Adalberto Jordan to be invested

It's today at 3:30 at the Wilkie Ferguson Jr. Courthouse and it's going to be packed.  I hear there are at least 3 overflow courtrooms set up.  How big will his Supreme Court investiture be?

Some other good news to report -- Wilkie Ferguson's son, Wilkie Ferguson III, is pictured below holding the Tony Award for best revival of a musical for 'Porgy and Bess,' which he currently appears in on Broadway. Very cool.

Ho hum Monday

School's out, camp started, and the Heat made the Finals (take that Rumpole!).

Other than that, the SDFLA is pretty quiet.

-- Clarence Thomas is now taking the position that oral argument should be done away with altogether (via Charlotte Observer):

Earlier, Sentelle and Thomas discussed the law before a luncheon audience at the Charlotte City Club. Somebody asked Thomas what he’d change about the process.
Do away with oral arguments, he said.
Thomas hasn’t spoken during the high court’s oral arguments for more than six years.

Read more here: http://www.charlotteobserver.com/2012/06/08/3302996/justice-honors-fellow-displaced.html#storylink=cpy

-- Paul Clement guards his oral argument prep time "jealously."

-- The WSJ blog reports that Rajat Gupta will not testify even though his lawyers said in open court on Friday that it was "highly likely."  Anything wrong with making the prosecutors work over the weekend to prepare the cross even though Gupta probably knew before the weekend that it was highly likely that he was going to take the stand?

Alicia Otazo-Reyes...

... will have her investiture today at 3pm in the new courthouse on the 13th Floor. 

Congrats to Judge Otazo-Reyes!

Does anyone miss, like I do, the investitures in the courtyard of the Dyer building with Christy's catering?

Trust us!

That's the message from Deputy AG James Cole's testimony before the Senate Judiciary Committee yesterday, in which he speaks out against Sen. Murkowski's (R-Ala) bill to require more disclosure under the federal criminal discovery rules.  Here are his comments.

In addition to the "trust us" argument (who needs changes to the rules when the internal guidelines say disclose!), the DOJ resorts to the unfortunate fear argument.  People will DIE if the discovery rules are changed.  The argument gets absurd:

Legislation requiring earlier and broader disclosures would likely lead to an increase in such tragedies.   It would also create a perverse incentive for defendants to wait to plead guilty until close to trial in order to see whether they can successfully remove identified witnesses from testifying against them.

 Really?  This is why prosecutors shouldn't be required to disclose Brady and Giglio well in advance of trial -- because defendants are going to wait to see if the witnesses are killed?

I've spoken out before about the need for discovery reform. But I never thought we'd see this sort of argument.  I hope that the Senate sees through it.

Judge Altonaga orders new trial for e-discovery violations

For a long time, it was impossible getting critical discovery from the government.  Now many prosecutors are taking the opposite approach -- overload the defense lawyer with mountains of discovery without identifying what is relevant or important.  This happened in a recent trial before Judge Altonaga, where the prosecutor disclosed unusable electronic discovery to the defense (led by a wonderful lawyer, Sabrina Puglisi, who was appointed). 

When the defense disclosed what it would be arguing at trial, the government used a computer expert to extract "Skype chats" that couldn't be seen by simply opening folders or searching on the computer.  They had to be extracted by an expert.  After the defendant testified, the government disclosed a 214 page log of the chats to the defense and called its expert in rebuttal.  The defendant was convicted.

Judge Altonaga ordered a new trial (here's the order):

The Government never advised the defense of the existence of the information obtained by Agent Etter. It simply never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed. It did not turn over the communications until the morning of its expert’s testimony, near the end of the trial. As the Defendant explains in his Reply [ECF No. 207], "[production of something in a manner which is unintelligible is really not production." (Id. 3). This is not like the cases cited by the Government in its Response [ECF No. 204] or Surreply [ECF No. 210], where courts have consistently refused to require the Government to identify exculpatory or inculpatory evidence within a larger mass of disclosed evidence. This case brings to the fore the challenges presented when electronically stored information is produced in discovery.

Commenting on the implications of criminal ESI production, the court in United States v. Briggs recently observed that while the Federal Rules of Civil Procedure need not be adopted as the standard for production of criminal ESI, the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii) should apply and the Government be required to produce ESI in a reasonably usable form. See No. 10CR184S, 2011 WL 4017886, at *8 (W.D.N.Y. Sept. 8, 2011). If, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial.

The Court witnessed the damaging impact the Skype communications had on Stirling’s credibility. His testimony was largely discredited without opportunity for rehabilitation or for the selection of a reasonable defense and trial strategy by counsel. Consequently, the interest of justice requires that he be afforded a new trial where he and his counsel can make an intelligent decision regarding whether and how he should testify.

This is an important ruling by a judge who understands the difficulties that are presented by e-discovery in federal criminal cases.  A number of cases around the country have started saying, like Judge Altonaga, that e-discovery in criminal cases must be produced in a reasonably usable form.  Not only did the government not do that in this case, but then it didn't even confront the defendant with the material and waited until rebuttal to use it. 

Big congrats to Sabrina Puglisi for the big win and bringing this issue up in this District.

Meantime, Rumpole has all of the coverage of Bill Matthewman's big win in a state murder case yesterday.  What a sweet way to head into his new life as a magistrate.  He gets to end his trial practice with a huge NG.  Well done.