"Canine cocaine connoisseurs” would “roam the streets at random, alerting the officers to people carrying cocaine.”

That was William Brennan in a dissent written, fittingly enough, in 1984. Tomorrow, the Supreme Court takes up the dog sniff question again, this time dealing with the home.  Adam Liptak has more:

Alan Diaz/Associated Press

The Florida Supreme Court threw out the evidence in a case involving Franky, a retired narcotics detector dog.

Aldo, a German shepherd, and Franky, a chocolate Labrador retriever, are exceptions. The Supreme Court plans to hear their cases on Wednesday.

The basic question in both cases, said Orin S. Kerr, a leading expert on the Fourth Amendment right against unreasonable search, is this: “What do you think of a dog’s nose?”

It is surely a marvel. But is it also, as the Supreme Court has suggested in previous cases, essentially infallible?

The great thing about dogs trained to sniff out drugs and other contraband, the court has said, is that they cannot invade human privacy because their noses reveal, as Justice John Paul Stevens put it in 2005, “no information other than the location of a substance that no individual has any right to possess.”

As the prosecutors in Franky’s case wrote, “anything else that the dog smells remains private.”

But there is reason to doubt that dogs are, as a brief for two groups of criminal defense lawyers put it, “binary contraband detectors.”

Justice David H. Souter, in a dissent from the 2005 decision, cited a study showing “that dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time.”

“The infallible dog,” he wrote, “is a creature of legal fiction.”

Federal Government closes, except for Supreme Court (UPDATED)

Everyone else in Washington, DC and NY today is closed, except for the Supreme Court (and Howard Stern).  The Court granted cert in four new cases.  Per SCOTUSblog:

The Supreme Court, fully at work while most of the rest of official Washington takes a weather day off, agreed on Monday to hear four new cases, including a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately.  That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan.  The new case on that question is Trevino v. Thaler (11-10870).
The other granted cases involve a test of whether a convicted individual’s claim of innocence of the crime will be treated as an excuse for failing to pursue a federal habeas challenge on time (McQuiggin v. Perkins, 12-126),  clarification of how the Internal Revenue Service calculates the foreign tax credit (PPL Corporation v. Commissioner, 12-43), and whether misconduct by a trustee in bankruptcy has an effect on the debts to be discharged (Bullock v. BankChampaign, 11-1518).

UPDATE-- the Supreme Court will be closed tomorrow (Tuesday).

Mike Scarcella covers how a Romney administration would change DOJ.  A very interesting piece:


Former U.S. attorneys general William Barr and Michael Mukasey are among top ex-DOJ lawyers advising the Romney campaign on law enforcement issues. The team also includes former Criminal Division assistant attorney general Alice Fisher, the head of the Washington office of Latham & Watkins, and George Terwilliger III, a former acting attorney general under President George H.W. Bush, who recently announced that he'll be leaving White & Case to join the D.C. office of Morgan, Lewis & Bockius on November 1.
Business interest groups have pressed DOJ in recent months to provide a better road map for companies to comply with the Foreign Corrupt Practices Act, a powerful anti-bribery tool that has been a boon for Holder's department. Addressing the FCPA and white-collar investigations, Terwilliger last week published a paper through the U.S. Chamber of Commerce's Institute for Legal Reform insisting that DOJ give companies a clearer sense of the foundation when charges are not brought. In short: Corporations want better-defined boundaries, he said.
Some critics see stepped-up FCPA actions as a hindrance to American competitiveness abroad. Not Lanny Breuer, the DOJ Criminal Division leader. In a speech last week in London, Breuer argued the department's FCPA work has helped "level the playing field for U.S. and foreign ­companies, and motivates corporations to create genuine cultures of compliance."
Compliance expert Alexandra Wrage, president of TRACE International and a former chair of the American Bar Association's anti-corruption committee, said any attorney general under Romney would have a difficult time trying to scale back FCPA enforcement considering how much money companies have pumped into compliance in recent years. "The floodgates are open now," Wrage said.
In the False Claims Act arena, Elizabeth Papez, a Winston & Strawn litigation partner in Washington, said DOJ's "unprecedented enforcement agenda and record whistleblower awards" have created a backlog of cases for the department to investigate — whether Holder is leading the agency or another attorney general. Since 2009, according to DOJ, the department has recovered more than $11 billion under the FCA.
"The cost and uncertainty associated with prolonged investigations and delays in government intervention decisions can be a drain on the department and businesses that everyone should want to minimize," Papez said in an email. (Papez, a member of Romney's legal advisory team, said she was not speaking for the candidate.)

Closer to home, Rumpole covers Judge Milton Hirsch's ruling on fingerprints, which prohibits the State's expert from saying that the prints are "a match."  The order is an excellent read.  From Dave Ovalle's article:

In his order on the Borrego case, Hirsch analyzes the origin of fingerprint science, from Shakespeare’s The Second Part of King Henry to Mark Twain’s Life on the Mississippi to the British pioneering of fingerprint evidence in 19th-century colonial India.

In his order, he says that “no one can articulate a principle of anatomy, biology, physiology, pursuant to which two persons cannot have the same fingerprint.”
Attorney Tamara Lave, a University of Miami professor of criminal procedure, said that she believes Hirsch is right. The reason: experts such as those at the National Academy of Sciences — which authored a 2009 study on forensic evidence — say language describing an “absolute” fingerprint match is “unjustified.”
“What is unique is the joy in which he wrote his opinion. Most judges don’t go through the trouble of quoting Shakespeare and great works of American Literature,” Lave said.

Read more here: http://www.miamiherald.com/2012/10/28/3071658_p2/miami-dade-judge-rules-fingerprint.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/10/28/3071658/miami-dade-judge-rules-fingerprint.html#storylink=cpy

Michael Caruso to be sworn in today (UPDATED w pictures)

A big congrats to our new Federal Defender Michael Caruso.  Pictures from the event to follow.

Here are some pictures:

West Palm Beach courthouse closed tomorrow due to Hurricane Sandy

Gupta gets 24 month sentence

I had set the line at 36 months.  Professor Berman nailed it though predicting 24 months. 

Judge Rakoff is a model judge, giving an example of how there should not be a trial tax and explaining that the loss guidelines made no sense.  From law.com:

Rakoff rejected a guidelines range of 78 to 97 months as an irrational result because it was driven by the amount of money involved in Rajaratnam's trades and it was Rajaratnam, not Gupta, who made money on both bad and good news coming from within the secret confines of Goldman Sachs' boardroom. The judge said two years was enough to send a message of deterrence to would-be insider traders.
Rakoff ordered the sentence, set to begin on Jan. 8, after taking into account Gupta's charitable giving through organizations such as the Global Fund to Fight AIDS, Tuberculosis and Malaria. Rakoff said Gupta had extended a "big heart and a helping hand" to millions.

John Errol Ferguson's execution stayed

He was set to be executed last night at 6pm, but the 11th Circuit stayed the execution at 8pm (?!!?) and the Supreme Court upheld the stay.  It's been a roller coaster though for the last few days.  From the AP:

Following a slew of conflicting court rulings, a federal appeals court has blocked the scheduled execution of a mass killer convicted of eight killings that jolted South Florida in the 1970s. The U.S. Supreme Court upheld the stay.
The 11th U.S. Circuit Court of Appeals' decision Tuesday came during a flurry of legal decisions over claims that 64-year-old John Errol Ferguson suffers from mental illness so severe he cannot be executed. Ferguson, a paranoid schizophrenic with delusions he's the "prince of God," had faced a planned lethal injection at 6 p.m. Tuesday in Florida's death chamber.
The Supreme Court rejected an earlier Ferguson emergency appeal Tuesday – as did the 11th Circuit – but the high court would not agree to the state of Florida's request to overturn the later ruling. The appeals court set a schedule for motions that will likely delay the execution at least until the first week of November, if not longer.
Florida Attorney General Pam Bondi's office argued in court papers that the late ruling "makes a mockery of the state's compelling interest in finality" in Ferguson's case. He has been on death row for 34 years.

Judge Carnes, Florida's death penalty, and Shakespeare

Remember that case in which Judge Martinez found Florida's death penalty unconstitutional under Ring?

The 11th Circuit, per Judge Carnes and joined by Judges Marcus and Pryor, decided today that the death penalty was fine and dandy even though it's pretty clear that Judge Martinez is right and that the Florida death penalty can't survive Ring.

But, the 11th says that we have to wait for the Supreme Court to explicitly say so. Judge Carnes starts off this way:

Confident that he knew what the future would bring, one of Shakespeare’s
characters boasted that “[t]here are many events in the womb of time which will be
delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13. On the
subject of lower courts predicting that the Supreme Court is going to overrule one
of its own decisions, however, Judge Hand cautioned against “embrac[ing] the
exhilarating opportunity of anticipating a doctrine which may be in the womb of
time, but whose birth is distant.” Spector Motor Serv. v. Walsh, 139 F.2d 809,
823 (2d Cir. 1943) (Hand, J., dissenting). The Supreme Court has made Hand’s
warning a clear command by repeatedly instructing lower courts that when one of
its earlier decisions with direct application to a case appears to rest on reasons
rejected in a more recent line of decisions, we must follow the directly applicable
decision and leave to the high Court the prerogative of overruling its own
decisions. As will become apparent, those instructions are dispositive of the
State’s appeal from the grant of habeas corpus relief in this case.

Well, this case is off to the Supreme Court and my money is on Judge Martinez getting vindicated.

Judge Bandstra to JAMS

The DBR covers Judge Bandstra's departure to JAMS.  Good luck to him!  There are some good stories about him in the article:

Bandstra’s legal experience includes three years with Katten Muchin in Chicago followed by three more as an assistant U.S. attorney trying 30 cases under Stanley Marcus. He also spent three years at Fowler White Burnett handling medical malpractice for firm shareholder and co-founder Henry Burnett.

“Henry’s my mentor and the person I respect most,” Bandstra said.

He said his experience as a magistrate can help sparring sides see their legal situation more realistically.

“One of the things I’ve enjoyed most as a judge is the settlement of cases where I’ve had some input,” Bandstra said.

After South Florida’s district judges chose Bandstra as a magistrate in 1989, U.S. District Judge Eugene Spellman telephoned to welcome him with two interesting details.

“First of all, you weren’t my first choice,” Bandstra recalled him saying. “That took me back a little bit.

“The other thing was, ‘You should know you got the judges’ vote on the first ballot, which has never happened.’ ”



The debate last night was a good way to show how important facial expressions are during trial.  In the first debate, Obama lost not so much for what he said, but mostly because he kept looking down, writing, and shaking his head.

 Last night, Romney got trounced in part because he had this weird grin on his face all night which didn't seem appropriate.

 Plus, there was this: