The JNC has cut the list for US Attorney in Miami to: David M. Buckner, Wifredo Ferrer, Richard D. Gregorie, Ilona Maxine Holmes, Curtis B. Miner, Thomas J. Mulvihill, Lilly Ann Sanchez, Mark P. Schnapp, William Richard Scruggs, Jeffrey H. Sloman, James H. Swain, Daryl E. Trawick. They will be interviewed next month.
Judge list coming next.
UPDATE -- Here's John Pacenti's article.
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
Tuesday, June 30, 2009
Monday, June 29, 2009
Breaking! Interviews have been determined for judge and US Attorney
I will post the entire list shortly. (I'm getting a haircut right now!)
UPDATE -- Although the list is out, it's not public yet. I've heard from multiple sources that 15 of the 21 judicial applicants got interviews. Apparently the list will be made public tomorrow and I will post it as soon as I have it.
SECOND UPDATE -- A number of people have called and emailed me to let me know some of the 15 applicants on the list or interviewees. This is unconfirmed but I've heard from reliable sources that the list includes Kathy Williams, Mary Barzee, Bob Scola, Jerald Bagley and Robin Rosenbaum. 10 others made the cut. I am trying to find out more...
UPDATE -- Although the list is out, it's not public yet. I've heard from multiple sources that 15 of the 21 judicial applicants got interviews. Apparently the list will be made public tomorrow and I will post it as soon as I have it.
SECOND UPDATE -- A number of people have called and emailed me to let me know some of the 15 applicants on the list or interviewees. This is unconfirmed but I've heard from reliable sources that the list includes Kathy Williams, Mary Barzee, Bob Scola, Jerald Bagley and Robin Rosenbaum. 10 others made the cut. I am trying to find out more...
They write letters
(Okay, so we stole the title from our brother blogger, South Florida Lawyer). While everyone is talking about Ricci and Madoff, the story that interests me is Justice Souter's last day on the bench. Here's the letter from the Chief Justice, signed by all of the Justices, wishing Souter well. And here's Souter's response, which starts "Your generous letter touched me more than I can say..." Lots of love!
The post below about Ma'am or Judge/Your Honor has gotten quite a bit of response. While we're on the topic of what works in court, Justice Scalia explains what peeves him here and here, including when lawyers say that a hypo is different than the facts of the actual case. Scalia: "I know it's not this case, you idiot."
On using italics: "If you’re constantly italicizing words, it sort of reads like a high school girl’s diary."
On using latin words: "Oh, God. It’s a Latin word that means connection. Say 'connection.’ You make it sound scientific."
And on being likable: "No judge likes to give a case to a mean-spirited person. I’ll do it if the law requires it."
The post below about Ma'am or Judge/Your Honor has gotten quite a bit of response. While we're on the topic of what works in court, Justice Scalia explains what peeves him here and here, including when lawyers say that a hypo is different than the facts of the actual case. Scalia: "I know it's not this case, you idiot."
On using italics: "If you’re constantly italicizing words, it sort of reads like a high school girl’s diary."
On using latin words: "Oh, God. It’s a Latin word that means connection. Say 'connection.’ You make it sound scientific."
And on being likable: "No judge likes to give a case to a mean-spirited person. I’ll do it if the law requires it."
Sunday, June 28, 2009
Disrespectful?
I've always cringed a little when I hear a male lawyer address a female judge as "ma'am" (instead of "judge" or "your honor") during an argument. Now Senator Boxer has caused a bit of a stir with this exchange:
So, I will put it to you all:
So, I will put it to you all:
Friday, June 26, 2009
Time for the weekend
Before you leave for the weekend, you should know:
So Jeff Goldblum didn't die (neither did Harrison Ford).
UBS clients are starting to plead.
"Justice Antonin Scalia [is] the Confrontation Clause’s most devoted defender on the Court." (via ScotusBlog).
So Jeff Goldblum didn't die (neither did Harrison Ford).
UBS clients are starting to plead.
"Justice Antonin Scalia [is] the Confrontation Clause’s most devoted defender on the Court." (via ScotusBlog).
Thursday, June 25, 2009
SCALIA.
Rumpole, check out the 2 criminal law opinions this morning. Justice Scalia wrote a 5-4 opinion (Melendez-Diaz v. Massachusetts) in favor of a criminal defendant on a confrontation clause issue and in another case (Safford v. Redding), joined Justice Souter's opinion in favor of a high school student challenging a strip search on Fourth Amendment grounds. More to follow...
(Still waiting on my $100).
(Still waiting on my $100).
Wednesday, June 24, 2009
To Blackberry...
...or not to Blackberry; that is the question.
Other questions of the today:
1) Isn't it time for someone to figure out who Rumpole is? (I think he's given us a hint with this picture -- it's taken from Datran, no?)
9) If you got these tattoos, you would lie too, wouldn't you?
Tuesday, June 23, 2009
It's a special guest appearance by...
Vanessa Blum! In a "special to the Review," she covers the White & Case scandal:
Ten years ago, it would have been the stuff of law firm gossip. But in the age of e-mail, blogs and text messaging, the story of a messy affair between a Miami corporate attorney and a married mother of four has spiraled into a much bigger headache for the century-old law firm White & Case. First came mass e-mails from the woman’s husband detailing liaisons between his wife and an associate in the firm’s Miami office. Then the lurid e-mails landed on a popular legal blog where more than 100,000 people have viewed them. The associate’s name is not being published by the Daily Business Review. He did not respond to a phone message by deadline Monday or an e-mail sent Friday to his law firm address. A home phone number listed in the blog material for the associate is not accepting incoming calls, and a cell number reaches a recording saying it is not a working number.
We're happy to see Vanessa back and covering South Florida. She now is the second most famous guest star, after Heather Locklear from Melrose place.
Ten years ago, it would have been the stuff of law firm gossip. But in the age of e-mail, blogs and text messaging, the story of a messy affair between a Miami corporate attorney and a married mother of four has spiraled into a much bigger headache for the century-old law firm White & Case. First came mass e-mails from the woman’s husband detailing liaisons between his wife and an associate in the firm’s Miami office. Then the lurid e-mails landed on a popular legal blog where more than 100,000 people have viewed them. The associate’s name is not being published by the Daily Business Review. He did not respond to a phone message by deadline Monday or an e-mail sent Friday to his law firm address. A home phone number listed in the blog material for the associate is not accepting incoming calls, and a cell number reaches a recording saying it is not a working number.
We're happy to see Vanessa back and covering South Florida. She now is the second most famous guest star, after Heather Locklear from Melrose place.
Monday, June 22, 2009
It's a bird, it's a plane, no... it's....
Mary K. Butler, a senior trial attorney with the Public Integrity Section who is now involved in the Mutual Benefits case that has been all secretive...
Jon Burstein from the Sun-Sentinel has more:
The U.S. Department of Justice has called on a tenacious veteran prosecutor to help handle a grand jury investigation into public corruption in Florida — a top-secret inquiry related to a Fort Lauderdale business that authorities suspect was a colossal fraud.Accusations against current and former public officials presented to the grand jury are so explosive that careers could be ruined if they are made public before the investigation is complete, a federal judge said this month.At least six past and present public officials have already been cleared of wrongdoing.The federal grand jury's existence came to light in April when U.S. District Judge Adalberto Jordan, rejecting a request from the Sun Sentinel, ruled he was going to keep about 30 court filings in a criminal case involving Mutual Benefits Corp. hidden from public view.
Here's more on Butler:
Butler's involvement is an indication the grand jury inquiry is an important and complex one. No stranger to high-profile prosecutions, she recently led the federal government's successful case against super-lobbyist Jack Abramoff for influence-peddling on Capitol Hill.Before going to Washington, Butler worked at the U.S. Attorney's Office in Miami, where she won a reputation as a dogged, successful prosecutor with the public corruption section.Notably, she handled Operation Greenpalm, a 1996 bribery scandal that led to the criminal convictions of Miami's city manager, Cesar Odio, and Miami City Commissioner Miller Dawkins.
Jon Burstein from the Sun-Sentinel has more:
The U.S. Department of Justice has called on a tenacious veteran prosecutor to help handle a grand jury investigation into public corruption in Florida — a top-secret inquiry related to a Fort Lauderdale business that authorities suspect was a colossal fraud.Accusations against current and former public officials presented to the grand jury are so explosive that careers could be ruined if they are made public before the investigation is complete, a federal judge said this month.At least six past and present public officials have already been cleared of wrongdoing.The federal grand jury's existence came to light in April when U.S. District Judge Adalberto Jordan, rejecting a request from the Sun Sentinel, ruled he was going to keep about 30 court filings in a criminal case involving Mutual Benefits Corp. hidden from public view.
Here's more on Butler:
Butler's involvement is an indication the grand jury inquiry is an important and complex one. No stranger to high-profile prosecutions, she recently led the federal government's successful case against super-lobbyist Jack Abramoff for influence-peddling on Capitol Hill.Before going to Washington, Butler worked at the U.S. Attorney's Office in Miami, where she won a reputation as a dogged, successful prosecutor with the public corruption section.Notably, she handled Operation Greenpalm, a 1996 bribery scandal that led to the criminal convictions of Miami's city manager, Cesar Odio, and Miami City Commissioner Miller Dawkins.
Sunday, June 21, 2009
It was the catfish with black pepper...
... that made me crash into the ditch on the way to court for a murder trial. I really wasn't drunk. I swear. Sorry Your Honor.
My other weekend reading included:
Poor Bernie.
In other UM news, Roy Firestone inspired the Marlins. (Or maybe it was Jim Leyritz who depressed the Yanks).
Maybe Bernie should get some help from this law student, who won $650K in a poker tourney.
This other lawyer wasn't so lucky.
Nor was Judge Kent, who was impeached.
This defendant didn't need to pay the jury to win, despite the juror's best efforts.
The Supreme Court is wrapping up. Here are the outstanding opinions, courtesy of ScotusBlog.
Okay, I'm out. Happy Father's Day ....
Oh, one last thing -- Thanks to the tipster who pointed out that the JNC updated the list of applicants to include Circuit Judge Peter Adrien for District Court Judge. Did they mistakenly leave him off the original list? Or did his application get in late? Or what happened here? Weird.
My other weekend reading included:
Poor Bernie.
In other UM news, Roy Firestone inspired the Marlins. (Or maybe it was Jim Leyritz who depressed the Yanks).
Maybe Bernie should get some help from this law student, who won $650K in a poker tourney.
This other lawyer wasn't so lucky.
Nor was Judge Kent, who was impeached.
This defendant didn't need to pay the jury to win, despite the juror's best efforts.
The Supreme Court is wrapping up. Here are the outstanding opinions, courtesy of ScotusBlog.
Okay, I'm out. Happy Father's Day ....
Oh, one last thing -- Thanks to the tipster who pointed out that the JNC updated the list of applicants to include Circuit Judge Peter Adrien for District Court Judge. Did they mistakenly leave him off the original list? Or did his application get in late? Or what happened here? Weird.
Thursday, June 18, 2009
Quick hits
1. At the 59th Annual Green Eyeshade awards Jay Weaver won first prize in the category of Courts and the Law Reporting for his medicare series. Carol Rosenberg (also from the Herald) got second prize for her Gitmo coverage. Green Eyeshade? Well, it's the major journalism society... Congrats to Jay and Carol.
2. "The One Hundred" is reuniting (it's a non-partisan group established in 1994 which brought prominent speakers to South Florida). On August 28th for The One Hundred's first event of 2009, the speaker will be John Conyers, Jr. (D-Michigan). Conyers heads the House Judiciary Committee which oversees the Justice Department, the Federal Judiciary, the FBI and other important Federal departments. He is also the second highest ranking Congressman. This will be Chairman Conyer's second visit to South Florida to speak to The One Hundred. The luncheon will be at The Four Seasons Hotel on Brickell Avenue in Miami. RSVP here.
3. A bunch of people are emailing me about prosecutors leaving the office, like James Kukios, Matt Axelrod, and David Weinstein. Good luck to the departing AUSAs. Anyone else leaving?
4. The government made the right call not retrying Helio Castroneves on the hung count. According to SCOTUSBlog: "In a[] major ruling on criminal law, available here, the Court, dividing 6-3, decided that if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted. The ruling came in a case growing out of the Enron Corp. scandal — Yeager v. U.S. (08-67). Justice John Paul Stevens wrote for the majority. UPDATE: The charges against F. Scott Yeager on which the jury could not reach a verdict were insider trading and money laundering. He was convicted on none of the charges against him. He sought to bar retrial on the “hung” charges, but that challenge failed in lower courts. While the Supreme Court ruled that he could not be retried on those charges if a jury verdict on other charges had resolved an essential element of those crimes, the Court did not decide that issue itself, treating it as a factual question. It said that the government could raise in the lower courts its claim that the jury did not actually resolve that factual issue. The Fifth Circuit Court may revisit the issue, the Court said. END OF UPDATE."
4. Rumpole was cited in Judge Gold's order in the Ranck case and he's all excited that I went over to state court this morning. (Rumpole, the escalators were all working.)
2. "The One Hundred" is reuniting (it's a non-partisan group established in 1994 which brought prominent speakers to South Florida). On August 28th for The One Hundred's first event of 2009, the speaker will be John Conyers, Jr. (D-Michigan). Conyers heads the House Judiciary Committee which oversees the Justice Department, the Federal Judiciary, the FBI and other important Federal departments. He is also the second highest ranking Congressman. This will be Chairman Conyer's second visit to South Florida to speak to The One Hundred. The luncheon will be at The Four Seasons Hotel on Brickell Avenue in Miami. RSVP here.
3. A bunch of people are emailing me about prosecutors leaving the office, like James Kukios, Matt Axelrod, and David Weinstein. Good luck to the departing AUSAs. Anyone else leaving?
4. The government made the right call not retrying Helio Castroneves on the hung count. According to SCOTUSBlog: "In a[] major ruling on criminal law, available here, the Court, dividing 6-3, decided that if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted. The ruling came in a case growing out of the Enron Corp. scandal — Yeager v. U.S. (08-67). Justice John Paul Stevens wrote for the majority. UPDATE: The charges against F. Scott Yeager on which the jury could not reach a verdict were insider trading and money laundering. He was convicted on none of the charges against him. He sought to bar retrial on the “hung” charges, but that challenge failed in lower courts. While the Supreme Court ruled that he could not be retried on those charges if a jury verdict on other charges had resolved an essential element of those crimes, the Court did not decide that issue itself, treating it as a factual question. It said that the government could raise in the lower courts its claim that the jury did not actually resolve that factual issue. The Fifth Circuit Court may revisit the issue, the Court said. END OF UPDATE."
4. Rumpole was cited in Judge Gold's order in the Ranck case and he's all excited that I went over to state court this morning. (Rumpole, the escalators were all working.)
Wednesday, June 17, 2009
Down goes Ranck
The Herald reports that Judge Gold dismissed David Ranck's case yesterday. I will post the opinion when I get to the office. (UPDATE -- Here it is) I'm sure Rumpole will have more. In the meantime, here's the Herald's summary:
A veteran prosecutor Tuesday lost his free-speech lawsuit against State Attorney Katherine Fernández Rundle, who had suspended him last year for posting on a blog his own internal memo criticizing her handling of a controversial fatal police shooting.
U.S. District Judge Alan Gold found that Miami-Dade prosecutor David Ranck had a constitutional right to post the memo on the Internet, but he couldn't pursue the First Amendment case against his boss.
The reason: His 30-day suspension without pay was also based on other employment violations -- including unprofessional conduct during a murder case in which he called a defense attorney an ''a--hole,'' leading to a mistrial. ''[Ranck] has not established he was deprived of his constitutional rights when he was suspended by his employer,'' Gold wrote in a 28-page ruling.
In a statement, Fernández Rundle said she was ``gratified by the court's comprehensive decision dismissing this case.''
But Ranck's attorney, Allan Kaiser, said the judge's decision was ''almost a vindication'' for his client.
''The crux of the case was that he had a constitutional right to alert the public through his memo on a blog, and the judge agreed with him,'' Kaiser said.
Whether you get a favorable ruling or not from Judge Gold, you gotta love him -- he treats you fairly and he rules quickly. A 28-page order within a week of the hearing...
A veteran prosecutor Tuesday lost his free-speech lawsuit against State Attorney Katherine Fernández Rundle, who had suspended him last year for posting on a blog his own internal memo criticizing her handling of a controversial fatal police shooting.
U.S. District Judge Alan Gold found that Miami-Dade prosecutor David Ranck had a constitutional right to post the memo on the Internet, but he couldn't pursue the First Amendment case against his boss.
The reason: His 30-day suspension without pay was also based on other employment violations -- including unprofessional conduct during a murder case in which he called a defense attorney an ''a--hole,'' leading to a mistrial. ''[Ranck] has not established he was deprived of his constitutional rights when he was suspended by his employer,'' Gold wrote in a 28-page ruling.
In a statement, Fernández Rundle said she was ``gratified by the court's comprehensive decision dismissing this case.''
But Ranck's attorney, Allan Kaiser, said the judge's decision was ''almost a vindication'' for his client.
''The crux of the case was that he had a constitutional right to alert the public through his memo on a blog, and the judge agreed with him,'' Kaiser said.
Whether you get a favorable ruling or not from Judge Gold, you gotta love him -- he treats you fairly and he rules quickly. A 28-page order within a week of the hearing...
Tuesday, June 16, 2009
Scandal at White & Case Miami
AboveTheLaw has all the sordid details (including an interview with the woman, dubbed SexyLexus) about an extramarital affair involving a White & Case associate.
On a separate note, here's my sentencing question of the day: Assuming he did it, should the cat-killer get more or less time than Donte Stallworth (driving drunk resulting in death)? (Yes Rumpole, these are both state cases.... Sorry!)
On a separate note, here's my sentencing question of the day: Assuming he did it, should the cat-killer get more or less time than Donte Stallworth (driving drunk resulting in death)? (Yes Rumpole, these are both state cases.... Sorry!)
“They were high-fiving each other at the office.”
That's Allan Kaiser talking about the State Attorney's Office after David Ranck's recent arrest for battery on the pizza girl. Long before his arrest (and subsequent firing), Ranck brought a whistle-blower lawsuit in federal court before Judge Gold. The State, represented by Oscar Marrero, has moved to dismiss, and Judge Gold heard argument last Friday. This case is all drama, drama, drama, no?
From the DBR:
Lawyers representing Miami-Dade State Attorney Katherine Fernandez Rundle urged U.S. District Judge Alan Gold today to discard a whistle-blower lawsuit filed by suspended prosecutor David Ranck.
Ranck, who questioned the actions of a Miami-Dade police officer who fatally shot a teen-age burglary suspect in 2004, claims his office retaliated against him.
His lawsuit claims Rundle’s office violated his free-speech rights after taking him off investigations involving police shooting after the shooting, and improperly reprimanded him last year for posting internal memos and e-mail related to the justifiable-force investigation.
Coral Gables lawyer Oscar E. Marrero, who is representing Rundle, countered the office was within its rights to discipline Ranck for his comments to the police.
“There is no First Amendment protection if speech owes its existence to your professional responsibilities,” Marrero told Gold.
Ranck’s Miami lawyer, Allan Kaiser, argued by Marrero’s logic, no whistle-blower claims could ever succeed.
“The chilling effect would be obvious,” he said.
Kaiser argued the state attorney’s office didn’t act against Ranck for weeks after he posted his comments and documents related to the shooting on a blog that has since been shut down. Ranck wrote some of the documents and obtained them from the state attorney’s office through a public records request.
Gold appeared inclined to deny Marrero’s motion for summary judgment. “It’s not an everyday occurrence where an assistant state attorney makes a public records request to an office for a memo he wrote, is it?” Gold asked rhetorically. He said Ranck’s supervisors probably should have realized his intentions when he made the request.
Ranck was suspended last month after he was arrested by Miami Beach police on a misdemeanor battery charge after a confrontation at his condo with a pizza- delivery woman. Kaiser represents Ranck in the battery case as well.
“For all intents and purposes, he’s been fired,” Kaiser said. “What they wanted to do is suspend him in never-never land until they decide they want to fire him.”
After Ranck’s arrest, Kaiser said, “They were high-fiving each other at the office.”
When asked if the alleged assault affected his client’s credibility, Kaiser said, “It has absolutely no relation whatsoever.”
From the DBR:
Lawyers representing Miami-Dade State Attorney Katherine Fernandez Rundle urged U.S. District Judge Alan Gold today to discard a whistle-blower lawsuit filed by suspended prosecutor David Ranck.
Ranck, who questioned the actions of a Miami-Dade police officer who fatally shot a teen-age burglary suspect in 2004, claims his office retaliated against him.
His lawsuit claims Rundle’s office violated his free-speech rights after taking him off investigations involving police shooting after the shooting, and improperly reprimanded him last year for posting internal memos and e-mail related to the justifiable-force investigation.
Coral Gables lawyer Oscar E. Marrero, who is representing Rundle, countered the office was within its rights to discipline Ranck for his comments to the police.
“There is no First Amendment protection if speech owes its existence to your professional responsibilities,” Marrero told Gold.
Ranck’s Miami lawyer, Allan Kaiser, argued by Marrero’s logic, no whistle-blower claims could ever succeed.
“The chilling effect would be obvious,” he said.
Kaiser argued the state attorney’s office didn’t act against Ranck for weeks after he posted his comments and documents related to the shooting on a blog that has since been shut down. Ranck wrote some of the documents and obtained them from the state attorney’s office through a public records request.
Gold appeared inclined to deny Marrero’s motion for summary judgment. “It’s not an everyday occurrence where an assistant state attorney makes a public records request to an office for a memo he wrote, is it?” Gold asked rhetorically. He said Ranck’s supervisors probably should have realized his intentions when he made the request.
Ranck was suspended last month after he was arrested by Miami Beach police on a misdemeanor battery charge after a confrontation at his condo with a pizza- delivery woman. Kaiser represents Ranck in the battery case as well.
“For all intents and purposes, he’s been fired,” Kaiser said. “What they wanted to do is suspend him in never-never land until they decide they want to fire him.”
After Ranck’s arrest, Kaiser said, “They were high-fiving each other at the office.”
When asked if the alleged assault affected his client’s credibility, Kaiser said, “It has absolutely no relation whatsoever.”
Monday, June 15, 2009
Cert denied in Cuban Spy case
I'm glad Rumpole didn't take me up on the double or nothing bet. Still waiting to get paid...
Sunday, June 14, 2009
"Noah Gray, a student journalist at Miami Palmetto Senior High, contributed to this report."
It's all cat killer news right now. The Herald has a lengthy cover story about the case. How psyched is Noah Gray, a student who got billing for helping out with the article. Pretty cool.
No one really has any details about how they actually broke the case. It will be interesting to see how this plays out... (SDFLA tie: Circuit Judge Darryl Trawick -- who put his name in for U.S. Attorney -- signed the arrest warrant for 18-year old Tyler Weiman).
Not interested in news about gutting cats... well, Jose Padilla made some news -- he can proceed with his lawsuit against John Yoo. (Via TalkLeft).
Most of the defense lawyers weren't interested in news at all this weekend. They were at the beach. The CJA lawyers had their annual conference this weekend at the Naples Grande. Judge Rosemary Barkett was the keynote speaker, and she generally critiqued district judges who blindly follow the sentencing guidelines. She explained that lawyers need to do more to explain to the district judges why guideline sentences are in many cases greater than necessary to achieve the goals of sentencing; she also said district judges need to do a better job explaining why they are giving a particular sentence in a case.
Former guest-blogger Rick Bascuas wasn't there. He was probably working on his blog "The Bricks." If you haven't been reading it, you should. It's a lot of fun.
Or if you wanna get depressed about the legal market, check out this post about Cravath.
See you all tomorrow.
No one really has any details about how they actually broke the case. It will be interesting to see how this plays out... (SDFLA tie: Circuit Judge Darryl Trawick -- who put his name in for U.S. Attorney -- signed the arrest warrant for 18-year old Tyler Weiman).
Not interested in news about gutting cats... well, Jose Padilla made some news -- he can proceed with his lawsuit against John Yoo. (Via TalkLeft).
Most of the defense lawyers weren't interested in news at all this weekend. They were at the beach. The CJA lawyers had their annual conference this weekend at the Naples Grande. Judge Rosemary Barkett was the keynote speaker, and she generally critiqued district judges who blindly follow the sentencing guidelines. She explained that lawyers need to do more to explain to the district judges why guideline sentences are in many cases greater than necessary to achieve the goals of sentencing; she also said district judges need to do a better job explaining why they are giving a particular sentence in a case.
Former guest-blogger Rick Bascuas wasn't there. He was probably working on his blog "The Bricks." If you haven't been reading it, you should. It's a lot of fun.
Or if you wanna get depressed about the legal market, check out this post about Cravath.
See you all tomorrow.
Friday, June 12, 2009
Slow blogging
Sorry! We'll hit you back on Monday.
--David Oscar Markus
www.markuslaw.com
305-379-6667
Wednesday, June 10, 2009
Joe Biden on Sotomayor
From ABAnews:Vice President Joe Biden’s comments yesterday supporting Judge Sonia Sotomayor’s law enforcement credentials has some critics suggesting he went too far.
Speaking yesterday at a White House event to showcase prosecutor and police endorsements for Sotomayor, Biden noted that the Supreme Court nominee has experience as a prosecutor, Politico reports. “As you do your job, know that Judge Sotomayor has your back as well. And throughout this nominating process, I know you’ll have her back,” Biden said.
“She gets it. … She gets what you do every single day, day in and day out. She gets that one drug dealer on a corner, one rapist in a park is one too many and can terrorize and devastate a neighborhood,” Biden said. “And she has a record to prove that she gets it.”
Some conservatives and one legal ethicist are criticizing Biden’s comments, the story says. “I think what Biden said was foolish,” said New York University law professor Stephen Gillers.
“She’s not there to ‘have their back.’ She’s there to interpret the law as she sees fit. … Biden crosses the line when he starts representing to interest groups that she would be voting in their favor.”
Northwestern law professor Steven Lubet disagreed. “The fact that her supporters think she’s more disposed toward law enforcement does not suggest bias. Everybody’s in favor of law enforcement; no one’s opposed to law enforcement,” Lubet told Politico. “This lacks the sort of specificity that would suggest bias.”
Tuesday, June 09, 2009
Breaking -- applicants for District Judge, U.S. Attorney, and Marshal
The applicants for District Judge are:
Jerald Bagley
Gerald Cope
Mary Barzee Flores
Darrin Gayles
Randee Golder
Judith Korchin
Robert Lee
Robert Levenson
Peter Lopez
Patricia Lowry
Ana Maria Martinez
Caroline Heck Miller
Maria Ortiz
Emmanuel Perez
Robin Rosenbaum
Robert Scola Jr.
Barry Seltzer
Tina Talarchyk
Patrick White
Kathleen Williams
For U.S. Attorney:
David Buckner
Reginald Corlew
Wilfredo Ferrer
Richard Gregorie
Ilona Holmes
Marvelle McIntyre-Hall
Brian Miller
Curtis Miner
Thomas Mulvihill
Lilly Ann Sanchez
Mark Schnapp
William Richard Scruggs
Jeffrey Sloman
James Swaim
Daryl Trawick
Sandra Wiseman
For U.S. Marshal
William "Bill" Berger
David Nieland
Christina Pharo
G. Wayne Tilman
Mark Weimer
Glen Wilner
Jerald Bagley
Gerald Cope
Mary Barzee Flores
Darrin Gayles
Randee Golder
Judith Korchin
Robert Lee
Robert Levenson
Peter Lopez
Patricia Lowry
Ana Maria Martinez
Caroline Heck Miller
Maria Ortiz
Emmanuel Perez
Robin Rosenbaum
Robert Scola Jr.
Barry Seltzer
Tina Talarchyk
Patrick White
Kathleen Williams
For U.S. Attorney:
David Buckner
Reginald Corlew
Wilfredo Ferrer
Richard Gregorie
Ilona Holmes
Marvelle McIntyre-Hall
Brian Miller
Curtis Miner
Thomas Mulvihill
Lilly Ann Sanchez
Mark Schnapp
William Richard Scruggs
Jeffrey Sloman
James Swaim
Daryl Trawick
Sandra Wiseman
For U.S. Marshal
William "Bill" Berger
David Nieland
Christina Pharo
G. Wayne Tilman
Mark Weimer
Glen Wilner
Will Supremes grant cert for Cuban 5?
That's the question raised by Jay Weaver in today's Herald.
Less than 1% of cert petitions get granted, but Tom Goldstein signed on to this one and there are very interesting legal issues getting lots of pub. I'll go out on a limb and say cert will be granted in this case. (Prior coverage here)
What say you dear readers?
Less than 1% of cert petitions get granted, but Tom Goldstein signed on to this one and there are very interesting legal issues getting lots of pub. I'll go out on a limb and say cert will be granted in this case. (Prior coverage here)
What say you dear readers?
Monday, June 08, 2009
Loring Spolter does not like Judge Zloch
And he has alleged a conspiracy involving the clerk to have his cases assigned to Zloch. Yikes.
Here is the study that Spolter relies on to say the assignments aren't random. It's been a while since I took statistics, but the sample size here (Spolter has had 15 cases from 2006-2009) does not seem to be all that significant. Only 5 of those cases were assigned to Judge Zloch.
Anyway, from today's DBR:
Two years ago, Fort Lauderdale employment lawyer Loring Spolter accused U.S. District Judge William Zloch of allowing his conservative political and religious views to color his decisions on the bench. Spolter failed to get Zloch to remove himself from a case centering on overtime pay against SunTrust Bank. But this time the attorney is brandishing a new weapon: statistics. Spolter has filed motions for reconsideration in three cases, asking Zloch to recuse himself because evidence shows Spolter’s cases are predestined to end up before the former chief judge. He said he has suspicions the clerk’s office may be funneling his cases to Zloch.
So what's up with the study:
Judges are randomly assigned cases by computer in what is generally referred to as “the wheel.” Spolter hired Florida Atlantic University professor Dragan Radulovic to look at his case assignments in South Florida over the last 15 years and said “with 99.9 percent certainty the mechanism responsible for judges’ distributions was not random blind assignment.” But there appears to be a problem with the study. Spolter insists the 24 sitting judges are assigned at random throughout a district that stretches from Key West to Fort Pierce. But the current chief judge says it is much more complicated. A tiered system is used that gives weight geographically to where the case is filed as well as how heavy a judge’s docket is at the time, said U.S. District Court Judge Federico Moreno, who took over the chief judge position from Zloch in 2007. For instance, a case filed in Fort Lauderdale would circulate at random among the three judges and one senior judge there. If their case load is heavy, the new case would then be directed to either West Palm Beach or Miami. Zloch is one of the judges who sits in Fort Lauderdale, where Spolter filed all of his cases. Senior judges also take a smaller portion of cases available, and there are special provisions for Fort Pierce, Key West and death penalty cases. For instance, Senior U.S. District Court Judge Donald Middlebrooks, who sits in West Palm Beach, takes a number of Miami cases.
Gotta love the chief:
All in all, the wheel is more akin to a logarithm than a game of roulette. “It’s not like the Wheel of Fortune,” Moreno said.
Pacenti's article goes on about the wheel and how cases are assigned. It's worth a read.
Here is the study that Spolter relies on to say the assignments aren't random. It's been a while since I took statistics, but the sample size here (Spolter has had 15 cases from 2006-2009) does not seem to be all that significant. Only 5 of those cases were assigned to Judge Zloch.
Anyway, from today's DBR:
Two years ago, Fort Lauderdale employment lawyer Loring Spolter accused U.S. District Judge William Zloch of allowing his conservative political and religious views to color his decisions on the bench. Spolter failed to get Zloch to remove himself from a case centering on overtime pay against SunTrust Bank. But this time the attorney is brandishing a new weapon: statistics. Spolter has filed motions for reconsideration in three cases, asking Zloch to recuse himself because evidence shows Spolter’s cases are predestined to end up before the former chief judge. He said he has suspicions the clerk’s office may be funneling his cases to Zloch.
So what's up with the study:
Judges are randomly assigned cases by computer in what is generally referred to as “the wheel.” Spolter hired Florida Atlantic University professor Dragan Radulovic to look at his case assignments in South Florida over the last 15 years and said “with 99.9 percent certainty the mechanism responsible for judges’ distributions was not random blind assignment.” But there appears to be a problem with the study. Spolter insists the 24 sitting judges are assigned at random throughout a district that stretches from Key West to Fort Pierce. But the current chief judge says it is much more complicated. A tiered system is used that gives weight geographically to where the case is filed as well as how heavy a judge’s docket is at the time, said U.S. District Court Judge Federico Moreno, who took over the chief judge position from Zloch in 2007. For instance, a case filed in Fort Lauderdale would circulate at random among the three judges and one senior judge there. If their case load is heavy, the new case would then be directed to either West Palm Beach or Miami. Zloch is one of the judges who sits in Fort Lauderdale, where Spolter filed all of his cases. Senior judges also take a smaller portion of cases available, and there are special provisions for Fort Pierce, Key West and death penalty cases. For instance, Senior U.S. District Court Judge Donald Middlebrooks, who sits in West Palm Beach, takes a number of Miami cases.
Gotta love the chief:
All in all, the wheel is more akin to a logarithm than a game of roulette. “It’s not like the Wheel of Fortune,” Moreno said.
Pacenti's article goes on about the wheel and how cases are assigned. It's worth a read.
Stormy weather
The Herald got all artsy today with a big picture of a rainbow above the fold and above the articles in the metro section. Lots of people captured the double rainbow. I like this one:
The kids are out of school and camp doesn't start till next week... making this the second quietest week of the year, right after the Christmas-New Year week. Other than Judge Seitz (with Dore Louis), any other trials starting?
Sunday, June 07, 2009
Twitter?
I've resisted Twitter for a while now, and am still not sure why I just signed up for it. But now that I have, let's see how it goes. Click here to follow. (And yes, Judge Moreno, I know -- no twittering from inside the courtroom).
Saturday, June 06, 2009
Jeff Sloman acting U.S. Attorney
It was Alex Acosta's last day on Friday. He's off to FIU. Acting U.S. Attorney: Jeff Sloman (he's pictured in white next to Bernie Kosar). Jeff has put his name in with a bunch of other people for the permanent slot. Interviews are next month.
Friday, June 05, 2009
JNC interviews are open to the public
If you wanna go watch, here's the info:
July 15, 2009 at 9 a.m.
U.S. District Judge, Southern District of Florida
Judges Conference Room, 14th Floor
Wilkie D. Ferguson, Jr. U.S. Courthouse
400 North Miami Avenue
Miami, Florida
July 16, 2009 at 9 a.m.
U.S. Attorney
same place
July 17, 2009 at 9 a.m.
U.S. Marshal
same place
July 15, 2009 at 9 a.m.
U.S. District Judge, Southern District of Florida
Judges Conference Room, 14th Floor
Wilkie D. Ferguson, Jr. U.S. Courthouse
400 North Miami Avenue
Miami, Florida
July 16, 2009 at 9 a.m.
U.S. Attorney
same place
July 17, 2009 at 9 a.m.
U.S. Marshal
same place
Thursday, June 04, 2009
All Sotomayor all the time
Via ScotusBlog:
Judge Sotomayor’s completed Senate Judiciary questionnaire is available for download here.
The transcript of her confirmation hearing for the Second Circuit is available here and her Judiciary questionnaire from that hearing is available in two parts: here and here.
The transcript of her confirmation hearing for the Southern District of New York is available here and her Judiciary questionnaire from that hearing is available in two parts:here and here.
Judge Sotomayor’s completed Senate Judiciary questionnaire is available for download here.
The transcript of her confirmation hearing for the Second Circuit is available here and her Judiciary questionnaire from that hearing is available in two parts: here and here.
The transcript of her confirmation hearing for the Southern District of New York is available here and her Judiciary questionnaire from that hearing is available in two parts:here and here.
"We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment..."
Whether or not you agree with Judge Carnes, he's an excellent writer and a lot of fun to read. Check out his opinion today in Friends of the Everglades v. So. Fla. Water Mgmt. Hat Tip Curt Anderson. The text below in italics is Carnes'.
Here's the issue: This appeal turns on whether the transfer of a pollutant from one navigable
body of water to another is a “discharge of a pollutant” within the meaning of the
Clean Water Act, 33 U.S.C. § 1362(12).
body of water to another is a “discharge of a pollutant” within the meaning of the
Clean Water Act, 33 U.S.C. § 1362(12).
No way to turn that into a fun opinion to read, right? Wrong. Right up front he's quoting a country singer: “But progress came and took its toll, and in the name of flood control, they made their plans and they drained the land.” John Anderson, “Seminole Wind,” on Seminole Wind (BMG Records 1992).
How's the water in those canals around the Lake? The area south of Lake Okeechobee’s shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia.
Not the impression you want to make at oral argument: We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.
The supplement filed after oral argument wasn't much better. A "sic" and getting mocked for using the third person: Two-and-a-half weeks after oral argument, however, we received a supplemental letter from attorney Nutt in which, referring to himself in the third person, he stated: “The Executive Director’s counsel did not have an opportunity to address the Court’s question, posed at the very end, whether the remedies available against the Executive Director through the fiction of Young are the same as the remedies available as [sic] against the District were it not immune. They are not.” The belated letter is not helpful.
More fun stuff: To decide questions that do not matter to the disposition of a case is to separate Lady Justice’s scales from her sword. That we will not do. Cf. George E. Allen, The Law as a Way of Life, 27 (1969) (“The scales of justice without the sword is the impotence of law.”).
What's an opinion if there aren't some baseball references: The unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate. … The Court has not, however, called the theory out yet. … The Friends of the Everglades, arguing against ambiguity, pitch us other decisions. … Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness. … None of the decisions the parties have thrown our way helps either side much.
Have you lost your marbles yet? Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.
How's the water in those canals around the Lake? The area south of Lake Okeechobee’s shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia.
Not the impression you want to make at oral argument: We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.
The supplement filed after oral argument wasn't much better. A "sic" and getting mocked for using the third person: Two-and-a-half weeks after oral argument, however, we received a supplemental letter from attorney Nutt in which, referring to himself in the third person, he stated: “The Executive Director’s counsel did not have an opportunity to address the Court’s question, posed at the very end, whether the remedies available against the Executive Director through the fiction of Young are the same as the remedies available as [sic] against the District were it not immune. They are not.” The belated letter is not helpful.
More fun stuff: To decide questions that do not matter to the disposition of a case is to separate Lady Justice’s scales from her sword. That we will not do. Cf. George E. Allen, The Law as a Way of Life, 27 (1969) (“The scales of justice without the sword is the impotence of law.”).
What's an opinion if there aren't some baseball references: The unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate. … The Court has not, however, called the theory out yet. … The Friends of the Everglades, arguing against ambiguity, pitch us other decisions. … Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness. … None of the decisions the parties have thrown our way helps either side much.
Have you lost your marbles yet? Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.
Dore Louis is tall.
Here are the pictures from the FACDL banquet which took place a few weeks back, where Judge Hoeveler was honored. (So were the Liberty City lawyers and Ben Brummer). Hector Flores is the new president. And at the link, you'll see pictures of Judges Hoeveler and Graham, Magistrates Garber and O'Sullivan, former Florida Supreme Court Justice Kogan, FPD Kathy Williams and soon-to-be former USA Alex Acosta. And Dore Louis, who is very tall.
Wednesday, June 03, 2009
There is only one good thing about the summer:
The traffic.
Okay, maybe it's not that good.
Just saying.
Tuesday, June 02, 2009
"Do letters from the public — often or ever — influence sentencing judges?"
That's the question raised by sentencing guru Doug Berman. In his post, he discusses the Mary McCarty case and the "flood" of letters being filed with Judge Middlebrooks. Here's the Palm Beach Post coverage:
They're hailing Mary McCarty and flailing her.
With the fallen county commissioner set to be sentenced Thursday, U.S. District Judge Donald Middlebrooks is receiving a welter of missives from the public - some urging the maximum five-year sentence spelled out in her plea deal, some advocating no more than community service.
McCarty, 54, a Delray Beach commissioner and then an 18-year county commissioner, pleaded guilty in March to misdeeds that included votes on bond deals that benefited herself and her underwriter husband, Kevin. That made her the third county commissioner to fall since 2006 in a federal probe of what a state grand jury recently dubbed "Corruption County."
Dozens of people have written to Middlebrooks to weigh in on McCarty's fate, with many expressing anger at the extent of public officials' crimes.
They're hailing Mary McCarty and flailing her.
With the fallen county commissioner set to be sentenced Thursday, U.S. District Judge Donald Middlebrooks is receiving a welter of missives from the public - some urging the maximum five-year sentence spelled out in her plea deal, some advocating no more than community service.
McCarty, 54, a Delray Beach commissioner and then an 18-year county commissioner, pleaded guilty in March to misdeeds that included votes on bond deals that benefited herself and her underwriter husband, Kevin. That made her the third county commissioner to fall since 2006 in a federal probe of what a state grand jury recently dubbed "Corruption County."
Dozens of people have written to Middlebrooks to weigh in on McCarty's fate, with many expressing anger at the extent of public officials' crimes.
Monday, June 01, 2009
U.S. Attorney's Office still keeping cooperation secret from public
Although Chief Judge Moreno and the rest of the SDFLA court have made plea agreements public again by allowing them to be accessed by PACER, the government is still attempting to keep cooperation agreements secret and off-line.
A number of AUSAs and AFPDs have emailed me the new government policy when a defendant is cooperating: Just delete those sections* from the plea agreement and include them in a letter agreement, NOT FILED WITH THE COURT. This new policy certainly circumvents the spirit of making deals open to the public. From what I understand, the prosecutors ask the court to go over the cooperation letter agreement with the defendant, but then ask for the letter not to be filed in the court record. I suspect that most judges will not abide by this request, especially because technically the letter is a matter of public record if reviewed in open court -- so why not file it...
But we'll have to see how this plays out.
*Those cooperation agreements never say anything anyway, so I'm not sure what the big deal is about including it in the open record.
A number of AUSAs and AFPDs have emailed me the new government policy when a defendant is cooperating: Just delete those sections* from the plea agreement and include them in a letter agreement, NOT FILED WITH THE COURT. This new policy certainly circumvents the spirit of making deals open to the public. From what I understand, the prosecutors ask the court to go over the cooperation letter agreement with the defendant, but then ask for the letter not to be filed in the court record. I suspect that most judges will not abide by this request, especially because technically the letter is a matter of public record if reviewed in open court -- so why not file it...
But we'll have to see how this plays out.
*Those cooperation agreements never say anything anyway, so I'm not sure what the big deal is about including it in the open record.
Friday, May 29, 2009
Ruining summer vacation
No one respects childhood anymore, you know? Nowadays, it's all about pushing and prodding the kids to get ahead of the brats next door or the Chinese or whomever. And now we're doing that to our incoming batch of UM 1Ls. This showed up in my inbox just about the time my SDFla blogging wrapped up: This summer we plan to use our orientation blog to begin to explore some ideas about the law through books and films. ... Each week we will have by Monday some discussion questions posted on the blog, and we will see where the conversations take us.The idea seems to be to use a blog as a diabolical weapon that targets summer fun. Needless to say, I hit "delete" as fast as I could—which is what I gather just about all of my colleagues did because a couple of weeks ago we started getting phone calls. Long story short, I was prevailed upon, as they say, to do this for a little while.
Now, my being a team player doesn't mean I'm not going to do everything my way. I obviously can't work in an oppressive password-protected website cut off from the outside world that doesn't even allow people to post their coarsest thoughts and pejoratives anonymously. As my grandmother says, "Me fuà de Cuba por menos." So, I'm hijacking the kids over to an unofficial open forum called umbricks.com. What's the point of having tenure if you never color outside the lines? (Or sentence below the guidelines?) This way all you members of the Innominate D.O.M.inati—particularly those who are UMSoL alums—can share your comment-space insights on life and law with the wide-eyed eager pups. Go check it out and engage the future of SDFla.
Thursday, May 28, 2009
Justice Scalia and Rumpole
Rumpole is getting all hot and bothered by Justice Scalia's recent decision in Montejo v. Louisiana, overruling Michigan v. Jackson. I don't agree with the result either, but I have taken issue with Rumpole's attack on Scalia as a "dangerous" Justice and with Rumpole's defense of stare decisis.
As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:
As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:
- Crawford v. Washington -- Justice Scalia breathed life back into the Confrontation Clause and did away with some really bad cases allowing prosecutors to get away with convictions based on hearsay.
- Blakely v. Washington (Apprendi, Booker, etc) -- criminal practitioners rejoiced when Scalia started the revolt against the mandatory federal sentencing guidelines.
- Arizona v. Gant -- Scalia rules in favor of criminal defendant on 4th amendment issue concerning a car search, overruling NY v. Belton.
- Begay v. United States -- finding in a concurring opinion that DUI was not a violent felony based on the rule of lenity.
- United States v. Gonzalez-Lopez -- Scalia finds (5-4) that a criminal defendant has a right to counsel of his choice. This was his quote at oral argument: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”
- United States v. Santos -- Scalia finds that the money laundering statute is ambiguous and rules for criminal defendant that it means proceeds, not profits.
- I'll end with Sorich v. United States in which Scalia dissents from denial of cert on honest services case. Here's part of his opinion:
[T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City ofColumbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). . . . It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.
(A couple weeks after Scalia wrote this dissent, the Court granted cert in the Conrad Black case to figure out the reach of the honest services statute. I'd bet Rumpole that Scalia will rule for Black, but he still hasn't paid me on the last $100...)
And these are just a few off the top of my head in the last few years. I'm happy when Justice Scalia isn't a prisoner to stare decisis. If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia. Yes, criminal defendants are going to lose some too -- like Michican v. Jackson -- but I'll take the above cases with that one. (Has any lawyer ever even filed a Jackson motion to suppress?)
If I had to rank the Justices in order of defense friendly, here's my list:
Scalia, Stevens, Souter (for another couple weeks), Ginsburg, Breyer, Kennedy, Thomas, Roberts, Alito.
Wednesday, May 27, 2009
"Alas, once a sea cow, always a sea cow."
Check out this motion to dismiss filed by John Kallen of Badiak, Will & Kallen, counsel for MarineMax in CLEAR MARINE VENTURES, LTD., v. BRUNSWICK CORP. The case is assigned to Judge Moreno... My bet is that the Chief isn't going to find this too funny. Here's the first section of the motion:
MARINEMAX’S MOTION TO DISMISS COUNT X
OF PLAINTIFFS SECOND AMENDED COMPLAINT
Defendant MarineMax moves to dismiss Count X of plaintiff’s second amended complaint pursuant to Rule 12 (b)(6), Fed.R.Civ.P.
I. Nature of the Action
He first saw the model on line and in a promotional brochure (para. 13-15). [Footnote 1: The following is not intended or meant to titillate, but illuminate the unique relationship that an individual has with a vessel and the special, discriminating and demanding wants and needs of a wealthy individual, who was disappointed and dismayed with his purchase; who, in the eyes of the law. stands in the same crocs as the common consumer who was disappointed that the new Kenmore front-loader washer didn’t eliminate the grass stains on the kids’ shorts as was promised and warranted.] Her glossy exterior, sculpted body, sophistication, bloodlines, not to mention the accolades of how she could perform, intrigued him, piqued his curiosity (para. 13-15; Exs A. and B. to second amended complaint). Needless to say, he needed to know more, meet her, ride her. He was excited (para. 22).
Suitable arrangements were made. Not wanting to push her too fast, he rode her easy (para. 36, 37). With her prominent front pushed up, her rear somewhat down, her performance was somewhat hesitant and resistant. But he was told she was a maiden, that he’d be her first owner (para. 40, 47).
He knew that with the right master, the right equipment, and with promises of better things to come, her performance could only get better, would be as promised (para. 45). Michael Krieger was hooked (para. 43).
However, as others before him had learned in dealing with her identical sisters, (para. 60), he would soon come to the realization that in her family, beauty’s only skin deep. She had been born with a fatal defect (para.26).
When he realized that despite the glamourous exterior, her performance was as fleet and nimble as a manatee, his interest in her waned. Discontented and having spent a significant amount of money to buy, outfit, maintain and service her (para. 46, 113), he complained. Krieger was instructed to take her in for extensive surgery to correct her imperfections -- not once or twice, but three times (para. 53, 61, 67).
Unfortunately, these procedures, which were designed to decrease her weight and trim, and thereby enhance her performance, failed miserably. She got hot and wet, but too wet. (para. 97, 110, Ex. D to second amended complaint). Just as disturbing, what had at one time been a pleasing, cosmetically acceptable body, had now been transformed into a ghastly and unpleasing specimen.
Alas, once a sea cow, always a sea cow.
Disappointed, dismayed and downhearted (para. 112), Michael Krieger sued to get back the investment he had made in a dream that turned into a nightmare.
So dear readers, is this effective lawyering? Talk to me.
UPDATE -- AbovetheLaw has picked up on our post and has interviewed the author.
MARINEMAX’S MOTION TO DISMISS COUNT X
OF PLAINTIFFS SECOND AMENDED COMPLAINT
Defendant MarineMax moves to dismiss Count X of plaintiff’s second amended complaint pursuant to Rule 12 (b)(6), Fed.R.Civ.P.
I. Nature of the Action
He first saw the model on line and in a promotional brochure (para. 13-15). [Footnote 1: The following is not intended or meant to titillate, but illuminate the unique relationship that an individual has with a vessel and the special, discriminating and demanding wants and needs of a wealthy individual, who was disappointed and dismayed with his purchase; who, in the eyes of the law. stands in the same crocs as the common consumer who was disappointed that the new Kenmore front-loader washer didn’t eliminate the grass stains on the kids’ shorts as was promised and warranted.] Her glossy exterior, sculpted body, sophistication, bloodlines, not to mention the accolades of how she could perform, intrigued him, piqued his curiosity (para. 13-15; Exs A. and B. to second amended complaint). Needless to say, he needed to know more, meet her, ride her. He was excited (para. 22).
Suitable arrangements were made. Not wanting to push her too fast, he rode her easy (para. 36, 37). With her prominent front pushed up, her rear somewhat down, her performance was somewhat hesitant and resistant. But he was told she was a maiden, that he’d be her first owner (para. 40, 47).
He knew that with the right master, the right equipment, and with promises of better things to come, her performance could only get better, would be as promised (para. 45). Michael Krieger was hooked (para. 43).
However, as others before him had learned in dealing with her identical sisters, (para. 60), he would soon come to the realization that in her family, beauty’s only skin deep. She had been born with a fatal defect (para.26).
When he realized that despite the glamourous exterior, her performance was as fleet and nimble as a manatee, his interest in her waned. Discontented and having spent a significant amount of money to buy, outfit, maintain and service her (para. 46, 113), he complained. Krieger was instructed to take her in for extensive surgery to correct her imperfections -- not once or twice, but three times (para. 53, 61, 67).
Unfortunately, these procedures, which were designed to decrease her weight and trim, and thereby enhance her performance, failed miserably. She got hot and wet, but too wet. (para. 97, 110, Ex. D to second amended complaint). Just as disturbing, what had at one time been a pleasing, cosmetically acceptable body, had now been transformed into a ghastly and unpleasing specimen.
Alas, once a sea cow, always a sea cow.
Disappointed, dismayed and downhearted (para. 112), Michael Krieger sued to get back the investment he had made in a dream that turned into a nightmare.
So dear readers, is this effective lawyering? Talk to me.
UPDATE -- AbovetheLaw has picked up on our post and has interviewed the author.
Tuesday, May 26, 2009
A Hispanic judge is nominated to the Court...
...but alas not one from Florida. Sonia Sotomayor is the pick.... No real surprise here.
I was rooting for Harvard (Elena Kagan) instead of Yale, but another spot will open up soon.
I was rooting for Harvard (Elena Kagan) instead of Yale, but another spot will open up soon.
Sotomayor has more courtroom experience (she was a prosecutor and a district judge) than any of the other justices and many are calling her the liberal Sam Alito (both went to Princeton and Yale, both were prosecutors, both were Circuit judges, and both were appointed by Bush I). Sotomayor would be the only Justice who was a district judge. Still no former criminal defense lawyers on the Court...
The blogosphere is unbelievable when you want instant information, especially about legal news. Tom Goldstein at ScotusBlog has a ton of stuff, including this interesting post. Jan Crawford Greenberg has this scoop about the interview process and the 4 finalists. The right already is gearing up to fight her (using videos like this) but as Goldstein explains, she easily will be confirmed. Volokh has a bunch of posts about the nomination and How Appealing has every article written about Sotomayor. And if you are a baseball fan, Judge Sotomayor is your pick.
It's amazing to me that the interest groups are claiming that she isn't smart enough to be on the Court. What else can she do to prove herself -- she finished first in her high school class, second in her college class and was the editor of the Yale Law Journal.
Even though she is being compared to Alito, I sure hope she is more intellectually honest than he is. Today, the Supreme Court, 5-4, overruled Michigan v. Jackson -- a case on the books for 23 years. Justice Scalia wrote the opinion and Justice Alito concurred. His concurrence was remarkable because just a couple of weeks ago, he dissented in Arizona v. Gant. There, Justice Scalia again wrote the majority opinion, receding from the holding in New York v. Belton. Belton had been on the books for 28 years, and Alito's dissent focused on stare decisis. So this time around, he would dissent againt, right? And find that stare decisis required a finding that Jackson was still good law, right? Forget it -- Alito joined Justice Scalia in overturning a long-standing precedent. Why? Because this time he was ruling against the criminal defendant. Unlike Scalia who often rules for criminal defendants (and is still in my view the most pro-defendant Justice -- although that theory took a hit today), Alito has never once ruled in favor of a criminal defendant. Not once! When stare decisis helps the government, he invokes it. When it's bad for the government, what's stare decisis. Bizarro world!
Anyway, back to Sotomayor -- from what I've read about her, she seems like a solid (and safe) pick. She's obviously qualified and she will get confirmed. I think at the end of the day, she'll end up very similar to Souter, so the Court won't change that much.Monday, May 25, 2009
Unbelievable
So dear readers, now that Helio Castroneves has won the Indy 500, Dancing with the Stars, and his federal criminal case, I have this question for you:Friday, May 22, 2009
``The jury finds him not guilty, then he wins the pole position at Indy, and now the government drops the case completely..."
"...All he has to do now is win the race and climb the fence.''
That's Roy Black's reaction after the government announced today that it would drop the final charge pending against Helio Castroneves. Jay Weaver has the details here.
The government did the right thing, as I explained before:
I would be really surprised if the feds chose to retry this one count. The sense is that Helio won the trial and was vindicated, so a retrial would look petty and vindictive. Plus, there's no reason to believe that the next jury would have any more reason to find Helio guilty after the first jury rejected almost the entire case.
Plus, now I get to post another Helio/Julianne picture.
It's Friday!
Long weekend ahead! Woohoooo! But the weather......
Looks like downtown is abandoned today, doesn't it?
Just be careful driving this weekend, especially because Florida drivers rank 43rd out of the 50 states on driving knowledge. (New York is the worst.) I may be checking out early today, so go check out SFL pacer surfing or Rumpole bashing the PD's office.
Thursday, May 21, 2009
Bonanno crew busted
Curt Anderson covers the infiltration of the South Florida crew here. The intro:An FBI agent posing as a crooked businessman with ties to shady bankers was key to the indictment announced Thursday of 11 people on charges they ran a South Florida racket for New York's Bonanno organized crime family.
The unidentified agent was able to gain the trust of the crew and its leader, Thomas Fiore, by seeming to provide them with access to foreign bank accounts to launder criminal cash as well as help with drug trafficking and sale of stolen goods, according to the indictment.
All the while, the undercover agent wore a hidden recording device that captured their conversations. The FBI also recorded numerous telephone conversations between Fiore, other members of the crew and senior Bonanno bosses.
Wednesday, May 20, 2009
"I've sentenced boys younger than you to the gas chamber. Didn't want to do it. I felt I owed it to them."
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I don't know who Magistrate Wallace Dixon is (apparently he's from the Middle District of North Carolina) but I he's jumped up my favorite judge list. Apparently Rudy Giuiani's son, Andrew Giuliana, got kicked off the Duke golf team and sued in federal court for breach of contract. The team countered that he got dropped because he assaulted a teammate, defied coaches, and violated "both the rules and the spirit of the game of golf." He lost, of course, but Judge Dixon had a lot of fun writing the R&R -- even citing Caddyshack*:
Plaintiff's promissory estoppel claim... brings to mind Carl Spackler's analysis from the movie Caddyshack (Orion Pictures 1980): "He's on his final hole. He's about 455 yards away, he's gonna hit about a 2 iron, I think."
*And for those non-Caddyshack people out there, the title is another great line from the movie.
Tuesday, May 19, 2009
The Sun-Sentinel *sucks*
I had a lot to post about tonight -- from Paris to dumb associates to heavy Cuban accents -- but instead I'm going to tell you how stupid the Sun-Sentinel is. That paper, which has always given the Herald a run for its money, had one of the young star reporters in South Florida: Vanessa Blum. And it fired her today.
Why?
Well, the Sun-Sentinel let Vanessa go today because it has partnered up with the Herald and decided that it could simply buy the Herald federal court coverage for its paper. The Herald will use some Sun-Sentinel coverage of local school board stuff for its paper. And on and on. Rumpole made the point about the dying newspaper business here when he was covering the Herald's firing of Susannah Nesmith:
Here's the point with the BBC stuff- if these trends keep up, local news will soon be gone. No one to report on County Commissioners doubling dipping into their expense accounts; no one to wander the hallways of the courthouse at 2PM and write about all the Judges missing; no one to write about the cops accused of misconduct and no one to write about the injustice of trying defendants over and over until the government gets a conviction.
We can function without Susannah Nesmith. We cannot function without the Susannah Nesmith's of the world. It's a scary thought that the free press is fading away not with an assault against the first amendment, but because the morons who made the business decisions for newspapers didn't see five years ago Craigslist was about to cripple their classified ad income.
President Obama recently referred to a quote from the nation's third president, Thomas Jefferson: "If he had the choice between government with newspapers or newspapers without government, he'd choose the latter." (Rumpole, I just cited to you, Obama, and Jefferson to make a point. What's wrong with that picture?)
Now, this is no knock on Jay Weaver and Curt Anderson, who are also friends of the blog, but they can't cover the entire District by themselves. And of course we have the DBR, which is committed to covering the federal courts. But while they are covering a big case in Miami, who will be tending the store in Lauderdale? What about Palm Beach and Ft. Pierce? And Vanessa broke her share of Miami stories as well -- the latest being the sealing issues in the Mutual Benefits case, which everyone is now looking in to.
I understand budgets and the crisis facing the newspaper industry. But what's the point of having a paper if you are giving up your local coverage? The whole reason people buy the Sun-Sentinel is because of reporters like Vanessa. Without that local coverage, why do we need a Ft. Lauderdale paper?
Vanessa will land on her feet -- she's smart, personable and a great reporter. I wonder where the Sun-Sentinel will land if it keeps this up.
Monday, May 18, 2009
“While some of the tales of woe emanating from the court are enough to bring tears to the eyes...
...it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”
That was John Roberts' response in 1983 to White House counsel Fred Fielding, who asked Roberts to evaluate a proposal then in circulation to create a kind of super appeals court to assist the Supreme Court with its ostensibly pressing workload. The New Yorker has a lenghty and compelling article about Roberts here, called "No More Mr. Nice Guy." It's certainly worth a read and has lots of inside stories about Roberts.
Speaking of the Supreme Court, it just granted cert in Conrad Black's case to decide the reach of the "honest services fraud" component of the mail fraud statute.
Or, if it's really a slow day, you can check out how much the airport can see when it does "whole body imaging."
Sunday, May 17, 2009
Jay Weaver covers Liberty City verdict
Check out the interesting piece in the Herald today.
Here's the intro:
Did booting a holdout juror off the panel seal the fate of the Liberty City Six?
That is a central issue in the courtroom documents released last week after the five guilty verdicts that attracted national attention.
Known only as Juror No. 4, the woman was accused by 11 fellow jurors, prosecutors and the judge of refusing to deliberate in the federal terrorism-conspiracy case. However, in jury notes the woman said she wanted to ''see this trial to the end'' but could not withstand the pressure she was facing to change her stance -- presumably ``not guilty.''
Had she held out, prompting a third mistrial in the controversial case, the five men now facing lengthy prison sentences could have walked out of the courtroom free, because the U.S. attorney's office in Miami had already said it wouldn't try them a fourth time.
Had she held out, prompting a third mistrial in the controversial case, the five men now facing lengthy prison sentences could have walked out of the courtroom free, because the U.S. attorney's office in Miami had already said it wouldn't try them a fourth time.
U.S. District Judge Joan Lenard's removal of the juror will be the centerpiece of defense appeals, based on claims that their clients didn't receive a fair trial. After Juror No. 4, a black woman, was replaced by a black male alternate, the 12-member panel convicted five of the six defendants Tuesday on charges of conspiring with the notorious global terrorist organization al Qaeda.
''Her note clearly shows that the other jurors tried to convince her to change her beliefs about the case,'' said attorney Richard Houlihan, who represented the sole acquitted defendant, Naudimar Herrera.
''They didn't agree with her, but that doesn't mean she wasn't deliberating with them,'' Houlihan said. 'Her factual beliefs were at odds with the other jurors'. Absolutely it was going to be a hung jury if she had been allowed to stay on.
The article even has a Moran/Abbell reference, citing back to when Judge Hoeveler dismissed a juror:
To follow up, Judge Lenard reviewed a precedent-setting appeals court decision from a 1998 trial in which a Miami juror was removed from a 12-member panel because she refused to deliberate. U.S. District Judge William Hoeveler removed the woman because she spent the time working on her nails.
Lenard heeded Hoeveler's example, first by questioning the 11 other panelists about Juror No. 4. They all said she was turning her back on them when they sought her opinion, and most quoted her as saying that she doesn't believe in or trust the law.
Appellate lawyer extraordinaire Richard Klugh got all Survivor on us and had this to say about the law:
An appeals expert in South Florida said the ultimate question is whether a juror is doing his or her job.
''It seems that the jurors in this case tried to make that decision themselves, as they appeared deadlocked,'' said attorney Richard C. Klugh Jr., who reviewed the notes. ``What you don't want is a situation like [the TV show] Survivor, where the majority of the jurors vote to kick a juror off the island just because of preference.''
Klugh said the removal of the juror will be a ''substantial issue'' in the defense team's motion for a new trial and eventual appeals.
Saturday, May 16, 2009
Thursday, May 14, 2009
Justice Moreno??
Obama's short list for filling Justice Souter's seat on the Supreme Court has been leaked. And there's a Moreno on the list. Unfortunately, it's not our Moreno -- it's California Supreme Court Justice Carlos Moreno (that's him on the left). Here's the rest of list:
Solicitor General Elena Kagan
Michigan Gov. Jennifer Granholm
Homeland Security Secretary Janet Napolitano
U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood
Wednesday, May 13, 2009
This and that
1. Mike Tein is in the NY Times today, discussing the Liberty City verdict: “If you sledgehammer the square peg three times, eventually you’re going to blast it into the round hole. This isn’t a terrorism case; it’s an overcharged gang case.”
2. Judge Daniel T.K. Hurley imposed death sentences today on Daniel Troya and Ricardo Sanchez Jr. in the Turnpike murder case. It is the first federal death penalty case in the District. A snippet from the AP article:
"I must confess I have no confidence that Mr. Troya would not do this again if the opportunity presented itself," the judge said before reading the sentence.
Troya was shackled around the waist and guarded by four bailiffs. He offered an apology during the hearing, .
"First and foremost, to the victims and family members, I would like to apologize," he said. "Basically, I'm sorry to my family, the people that put faith in me to be good."
He also apologized for throwing a plastic water bottle at prosecutors in March after a jury recommended the death penalty for Troya and co-defendant Ricardo Sanchez Jr.
As he was led from the courtroom, Troya nodded to his mother, father and sister, who were silently crying.
The judge said Troya grew up in a "wonderful family" and added, "I have no idea how Mr. Troya got to be the person he is today, but he is an enormously dangerous person who has no regard for the taking of a human life."
Troya was shackled around the waist and guarded by four bailiffs. He offered an apology during the hearing, .
"First and foremost, to the victims and family members, I would like to apologize," he said. "Basically, I'm sorry to my family, the people that put faith in me to be good."
He also apologized for throwing a plastic water bottle at prosecutors in March after a jury recommended the death penalty for Troya and co-defendant Ricardo Sanchez Jr.
As he was led from the courtroom, Troya nodded to his mother, father and sister, who were silently crying.
The judge said Troya grew up in a "wonderful family" and added, "I have no idea how Mr. Troya got to be the person he is today, but he is an enormously dangerous person who has no regard for the taking of a human life."
3. And Jason Taylor re-signed with the Fins today.
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