It’s only too hard for you.

Even though I actually went downtown today and even had lunch at La Loggia, I didn’t come across anything weird or strange. So, chew on this:

The Supreme Court decided today by a 5-4 vote that José Padilla’s lawyer could and should have advised him regarding the immigration consequences of pleading guilty. This José Padilla was not born in the United States. He pled guilty to a drug crime but claimed his lawyer told him that the plea would not affect his permanent residency. (Ha!) Justice Stevens lets you know how this is going to turn out in his opening lines:

Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War.

OK, got it, he wins. (J.P.S., by the way, served in the Pacific from the time he was 22 to the time he was 25. It freaks out the law students when I tell them, “When Stevens was your age, he was fighting the Japanese.” I think they have trouble comprehending that anyone who fought in WWII is still alive, much less holding down a job, much less writing opinions.)

Skipping ahead, we find that four Justices of the Supreme Court do not believe that a defendant’s counsel should try to explain the immigration consequences of pleading guilty because it’s too hard. Alito and Roberts say in their concurrence that defense lawyers would be better off saying nothing more than that adverse immigration consequences may result: “Because many criminal defense attorneys have little understanding of immigration law, it should follow that a criminal defense attorney who refrains from providing immigration advice does not violate prevailing professional norms.” And Scalia and Thomas go even further and say that anything other than the sentence is beside the point:

In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world ... .

How this was not 9-0 entirely escapes me. How is banishment not a criminal penalty? Wasn’t exile to Siberia a favored punishment of the czars or am I misremembering something? Is this supposedly not punishment because it’s specified in Title 8 rather than Title 18? The more offensive part of this is that the Justices never disclaim expertise over any corner of the law comprised by their vast general jurisdiction. They have no trouble grasping the finer points of criminal law and immigration law as well as patent law, military law, antitrust, bankruptcy, labor, tax, admiralty, whatever. But that’s Alito, Scalia, Roberts, and Thomas—not you.

How the ball bounces

Judge Marra just dealt a blow to the successor to the investors in the failed restaurant and memorabilia emporium, D. Wade’s Place, something I had no idea had ever existed. It seems, according to the order dismissing the complaint, that there is no legal basis for their contention that Dwyane (that’s how that’s apparently spelled) was monopolizing memorabilia by failing to perform on a contract that gave the investors

the right to use his name, fame, nickname, initials, autograph, voice, video or film portrayals, facsimile or original signature, photograph, likeness, and image or facsimile image without Wade’s consent to create personalized memorabilia featuring Wade which could be sold at the restaurants.

I know, I know. You’ve just experienced a certain loss of innocence. Basketball’s all just about making money. Let’s move on.

Plaintiff alleges that the relevant product market in this case is Dwyane Wade personalized sports memorabilia. Plaintiff contends that “[t]here is no substitute for Wade-personalized sports memorabilia (‘Wade Memorabilia’), especially in southern Florida, where the Miami Heat plays."

Quoting heavily from a series of antitrust decisions, Judge Marra observed, and I’m paraphrasing here, that things that are cool—e.g., a Yale education, the make-up from Cats, tickets to Phantom, Pepsi, NBC Must See TV—do not constitute their own relevant markets just because they’re cool.

Bilzen Sumberg &c. and the Tampa outpost of DLA Piper filed the motion.

(Having come to the end of this post, I have to confess that I’m a little surprised D.O.M. doesn’t have Blog tags for the Heat or Wade.)

It’s quiet ... too quiet

I didn’t mention this when D.O.M. called and said he needed to focus on work for a while, but I have no idea what’s going on in the SDFla. Judge Jordan dropped by my JV-FPD class last week to explain what goes on behind the curtain at the Eleventh Circuit—which went so well I could have sold tickets. But other than that I’ve pretty much been buried by work without contact with the outside world. Skimming over the Blog, it seems like all I missed was that Justice O’Connor came to town to cut the ribbon on the new courthouse cafeteria. Or something. Anyway, as far as I can tell, there’s nothing going on. The DBR’s web site reports that the deal between UBS and the U.S. may be unraveling. Whatever. That impasse was in the news the last time I was pinch-hitting in this space. Look, people, the whole reason why this district merits its own blog is that weird and bizarre stuff happens here. If you’re all just going to behave normally, then what’s the point?

Spring Break Guest Blogger (WITH AN UPDATE RE MAGISTRATE POSITION)

I'm taking Spring Break off from blogging. You'll be happy to know that Professor Rick Bascuas has agreed to step in for the week. Rick can usually be found blogging over here. See you guys soon.

UPDATED -- Well, just before I got off the grid, I got a tip that the new magistrate position went to Jonathan Goodman. I have no idea whether this is correct or not as I have not been able to confirm it. But since I'm not a real journalist, I figured I would post it. If it is JG, I congratulate him and believe he will be great! If I'm wrong, please let me know so I can fix this...

So who is the new Magistrate?

The judges interviewed and then picked the new magistrate today. But the choice isn't public yet. When asked who was selected, Chief Judge Moreno said this:

"The most qualified applicant was chosen pending an FBI investigation. Consistent with the rules of the Judicial Conference it remains confidential until finalized."

But once the FBI calls start, it will be all over town.... If you all hear anything, send me an email and I will keep it confidential. Thanks!

Previous coverage here.

All quiet in the District?

Talk to me people. Anyone in trial?

In the meantime, here's Breyer and Scalia squaring off again. From the BLT:

Breyer and Scalia challenged each other the most over statutory construction, with Scalia insisting that looking to the words of the law and nothing else is the best way to discern its meaning. That's because members of Congress actually vote for -- and can be held accountable for -- the actual text of the law, unlike committee reports and other documents drafted by "teenagers," to support their own views of the law, as Scalia put it with disdain. The legislators don't read those documents anyway, Scalia said. "Congress passes laws, not conference reports."
By that standard, Breyer replied, the words of the statute don't mean much either, because members of Congress don't read every word of the statute. A onetime Senate staffer, Breyer was far more willing to put his trust in a legislator and his or her staff to know a law's purpose as well as its words. Breyer seeks out evidence of a law's intent and context, he said, as the way to resolve disputes over its meaning. That approach, Breyer added, is more understandable to the public.
Scalia responded with exaggerated dismay. "I never heard that one before," he said. "Judging is best when it is most accessible to the public?" Scalia then launched into his oft-heard refrain about the public's lack of understanding of the work of courts, which he attributed to the news media's penchant for only reporting who won or lost, not the reasoning of a decision. "Was it the poor old widow, or the terrible insurance company?" Scalia said. "The stuff we have to decide is difficult, arcance ... not in the reach of everyone."
Breyer then suggested that Scalia had misinterpreted what he had said, though it was not entirely clear. If it was an argument Scalia had never heard before, Breyer said, "I wish you would think about it."
If one was listening to the debate for hints of the justices' views about current events, the pickings were slim. Scalia said, as he has before, that he will "never understand" how the text of the Contitution confers a right to an abortion.
And Scalia repeatedly spoke of the anti-democratic tendency of people nowadays to ask the courts, not legislators, to resolve issues. It's anti-democratic, he said, because "once something is declared unconstitutional, it is off the stage of democracy," whereas getting legislators to change laws or even amend the Constitution is the better way to go. "Once it is a right, we cannot vote about it."

In other out-of-district news, how funny is this lawsuit:

An official in the South Carolina House says Showtime Networks and HBO defamed him when they advertised the broadcast of an independent film he produced and co-starred in - "The Hills Have Thighs" - then showed a soft-core porn flick instead. James "Bubba" Cromer Jr. sued the media companies in Los Angeles Superior Court. Cromer, "elected Reading Clerk for the South Carolina House of Representatives," and a sometime filmmaker, said he was channel surfing on March 1, when, "to his delight," he saw that his second film, "The Hills have Thighs," was scheduled to debut on Showtime's The Movie Channel in the early morning on March 2. It would have been the first time one of Cromer's films had been shown on television. His first, "The Long Way Home: A Bigfoot Story," was shown at South Carolina's inaugural Indie Grits Film Festival in 2007, and was later named Best Narrative Feature at the New York International Independent Film and Video Festival. "The Hills Have Thighs" was completed the following year. Cromer, who wrote, directed and co-starred in the "Appalachian comedy," says the plot involves the mysterious disappearance of a "local hillbilly icon." Cromer claims he assumed the putative broadcast was the work of his newly hired talent agent. He says he tried to call the agent, but couldn't reach him. He claims his flick also was advertised for subsequent showing on HBO and pay per view. "Celebrating what they believed to be an exciting and wonderful event," Cromer says he and his father called family, friends, fellow lawmakers and members of the cast to make sure they watched or recorded the show. Cromer said he "also invited several thousand other friends and associates to watch via Twitter and Facebook."
***
To Cromer's horror, however, "the film which was announced to be his work, 'The Hills Have Thighs,' was in fact soft core pornography" that he had "nothing whatsoever to do with." Cromer said he had to spend a long, sleepless night, fielding emails, phone calls and text messages about the porn flick and its association with his name.

Congrats to Judge Huck

Our very own Judge Paul C. Huck received the Lifetime Achievement Award from the Jewish Federation tonight at the Hilton. Also honored: Judge Scott J. Silverman (Community Service Award) and Donald I. Bierman (Ted Klein Award).

My concern is that there are a few in the defense bar who see blood in the water...

...and are determined to attack the department’s prosecutors indiscriminately — and without any factual basis."

That was Lanny Breuer, assistant attorney general for the criminal division. John Pacenti covered the story in this week's Justice Watch column. Guy Lewis countered Mr. Breuer:

Former interim U.S. Attorney Guy Lewis, now a partner with Lewis Tein in Miami, said the pressures can be enormous. Telling an investigating agency that a completed investigation must be dropped without charges is the hardest part of the job for any prosecutor, he said. “There are going to be instances where prosecutors make mistakes. I did,” Lewis conceded. “What is important is for the prosecutor to own up to it.” He said the aggressiveness that is leading to some of the misconduct cases may stem from the war on terror. “The terrorism issue has spilled in a bad way into other more conventional-type cases,” he said. “I’m not saying aggressiveness is bad. But what I am saying is when you start throwing 95, 96, 97 mph fastballs, you got to be real careful about that.” Breuer said the Justice Department is addressing the discovery issue at the heart of the current misconduct allegations. Federal prosecutors must turn over any exculpatory evidence and evidence that could be used to impeach government witnesses. Holder is requiring all prosecutors, no matter how experienced, to take new discovery training. “We are confident that, through this comprehensive approach, we are equipped to meet our discovery obligations and minimize prosecutorial error,” Breuer said.

What do you guys think? Is there a problem out there with prosecutors and discovery? Or are defense attorneys filing motions without any factual basis? Or both?