"He’d have had a fairer shake in a tribunal run by marsupials."

Ouch.  That was Judge Kozinski dissenting in Alvarez v. Tracy:

When we take the judicial oath of office, we swear to
“administer justice without respect to persons, and do equal
right to the poor and to the rich . . . .” 28 U.S.C. § 453. I
understand this to mean that we must not merely be impartial,
but must appear to be impartial to a disinterested observer.
Today we do not live up to this solemn responsibility.
Relying on a ground not raised by either party here or in the
district court, we refuse to consider petitioner’s serious and,
in my opinion, meritorious claims. This is only the latest
indignity inflicted on a criminal defendant who, despite
having a seventh-grade education, was forced to defend
himself at trial; although having the right to a jury, was never
told that he had to ask for one; and who was therefore
convicted and sentenced to eight years in prison in a bench
trial where neither the prosecution nor the judge lifted a
finger to bring the accusing witness into court. He’d have
had a fairer shake in a tribunal run by marsupials.
I am troubled by the disparate way we treat the parties.
Alvarez and the Community both failed to raise legal issues
at the proper time and in the proper manner. Alvarez failed
to raise his jury trial and confrontation claims by way of a
direct appeal within the tribal court; the Community failed to
raise an exhaustion defense in district court. The Community
committed an additional default by also failing to raise this
issue on appeal—something we’ve repeatedly held is an
independently sufficient basis for declining to address it.

I also like this passage:

I have read the opinion many times and disagree with
pretty much everything in it, including the numerals and
punctuation. I explain why in the pages that follow, but first
I pose a more basic question: How can a court committed to
justice, as our court surely is, reach a result in which the
litigant who can afford a lawyer is forgiven its multiple
defaults while the poor, uneducated, un-counseled petitioner
has his feet held to the fire? I attribute no ill will or improper
motive to my excellent colleagues. They are fair, honorable
and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See,
e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123
(9th Cir. 2010) (Kozinski, C.J., dissenting from denial of
rehearing en banc). I can find no justification for showing
such solicitude for the overdog while giving the underdog the
back of the hand.

“What about the language at pages 54 to 55 of the Petitioner’s brief? You know, ‘Dada make a nice bed for mommy at the bottom of the lake’”

That was Chief Judge Roberts last week during the oral argument on the Facebook case....

Snitching ain't easy

The Herald covers this Medicare case this morning.  The dirty little secret in this District is that Medicare cases are mostly just snitch cases.  This one may lead to a brother testifying against family:

Because the FBI has been unable to locate Jorge Perez, the younger brother’s former defense attorney suggested in federal court that he was being indicted solely to lure the accused fugitive ringleader to the United States.

Eduardo Perez’s original attorney, Douglas Williams, called the case “a zealous indictment of a younger brother that may to some extent be part of a calculation ... to suggest to his older brother that ... he’s going to be creating problems for baby brother. ... That’s what this case is all about.”

Now the baby brother, with his plea agreement to cooperate with U.S. Attorney’s Office, could turn on his older brother. Eduardo Perez’s deal holds him responsible for laundering only between $1 million and $2.5 million, a range that would limit his prison time to a maximum six years. He had faced up to 20 years in prison on the single money-laundering conspiracy plea.

But as part of the deal, Eduardo Perez has agreed to testify before a grand jury or at trial, if the prosecutor asks. That means that if his older brother, Jorge Perez, is ever captured and brought to court in Miami, the younger brother could be a key witness against him.

Eduardo Perez’s current defense attorney, Gustavo Lage, said his testimony is a possibility, but noted that the deal does not specifically require his taking the witness stand against the older brother.

“The cooperation agreement is standard boilerplate language, so that may or may not come to pass depending on what happens between now and even after his sentencing [in January],” Lage said Friday. “So far, no request has been made.”

Yesterday was ACLU day at the 11th Circuit

Two big wins for the ACLU yesterday on drug testing and gay marriage, which means 1) no more unlimited drug testing on those applying for temporary assistance and 2) gay marriage to start in Florida on January 5.

1.  Lebron v. DCF, per Judge Marcus:

A Florida statute mandates suspicionless drug testing of all applicants seeking Temporary Assistance for Needy Families (“TANF”) benefits. See Fla. Stat. § 414.0652. Luis Lebron sued the Secretary of the Florida Department of Children and Families (the “State”), claiming that the statute violates the Fourth Amendment’s prohibition against unreasonable searches and seizures, applied against the states through the Fourteenth Amendment. After we affirmed the entry of a preliminary injunction barring the application of the statute against Lebron, the State halted the drug-testing program. See Lebron v. Sec’y, Fla. Dep’t of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement.
We affirm. On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve “surpassing safety interests,” Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 634 (1989), or “close supervision of school children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

2.  Brennan v. Armstrong, per curiam (Hull Wilson, Jordan): 

In November 18, 2014, the Appellants in the above appeals, the Secretary of the Florida Department of Health, the Secretary of the Florida Department of Management Services, and the Clerk of Court of Washington County (collectively, Appellants), jointly filed a Motion to Extend Stay of Preliminary Injunctions Pending Appeal and for Expedited Treatment of This Motion (the Motion). Appellees James Domer Brenner, et al., and Appellees Sloan Grimsley, et al., filed separate responses in opposition to the Motion. Appellants’ request for expedited review of the Motion is granted. Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued  by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion. The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.

What's going on with the 11th Circuit's Fuller investigation?

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) sent a letter to Chief Judge Ed Carnes and Judge Tjoflat regarding Judge Mark Fuller in Atlanta, Georgia.  Here's the text of the letter:

Dear Chief Judge Carnes and Judge Tjoflat:
We write regarding the arrest and ongoing prosecution of Middle District of Alabama Judge Mark E. Fuller in Atlanta, Georgia, which is pending before the State Court of Fulton County, Georgia. The allegations against Judge Fuller raise serious, substantial and troubling questions that have been the focus of constant attention and close monitoring by the Committee on the Judiciary since August 2014 when reports first appeared of his arrest for a violation of state criminal law.
In writing, we note the following undisputed facts:
·         Judge Fuller has reportedly entered into a pretrial diversion program that requires him to, inter alia, successfully complete domestic violence counseling;
·         James P. Gerstenlauer, the Circuit Executive of the Eleventh Judicial Circuit, published an announcement on August 12, 2014 that stated “all legal matters” then assigned to Judge Fuller, would be reassigned to other judges;
·         The Acting Chief Judge of the Eleventh Circuit subsequently appointed a Special Committee to investigate Judge Fuller’s actions in connection with the filing of state misdemeanor battery charges in August 2014;
·         The Special Committee’s statutory authority and obligations derive from section 353 of title 28, United States Code, which includes a requirement that the Special Committee, “expeditiously file a comprehensive written report … with the judicial council of the circuit” after completion of “an investigation as extensive as it considers necessary;” and
·         Judge Gerald Tjoflat has reportedly been appointed Acting Chief Judge for purposes of coordinating the Special Committee’s investigation and providing recommendations to the judicial council of the circuit in this matter.
Article I, Section 2 of the Constitution provides the House of Representatives with the “sole Power of Impeachment.” That power is initiated by and overseen by the Committee on the Judiciary. The public has a strong and abiding interest in the proper resolution of credible allegations of misconduct involving a federal judge as expeditiously as possible and in accordance with principles of due process. In furtherance of these interests, the Congress has prescribed statutory procedures that anticipate the initial investigation by the judiciary of credible allegations of serious judicial misconduct. These statutes supplement but do not supplant congressional autonomy and authority.
In recognition of the explicit statutory requirement that a Special Committee, once appointed, “expeditiously file a comprehensive written report” after the completion of its “investigation,” we write to request that you provide us with an update on the status of the ongoing investigation and the anticipated timeline for completion of the required comprehensive written report to the circuit’s judicial council.