RIP Judge James Paine

Sad news to report -- Judge Paine has passed away. Here's the PBP obit:

The flag outside the federal courthouse flies at half-mast this morning following the death Sunday of one of Palm Beach County's longest serving, hardest working federal jurists, Sr. U.S. District Judge James C. Paine.
Paine, 85, died after spending his final few days in hospice care. Funeral services are preliminarily planned for Thursday, his son, Jim Paine said.
Paine was appointed a federal judge by President Carter in 1979, retiring 28 years later in 2007.
He worked so much there was a joke around the federal courthouse: How did you know Judge Paine was on vacation? He wore a plaid shirt to work.
If you ask a passel of South Florida lawyers about Paine — winners or losers in cases from all quarters — many will mention his impartiality and demeanor. That he was the perfect persona of a federal judge, yet still a humble human being.
Paine, of Palm Beach, spoke at his retirement reception in 2007 saying he was flabbergasted by the number of people who came out on that rainy day.
"You folks are awfully nice to be here," he said in his hallmark genteel way.

And here's his Wiki entry:

Paine was born in 1924 in Valdosta, Georgia. His family moved to Palm Beach County in his childhood. Paine graduated from Palm Beach High School in 1941. He received an Associate of Arts degree from the University of Florida in 1943.
Paine joined the United States Naval Reserve from 1943 to 1946 and served in the Aleutian Islands on a fleet tugboat, taking part in salvage, diving, target towing, and combat actions during the bombardment of the Kurile Islands. After returning to the United States, Paine received a Bachelor of Science from Columbia Business School in 1947 and an LL.B. from the University of Virginia School of Law in 1950.
Paine was in private practice in West Palm Beach from 1950 to 1979. President Jimmy Carter nominated Paine to the United States District Court for the Southern District of Florida on July 12, 1979, to the new seat created by 92 Stat. 1629. Confirmed by the Senate on October 4, 1979, he received commission on October 5, 1979.
While a judge on the district court, Paine presided over several notable cases, including
The trial of the Seminole leader James E. Billie on charges of killing an endangered Florida panther, [1]
The trial of John Piazza for NFL match-fixing [2]
The revocation of U.S. citizenship proceedings of Bohdan Koziy. [3]
The trial of stockbroker Leslie Roberts on mail fraud and conspiracy charges. [4]
Paine assumed senior status on May 20, 1992.

"Any accurate depiction of the criminal justice microcosm must include the vital role of the coffee shop."

That's Milton Hirsch on the absence of a coffee shop in the new federal courthouse. John Pacenti covers the issue here:

Three years after the Ferguson courthouse was dedicated, the chief judge is fed up with the General Services Administration and is demanding to know when the planned cafeteria will materialize. Sustenance is available. Two vending machines are the only options right now. The delay in what some say is a necessary amenity prompted U.S. District Chief Judge Federico Moreno to fire off a letter Feb. 19 to the landlord, acting regional GSA commissioner James S. Weller. “I have absolutely no confidence that the restaurant is in reality to open soon,” Moreno wrote. His account of his dealings with the agency on the cafeteria reads like a classic bureaucratic nightmare. Moreno first asked when the restaurant would be opening Sept. 5, 2008, and was advised an exhaust hood, electrical wiring and fire suppression equipment would be installed shortly thereafter. The GSA said the hood vendor was on site that month. But dates came and went. The agency has said work on the cafeteria would be completed by last June, last November and then this past January. The exhaust hood has been particularly troublesome. Moreno said he was told last April 14 that hood work still needed to be completed. Moreno and Weller met in his chambers last July 21, and the judge was told the next day the “work is progressing.” In September, the GSA advised the vent hood contract had just been awarded, and fabrication would take five weeks. An electrical contractor was “standing by.” The GSA advised Moreno in January that “the remaining electrical work came to halt when it was learned that certain electrical components were missing.” Now, Moreno has been informed a “soft opening” is tentatively set for this month. “GSA’s most recent response concerning a hopeful soft opening in March is the same sort of response we have been receiving to our inquiries for the past year and half — a list of excuses or reasons for delay,” the judge’s letter said.

And you can always count on Judge Palermo for a good quote:

U.S. Magistrate Judge Peter Palermo, whose courtroom is in another building, refers to the courthouse as the “Vegas building.” “I just think there is a lost of wasted space,” he said. U.S. District Judge Paul Huck, a Ferguson tenant, said the building is just going through some growing pains. “It’s going to be a signature building in downtown for years to come,” he said. Still, he said it’s a little roomy, and there has been some tweaking here and there, particularly on the sound system. “It has some nice features that are good for lawyers and jurors in the presentation of evidence. That is a major improvement,” Huck said.

The Chief isn't happy:

Moreno, though, has thrown down the gauntlet, saying he is embarrassed by the lack of a cafeteria at the courthouse due to the GSA’s failure to deliver. “Our government is at its best when we see our armed forces in action,” the chief judge wrote. “Unfortunately, it is perceived at its worst by the thousands of jurors, lawyers, staff, litigants, etc., when they see GSA’s promises on such a simple task end in delay after delay.”

Wanted: Guest Blogger

It's been a hectic week for your favorite federal blogger. Yesterday in Tampa; today in Ft. Pierce. I promise to be better next week. In


the meantime, here's a picture of the federal courthouse in Ft. Pierce. They are building a new one up here so this old relic doesn't have much time left. Have a nice weekend everyone.

More on Scalia vs. Alito

I've often said that Justice Scalia is the most criminal-defense friendly Justice, while Justice Alito is the least. More support for this argument from yesterday's opinion in USA v. Curtis Johnson. The Court ruled 7-2 that a “violent felony” under federal law requires the use of physical violence, thereby reversing and remanding the lower court which found that a misdemeanor battery counted. Justice Scalia wrote for the majority, while Justice Alito dissented, joined by Justice Thomas. The full opinion is here. The case came out of the Middle District of Florida, and I was lucky enough to attend the Supreme Court argument. (Here are my comments from after the argument).

It's always fun reading a Scalia opinion. Here's a taste from one footnote:

Even further afield is the dissent’s argument, post, at 2–3, that since §924(e)(2)(B)(ii) requires conduct that "presents a serious potential riskof physical injury to another," §924(e)(2)(B)(i) must not. That is rather like saying a provision which includes (i) apples and (ii) overripe oranges must exclude overripe apples. It does not follow.

Is 5 hours enough time to conduct voir dire?

That's the question before the Supreme Court in the Jeff Skilling case. Here's the summary from ScotusBlog:

With Justice Stephen G. Breyer leading the way, the Court probed deeply into the questioning of potential jurors at Skilling’s trial in Houston, examining whether District Judge Sim Lake took too little time to ferret out potential prejudice or stopped short of following up to test jurors’ pre-trial intimations — or outright conclusions — that the accused Enron brass deserved to be convicted. Several of the other Justices questioned the brevity of that probing, but there was no evident consensus about what the Court should now do about it. Even Justice Breyer, who was the most troubled about Judge Lake’s performance (“I’m genuinely concern about a fair trial”), repeatedly stressed that he did not want the Court to go too far to second-guess such performances. “I’m worried about controlling too much,” he said on the second point.

And the NYTimes:

Mr. Srinivasan disputed that, and several justices appeared sympathetic to his argument. The lawyer said Judge Lake had spent only five hours on the task, posing cursory questions to jurors and taking them at their word that they would be fair despite evidence to the contrary.
By contrast, Mr. Srinivasan said, questioning in the trial of Timothy McVeigh for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people, took 18 days after a motion for change of venue from Oklahoma City to Denver was granted.
Justice Ruth Bader Ginsburg said the two cases were very different. In Mr. Skilling’s case, she said, “what’s involved is money rather than life or limb.”
Mr. Srinivasan said that extended questioning was not unusual in less serious cases, saying it had taken six days to select jurors in Martha Stewart’s trial for lying to federal investigators.
Justice Anthony M. Kennedy indicated that the questioning in Mr. Skilling’s case had been too brief. “It’s hard for me to think,” he said, that the questioning “would have been much shorter even if there had been no showing of pervasive prejudice.”

Here in the SDFLA, most judges give about 10 minutes a side for lawyers to question jurors. Some do all the questioning and do not allow any attorney voir dire. Most juries are selected in a day or less. Can fair juries really be picked so quickly? Let's see what the Court says in Skilling...

THIS is American Idol!

Or, rather, Inmate Idol...

On a faded green basketball court surrounded by a tall fence topped with barbed wire, a small platform stood elevated just inches from the ground.
Frederick Davis walked to it, took the mike and grabbed at his orange baggy pants. ``Before what you see on my pants -- INMATE DCJ -- I'm a man,'' he said.
Davis, 21, then launched into a rap in front of the 14 other inmates sitting in rows of plastic chairs. He was taking part in the second annual Corrections Idol contest -- a singing, rapping and poetry competition meant to showcase Miami-Dade Corrections inmates' talents while building their self-image.
``When they come here, they feel like they belong,'' said Chief of Operations Manny Fernandez. ``They're part of the solution, not the problem.''
Sunday's competition at the Metro West Detention Center west of Doral is an annual event planned by the Inmate Special Events Committee. Created three years ago by Fernandez, the committee includes recreation officers from all of the Miami-Dade County Corrections facilities, who also organize basketball, volleyball and Ping-Pong tournaments.

Other quick hits this morning:

1. South Florida Lawyers is hosting the Blawg Review this week.

2. John Pacenti covers the FCPA. Paul Calli is fired up:

But it was the Las Vegas roundup that received all the attention. Some defense attorneys for those arrested are accusing the government of entrapment. They point to an informant as the real culprit. Richard T. Bistrong is a former vice president for military equipment manufacturer Armor Holdings in Jacksonville. He has been charged in Washington with FCPA violations for trying to bribe officials in Nigeria and the Netherlands. He also introduced the indicted executives to the undercover FBI agents. “Mr. Bistrong’s venality, greed and deception, I think, will be an important part of this trial,” said Paul Calli, an attorney for Stephen Giordanella, the only defendant captured in the sting who wasn’t at the Las Vegas trade show.

The DBR is still trying its hand at video. Enjoy.

Seminars, conferences, and lunches: oh my

Well, Miami is the hot spot this week for the criminal practitioner:

1. The ABA's White Collar Crime Conference has been going on all week at the Eden Roc. About 1000 defense lawyers and prosecutors show up and try not to look to out of place on South Beach. I'm not sure the Eden Roc knows what to do with such a high nerd factor. The keynote speaker was
Lanny A. Breuer, Assistant Attorney General, who had this to say (via Miami Herald):

"In tackling financial fraud, we are not on a witch hunt,'' Assistant Attorney General Lanny A. Breuer told hundreds of lawyers attending his keynote luncheon address at the Eden Roc Renaissance Hotel in Miami Beach.
"We are . . . seeking fairly but firmly to go after criminal conduct where it exists. We also are striving to innovate in how we do business,'' Breuer said. "That could mean utilizing data and intelligence more strategically, or it could mean -- as we've seen in a couple of prominent cases recently -- going undercover.
"However we do it, we will be more targeted, more creative, and more strategic in where and how we look for criminal conduct.''

2. The Federal Defenders and the CJA reps are also having their annual conference here this week. Of course, their digs are a bit more economical: they are staying at the Hyatt downtown.

3. And the Federal Bar Association's South Florida Chapter is hosting two upcoming events in March.

On March 10, 2010, the Federal Bar's monthly luncheon series continues at The Bankers Club in Miami. Honorable Marcia G. Cooke and Kendall Coffey of Coffey Burlington will lead a discussion on: "Trying High Profile Cases - The Realities, Strategies, and Ethical Considerations." The lunch begins at 11:45AM.

On March 16, 2010, the South Florida Chapter is hosting a reception from 5:30PM to 7:30PM at the Wilkie Ferguson Courthouse honoring retired Supreme Court Justice Sandra Day O'Connor.

To join, visit www.fedbar.org and click on the South Florida Chapter. If anyone has questions about the events, contact Chapter President Bill Roppolo at William.Roppolo@Bakermckenzie.com

CONGRATS TO WILLY FERRER

Jay Weaver is reporting that the White House has officially nominated Wilfredo Ferrer to be U.S. Attorney of the District:

His résumé was an easy sell: He is a one-time federal prosecutor in Miami and is currently chief of Miami-Dade County's federal litigation section. He's also the former deputy chief of staff to U.S. Attorney General Janet Reno.
The son of Cuban immigrants also was valedictorian at Hialeah-Miami Lakes Senior High, first in his class at the University of Miami, and president of his class at the University of Pennsylvania Law School.
"First of all, he understood better than anybody I've worked with how the federal government works with local and state governments, " Reno said in an earlier interview. "If I wanted to write the book about how to be the U.S. attorney, Willy would be one of my models."
If confirmed by the Senate, Ferrer would replace U.S. Attorney Jeffrey Sloman. Ferrer, 43, married with two sons, would be the fourth lawyer of Cuban descent to fill the prominent job -- but the first appointed by a Democratic president.

Congrats to Willy! Hopefully Kathy Williams' nomination will come soon!

"On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice"

That's Tom Goldstein over at ScotusBlog, predicting that Justice Stevens will retire and that SG Kagan will take his place. The whole thing is worth a read, but here's the conclusion:

So, here is how I expect the next few months to play out. In the spring, Justice Stevens will announce his retirement. In May or June, the President will nominate Elena Kagan. Explaining that her paper record is a thimble-full of Sonia Sotomayor’s, Senator Leahy will schedule hearings and Senator Reid will schedule a floor vote before the summer recess. The only theme that will give opponents any success is that she fails to express her views on anything. She will then be confirmed by a vote of 61 to 39. Ok, that last prediction about the exact vote could be off by a bit, but I feel pretty confident about everything else.

Lew Freeman who?

Lew Freeman finally surrendered today on an information, charging one 20 year count. The best thing that ever happened to Freeman is Scott Rothstein. No one seems to care about this case anymore even though Freeman was as well known as Rothstein. But the losses in this case are only 2.6 million instead of a billion...

Sidney Aronovitz Courthouse

The naming ceremony for the federal courthouse in Key West is this morning. It will now be called the Sidney Aronovitz courthouse. Here's the Wiki entry for Judge Aronovitz, who was born in Key West.

Update: Here's two photos from the event from a tipster:

"The great Sony PlayStation caper"

That's the quotable Mike Tein on the new indictment accusing his client and others of exporting video games and other electronic products to a shopping mall in Paraguay that allegedly served as a front to finance the terrorist group Hezbollah. Here's the Herald article and more Mike Tein quotes:

"Believe it or not, this indictment actually charges these gentleman with supporting Hezbollah by shipping them Sony PlayStations,'' Tein said. "I guess that's a new type of weapon of mass destruction.''

Friday news and notes

Well, not much happening here in the District, other than the badly-kept secret that former Supreme Court Justice Sandra Day O'Connor will be sitting on the Eleventh Circuit as a visiting judge in March. That should be fun...

In out-of-district news:

1. Jeffrey Rosen thinks President Obama should be Justice Obama.

2. You gotta read this dissent by Judge Kozinski. Here's a snippet: "It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.
Whatever may have been left of the Fourth Amendment after Black is now gone. The visceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl."

3. And this dissent by 10th Circuit Judge Carlos Lucero: "Were this case simply about an innocent game of canasta, I would readily join the opinion of my majority colleagues outright. However, the abrupt departure of the trial judge from the bench while defense counsel was discussing the testimony of defendant's star witness, when coupled with the court's earlier admonitions to the jury that the same witness's testimony was 'absolutely untrue' and a 'falsity,' can only be interpreted as a clear message to the jury that the witness was not credible or worthy of the court and jury's unbiased consideration." (Apparently, the trial judge left the bench during the defense's closing because it was "his secretary's afternoon to play canasta and he had to get a couple of letters out.") (HT: How Appealing)

Is Justice Kennedy part of the problem for high sentences?

The NY Times has this interesting editorial about Justice Kennedy and his comments criticizing too high sentences being doled out by our justice system:

Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force. Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote.
The overall tone of Justice Kennedy’s address to the Pepperdine University School of Law was “courtly and humorous,” according to The Los Angeles Times. He turned more serious, however, on the subject of incarceration. Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.

Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”

The criticism was on the mark. The state’s prison population has soared as a result of harsh sentencing laws and parole rules. California has been ordered by the courts to bring down the population of its prison system, which is badly overcrowded and unable to provide inmates with adequate medical care.

***

It’s not that the court is insensitive to excessive punishments. It has repeatedly thrown them out — when they are against corporations. In 2003, the year the court rejected Mr. Ewing’s case, it overturned a $145 million punitive damage award against the State Farm Mutual Automobile Insurance Company as so excessive that it violated the 14th Amendment due process clause.

Justice Kennedy is right that elected officials and voters should pay more attention to overincarceration. But courts also need to do their part by enforcing constitutional prohibitions on excessive punishment in cases involving people, as well as corporations.

The Times is of course correct -- sentences are way too long in this country. More needs to be done to limit them... The pendulum has finally started to swing in this direction with Booker and district judges being given discretion in most cases to fashion appropriate sentences. Now we need to abolish min/mans.

On to other Supreme Court news -- Justice Scalia says there is no right to secede. He said so in a letter to a screenwriter (who happens to be the brother of a law blogger). How cool:

Dan is a screenwriter (whose screenplay Tranquility Base was just named a finalist at the Vail Film Festival, and previously took top honors elsewhere). Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn't get him an agent or a foot in the door of Hollywood to get his screenplays made into films -- it isn't what you write, but who you know -- but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O'Connor) with this request:

I'm a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I'm sure you'll find the story very entertaining.

I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay.

So there you have it. At least one vote solidly on record as saying that there is no right to secede. And it likely comes from a place the right wing secessionists most wanted to have a vote.

And yes, Dan still needs an agent. Because writing great scripts isn't enough if you don't know The Powers That Be on the other coast. And, for what it's worth, his now-completed script of Maine joining Canada is better than his award-winning one about a mis-adventure in space.

Here's the actual letter. Neat.

Too bad they didn't have Facebook when I was in highschool

Okay, so SFL got us hooked on this Scribd thing, so here goes. Judge Garber issued this very interesting order in a case involving a student who was suspended for starting a Facebook page about the "worst teacher [she] ever met!" The student sued, with the help of the ACLU, saying that she shouldn't have been suspended for exercising her First Amendment rights. The principal filed a motion to dismiss, which Judge Garber denied (for the most part). The student's suit can proceed:

Facebook Order
UPDATE -- The Herald weighs in here:

A student who set up a Facebook page to complain about her teacher -- and was later suspended -- had every right to do so under the First Amendment, a federal magistrate has ruled.

The ruling not only allows Katherine ``Katie'' Evans' suit against the principal to move forward, it could set a precedent in cases involving speech and social networking on the Internet, experts say.

The courts are in the early stages of exploring the limits of free speech within social networking, said Howard Simon, the executive director of the Florida ACLU, which filed the suit on Evans' behalf.

``It's one of the main things that we wanted to establish in this case, that the First Amendment has a life in the social networking technology as it applies to the Internet and other forms of communication,'' Simon said.

SECOND UPDATE -- And here's the NY Times:

Lawyers for Ms. Evans, 19, now a sophomore at the University of Florida, said that they were pleased by the ruling and that they hoped to bring the case to trial in the spring.
One of the lawyers, Maria Kayanan, associate legal director of the American Civil Liberties Union of Florida, said the judge’s decision had clearly extended the protection of First Amendment rights to online writings of a nonthreatening manner.
“This is an important victory both for Ms. Evans and Internet free speech,” Ms. Kayanan said, “because it upholds the principle that the right to freedom of speech and expression in America does not depend on the technology used to convey opinions and ideas.”

BREAKING -- Tom Raffanello acquitted -- by Judge

I'm told that in the middle of jury deliberations, visiting Judge Goldberg issued a judgment of acquittal for Tom Raffanello and his co-defendant. More to come.

UPDATE #1 -- Here's Curt Anderson from the AP on the case.

Federal Bar Judicial Reception

Good times tonight. Most of the judges and magistrates were at the Hyatt for the yearly judicial reception. Apparently before the event, Harvard Law Professors Charles Ogeltree and Alan Dershowitz (oops, apparently Dersh wasn't there) gave a talk to the judges (oops, apparently it was the clerks -- and a few judges also attended) at the courthouse.

SFLawyer has a funny post about the night. On his to do list for the evening:

Find the one judge willing to speak to me (Sam Slom?) and unleash new self-aggrandizing anecdote that reveals my wit, trial skills, wealth, humor, A-type dominance and general good taste.

Who's ready for the long weekend?

TRAFFIC!!!

Holy cow, was the traffic bad today or what?

The jury is out in the Tom Raffanello case. Here's a piece the Herald article explaining the closings:

While prosecutors charged Raffanello with trying to impede the government's case against the offshore banker, defense lawyers said their client never broke the law because all records in his office were stored electronically on a server.
``They were getting rid of junk,'' said defense lawyer Edward Shohat on Wednesday. ``No one tried to hide anything from anybody.''
Defense lawyers also said documents were routinely shredded at Stanford's security headquarters in Fort Lauderdale because they contained sensitive information on investors and company business partners.
Miami lawyer Richard Sharpstein slammed prosecutors, saying they never inspected the computers storing the office records. ``They didn't even look at what they have,'' he said.
Though Judge Richard W. Goldberg called the government's evidence in the case ``slim,'' he nevertheless allowed the case to go the jury.
Raffanello, wearing the pin of his former DEA agency in his lapel, was surrounded by a cadre of lawyers and former federal agents who showed up to support the veteran narcotics investigator who once led cases against Panama strongman Manuel Noriega and Medellín cartel kingpin Fabio Ochoa.
Prosecutors painted a vastly different portrait of the former lawman, saying he was corrupted by his job as security chief for one of the richest men in the world, and blatantly broke the law by destroying records -- despite a federal investigation.
Raffanello was well aware of an order from the receiver not to destroy any documents when he told Perraud to call in a shredding company, prosecutors said, adding that Raffanello was not in a position to decide which records the government should get.
``Their mantra was not to cooperate, but to frustrate,'' charged prosecutor Jack Patrick, saying Raffanello had destroyed important records and then tried ``to find a reason to justify it.''

Raffanello Trial: Charges against former DEA chief survive – for now

That's the headline from the DBR:

The defense in Miami maintains the destruction of papers in a 95-gallon bin was part of a routine shredding schedule and that the documents were duplicated on the firm’s computer servers. “The evidence is at best thin,” said visiting Judge Richard Goldberg. He said he would let the trial go forward but may reconsider the request for a directed verdict of acquittal later. The prosecution rested Monday, and the defense called its first witness late this morning. Sitting at the defense table were prominent Miami criminal defense attorneys Richard Sharpstein and Ed Shohat, who jointly argued the motion, as well as former Miami U.S. Attorney Kendall Coffey and Jane Moscowitz. Scheduled character witnesses are former Miami U.S. Attorney Guy Lewis and Michael “Pat” Sullivan, deposed Panamanian ruler Manuel Noriega’s lead prosecutor.

It was probably one of the best cert. petitions I have ever read.”

That was former SG Seth Waxman on this cert petition written by a bank-robber named Shon Hopwood for another inmate John Fellers. Cert was granted, and Waxman took over the case, but only if Hopwood would stay involved. Here's the NY Times:

Shon R. Hopwood was not a particularly sophisticated bank robber.
“We would walk into a bank with firearms, tell people to get down, take the money and run,” he said the other day, recalling five robberies in rural Nebraska in 1997 and 1998 that yielded some $200,000 and more than a decade in federal prison.
Mr. Hopwood spent much of that time in the prison law library, and it turned out he was better at understanding the law than breaking it. He transformed himself into something rare at the top levels of the American bar, and unheard of behind bars: an accomplished Supreme Court practitioner.
He prepared his first petition for certiorari — a request that the Supreme Court hear a case — for a fellow inmate on a prison typewriter in 2002. Since Mr. Hopwood was not a lawyer, the only name on the brief was that of the other prisoner, John Fellers.
The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.
“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”
Mr. Waxman agreed to take the case on without payment. But he had one condition.
“I will represent you,” Mr. Waxman recalled telling Mr. Fellers, “if we can get this guy Shon Hopwood involved.”
Mr. Fellers said sure. “It made me feel good that we had Shon there to quarterback it,” he said.
The former solicitor general showed the bank robber drafts of his briefs. The two men consulted about how to frame the arguments, discussed strategy and tried to anticipate questions from the justices.

Pretty cool stuff! He won other cases too:

The law library changed Mr. Hopwood’s life.
“I kind of flourished there,” he said. “I didn’t want prison to be my destiny. When your life gets tipped over and spilled out, you have to make some changes.”
He was a quick study, but he had a lot to learn.
“In 2000,” he said, “I couldn’t have named a right in the Bill of Rights.”
By 2005, the Supreme Court had granted a second petition prepared by Mr. Hopwood, vacating a lower court decision and sending the case back for a fresh look. Mr. Hopwood has also helped inmates from Indiana, Michigan and Nebraska get sentence reductions of 3 to 10 years from lower courts.
Mr. Hopwood was released from prison in the fall of 2008. Mr. Fellers was out by then, and he owned a thriving car dealership in Lincoln.
“Here,” Mr. Fellers said, presenting his jailhouse lawyer with a 1989 Mercedes in pristine condition. “Thank you for getting me back to my daughter.”

Now Hopwood is working for a Supreme Court printing company:

Mr. Hopwood now works for a leading printer of Supreme Court briefs, Cockle Printing in Omaha.
“What a perfect fit for me,” he said. “I basically get to help attorneys get their briefs polished and perfected.”
His boss at Cockle, Trish Billotte, said she had some misgivings about hiring Mr. Hopwood. It was hard to believe his story, for starters, and it struck her as curious that an aspiring paralegal was driving around in a Mercedes.
But she called Mr. Hopwood’s references, including the former solicitor general. “You don’t get through to Seth Waxman,” Ms. Billotte said. But she did, and Mr. Waxman confirmed the facts and offered his endorsement.
“We did take a risk, but we have no second thoughts,” Ms. Billotte said. “Zero regrets.”
Mr. Hopwood, who is 34, said he hoped to apply to law school next year. Richard Friedman, a law professor at the University of Michigan who worked with Mr. Hopwood on the briefs for a recent Supreme Court case, said that he had already talked to the admissions office there about saving a spot.
Mr. Hopwood’s personal life is looking up, too. He married in August, and he and his wife had a son on Christmas Day.

Superbowl Monday

Great game; great weekend for Miami. Now what peeps? Who's in trial? What's going on?

Here are a couple of items:

1. Justice Thomas is making the rounds. Here he is speaking at UF Law. Thomas gave a big shout out to a Florida lawyer in his talk. He'll be here in April.

2. Who should Obama nominate for the S.Ct. pick? Let the debate begin.

3. What about the other judges though?

4. More on Alito vs. Obama here.

Who wants to be a Magistrate? (UPDATED TWICE)

Unfortunately, the applicant list and interviews for the open magistrate position were kept secret... That said, the committee acted quickly and cut the list to 5. Now the judges get to pick the next magistrate. I've heard from multiple sources about 4 of the 5 candidates:

1. Jackie Arango (AUSA)
2. Rick Del Toro (AUSA)
3. Jonathan Goodman (Akerman Senterfitt)
4. Daryl Trawick (State Circuit Judge; U.S. Attorney finalist)
5. UPDATE -- well, we got this one wrong, so I am taking it down.... Sorry! I will post it back up when I have the right info! SECOND UPDATE -- Okay, now I got the right person: Alicia M. Otazo-Reyes (Legon Ponce & Fodiman)

If you know who the 5th person is, please email me. (UPDATE -- thanks to all my tipsters!)

So who do you all want for the job?

Four of the five are current or former federal prosecutors...

"It has become so partisan, it's really uncomfortable."

That was Justice Thomas, not speaking about the Supreme Court, but instead answering why he doesn't attend the State of the Union. There's lots more in the article, but here's a snippet of the article covering his talk at Stetson Law School:

Race and politics don't appear to be his favorite subjects. But Thomas, one of the most conservative thinkers on the court, didn't shy away from them.
"They don't care that I don't judge a case as a Catholic," he said. "But they yell because I don't judge a case as a black man."
During President Barack Obama's State of the Union speech last week, Justice Samuel Alito appeared to mouth the words "not true" after the president criticized the court's campaign finance decision.
Thomas wasn't at the speech and wouldn't address the issue. Politics, he said, is why he stopped going to the annual address.
"It has become so partisan, it's really uncomfortable for a judge," he said. "There's a lot of things you don't hear on the broadcast.
"You have catcalls and people muttering under their breath."

Justice Thomas will be addressing our District at the Bench & Bar conference in April.

Lots of shredding

The first Allen Stanford trial is underway. From the South Florida Business Journal:

Jury selection is under way this morning in the case against two South Florida men charged with shredding evidence in the case of R. Allen Stanford.
Former Stanford security personnel Bruce Perraud and Thomas Raffanello are the first to go to trial in Miami federal court in what federal prosecutors have alleged is a $7 billion Ponzi scheme led by Stanford and run through his Antigua-based bank.
Perraud, a global security specialist in the Fort Lauderdale office of Houston-based Stanford Financial Group, allegedly oversaw the shredding of documents at a warehouse facility last February. He was indicted in June.
Raffanello, who once led the U.S. Drug Enforcement Administration’s Miami office, worked as a security director for Stanford and is the husband of well-known defense attorney Susan Raffanello, of the Coffey Burlington law firm in Miami.

Interestingly, the case is being tried before visiting judge Richard Goldberg, who told jurors that the trial would last about two weeks.

The first witness testified today that in February 2009, there was more shredding than in any other month. Here's the AP on the first witness.

"A Law for the Sex Offenders Under a Miami Bridge"

Miami is in Time Magazine again. This time for sex offenders living under the bridge:

The Julia Tuttle Causeway is one of Miami's most beautiful bridge spans, connecting the city to Miami Beach through palm-tree-filled islands fringed with red mangroves. But beneath the tranquil expanse sits one of South Florida's most contentious social problems: a large colony of convicted sex offenders, thrown into homelessness in recent years by draconian residency restrictions that leave them scant available or affordable housing. They live in tents and shacks built from cast-off supplies, clinging to pylons and embankments, with no running water, electricity or bathrooms. Not even during a recent cold spell, when nighttime temperatures dropped into the 30s, could they move into temporary lodging.

***

But with the disturbing bridge colony putting Miami under increased national scrutiny — it has managed the improbable feat of arousing sympathy for pedophiles — Miami-Dade County hopes to return some sanity to the issue. A new law takes effect on Monday that supersedes the county's 24 municipal ordinances, many of which make it all but impossible for offenders to find housing. It keeps the 2,500-feet restriction, but applies it only to schools. It also sets a 300-foot restriction to keep offenders from loitering near anyplace where children gather, which many experts call a more practical solution than harsh residency restrictions.

County officials, as well as the American Civil Liberties Union, hope the law will prod states and perhaps even the U.S. Congress to craft more-uniform laws to prevent the kind of residency-restriction arms race that Florida let local governments wage. "The safety of Floridians has suffered as local politicians have tried to one-up each other with policies that have resulted in colonies of homeless sex offenders left to roam our streets," says state senator Dave Aronberg, a Democrat running for state attorney general. The excessive rules, he adds, "have the effect of driving offenders underground and off law enforcement's radar." Aronberg is co-sponsoring a new bill that would establish uniform statewide residency rules fixed at 1,750 feet — studies show that in many cities, over 50% of available housing is within 2,500 feet of schools — and include the sweeping no-loitering zones.

Monday morning...

Monday morning + Rain = FREAKING HORRIBLE TRAFFIC

As you all know, I'm not a fan of judicial elections. Tony Mauro writes that the recent Citizens United decision might kill judicial elections:

For years now, judicial reform groups have more or less resigned themselves to the reality that the public likes to elect its state judges and will fight any effort to appoint them instead.
The U.S. Supreme Court's Jan. 21 decision in Citizens United v. FEC may have altered that sober truth -- or at least has given reformers a glimmer of hope that it might. By supersizing possible corporate domination of judicial elections, the thinking goes, the Supreme Court's decision may finally make the public see how unseemly the elections are -- and move toward merit-based selection as an alternative.
"There is a silver lining to the decision," said Ohio Chief Justice Thomas Moyer, who has taken the lead in seeking change in Ohio's elective system for judges. "For those of us who have been trying to impress upon the public the deleterious effects of money in these elections, it helps us make the point that we need to get the money out."
"The time is now for change," said Rebecca Kourlis, former Colorado Supreme Court justice and executive director of the Institute for the Advancement of the American Legal System at the University of Denver. "I believe we can revitalize the merit-selection movement."
Kourlis spoke at a Georgetown University Law Center conference on judicial elections convened on Jan. 26 by retired Justice Sandra Day O'Connor. In retirement, working with Kourlis and others, O'Connor has become a merit-selection evangelist who energizes the movement by her sheer presence. O'Connor's calendar is dotted with meetings with local good-government groups across the country aimed at jump-starting the effort to change the way state judges are chosen. Currently, O'Connor said, more than 80 percent of state judges have to win a political election to gain or retain their seats.

Rev. Ike hit with $5 million verdict in federal court

How did no one cover the male on male sexual harassment case before Judge Cooke? Rev. Ike just got hit for $5 million!

The case was: Augusto Medina vs. United Christian Evangelic Association & the Estate of Frederick Eikerenkoetter (Rev. Ike) -- Case No. 08-22111. Congrats to Robyn Hankins and Jennifer Ator for their big win.

I am working on getting some of the details of the case and will post soon. In the meantime, here's a clip of Rev. Ike:



UPDATE -- lots of great stories rolling in about the case. Here's one:

Rev. Ike testified in his deposition, which was played at trial, that he never had any sexual contact with Plaintiff Medina, and that there was no way this could have been consensual because it never happened. Also when asked if there was anyone who could overrule a decision made by him, Rev. Ike said, "All those in favor say aye, all those opposed say, I resign. No."

In the closing argument, Defendants' attorney said that Rev. Ike lied at his depo and that the sex was consensual. Of course Rev. Ike denied it ever happened, the lawyer said, because of his position and Medina knew that he had to deny it and would deny it, which is further proof of the calculated plan to extort money from Rev. Ike.

Apparently there was a gasp from Rev. Ike's widow, who was in the audience, when the lawyer revealed that there was consensual sex.

Wow.

Why I love my TiVo

I got to watch Justice Alito's horrible poker face about 6 times before my wife made me continue with Obama's speech last night. After the President criticized the Supreme Court opinion in Citizens United, Justice Alito mouthed "not true" and shook his head. Here's the video:



All the other Justices kept their poker faces, but Alito was not a happy camper.

Ho hum

Scott Rothstein finally pleaded today. (Here's the agreement.) And Kim Rothstein made an appearance:



And there were even scuffles outside the courtroom.

UPDATE -- so I read the Rothstein plea agreement. It's pretty standard stuff. Things that jumped out at me about it -- the government agreed that if the guidelines are life, they will agree to a downward variance. I think that's quite a concession and one I rarely see in plea agreements. Second, Rothstein agreed to waive his right to appeal and to waive his right to a habeas proceeding. That means that Judge Cohn can sentence Rothstein anywhere from zero to life, and Rothstein cannot attack the sentence. He will have to eat whatever Judge Cohn gives him. (I never understood how a defense lawyer can agree to have his client waive his habeas rights -- if the defense lawyer is ineffective, how can he advise his client to waive that?)

Sick of the Rothstein stuff.... well, fellow geeks, check out this 7th Circuit opinion on Dungeons and Dragons -- finding that it's a threat to prison security! Above The Law covers it here. HT: SB.

1 millliooooon dollars

Julie Kay says lawyers are going to make a lot of money off of the Scott Rothstein mess:

While Scott Rothstein's alleged $1.2 billion Ponzi scheme has proved a tragedy to hundreds of former employees, creditors and investors, it has been a boon to one group -- South Florida's lawyers.
According to experts, when all is said and done, the case will result in legal fees topping $15 million. That figure includes fees to the receiver, Herb Stettin; the two law firms he hired to assist him; a cadre of lawyers and firms hired by creditors and the attorney for the creditors' committee; defense fees for banks, insurance companies and other sued parties; and fees paid to all the criminal defense lawyers hired by Rothstein partners, associates and family members.
``This is like the lawyer's relief act,'' said Guy Lewis, a Miami attorney and former U.S. attorney who has served as receiver in numerous Ponzi/fraud cases. ``It's going to be an eight-figure case. It's probably the biggest receivership in the country right now.''

Bedtime stories

Two articles worth a look:

1. "After 34 Years, a Plainspoken Justice Gets Louder" in the New York Times about Justice Stevens. HT: Rumpole

2. "U.S. Attorney candidates face attacks from old adversaries" in the St. Pete Times about the fighting to become U.S. Attorney in the MDFLA. HT: SFLawyers

Who dat

Looking forward to the Saints/Colts Superbowl. Thank goodness it's not the Jets.

What up people?

Anyone in trial?

Bob Norman was at the Scott Rothstein auction and took some video here.

Here is the Florida Bar's webpage addressing its Haiti relief effort.

That's all I got for you this Monday morning. Hit me up with some news.

UPDATE -- Curt Anderson covers the Supreme Court's decision not to review Manuel Noriega's case.

Justice Stevens has a bad day

Yesterday was a big day in the Supreme Court with the campaign finance decision. But it was also noteworthy because those in the courtroom noted that Justice Stevens was having some trouble reading his dissent. Many have speculated that Justice Stevens is going to retire at the end of the Term, in part because he's hired only one clerk. From the BLT:

It's rare, and always dramatic to watch, when a Supreme Court justice reads from a dissent on the bench. On Thursday, when Justice John Paul Stevens read at length from his stinging 90-page dissent in Citizens United v. Federal Election Commission, it was also a little painful to watch.
For more than 20 minutes, Stevens spoke haltingly as he read from a summary of the dissent, a task he'd ordinarily breeze through. The 89-year-old justice seemed off his game, tripping on some words, getting stuck on others. At one point, he kept mispronouncing the word "corporation" as something like "corpo-russian," and he could not quite get it right.
As CBS News Court correspondent Jan Crawford noted on her blog with similar observations, "Maybe it was just a bad day, and Lord knows we’ve all had those." And the written product is more important than how it was read aloud. But with a justice who is said to be on the verge of retiring at the end of this term, and in a case of such high impact, it was hard not to notice Stevens' tough morning.

Where are the judges?

Jeffrey Toobin asks this question in the New Yorker. It's a fair question. What is taking Obama so long? Toobin:

When Obama took office, there were more than a hundred vacancies on the federal appeals and district courts. One year into his tenure, Obama has made only thirty-one appointments to those courts, and just twelve have been confirmed. In George W. Bush’s first year, with a similar number of vacancies, he made sixty-four nominations. White House officials assert that ten new district court nominations are imminent, but the overall pace remains astonishingly slow. I wrote about this aspect of Obama’s Presidency last September, and the trend has continued.

Why is this? In part, it’s because a Supreme Court vacancy, which the President filled with the admirable Sonia Sotomayor, occupied the White House through the summer months. That successful nomination is both more important—and was more time-consuming—than any of the others.

But there is another major factor as well. As a former Senator himself, the President is a believer in the tradition of senatorial direction of district-court nominations, and senatorial influence on appeals-court choices. The President wanted to include senators in the process, including those of the opposition party. It was an example of Obama’s post-partisan plans in action. If Republicans had a voice in the judicial nominations process, the theory went, partisan bickering would slow, if not cease, and the judiciary would inch away from the culture wars.
As in other areas, Obama’s hopes for post-partisanship failed when it came to the judiciary. Republicans have stalled on many nominations, fought others, and mostly done their best to slow down the pace. What’s perplexing is that Obama himself has not filled the pipeline with nominations; if he did, Republicans might feel some pressure to move the process along. Senator Patrick Leahy, the chairman of the Judiciary Committee, has held prompt hearings for all of Obama’s nominees, but he can’t hold hearings on nominations that haven’t yet been made.

I don't think either of these explanations work. So what that the administration was working on Justice Sotomayor? It should have been working equally hard on filling the other slots. And as for wanting the Senators' support, I'm not sure this is true. In Florida, for example, the rumors are that the Oval Office did not want a recommendation from the Senators (even though that's how it had worked in the past), which delayed the process. Thankfully, Kathy Williams is finally being vetted. But more openings are on the horizon in the District; hopefully we'll see them filled faster.

UPDATE -- Well, at least one open seat (Lanier Anderson's) just got filled -- the Senate just confirmed new 11th Circuit judge Beverly Martin 97-0. Congrats!

Supreme Court addresses case of the chocolate penis

This is not a joke -- check out Wellons v. Hall, a case that comes out of the 11th Circuit. Here's the AP and the ABA:

The U.S. Supreme Court has ordered a federal appeals court to reconsider the claims of a Georgia death row inmate who is challenging his rape and murder conviction based on some unusual chocolate gifts given to the trial judge and bailiff.
Some jurors hearing the case against defendant Marcus Wellons gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.
In a 5-4 ruling (PDF), the U.S. Supreme Court in a per curiam opinion ordered the Atlanta-based 11th U.S. Circuit Court of Appeals to reconsider whether Wellons is entitled to discovery and a hearing in light of a high court ruling last year on behalf of an inmate who contended prosecutors withheld evidence of his drug addiction.
“Neither Wellons nor any court has ascertained exactly what went on at this capital trial or what prompted such ‘gifts,’ ” the Supreme Court wrote in the per curiam opinion. “Wellons has repeatedly tried, in both state and federal court, to find out what occurred, but he has found himself caught in a procedural morass.”
The court said that defense counsel did not learn until after the trial about unreported ex parte contacts between jurors and the judge, that jurors and a bailiff planned a reunion, and that jurors gave the chocolate gifts to the judge and bailiff either during or immediately after the penalty phase of the trial.
“From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect,” the Supreme Court said in the per curiam opinion. “The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner’s constitutional claims.”

Ah, that's just too good. In other news: Judge Jordan sentences the Crime Stoppers cop to two months.

And American Idol is back:

Justices Better at Precedent Than Prescience

That's the title to this interesting Adam Liptak NYTimes article. Liptak argues that the Supreme Court Justices aren't too good about making predictions. I particularly like the discussion of broadcasting federal court hearings. I think it's absurd that we don't allow cameras in the courtroom. From the article:

The Supreme Court’s main strength lies in adjudicating disputes based on things that have already happened. It is less good at predicting the future.
On Wednesday, for instance, it shut down plans to broadcast the same-sex marriage trial in San Francisco partly for fear that witnesses in the case would be harassed if their public testimony were made more public. That conclusion is known in the trade as speculation.
Consider first of all that we are talking about a trial held in open court and subject to intense press coverage. The witnesses are mostly paid experts whose views on the subject are already well known. “They’re not, after all, in the witness protection program testifying against Mafia bosses,” Eva Rodriguez wrote in The Washington Post.
Then add to the analysis that the additional coverage the court forbade was only closed-circuit transmissions to a few other federal courthouses around the country. (There had been talk of posting video on YouTube, but the idea was never approved and so was not before the Supreme Court.)
The people viewing the transmissions in the remote courthouses would have been barred from making recordings of the proceedings. Allowing the transmissions, Eugene Volokh wrote on The Volokh Conspiracy legal blog, was equivalent to “holding the trial in an extra large courtroom.”
“And most of the extra audience would be far from California,” Mr. Volokh added, “and therefore not especially likely to be able to effectively harass the witnesses in ways that turn on seeing the witness’s testimony.”
There were other grounds for the court’s 5-to-4 decision, including the majority’s sense that lower-court judges in California have twisted the procedural rules to allow video coverage, a point that resonated with Ms. Rodriguez and other commentators. But the court also grounded its ruling on a finding that opponents of same-sex marriage “have demonstrated that irreparable harm would likely result” from the transmissions.

"He's just a natural leader -- it's innate, yet he's so modest."

That's Willy Ferrer's former boss Murray Greenberg in the nice Herald article about Ferrer becoming U.S. Attorney. Here's the intro:

When Barack Obama was elected president, Miami's Democratic machine revved up to raise the profile of Wifredo Ferrer -- now the likely nominee for U.S. attorney in Miami.
His résumé was an easy sell: former deputy chief of staff to U.S. Attorney General Janet Reno, a one-time federal prosecutor in Miami and chief of Miami-Dade County's federal litigation section.
The son of Cuban immigrants also was valedictorian at Hialeah-Miami Lakes Senior High, first in his class at the University of Miami, and president of his class at the University of Pennsylvania Law School.
``When the president was elected and it was clear a Democrat was in the White House, the stars aligned,'' said Obama fundraiser J. Ricky Arriola, who met Ferrer, also an Obama backer, when they were both associates 18 years ago at Steel Hector & Davis in Miami.
``But he stands on his own -- no amount of political spinning would have gotten him this position,'' said Arriola, who was appointed by Obama to the president's Committee on the Arts and Humanities. ``Willy worked very hard to get it.''
Attorney General Eric Holder, former deputy to Reno during her tenure in that post, is overseeing a final FBI review of Ferrer this month before the president is expected to nominate him as the U.S. attorney for the Southern District of Florida. Ferrer, 43, married with two sons, would be the fourth lawyer of Cuban descent to fill the prominent job -- but the first appointed by a Democratic president.

The article concludes with more from Murray:

"He hasn't forgotten his background. He is Hialeah. He's very much at home in the Cuban culture, but he's also very much at home anywhere in Miami, and anywhere in the country.''

Our prior coverage of Willy is here .

Slow blogging

Sorry for the slow blogging. We will be back Monday. In the meantime, check out Rick Bascuas' blog -- he's not happy with the Court. South Florida Lawyers and Rumpole also have good posts. Enjoy the warmer weather...

"We have conduct that shocks the conscience."

That was Chief Assistant Federal Defender Michael Caruso (who should be the next PD after Kathy Williams becomes a judge) at the Jose Padilla oral argument in Atlanta discussing the treatment of his client at the Navy brig:

Convicted terrorism plotter Jose Padilla's attorneys asked an appeals court on Tuesday to throw out his conviction, arguing that he was the victim of "outrageous governmental conduct."

Padilla gained notoriety when he was accused in 2002 of plotting to blow up a radioactive "dirty bomb," though those claims were eventually dropped. He was later convicted along with two others in an unrelated terrorism plot.

Padilla's lawyer told the 11th Circuit Court of Appeals that his client should have been granted an evidentiary hearing before the 2007 trial that would have proved he was being mistreated by the government.

***
In court filings and during arguments Tuesday, Padilla's attorney Michael Caruso contended there should have been an evidentiary hearing before the trial that would have proven he is the victim of "outrageous governmental conduct." He said his client was mistreated and tortured on a Navy brig, charges that federal officials have repeatedly denied.

"There can be no dispute that we have that here - extremely prolonged isolation, psychological and physical abuse, prolonged interrogation," said Caruso. "We have conduct that shocks the conscience."

It will be interesting to see what the Court does on this very sensitive case...

In other news:

SFLawyer covers the Federal Bar lunch here.

The Florida Bar is investigating a number of RRA lawyers (via Miami Herald).

And Scott Rothstein was before Judge Cohn today explaining that because he has known his lawyer Marc Nurik for 30 years (Nurik later said this was an exaggeration), he didn't think there could be a conflict:

Also, prosecutors said that Nurik could have exculpatory information since he worked with Rothstein.

But Rothstein told Cohn that he has no reservations about keeping Nurik as his attorney.

``I believe in his loyalty,'' Rothstein said.

When Cohn asked Rothstein if Nurik may attempt to protect other employees at the firm who prosecutors said may have criminal culpability, Rothstein said:

``I've known Mr. Nurik for 30 years, Judge. I don't believe that is a possibility for him.''

After the hearing, Nurik said that 30 years was an exaggeration -- he said he met Rothstein when he was a student in his trial advocacy class at Nova Southeastern University law school.

Rothstein racked up 20 Million AMEX points

Damn....

In other news, Melendez-Diaz v. Massachusetts -- the confrontation case from last term that said lab reports were subject to Crawford and the Confrontation Clause -- may be on the chopping block. From Tony Mauro at Law.com:

Justice Sonia Sotomayor, who was not on the Court for the Melendez-Diaz case, sent out mixed signals on whether she would provide the vote needed for reversal. (Her predecessor David Souter was in the majority.) As has become her custom, Sotomayor actively questioned both sides during Monday's argument in Briscoe v. Virginia.
Meanwhile Justice Antonin Scalia, who authored last year's ruling, fought vociferously to save it during the hourlong hearing, and he strongly implied that the four dissenters in Melendez-Diaz had voted to review Briscoe just to overturn the precedent. "Why is this case here except as an opportunity to upset Melendez-Diaz?" Scalia asked, later adding, "I'm criticizing us for taking the case."
In the case before the Court, Mark Briscoe and Sheldon Cypress were prosecuted in Virginia courts on drug charges based in part on "certificates of analysis" from the state laboratory attesting to the amount and type of drugs found during their arrests. They both invoked the confrontation clause of the Sixth Amendment, which gives defendants the right to be confronted with the witnesses against them. They argued that the drug evidence needed to be presented in person so it could be subjected to cross-examination. The Virginia Supreme Court upheld use of the written certificates because state law allows defendants to call the forensic analysts as witnesses, and Briscoe and Cypress had not done so.
The Court in Melendez-Diaz indicated that an approach like Virginia's, shifting the burden of calling the witness to the defendant, would not satisfy the Sixth Amendment.
Upholding the Virginia approach, said the defendants' lawyer Richard Friedman, would "severely impair the confrontation right and threaten a fundamental transformation in the way Anglo-American trials have been conducted for hundreds of years."
But a brief (pdf) filed by state attorneys general asking that Melendez-Diaz be overturned was on the mind of several justices. The brief said the decision has already had an "overwhelming negative impact" on drug prosecutions by requiring short-staffed and underfunded state labs to spend too much time in courtrooms.
When Friedman said that, in fact, "the expense is not inordinate," Justice Samuel Alito Jr. snapped, "How can you say that? We have an amicus brief from 26 states and the District of Columbia arguing exactly the contrary."
Virginia Solicitor General Stephen McCullough, joined by Leondra Kruger, an assistant to the U.S. solicitor general, argued that a system in which the defendant has the burden of calling the forensic witness satisfies the Constitution.
McCullough said that, since the Melendez-Diaz ruling was handed down, Virginia has seen "extensive gamesmanship" by criminal defense lawyers using the requirement of in-person testimony to their advantage.
Sitting at the defendants' counsel table with Friedman was Stanford Law School professor Jeffrey Fisher. Either Fisher or Friedman has argued the defense side in a series of cases that, since 2004, have revived the confrontation clause as a tool for defendants.

UPDATE -- at the argument, there was some talk about the word orthogonal:

University of Michigan law professor Richard Friedman was trying to define the scope of the confrontation clause in oral arguments yesterday when he was called on to define another term: orthogonal.
Friedman used the word when he indicated that a justice’s question was not pertinent to the present case, according to The BLT: The Blog of Legal Times and the Washington Post. "I think that issue is entirely orthogonal to the issue here," he said. The word is a math term meaning things are perpendicular or at right angles, but Friedman used it to mean that two propositions are irrelevant, the BLT says.
That got the attention of Chief Justice John G. Roberts Jr. "I'm sorry. Entirely what?" he said.
"Orthogonal,” Friedman replied. “Right angle. Unrelated. Irrelevant."
Friedman tried to continue, but Justice Antonin Scalia jumped in. "What was that adjective? I liked that," he said.
"I think we should use that in the opinion," Scalia later added. “Or the dissent,” said Roberts.

Jose Padilla case to be argued in the 11th Circuit this week

And SDFLAers, you won't be able to watch it unless you are in Atlanta tomorrow.

The DBR previews the argument here. Both sides have appealed -- the defense has appealed the conviction and the government has appealed the sentence. Should be interesting to see what the court is focused on during the oral argument.

Here's the intro to the DBR story:

Expect the specter of Osama bin Laden and the torture of detainees to be raised Tuesday during oral arguments in the appeals by reputed dirty bomber Jose Padilla and two co-defendants convicted of sponsoring terrorism abroad. The arguments come just a few weeks after the failed Christmas Day attempt by a Nigerian man linked to the terrorist group al Qaeda to blow up an American airliner. Foremost among the issues before a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta is a decision by the trial judge to allow jurors to see a videotape of al Qaeda leader bin Laden. Attorneys for Padilla, Adham Hassoun and Kifah Jayyousi say the trial was forever tainted when the videotape was played because it linked the defendants to the worst terrorist attack on U.S. soil even though they were charged with other crimes. “The error in the admission of the bin Laden video arose out of tying the architect of the horrific attacks of September 11, 2001, to a case that, as to all defendants, involved conduct which predated these attacks,” Padilla’s attorney, Assistant U.S. Federal Defender Michael Caruso, argues in his brief.