NGs for the cops on trial before Judge Middlebrooks

Across the board not guilty verdicts today for the three police officers charged with perjury before Judge Middlebrooks. Richard Sharpstein was at his finest with the following quotes (via the Miami Herald):

• A triumph for truth, justice and the American way,'' Farraj's defense attorney, Richard Sharpstein, said Thursday. "Our clients are grateful for a true verdict by a great and dedicated jury.''
• "I've got bad news for you. There is no Superman. There is no Batman. That was George Clooney in a suit. Those weren't even his real abs,'' Sharpstein told jurors. "I'll tell you who the real crime fighters are: these gentleman sitting here in court.''
• Sharpstein blamed the twisted facts of the traffic stop on a rookie federal prosecutor, ... who "freaked out'' during his first court case and botched the case. "You always remember your first time and sometimes you remember it with a little pain and a lot of regret,'' Sharpstein said.

Judge Middlebrooks excludes Judge Altonaga

More fun in the cop perjury trial that I just posted about below. Judge Middlebrooks granted the defense "Motion in Limine to Exclude Federal District Judge Cecilia Altonaga."

The government wanted to call Judge Altonaga to demonstrate that the police officers' testimony was material to the suppresion hearing. Judge Middlebrooks found that Judge Altonaga's proposed testimony would violate Rule 403 as a jury would give too much credence to a district judge's testimony.

Here's the entire order:Judge Middle Brooks Excludes Judge Altonaga

Too bad, I would have gone to see Richard Sharpstein cross-examine Judge Altonaga...

"The value of freedom is found not only in the larger issues of life but also in the fanciful and strange."

So said Judge Middlebrooks about a naked protester in a case that went all the way to the Supreme Court.

The case involved what it means to be the prevailing party in a civil rights case. Here's David Savage, from the LA Times on the case:

The Supreme Court's first ruling on an Iraq war protest is not likely to be remembered as a landmark in the law. In a 9-0 ruling, the justices rejected a claim for legal fees filed on behalf of a Florida nudist who wanted to form a peace symbol out of naked bodies on a state beach.Toni Anne Wyner's planned demonstration ran afoul of the state's Bathing Suit Rule, which, as its name suggests, requires beachgoers to cover up. In February 2003, she went to court to challenge this rule as a violation of her 1st Amendment right to free expression. In the past, the Supreme Court has said that nudity and nude dancing can be a form of expressive conduct, though it can be regulated. At first, a judge saw merit to her complaint and allowed the nude protest to take place — but behind a screen, to shield other beach patrons at John D. MacArthur Beach State Park in Palm Beach County. "The value of freedom is found not only in the larger issues of life but also in the fanciful and strange," said U.S. District Judge Donald Middlebrooks. He continued: "Protesting a potential war through naked protest seems a bit quixotic, but it is also part of the freedom that both those supporting the war and those who oppose it seek to protect."After forming their peace symbol behind the screen, the nudists went into the water naked. When Wyner went back to court seeking a permanent order allowing such protests, the judge refused and ruled for the state. However, he said that the civil liberties lawyers who represented Wyner were entitled to be paid because they had won at least one round of the litigation. The Supreme Court reversed that decision Monday in Sole vs. Wyner. Federal law entitles the "prevailing party" in a civil rights or civil liberties case to obtain legal fees from the government. "Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral," Justice Ruth Bader Ginsburg wrote for the court. A plaintiff who wins a preliminary injunction, then loses on the merits, wins a battle but loses a war, Ginsburg wrote.

"This strategy of ‘shaking down’ defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded.”

All sorts of fun stuff in the Review this morning, including an article about attorney's fees. That quote above is from Judge Moreno from a 2003 case and the article discusses a recent Judge Zloch case where a six figure fee was requested in a relatively minor case.

The cover story is also interesting -- it's about Judge Middlebrooks ruling on trade dress infringement in the energy drink world. Everyone wants small 8 ounce bottles with vertical lettering, but that's not enough for an infringement case: "The notion that a company can appropriate a standard 8-ounce bottle, utilize vertical lettering of its product name, and preclude competitors from using that bottle with their own lettering . . . seems to be nothing but a thinly veiled effort to stifle legitimate competition." Attorney fees in that case to American Body Building (to be paid by Vital Pharmaceuticals --VPX) of $360,000.

If energy drinks aren't your thing and you are more into ice cream, then read this Sun-Sentinel story about Carvel's niece wanting to dig him up to study the body for foul play.

Cert granted

The United States Supreme Court has taken a case from the Southern District of Florida, U.S. v. Williams, a case about the constitutionality of a child pornography law:

The [11th Circuit] court panel found the pandering provision of the PROTECT Act of 2003 was overbroad and impermissibly vague, saying that it criminalizes the speech of someone who touts material as child pornography when in fact it is clean or nonexistent.In the appeals court's view, the pandering provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures attached of grandchildren in pajamas. One sender might be a proud grandparent while another might be a convicted child molester who hopes to trade for more graphic photos with like-minded recipients, the appeals court said. In asking the court to take the case, the Bush administration said the appeals court read the law's language more broadly than is warranted.

Judge Middlebrooks initially found the law was constitutional. Judges Barkett, Wilson and Reavley were the 11th Circuit panel that reversed (in an opinion by Judge Reavley,who was visiting from the Fifth Circuit), finding the Protect Act vague and overbroad. Rick Diaz and Lou Guerra represented Mr. Williams, who is now headed to Washington...

Cert from SDFLA

Our appellate correspondent, Richard Rosenthal, writes in:


On Friday the U.S. Supreme Court granted cert on a fascinating case that originated right here in S.D. Fla. Without delving too much into details -- those interested can go to Wyner v. Struhs, 254 F. Supp. 2d 1297 (S.D. Fla. 2003) -- Judge Middlebrooks awarded "prevailing party" attorneys' fees to the ACLU of Florida after it successfully obtained a preliminary injunction that allowed a nude anti-war protest in a public park. But the catch is that after "winning" the preliminary injunction, the ACLU "lost" its request for a permanent injunction because the protest was was one-time deal, rather than a recurring performance. The Eleventh Circuit -- in an unsigned, unpublished opinion -- affirmed Judge Middlebrooks's award of attorneys' fees. Wyner v. Struhs, 179 Fed. Appx. 566 (11th Cir. 2006). Although that unpublished affirmance is not even binding precent within the Eleventh Circuit, it nevertheless conflicted with a Fourth Circuit ruling (Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002)), and the Supreme Court has now stepped in to resolve the conflict. After the Supreme Court's virtual elimination of attorneys' fees under the "catalyst theory," a Supreme Court ruling in this case could deliver yet another serious blow to civil rights organizations and other "do-gooder" litigants. Stay tuned.....