Monday morning

Hope everyone enjoyed their spring break. It's back to work, and here's what's up:

1. Barry Bonds' trial starts today. Apparently, jail isn't at stake, but his legacy is: a jury will be asked to decide whether baseball's home run king set his historic mark while using a long list of banned drugs.
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For Bonds, 46, who has not played baseball since he was indicted, the stakes are high - even though most experts doubt he will face prison if convicted.

In 2008, Bonds' trial judge, Susan Illston, sentenced two defendants who were convicted of lying to authorities about steroids in sports to home confinement, not prison. That sets a baseline for sentencing Bonds if he is convicted, experts say.

The trial represents a chance for Bonds to repair a reputation badly tarnished by his association with the BALCO steroid scandal, and, perhaps, to secure a place in baseball history that might otherwise be denied him.

If Bonds is acquitted, his chances of being elected to the Hall of Fame "go way up," said former Major League Baseball Commissioner Fay Vincent. "But if he gets convicted, it's the end of the discussion for at least 30 years."

Roger Clemens, who is on trial next, will be watching this one closely.

2. Interesting case being argued this morning before the Supremes, Davis v. U.S.. The issue: The good-faith exemption to the exclusionary rule allows evidence collected in violation of the Fourth Amendment to be admitted at trial if the police officers conducting the search acted in good faith. Does the good-faith exception to the exclusionary rule apply to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional?

The case came out of the 11th Circuit, and Orin Kerr of the Volokh Conspiracy will be arguing for Mr. Davis. ScotusBlog has great analysis of the case here.

3. You can bet on one thing in Davis -- Justice Alito will vote with the government. From the Sunday NYT: Alito is the least likely justice to show a glimmer of concern for the rights of criminal defendants. He has ruled for the defense in only 17 percent of the criminal cases he has heard since he joined the court, putting him to the right of Roberts, Scalia, Thomas — and every other justice of the past 65 years other than William Rehnquist...

Strangely, the title of the piece is called: "Mysterious Justice." Nothing mysterious about Alito -- he's the most predictably conservative judge on the Court.

4. There's always a lot of talk about how judges should write opinions. Rumpole doesn't like the Judge Selya style of opinion writing (Selya's interview on How Appealing is entertaining). I wonder what he thinks of this.

Justice Alito doesn't like the First Amendment

He was the lone dissenter in the crush video case. And now he is the lone dissenter in the funeral protester case:

The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.

Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.

In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."

In other news, give your thoughts on Magistrate Judge Hopkins.

"Some of the Grimm’s fairy tales are quite grim." -- Justice Scalia during oral argument yesterday

So were some of those election results...

Here's the NY Times article on the violent video game argument in the Supreme Court:

The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”
“What’s a deviant violent video game?” asked Justice Antonin Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?”
“Some of the Grimm’s fairy tales are quite grim,” he added. “Are you going to ban them, too?”
Justice Stephen G. Breyer took the other side. He said common sense should allow the government to help parents protect children from games that include depictions of “gratuitous, painful, excruciating, torturing violence upon small children and women.”

Scalia got the better of Alito in this exchange:

But Justice Scalia said there was nothing in the tradition of American free speech that would allow the government to ban depictions of violence. The thought, he said, would have been foreign to the drafters of the First Amendment, drawing a needling comment from Justice Samuel A. Alito Jr., the lone dissenter in the Stevens case.
“What Justice Scalia wants to know,” Justice Alito said, “is what James Madison thought about video games.”
“No,” Justice Scalia responded, “I want to know what James Madison thought about violence.”

And they better not ban Mortal Kombat!

Justice Elena Kagan, the court’s newest and youngest member, seemed to be the only justice with even a passing familiarity with the genre under review, even if it was secondhand.
“You think Mortal Kombat is prohibited by this statute?” she asked Mr. Morazzini. It is, she added, “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”
Mr. Morazzini said the game was “a candidate” for government regulation.

There was another big oral argument yesterday -- US v. Skilling:

A three-judge appeals court panel grilled attorneys for former Enron CEO Jeff Skilling and the government on Monday, trying to decide whether to throw out or order new trials on any of Skilling's 19 convictions.
His defense lawyer, Daniel Petrocelli, argued the U.S. Supreme Court's decision that the government was wrong to use a particular legal theory in charging Skilling with conspiracy means that charge and the remaining 18 should be thrown out.
The government contends that a rational jury would have convicted even without the faulty theory that he deprived Enron of his "honest services," because evidence overwhelmingly supported Skilling's guilt.
But the hearing, in which each side had 30 minutes to provide oral arguments, was more about the judges' questions than the lawyers' answers.
Judge Edward Prado asked if it would make more sense for the federal district court where Skilling was tried in 2006 to decide the issues raised by the Supreme Court decision.
Determining if the "honest services" theory tainted the other charges would involve digging into the voluminous details of the five-month trial, Prado said.
Petrocelli said nothing would prevent the appeals court from sending the issue to the trial judge, but that the question is one of law.
"The court isn't being asked to act as a 13th juror," or guess what the original jury was thinking, Petrocelli said. Rather it needs to look at the court record and determine if a "reasonable jury" could find Skilling not guilty based on the evidence.
"The record is filled with acquittal evidence," Petrocelli said.

You can access the audio of yesterday's Fifth Circuit oral argument via this link (53.7MB Windows Media audio file). Why don't we have that in the 11th Circuit?

8-1 Supreme Court strikes down law banning videos of animal cruelty

Rick Bascuas and I have had a lot to say on this issue as we represented the plaintiff in a similar case involving cockfighting videos. After the oral argument in Stevens (the dogfighting video case), I had this to say:

From what I heard, the case will be 8-1 in favor of the criminal defendant Stevens, holding that Section 48 -- prohibiting the sale of depictions of animal cruelty -- is unconstitutional. The one Justice that seemed to say that Congress could pass such a statute was Alito.

Too bad I can't call football games that well! Today, the Supreme Court ruled 8-1 in favor of the defendant Stevens and invalidated the statute. Alito was the one dissenter. From the New York Times:

In a major and muscular First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said the law created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

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As a general matter, Chief Justice Roberts wrote, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh its costs.” He continued, “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Having concluded that the First Amendment had a role to play in the analysis, the chief justice next considered whether the law on animal-cruelty depictions swept too broadly.
The 1999 law was enacted mainly to address what a House report called “a very specific sexual fetish.”
“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”
When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But since then, the government has used the law in several prosecutions for trafficking in dogfighting videos.
Chief Justice Roberts said the law applied even more broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.
“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders or magnitude,” he wrote.
The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.
“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”
Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals."

A Hispanic judge is nominated to the Court...

...but alas not one from Florida. Sonia Sotomayor is the pick.... No real surprise here.

I was rooting for Harvard (Elena Kagan) instead of Yale, but another spot will open up soon.

Sotomayor has more courtroom experience (she was a prosecutor and a district judge) than any of the other justices and many are calling her the liberal Sam Alito (both went to Princeton and Yale, both were prosecutors, both were Circuit judges, and both were appointed by Bush I). Sotomayor would be the only Justice who was a district judge. Still no former criminal defense lawyers on the Court...

The blogosphere is unbelievable when you want instant information, especially about legal news. Tom Goldstein at ScotusBlog has a ton of stuff, including this interesting post. Jan Crawford Greenberg has this scoop about the interview process and the 4 finalists. The right already is gearing up to fight her (using videos like this) but as Goldstein explains, she easily will be confirmed. Volokh has a bunch of posts about the nomination and How Appealing has every article written about Sotomayor. And if you are a baseball fan, Judge Sotomayor is your pick.

It's amazing to me that the interest groups are claiming that she isn't smart enough to be on the Court. What else can she do to prove herself -- she finished first in her high school class, second in her college class and was the editor of the Yale Law Journal.

Even though she is being compared to Alito, I sure hope she is more intellectually honest than he is. Today, the Supreme Court, 5-4, overruled Michigan v. Jackson -- a case on the books for 23 years. Justice Scalia wrote the opinion and Justice Alito concurred. His concurrence was remarkable because just a couple of weeks ago, he dissented in Arizona v. Gant. There, Justice Scalia again wrote the majority opinion, receding from the holding in New York v. Belton. Belton had been on the books for 28 years, and Alito's dissent focused on stare decisis. So this time around, he would dissent againt, right? And find that stare decisis required a finding that Jackson was still good law, right? Forget it -- Alito joined Justice Scalia in overturning a long-standing precedent. Why? Because this time he was ruling against the criminal defendant. Unlike Scalia who often rules for criminal defendants (and is still in my view the most pro-defendant Justice -- although that theory took a hit today), Alito has never once ruled in favor of a criminal defendant. Not once! When stare decisis helps the government, he invokes it. When it's bad for the government, what's stare decisis. Bizarro world!

Anyway, back to Sotomayor -- from what I've read about her, she seems like a solid (and safe) pick. She's obviously qualified and she will get confirmed. I think at the end of the day, she'll end up very similar to Souter, so the Court won't change that much.

Alito comes to the Southern District of Florida

Seems like the Justices enjoy taking road trips to South Florida. Alito spoke at a luncheon for the Palm Beach County Bar Association last week. He previously spoke at Alex Acosta's investitute. And the Chief was just in town speaking at the University of Miami. (Roberts was interviewed by Jan Crawford Greenburg, who has a new blog and a new book. I'm in the middle of the book, Supreme Conflict, and it's a must read for Court junkies.)