Headline writer needed

According to Rumpole, my headlines for posts aren't exciting enough.  I need more like "Summer is Over."  Oh well.

Anyway, there's lots of coverage regarding the Posner-Scalia debate, including Brian Garner's latest response in which he says that "Judge Posner went seriously off the rails in his review."  Yikes.  David Lat spoke to Posner and asked if this was personal.  Posner's response:

There is no personal animosity between Justice Scalia and me, or at least not on my side — I haven’t seen him for five or six years (we were at a conference on national security in Ottawa about that long ago). As you point out, we were colleagues in the 1970s at the U. of C. law school before we both became judges. I think I’ve described him in print as the most influential Supreme Court Justice in the period since his appointment, and I certainly adhere to that view.
I suppose it’s unusual for a lower court judge to criticize judicial or extra-judicial work by a Supreme Court Justice in public; but recall that Judge Wilkinson wrote a very critical law review article about Justice Scalia’s opinion in the Heller case. (I wrote a critical article about the opinion, as well, for the New Republic.) It’s probably not an accident that both Judge Wilkinson and I are former academics, to whom disagreement in print, without personal animosity having engendered it, comes naturally.

Meantime, Scalia is in Vegas:

A planned visit by conservative U.S. Supreme Court Justice Antonin Scalia to a Las Vegas Roman Catholic church for a ceremony seeking divine guidance for legal professionals and to a Las Vegas Strip casino reception afterward was drawing criticism Tuesday from a liberal activist who promised demonstrations to mark the events.
Scalia, who is due to begin his 27th year on the court next month, also is scheduled Wednesday to speak to law students and faculty at the Boyd School of Law at the University of Nevada, Las Vegas.
Linda Overbey, a union organizer and volunteer with the advocacy group MoveOn.org, focused on Scalia's planned attendance at a Red Mass liturgy and a reception following the service hosted by the conservative St. Thomas More Society of Nevada at the Palazzo resort. The property is owned by Las Vegas Sands Corp. and its chief, Sheldon Adelson.

 Maybe this could be the subject of a future Pacenti rant.

Wednesday happenings

1.  Nice win for Marc Seitles and Ed Kacerosky, which is covered by John Pacenti in the DBR:

For Seitles, it was the equivalent of going all in during a poker round. He waived attorney-client privilege and laid out what he had for prosecutors. Seitles decided to take "a different road with this case" for the man who was Colombia's air security secretary from 2002 to 2005.
"I never worked harder on something in all my life," he added.
The U.S. attorney's office had no comment on the charge being dropped. The document dismissing the charge Friday supplied no explanation.
Both Seitles and Kacerosky started working pro bono, knowing Ortega's family could no longer afford the long hours it took to root out the truth. Even though the government said it had a cooperating witness, Kacerosky found a co-defendant who told him authorities had arrested the wrong Carlos.
They went through hundreds of hours of phone calls. They found Colombian authorities mixed up not only two airplane brokers named Carlos, but a third who was nicknamed Carlos.
Ortega's family was in tears when they picked him up outside jail.

2.  The lawyer under the microscope of Judge Turnoff took 5 more than 80 times.  Via The Sun-Sentinel:


Disbarred lawyer Emmanuel Roy got a chance Tuesday to explain himself in a South Florida case where a federal judge found Roy behaved so outrageously that he should return $275,000 in exorbitant fees to a former client.
Instead of explaining, Roy invoked his Fifth Amendment right against self-incrimination — more than 80 times in less than an hour — when called to testify in federal court in Miami Tuesday by the lawyer who is now representing Roy's former client.
"I'm exercising my Fifth Amendment right," Roy said in response to questions from lawyer Paul Petruzzi.
The answer was the same regardless of the question — does Roy have any bank accounts, has he hidden assets in other people's names, does he currently live with his wife, could he identify himself in a photograph? It got so repetitive that Roy, who is also facing mortgage fraud charges in New York, abbreviated his answer to "Exercising my Fifth Amendment right" over and over again.

3.  Jay Weaver covers Judge Moore's decision concerning in-state tuition prices for students who live in Florida but have non-resident parents:

A federal judge in Miami has ruled the state is discriminating against potentially thousands of U.S. citizens who live in Florida, by charging them higher out-of-state tuition as nonresident students simply because their parents may lack legal U.S. residency.
U.S. District Judge K. Michael Moore found Tuesday that Florida's rule classifying such students according to their parents' undocumented immigration status violates the Constitution's equal protection provision.
"By virtue of their classification, (these Florida students) are denied a benefit in the form of significantly lower tuition rates to the state's public post-secondary educational institutions," the judge found in a 19-page opinion that was highly critical of the state's policy.
"This creates an additional obstacle for (them) to attain post-secondary education from one of the state's public institutions that is not faced by other residents."
Moore, who was nominated by President George H.W. Bush and confirmed in 1992, further found the policy "does not advance any legitimate state interest, much less the state's important interest in furthering educational opportunities for its own residents."

Read more here: http://www.bellinghamherald.com/2012/09/04/2675656/judge-rules-against-florida-policy.html#storylink=cpy

Tuesday morning news and notes

1.  Adam Liptak has this interesting article in the NY Times about "the death clerk" at the Supreme Court:

The unseemly and unsettling spectacle of a last-minute legal scramble in the shadow of the ultimate deadline, with the condemned inmate waiting for word of his fate just outside the death chamber, may suggest that the Supreme Court does not render considered justice when it is asked to halt an execution.

But it tries. Indeed, the court goes to extraordinary lengths to get ready, and its point person is a staff lawyer named Danny Bickell.

“Cases where there is an execution date,” he said with a sigh, “that’s where I come in.”

Mr. Bickell’s formal title is emergency applications clerk, but capital defense lawyers have an informal title for him, too. They call him the death clerk.

In remarks at a conference of lawyers specializing in federal death penalty work at a hotel here last month, Mr. Bickell provided a rare inside look at the Supreme Court’s oversight of the machinery of death in the United States. 

2.  Another prosecutor behaving badly and again DOJ goes to bat for him.  Via BLT:

A clash between the U.S. Justice Department and the D.C. Office of Bar Counsel over a former federal prosecutor's alleged ethics transgression is playing out in front of a Washington attorney ethics board.
Andrew Kline, a former assistant U.S. attorney in Washington, is challenging an ethics committee's conclusion in March that he didn't play by the rules in a shooting case when he kept certain information to himself that the victim had earlier provided to police.
The Justice Department is backing Kline in the dispute, pending before the D.C. Court of Appeals Board on Professional Responsibility. DOJ lawyers argue that the hearing committee too broadly interpreted a prosecution conduct rule, opening the door for ethics cases and "unwarranted sanctions" against prosecutors. Kline is no longer in government service.
The D.C. Office of Bar Counsel this month filed a response to Kline and DOJ, which submitted an amicus brief in the case supporting the former assistant U.S. attorney. You can read bar counsel's brief here and the DOJ brief here.

At issue in the case is whether Kline, in 2002, should have turned over information the victim told police shortly after the shooting. The victim's recollection cast doubt on the identity of the shooter. Kline obtained the information from a police officer who spoke with the victim at a hospital.
DOJ lawyers contend Kline was not obligated to turn over the victim information because it was not "material," or relevant, to the defense.
Elizabeth Herman, deputy bar counsel, said in her brief that Kline's legal team "selectively picks and highlights information from the criminal trial records and disciplinary hearing in an attempt to distort the record and sanitize his testimony before the committee."

3.  Griselda Blanco was assassinated.  Rumpole covers it here:

The history of Miami includes many characters, some good, some bad. Griselda Blanco, as bad as she was, occupies a place in this town's history. Her murder, if she was indeed killed, does little to assuage  the wide swath of death and destruction she wrought in our town. Blanco's story was the centerpiece of director Billy Corben's Cocaine Cowboys documentary.  If you new ASAs and PDs want to know the history of where you're working, Cocaine Cowboys is a good place to start.

I like Billy's quote in the Herald article: “This is classic live-by-the-sword, die-by-the-sword,” Corben said Monday. “Or in this case, live-by-the-motorcycle-assassin, die-by-the-motorcycle assassin.”

Read more here: http://www.miamiherald.com/2012/09/03/2983362_p2/cocaine-godmother-griselda-blanco.html#storylink=cpy

Friday News & Notes

1.  An interesting oral argument early this morning in the 11th Circuit (8am start!). I love pirate cases. U.S. v. Bellaizac-Hurtado, Case No. 11-14049: A consolidated appeal in which four defendants are challenging the constitutionality of applying U.S. jurisdiction, under the Maritime Drug Law Enforcement Act, over a vessel transporting cocaine, seized in Panamanian territorial waters, pursuant to Congress's authority "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."  U.S. Const. art I, § 8, cl. 10. The question is whether drug trafficking in foreign territorial waters is a violation of the "Law of Nations" and thus within Congress's authority to criminalize. Appellate gurus were on the case-- Tracy Dreispul argued the case for the FPD and Jonathan Colan for the USAO.

2.  Judge Richard Posner wrote an cutting piece about Justice Scalia's book on interpretation.  This comes after Scalia made fun of Posner.  Cat fight!  Here's a snippet from Posner's article but the whole thing is really worth a read:

Those are more persuasive points than the dictionary’s definition, and as is often the case, the court got the definition wrong. (Scalia and Garner miss this, too.) A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.

3.And while we're in the 11th Circuit, check out this opinion today dealing with Segways and Disney.  Disney didn't want them in the park and people freaked out, including DOJ, a bunch of Attorneys General and others.  The 11th affirmed, basically saying that the settlement was fair in which Disney agreed to "develop a four-wheeled, electric-stand up-vehicle (“the ESV”) for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter."

4. HAVE A NICE LONG HOLIDAY WEEKEND.

BREAKING -- William Thomas being vetted for Federal Judgeship

That's been the talk of the town for the past few weeks, but now FBI agents and ABA officials are doing their background on Judge Thomas and the secret is out.

This is fantastic news -- Will Thomas is a great judge and person.  He enjoys a very strong reputation as a trial judge in state court where he has handled both criminal and civil cases.  He also has a federal background having worked at the Federal Public Defender's Office.

Judge Thomas is known as a hard worker, sometimes trying cases late into the night.  And he is known as fair, calling cases right down the middle.  Both sides respect him and he'll make a great federal judge.

Now the only question is timing.  With the election around the corner, will Judge Thomas be nominated and confirmed before the end of the year?  I really hope so.

"Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

That was Chief Justice John Roberts when we he was an attorney in the Reagan adminstration.

Slate has an article today asking whether the Supreme Court really should be taking the summer off:

Either way, the summer recess comes with some significant costs. Because the justices do not meet to decide whether to grant or deny review in cases during the summer months, thousands of legal petitions pile up during their absence. The court plows through this backlog at their first conference (aptly referred to as the “long conference”) in the last week of September. But they obviously cannot give these petitions the same consideration as those that arrive later in the term. (For this reason, savvy appellate attorneys know that it is best to avoid filing petitions over the summer if they can.)

The impending summer recess can also force the court to rush decisions without taking the time to articulate their reasoning, as at least one scholar argues occurred in the Pentagon Papers case—a momentous case with serious national security implications that was decided in a three-paragraph, unsigned opinion in late June. The summer break was behind the timing of this past term’s health care decision. As was widely reported, a decision had to be made by the end of June because of Chief Justice Roberts’ Malta trip in the first week of July.

When pressing issues arise during the recess, the matter is often handled by a single justice “in chambers” who must make important decisions about whether to grant stays, injunctions, or extensions without consulting with his or her absent colleagues. For example, Justice William Douglas issued an “in chambers” order in August 1973, which put a stop to military operations in Cambodia. He explained that he would normally have referred this question to the full court, but the summer recess made that “impossible.”

The three-month break is particularly galling at a time when the Supreme Court decides fewer cases than any other court in modern times. In recent years, the court has heard an average of about 80 cases a term, which is half the number they heard 20 years ago and makes up fewer than 1 percent of the approximately 10,000 review petitions they receive. The rest of the federal judiciary does not get the same extended summer vacation, and they handle a great deal more cases. It is also a little disconcerting that many of the justices use the time off to generate outside income. Shouldn’t their time be filled by the job they are paid (by all of us year-round working taxpayers) to do?

Cool montage

C-SPAN has put together a short string of clips of every presidential candidate since 1984 accept the nomination.  Is Al Gore impersonating a robot?

Tuesday Court update-- Miami and FtL open; Key West, WPB, Ft Pierce closed.

August 27, 2012 - 7:00 pm
In light of the announced reopening of public schools in Miami-Dade and Broward Counties, the United States District Court in Miami and Fort Lauderdale will reopen on Tuesday, August 28, 2012, including Bankruptcy and Probation. The Key West, West Palm Beach and Fort Pierce federal courthouses will be closed on Tuesday, August 28, 2012, as the Monroe, Palm Beach and St. Lucie Counties Public Schools have announced they will be closed. The Key West, West Palm Beach and Fort Pierce federal courthouses will reopen when the school systems in those counties reopen or upon further order of Chief Judge Federico A. Moreno.