1. The symposium was really interesting, especially Rumpole and SFL trying to partipicate by speaker phone and Twitter.
2. Another book on legal writing. I disagree with Russ Guberman's point here:
Has legal writing changed over the years? And if so, for the better or for the worse?
I hate to mythologize the past, but legal writing is changing for the worse. The advent of technology has ushered in an era of cutting-and-pasting that makes the finished product often read like a patchwork quilt, or as what Judge Ruggero Aldisert famously called a “promiscuous uttering of citations.”
3. Via How Appealing, the D.C. Circuit takes another shot at the 4th Amendment here:
"We conclude it was not clearly established in 2002 that the strip search of a person being introduced into a detention facility violated the Fourth Amendment."
Judge Judith Rogers dissented: "This is the first time a circuit court of appeals has suggested that the protections of the Fourth Amendment to the Constitution against unreasonable searches do not extend to an individual arrested for a non-violent minor offense who is awaiting arraignment apart from the general population of detainees, and is subjected to a strip search in the absence of reasonable suspicion he is hiding contraband or weapons."
I'm out. Have a nice weekend.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Friday, March 25, 2011
Thursday, March 24, 2011
Historical Society Centennial Symposium
Tim Ravich and Robert Kuntz are putting on a symposium tomorrow titled: "The Vital, Tempestuous and Changing Relationship Between the Court and Media." It's in Courtroom 4-2 of the Miami-Dade County Courthouse, starting at 8:30 -- 12:15. Speakers include Roy Black, John Hogan, Kendall Coffee, Brian Tannebaum, Robert Levenson, Joe Serota, Mark Seigan, Rumpole, SFL, Eddie Dominguez, and yours truly.
Here is how the event is described:
Throughout its long history, the 11th Judicial Circuit has hosted countless high profile cases. This three part, half-day symposium will showcase some of those trials that have impacted our community, and at times, our nation.
Part I – A 45-minute multi-media historical presentation by the 11th Judicial Circuit’s Court Historian Judge Scott J. Silverman. This presentation will focus on executions of convicted criminal defendants in Dade County between 1901 and 1917, and Giuseppe Zangara’s attempted assassination of President-Elect Franklin D. Roosevelt at Miami’s Bayfront Park in February 1930.
Part II - This portion of the symposium consists of a panel discussion of the William Lozano shooting of Clement Lloyd, the 1989 Miami riots, and Lozano’s 1993 re-trail.
Part III – The aspect of the symposium will conclude with a 1-hour panel discussion of the role the media in the courtroom. The discussion will include blogging, twitter, email, cameras in the courtroom, and feeding the 24-hour news cycle.
Here is how the event is described:
Throughout its long history, the 11th Judicial Circuit has hosted countless high profile cases. This three part, half-day symposium will showcase some of those trials that have impacted our community, and at times, our nation.
Part I – A 45-minute multi-media historical presentation by the 11th Judicial Circuit’s Court Historian Judge Scott J. Silverman. This presentation will focus on executions of convicted criminal defendants in Dade County between 1901 and 1917, and Giuseppe Zangara’s attempted assassination of President-Elect Franklin D. Roosevelt at Miami’s Bayfront Park in February 1930.
Part II - This portion of the symposium consists of a panel discussion of the William Lozano shooting of Clement Lloyd, the 1989 Miami riots, and Lozano’s 1993 re-trail.
Part III – The aspect of the symposium will conclude with a 1-hour panel discussion of the role the media in the courtroom. The discussion will include blogging, twitter, email, cameras in the courtroom, and feeding the 24-hour news cycle.
Tuesday, March 22, 2011
Talented economic crimes prosecutors leaving USAO (UPDATED)
Three of them that I know about:
Jeffrey Neiman (pictured), who is one of the leading tax prosecutors in the country, and was part of the UBS team, is starting his own firm and will be sharing space with Fred Hadaad in Broward.
Ryan Stumphauzer, who is the Deputy Chief of Economic Crimes and the Health Care Fraud Coordinator, and Ryan O'Quinn, who was Senior Counsel at the SEC and is now a securities prosecutor, are forming a partnership and will be practicing in Miami.
Three good guys. I'm sure this is going to be tough on the economic crimes section.
UPDATED -- I forgot to mention Andy Levi who recently left the economics crimes division as well, and is now at Nardello as "head of the Miami office."
Levi and O'Quinn were running the Mutual Benefits case (the expected 8 month trial before Judge Jordan), so it will be interesting to see what happens there.
Monday, March 21, 2011
"Why don’t we just abolish the exclusionary rule? That would be really simple. Whatever evidence tends to prove the truth comes in.”
Uh-oh. That was Justice Scalia this morning in Davis v. United States:
JUSTICE SCALIA: Actually, why don't we just abolish the exclusionary rule? That would be really simple. Whatever evidence tends to prove the truth comes in. That would be a very simple system if we're looking for just simplicity, wouldn't it?
MR. DREEBEN: It would be an extremely simple system.
JUSTICE SCALIA: You're not proposing that, though?
MR. DREEBEN: Not in this case, because this case represents only an application of existing doctrine in the Court with respect to the purposes of the exclusionary rule.
As much as Scalia is the best friend of criminal defendants in 6th Amendment and sentencing cases, he is no friend of the 4th Amendment.
Volokh conspirator Orin Kerr argued for Mr. Davis in a case out of the 11th Circuit, and definitely held his own in a very difficult case. According to ScotusBlog:
Kerr, asking the Court to avoid simple labels, said the main problem with expanding the “good faith” exception so as to allow police to rely on Circuit Court precedent was that it would compromise the effect of the later Supreme Court ruling rejecting that precedent. Lawyers, the professor contended, would be discouraged from taking test cases to the Supreme Court to try to get new rules of Fourth Amendment law if it turned out that their client could not benefit from it: as soon as they asked for a new rule, the prosecution would counter that the “good faith” exception would take hold, and the client would lose anyway — even while winning on the constitutional point. That scenario, Kerr said, would mean the Supreme Court was merely issuing “advisory opinions,” and defense lawyers would see no reason to go for such unhelpful results.
The whole transcript is here. It's an interesting read.
In other SCOTUS news, the 9th Circuit got slapped. The LA Times:
The U.S. Supreme Court reinstated a Sacramento man's conviction and life sentence Monday for the rape of a 72-year-old woman in her apartment, dismissing an appellate court's decision that the prosecutor may have had racial reasons for removing two African Americans from the jury.
The Ninth U.S. Circuit Court of Appeals in San Francisco had granted a new trial to Steven Frank Jackson in July. The court said the prosecutor at Jackson's 2004 trial had used pretexts to justify his challenges to the two African American jurors, because the reasons he gave could have applied to jurors he left on the panel.
The Supreme Court, in a unanimous ruling, called the appeals court decision "inexplicable." The appellate judges should have deferred to state court rulings that upheld the prosecutor's explanations, the high court said.
***
"There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner," the court said.
Yikes.
While we're on the Supreme Court, it granted cert today in a sad case from the 11th, Maples v. Alabama. The issue: Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
Pretty crazy what happened in the case -- a death-row inmate missed a filing deadline that he never knew about because a BigLaw mailroom clerk messed up. The 11th Circuit said the Alabama courts were correct to procedurally default Maples, saying that finality wins out. Off you go to get your needle. No joke. Judge Barkett dissented and the Supremes took cert. (Judge Barkett's dissents are paying off). Here is the NY Times coverage of the case after former SG Gregory Garre of Latham & Watkins filed the cert petition.
Full disclosure -- I worked on the NACDL amicus brief filed in the 11th Circuit. Lisa Blatt of Arnold & Porter wrote excellent amicus briefs in the case.
UPDATED -- The New York Times covers the grant here. This is shocking to me: Troy King, Alabama’s attorney general, wrote that Mr. Maples had been represented by “a team of attorneys from a multimillion-dollar law firm” who should know that rules are rules.
“Filing deadlines apply to death row inmates,” Mr. King wrote. “Countless attorneys have missed filing deadlines over the years, and state and federal courts routinely dismissed their client’s tardy appeal as a consequence. This case is no different, and it presents nothing new or nationally compelling.”
JUSTICE SCALIA: Actually, why don't we just abolish the exclusionary rule? That would be really simple. Whatever evidence tends to prove the truth comes in. That would be a very simple system if we're looking for just simplicity, wouldn't it?
MR. DREEBEN: It would be an extremely simple system.
JUSTICE SCALIA: You're not proposing that, though?
MR. DREEBEN: Not in this case, because this case represents only an application of existing doctrine in the Court with respect to the purposes of the exclusionary rule.
As much as Scalia is the best friend of criminal defendants in 6th Amendment and sentencing cases, he is no friend of the 4th Amendment.
Volokh conspirator Orin Kerr argued for Mr. Davis in a case out of the 11th Circuit, and definitely held his own in a very difficult case. According to ScotusBlog:
Kerr, asking the Court to avoid simple labels, said the main problem with expanding the “good faith” exception so as to allow police to rely on Circuit Court precedent was that it would compromise the effect of the later Supreme Court ruling rejecting that precedent. Lawyers, the professor contended, would be discouraged from taking test cases to the Supreme Court to try to get new rules of Fourth Amendment law if it turned out that their client could not benefit from it: as soon as they asked for a new rule, the prosecution would counter that the “good faith” exception would take hold, and the client would lose anyway — even while winning on the constitutional point. That scenario, Kerr said, would mean the Supreme Court was merely issuing “advisory opinions,” and defense lawyers would see no reason to go for such unhelpful results.
The whole transcript is here. It's an interesting read.
In other SCOTUS news, the 9th Circuit got slapped. The LA Times:
The U.S. Supreme Court reinstated a Sacramento man's conviction and life sentence Monday for the rape of a 72-year-old woman in her apartment, dismissing an appellate court's decision that the prosecutor may have had racial reasons for removing two African Americans from the jury.
The Ninth U.S. Circuit Court of Appeals in San Francisco had granted a new trial to Steven Frank Jackson in July. The court said the prosecutor at Jackson's 2004 trial had used pretexts to justify his challenges to the two African American jurors, because the reasons he gave could have applied to jurors he left on the panel.
The Supreme Court, in a unanimous ruling, called the appeals court decision "inexplicable." The appellate judges should have deferred to state court rulings that upheld the prosecutor's explanations, the high court said.
***
"There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner," the court said.
Yikes.
While we're on the Supreme Court, it granted cert today in a sad case from the 11th, Maples v. Alabama. The issue: Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
Pretty crazy what happened in the case -- a death-row inmate missed a filing deadline that he never knew about because a BigLaw mailroom clerk messed up. The 11th Circuit said the Alabama courts were correct to procedurally default Maples, saying that finality wins out. Off you go to get your needle. No joke. Judge Barkett dissented and the Supremes took cert. (Judge Barkett's dissents are paying off). Here is the NY Times coverage of the case after former SG Gregory Garre of Latham & Watkins filed the cert petition.
Full disclosure -- I worked on the NACDL amicus brief filed in the 11th Circuit. Lisa Blatt of Arnold & Porter wrote excellent amicus briefs in the case.
UPDATED -- The New York Times covers the grant here. This is shocking to me: Troy King, Alabama’s attorney general, wrote that Mr. Maples had been represented by “a team of attorneys from a multimillion-dollar law firm” who should know that rules are rules.
“Filing deadlines apply to death row inmates,” Mr. King wrote. “Countless attorneys have missed filing deadlines over the years, and state and federal courts routinely dismissed their client’s tardy appeal as a consequence. This case is no different, and it presents nothing new or nationally compelling.”
Um, no different?! A man's life is on the line. Jeez.
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.
***
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.
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.
***
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.
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