John Pacenti knocks it out of the park

He's got two interesting stories in the DBR this morning:

1) Lew Freeman's emails from prison and 2) the age of our district's judges.

Here's a part of the Freeman article:

Other reports from Freeman dispel any notion of a "Club Fed" where white collar criminals enjoy the comforts of home.

He spins a story of when 11 "new spa members" showed up late one night and there was a shortage of mattresses. Inmates learned there were 300 new mattresses at the prison storage but couldn't be touched because they were to be used in case of a hurricane.

The temperature in the prison also fluctuates wildly, he relates. A cold snap in the fall was made even more brutal for inmates by an air conditioner still blowing. Freeman said he bought a wool cap for five tunas and another inmate loaned him a long-sleeved shirt.

"I was petrified of waking up one morning and urinating ice cubes from the freezing," he said.

Then when temperatures returned to normal, the air conditioning unit broke, and Freeman said he stripped down to a T-shirt and shorts at night to stay cool.

He also relates a time when three urinals broke and the hot water was turned off forcing inmates to take cold showers.

"If you wanted a warm shower it was up to you to supply it. No I didn't pee in (the) shower," he wrote.

Freeman spins a lot of bathroom humor. Not a big change from his days on the outside. He revels in the fact that there are private shower stalls, but adds he doesn't think he's in too much danger if he drops the soap: "I am too old and undesirable to this population."

And the age issue article has some interesting comments from our judges. Here's Judge King:

King didn't shy away from the issue. In a 45-minute interview, he talked about telling fellow judges and established attorneys in the community — the old lions of the bar, as he calls them — to alert him or Moreno if he starts to slip. King was articulate and entertaining. He said he takes no medication and seemed chagrined that he had to run to the eye doctor to update his eyeglass prescription.

King, who has been on the bench 40 years, still routinely travels to Key West for trials in the southernmost point of the district and is overseeing multidistrict litigation involving debit card fees. He still does some things old school. He will not sign an order electronically and keeps a paper printout docket of all the cases before him on the corner of his desk.

The judge said he also watches how his rulings hold up on appeal. He said if he is only reversed a couple of times a year among the numerous decisions he makes, he believes he still has what it takes to keep on the bench.

King said another reason judges don't readily retire is because they see the position as a calling.

"The philosophy is that this is sort of like becoming a priest or a rabbi or a minister," he said. "It is a life commitment."

Judge Moreno has a good quote: "Getting older, as in many things, is a good thing. Judges are like good wine, the older they get, the better they get."

Judge Cohn sentences Larry Wilcox to probation

Whew. Jon Baker made many enemies over the years with all of his arrests, so it wouldn't have been easy in jail. From CNN:

Larry Wilcox, the actor who played Officer Jon Baker on the 1970s TV show "CHiPs," was sentenced Friday to three years probation by a Florida judge for conspiracy to commit securities fraud.
Wilcox pleaded guilty in November and had been cooperating with the authorities, according to court documents. In addition to serving three years of probation, he was ordered to perform 500 hours of community service and pay a $100 fine. Along with Erik Estrada as Officer 'Ponch' Poncherello, Wilcox started in the show about two well-coifed, motorcycle-riding California Highway Patrolmen from 1977-1983.
The Securities and Exchange Commission charged Wilcox in October with paying kickbacks to pension fund managers and brokers to manipulate the volume and price of penny stocks and illegally generate stock sales.
The scheme involved more than a dozen other penny stock promoters and the SEC worked closely with the FBI and authorities in Florida in an investigation that involved "undercover operations."
Wilcox faced a maximum of five years in prison, but Judge James I. Cohn decided he deserved a lighter sentence.

In other news, Dennis Kucinich settled the olive pit case. SFL even got an email from him, and he posted some good pics.

"The judge wants to see you, Mark."

That's what a deputy U.S. marshal told Mark Steven Phillips when they arrested him today after 30 years on the run. According to the Miami Herald, Phillips responded: "The judge wants to see me from 30 years ago?" Jay Weaver has more:

A key member of the infamous Miami-based Black Tuna Gang, the biggest U.S. marijuana-smuggling operation of its time, was arrested by the U.S. Marshals Service Thursday morning in West Palm Beach -- more than 31 years after he skipped out of a federal trial.

Mark Steven Phillips, 62, was captured in his rented apartment at Century Village, a senior living community where he had been living in recent months, law enforcement officers said.

Does the Constitution Cafe at the federal courthouse...

...serve unpitted or pitted olives? It's an important question. You see, if they serve unpitted olives, people may get hurt:

Dennis Kucinich is suing the Longworth House Office Building cafeteria because of a sandwich.
You want more? The friendly Cleveland congressman filed suit against a number of companies that supply and run the congressional eatery, because in 2008 he bit into a "sandwich wrap" of some kind and hurt his teeth on an olive pit.

According to the suit: "Said sandwich wrap was unwholesome and unfit for human consumption, in that it was represented to contain pitted olives, yet unknown to plaintiff contained an unpitted olive or olives which plaintiff did not reasonably expect to be present in the food prepared for him, and could not visually detect prior to consumption."

Kucinich claims he suffered "serious and permanent dental and oral injuries" and has sustained "other damages as well," including "suffering and loss of enjoyment."

Kucinich seeks $150,000 in damages. Gawker found video of Kucinich talking on the floor of the house five days after Olivegate, and he seems fine, but just as it's inappropriate to suggest that Jay Cutler was faking his injuries because he could briefly ride a bike on the sidelines, we shouldn't assume that Dennis wasn't suffering from an acute loss of enjoyment as he addressed the House.

Oh boy... Maybe this is why Obama hinted at tort reform during the SOTU.

What else do we have this morning?

• Should Justice skip the SOTU? No, says this op-ed.
• How could you think this guy was really an immigration lawyer?
• Some Jon Stewart awesomeness:
  
  

  The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
  State of the Union 2011 - Republican Rebuttal
  http://www.thedailyshow.com/
  Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook

Does anyone use the Bluebook anymore?

Judge Posner certainly doesn't. Here's the intro to his review of the 19th edition:

Nowadays the word “hypertrophy” is used mainly to denote a class of diseases in which an organ grows to an abnormal size because of the uncontrolled growth of the cells that constitute it. But the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need.2 An example is the Egyptian pyramids. The pharaohs needed a secure burial place because they were buried with valuable possessions that they believed they would need in the afterlife. But security didn’t require an immense pyramid of stones above the burial place. This is not to suggest that the elaboration of the pharaonic burial places was mindless; but it served cultural, religious, and political needs remote from the functional need to secure the burial place against thieves.3 Examples of hypertrophy in law abound. The staff of the U.S. Supreme Court is an example. Over the last half century it has grown in both size and quality. There are twice as many law clerks, they are more carefully selected, and they have served a year as a law clerk to a lower court judge, usually a federal court of appeals judge. And because of the creation of the “cert pool” in
which all but two of the Justices participate, the average amount of time that law clerks spend preparing cert memos for the Justices has fallen, even though the number of petitions has risen. This allows the clerks more time to work on the Court’s principal output—opinions in argued cases. Yet the number of such opinions issued by the Supreme Court has fallen by half since 1984, without any discernible increase in quality, though the current Justices are on average as competent and conscientious as their predecessors.

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture. Many years ago I wrote a review of The Bluebook, then in its sixteenth edition. My review was naïvely entitled “Goodbye to the Bluebook.”4 The Bluebook was then a grotesque 255 pages long. It is now in its nineteenth edition—which is 511 pages long.

I made a number of specific criticisms of The Bluebook in that piece, and I will not repeat them. I don’t believe that any of them have been heeded, but I am not certain, because, needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness—“The horror! The horror!”—and am tempted to end there.

Tuesday News and Notes

1. If a criminal defense lawyer did this, we'd be locked up. For Justice Thomas, it's just a mistake.

2. President Barack Obama has selected White House Deputy Counsel Donald Verrilli Jr. to serve as Solicitor General. From BLT:

If confirmed by the Senate, Verrilli would fill the position now held by acting Solicitor General Neal Katyal, who stepped into the job when Solicitor General Elena Kagan was nominated to the Supreme Court.

Verrilli was the former co-chair of the Supreme Court and Appellate practice group in the Washington office of Jenner & Block from 2000 until he joined the Obama Department of Justice in 2009 as an associate deputy attorney general. While at the Justice Department, Verrilli focused on domestic and national security policy issues.

Verrilli is a veteran Supreme Court advocate. He has argued 12 cases before the justices and participated in more than 100. His cases have ranged from the intricacies of intellectual property, such as his defense of music industry copyrights in 2005, to the complexities of the death penalty, such as his pro bono work in Wiggins v. Smith.

Besides his work in the Supreme Court, Verrilli also has participated in about 90 cases in federal and state appellate courts, arguing more than 30 appeals. While at Jenner, he was a member of the firm’s governing policy committee and chair of its diversity committee.

A former clerk to Justice William Brennan Jr., Verrilli is a graduate of Columbia Law School.

The solicitor general is the only position in government which, by law, must be filled by someone “learned in the law.”

3. Which Supreme Court Justices will attend the State of the Union tonight? Remember the controversy last year with Obama and Alito getting into it... ATL has the odds of who will show up here.

4. SFL has some (good) advice for Yoss. And Rumpole is right on with his rant about the closing of I95 yesterday. Perhaps all the traffic delayed him in getting me my check... I'm still waiting for the $50 he owes me from last year's bet.

Monday morning hits

1. Who wouldn't pick Justice Kagan for jury duty? (via Washington Post)

2. 9th Circuit judge Stephen Reinhardt was reversed twice last week on the same day. Ouch. (via WSJ)

3. SFL writes the obit for the Miami City Club.

4. "I am not a terrorist." That was Mike Tein's client at the Playstation sentencing last week. Judge Gold sentenced the three defendants to 6 months of home confinement. (via Miami Herald). Disclosure -- I (along with Silvia Pinera-Vasquez) represented one of the defendants in the case.

Justice Scalia complains of an “Alfred Hitchcock line of…jurisprudence.”

A unanimous Supreme Court (per Alito) in NASA v. Nelson upheld the government's right to conduct background checks on employees. Justice Scalia (along with Justice Thomas) concurred, saying that the Court again refused to answer the main questions presented by the case and that the minimalist strategy of the Court is bad for lower courts and others trying to figure out what the case means. From the NY Times:

Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, issued a caustic concurrence. He said he “of course” agreed with the result in the case, saying the plaintiffs’ objections to the background checks were ridiculous.

“The contention that a right deeply rooted in our history and tradition bars the government from ensuring that the Hubble telescope is not used by recovering drug addicts” is, he said, “farcical.”

But Justice Scalia aimed his harshest criticism at the six justices who signed the majority opinion, returning to a theme he pressed last year — that the court is violating its duty and harming its reputation in issuing vague decisions.

“Whatever the virtues of judicial minimalism,” he wrote, “it cannot justify judicial incoherence.”

The majority opinion, he continued, “provides no guidance whatsoever for lower courts” and “will dramatically increase the number of lawsuits claiming violations of the right to informational privacy.” Though the court ruled against the plaintiffs, he said, the majority opinion amounts to “a generous gift to the plaintiffs’ bar.”

Justice Scalia said he would have taken a simpler approach in the case, NASA v. Nelson, No. 09-530.

“I would simply hold that there is no constitutional right to ‘informational privacy,’ ” Justice Scalia wrote.

“Like many other desirable things not included in the Constitution,” he wrote, “ ‘informational privacy’ seems liked a good idea.” But he said it should be enacted through legislation rather than imposed by judges through constitutional interpretation.

While we are on the subject of fun writing, Judge Carnes is at it again, this time in Carolyn Zisser v. The Florida Bar. The intro:

This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.”* The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that
field. The easier it is to be certified, the less that certification means. The goal of the Florida Bar’s certification process is to recognize in various fields of specialization exceptional attorneys, meaning those who stand out from others in all of the ways that make an attorney outstanding. To ensure that certification achieves its purpose, the Bar has established a body of rules and procedures, including a confidential peer review process, so that an attorney
certified in an area of practice truly is “somebody” in that field. Without such rules and procedures, the process, the decisions it produces, and the resulting recognition would not amount to much.

*W. S. Gilbert, The Savoy Operas 543 (Wordsworth Editions 1994) (1889) (spelling altered).