Justice Kennedy uses pictures in opinion...

... to show the overcrowding in California jails. There's one of them to the left. Yikes, that looks just awful.

Doug Berman asks whether visual aids are appropriate in opinions:

Because it has long been known that a picture is worth a thousand words, I certainly think it appropriate and useful for courts to consider adding visual aids to their rulings. And yet, I also recognize that a move to using more visual images in judicial opinions could open up a very interesting can of pictorial worms. In this Plata case and in some other settings, the visual aids added to opinion have usually been made part of the case's record by one of the parties. But I wonder if it would it be appropriate for an opinion to reprint a dramatic graphic or a special pictorial submitted into the record by the parties. Further still, might some justices or judges even consider creating their own special graphics or even a video to highlight and punctuate the pictures they are trying to create with their words?

Especially because I am a terrible artist, I hope graphic skills do not soon become essential to being an effective litigator. And yet, in this great new world full or new media, I do not think it is crazy to believe (and fear?) that visual images may begin playing a larger role in judicial decision-making.

I don't think there is anything to fear. Pictures and evidence from lower courts should be made part of opinions. It helps the reader and the public to see what is at issue. I like it.

Bail for 76-year old Imam? UPDATE -- nope

I was planning another rant (see here and here) this morning on the bail reform act and how DOJ's asks for detention way more than it should. But I have a small fire drill this morning on a case that I have to deal with...

John Pacenti and Jay Weaver have articles about the terrorism charges and the bond hearing this morning for Hafiz Muhammad Sher Ali Khan. Needless to say, I'm not sure why there couldn't be conditions of release set for Khan and his son that would ensure that he shows up for court and not engage in criminal activity. It's almost impossible to prepare for any trial, let alone a trial with classified material, while your client is detained (especially in the special housing unit).

I do like that I'll be able to say KHAN on the blog for the foreseeable future:



UPDATE -- Judge Garber denied bond for Khan and his son.

Quick news and notes

1. One of the Mutual Benefits defendants has pled out, which means that Judge Jordan (or whoever takes over his division after he goes up to the 11th Circuit) will only have one lengthy trial, not two. From Jay Weaver's article:

A prominent attorney whose fortunes rose with a Fort Lauderdale viatical insurance company at the center of a $1.25 billion investment fraud case pleaded guilty Wednesday to a single conspiracy charge, marking a major development in the long-running prosecution of executives and others at Mutual Benefits Corp.

Michael McNerney, 62, of Fort Lauderdale, admitted that as its lawyer, he helped the now-defunct company lure thousands of investors worldwide into buying dubious life insurance policies held mostly in the names of people dying of AIDS.

His role was part of an alleged investment scam lasting from 1995 to 2004 that authorities say rivals the $1.2 billion Ponzi scheme of disbarred Fort Lauderdale lawyer Scott Rothstein, convicted last year of selling fabricated legal settlements in a separate criminal case.

The Mutual Benefits and Rothstein cases rank as Florida’s largest fraud prosecutions.

He got a good deal -- a five year cap under Section 371.

2. The 11th Circuit's en banc decision today in Gilbert v. United States has all kinds of great rhetoric. Carnes wrote for the majority on complicated habeas issues, but he characterizes the issue as: "The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does notexceed the statutory maximum."

There are 105 pages of opinions, and I haven't read them in depth yet. But I found some good passages, especially from the dissents.

Judge Hill starts his dissent with this:

Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.

More:

The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.

Wow. Now that's good stuff. I will post more as I wade through it all.

Go, Bill Barzee, Go!

My suite-mate Bill Barzee showed the SDNY how we roll down here in the SDFLA. He threw a bunch of great body blows today during his opening for Zvi Goffer, the off-shoot of the Raj Rajaratnam case. Via Reuters, the prosecutor threw the first jab:

The opening statements in the Manhattan federal court trial began with a prosecutor, Andrew Fish, turning around to point his right forefinger at one of the three defendants, securities trader Zvi Goffer, and call him "the ring leader of this criminal scheme."

Goffer, 34, who once worked at Raj Rajaratnam's Galleon Group and two other trading firms, is on trial with his brother and fellow trader Emanuel Goffer, 32, and another trader, Michael Kimelman, 40. The trial comes a week after Rajaratnam was found guilty of insider trading by a jury in the same courthouse.

Barzee then gave the smack down:

"Zvi Goffer, you're fired. That's what Raj Rajaratnam told Zvi Goffer," Goffer's lawyer, William Barzee, said as he began his opening statement, echoing the well-known real estate developer Trump's trademark phrase on his reality TV show. "He was fired because he lost so much money."

Barzee said his client waded into "the river of gossip" of Wall Street for tips and speculation, not for improperly leaked secrets as the government charges. "He was like a gold prospector searching for gold in a river," Barzee said.

Prosecutors have described the broad Galleon probe as the biggest investigation ever of insider trading at hedge funds.

The Goffer brothers and Kimelman are accused of bribing two lawyers at the prominent law firm Ropes & Gray with tens of thousands of dollars for secret information on takeover targets. The case of each man will be decided separately at the trial, which is expected to last up to five weeks.

I just love this part:

Barzee told the jury that another lawyer -- Jason Goldfarb, who the government says also passed tips to the defendants -- was a workers' compensation lawyer who had nothing to do with corporate mergers.

He said Zvi Goffer had a nickname for Goldfarb -- GQ.

"It stood for 'Gossip Queen.' That was the kind of guy Jason Goldfarb was. He would repeat anything that he ever heard from anyone" talking to Zvi Goffer "endlessly about dozens and dozens of stocks." Goldfarb has pleaded guilty.

Go get em Bill.

If you are checking the blog from you car this morning...

...avoid US1. Horrible accident at 17th, and US1 is closed.

If you are stuck, here are some links:

1. The Taj Mahal judge is in trouble:

The appellate judge who orchestrated the construction of the elaborate "Taj Mahal" courthouse was charged Tuesday with abusing his authority as a judge, destroying public records and conduct that demonstrates he is unfit to hold office.

The charges against 1st District Court Judge Paul M. Hawkes were leveled by the Judicial Qualifications Commission after an investigation that focused on his push for a new $50-million courthouse in the midst of a budget crisis.

Hawkes' conduct and behavior "demonstrated a pattern of conduct that can only be characterized as intemperate, impatient, undignified and discourteous,'' the JQC alleged. That conduct has "brought the entire judiciary of the state of Florida into disrepute, has inflicted substantial harm upon the entire state court system and has therefore demeaned the entire court system of the state of Florida."

Seems like a scapegoat to me.

2. Justice Thomas speaks, but not at Court:

Thomas, who was born in nearby Pin Point, told the Augusta Bar Association that the downward spiral of public discourse from people who are "drunk on their own opinions" must come to an end.

"You don't just keep nagging and nagging and nagging. At some point it's got to stop. Sometimes, too much is too much," he said. "I think we are reaching the point where we are beginning to undermine the integrity of the law

3. The Fifth Circuit issues a strong opinion to keep courtrooms open to the public.

4. The Fourth Amendment is slowly dying. This is the latest opinion from the Supreme Court, and it was 8-1, with Alito writing the majority and only Ginsburg dissenting. It should come as no surprise that Kagan (the former SG) and Sotomayor (a former prosecutor) have no love for the 4th. From the Times:

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.

The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

5. The second phase of the mortgage fraud trial started up yesterday before Judge Cohn. Thankfully Michael Walsh is OK and is participating. I hope he does well and am rooting for him and his client.