if a tendency to, say, forget one's keys is innocuous, or portentous.
Unfortunately, the 9th Circuit program and a handful of others across the country exist in isolation, as there is no judiciary-wide strategy to cope with cognitive decline. That should change. Chief Justice Roberts should use his authority as head of the federal judiciary to require his high court colleagues and others to undergo regular mental health checkups.
Further, he could recommend a judicial retirement age of 70 or 75, as is done in the rest of the Western world. He and future nominees to the bench could even pledge to serve for no more than 18 years, as has been suggested by constitutional scholars and interest groups on the left and right as a reasonable limit on judicial tenure.
Our court system and the law benefit from the wisdom of judges with many years of experience. But the federal judiciary, especially given congressional dysfunction, is simply too important to leave in the hands of old fogeys.

Our district has gotten a lot younger recently.  What judge would you rather appear before -- old or young?

Jordan v. Pryor

It's a pretty interesting debate, both in terms of style and substance, in this habeas case between Judges Jordan and Pryor.  Jordan ends up in the majority with a the vote of a visiting judge.  This angers Judge Pryor even though it usually happens in the reverse.  He starts his dissent this way:

Ace Patterson—a child rapist, kidnapper, and burglar—won the habeas lottery today. The majority gives him a second chance to collaterally attack his convictions in federal court, seventeen years after his trial and nine years after he filed his first federal petition for a writ of habeas corpus. Most state prisoners are not so lucky, as the Antiterrorism and Effective Death Penalty Act prohibits the filing of a “second or successive” petition for a writ of habeas corpus. 28 U.S.C. § 2244(b). But Patterson is luckier still. In a sleight of hand, the majority rules that a 2009 order sparing him from chemical castration—an unopposed order that benefited Patterson—somehow hit the reset button on his ability to obtain federal habeas relief, even though the 2009 order is not “the judgment authorizing [Patterson’s] confinement” and is irrelevant for purposes of the bar on second or successive petitions. *** The clear text of the statute makes “the judgment of a State court” that holds the prisoner “in custody” the judgment that matters for our collateral review. 28 U.S.C. § 2254(b)(1). And for good reason. Patterson, after all, does not object to anything in the 2009 order that spared him from chemical castration or allege that the removal of chemical castration somehow violated his federal constitutional rights. He instead seeks to collaterally attack the judgment of convictions  entered against him in 1998—a judgment he has already collaterally attacked once in federal court and four times in state court. And the majority lets him do it. Because that ruling is wrong in every way, I dissent.

Even though it's easy to disagree with his decision, you gotta give it to Judge Pryor -- he is a gifted writer.  Here's some more, this time from the conclusion:

When it comes to federal habeas petitions, the more is not the merrier. Relaxing the bar on second or successive petitions will “prejudice the occasional meritorious application” for a writ of habeas corpus by “bur[ying] [it] in a flood of worthless ones.” McCleskey, 499 U.S. at 492, 111 S. Ct. at 1469 (quoting Brown v. Allen, 344 U.S. 443, 537, 73 S. Ct. 397, 425 (1953) (Jackson, J., concurring in the result)). Despite the best efforts of Congress to prevent that “flood,” the majority is praying for rain. This case is not hard. And nobody should be fooled by the majority’s atextual decision. After seventeen years of repeated and often frivolous attempts to overturn his convictions, Patterson is being given another go-round based on an order issued in 2009 that both the State of Florida and the guardian ad litem thought was meaningless. That order does not authorize his confinement, and he does not allege that it violates his constitutional rights. Nor should he: the 2009 order gave him all of the relief that he requested. Today’s decision is gimmickry that will require the State of Florida to defend a child rapist’s convictions for the umpteenth time and will threaten a twenty-six-year-old woman to relive the horror of his monstrous crimes.

I dissent.

Judge Jordan goes for the even-tempered approach, expressing his disappointment in the anger from Judge Pryor's opinion, calling him out by name over and over again:

We respect the passionate dissenting views of our colleague, Judge William Pryor. Yet we suspect that Judge Pryor’s real disagreement is with Magwood and our prior decision in Insignares.

***

Finally, to the extent that Judge Pryor is suggesting that we are in some way trying to undermine AEDPA, such an accusation is as disappointing as it is wrong. As the Seventh Circuit recently noted, see Kramer v. United States, 797 F.3d 493, 502 (7th Cir. 2015), reasonable jurists can disagree about what constitutes a new judgment under Magwood. We have tried to faithfully apply AEDPA and Magwood in light of binding circuit precedent, and that binding circuit precedent is Insignares. We believe we have  accomplished that task, Judge Pryor’s protests notwithstanding.

And the visiting judge, District Judge Haikala, calls out Judge Pryor on his appeal to emotions.  Her concurrence begins like this:

Judge Pryor and Judge Jordan have prepared thorough opinions in this case. I have studied both opinions. I agree with Judge Pryor that this case is not hard. I agree with Judge Jordan’s analysis of the issue presented to the Court. Like Judge Jordan, I conclude that the rationale of Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273 (11th Cir. 2014), requires reversal. I write separately to address a few points in Judge Pryor’s opinion. In his opinion, Judge Pryor describes Mr. Patterson’s reprehensible criminal behavior. Minority Op. at 2-3. There is no doubt that the conduct that gave rise to Mr. Patterson’s conviction and sentence is heinous, but that conduct has no bearing
upon the legal standard that governs the issue before the Court. As the United States Supreme Court wrote in Chessman v. Teets: “On many occasions this Court has found it necessary to say that the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution.” 354 U.S. 156, 165 (1957).