Monday morning quick hits

1. The DBR does its year in review. Lots of bad eggs in the year -- Rothstein, Freeman, Adorno, Tolz... I don't think Santa will be bringing those guys anything this year.

2. I forgot to post the Obama pardon story from a couple weeks ago. He finally pardoned some humans but the list is really a joke. It includes Ronald Lee Foster of Beaver Falls, Pa., who was sentenced to a year of probation and a $20 fine for mutilating coins in 1963. Wow, thank goodness Obama was on top of that one... "The president was moved by the strength of the applicants' post-conviction efforts at atonement, as well as their superior citizenship and individual achievements in the years since their convictions," said White House spokesman Reid Cherlin.

3. No more crush videos: President Barack Obama on Thursday signed into law a bill that outlaws the creation and distribution of so-called animal crush videos -- culminating a remarkably quick response to a Supreme Court decision handed down less than eight months ago.

It was April 20 when the Court, in United States v. Stevens, struck down an earlier federal law that banned a more broadly defined category of depictions of animal cruelty. The Court found that law to be "substantially overbroad" and therefore unconstitutional under the First Amendment, because it could apply to hunting and fishing videos and other legitimate depictions.

The new law, passed with bipartisan support after hearings in recent months, focuses more narrowly on "obscene" animal crush videos in which animals are crushed or burned or otherwise mutilated. The definition ties the offense to obscenity -- which is not protected by the First Amendment -- by noting that the videos appeal to a particular sexual fetish.

“California may be about to execute an innocent man.”

That's the opening line of Judge Fletcher's 100 page dissent from en banc review in the 9th Circuit and the opening line of this NY Times op-ed. This makes my blood boil -- if you can't make it through the entire dissent, you should check out the article. It very persuasively sets forth how Kevin Cooper, a black man in California who faces lethal injection for supposedly murdering a white family, was framed by police. Forget the horrors of an innocent man having spent the last 20 years on death row, how can the judiciary allow the state to execute him when he is "probably innocent" according to Judge Fletcher and 4 other Ninth Circuit judges. The NY Times has called for Governor Schwarzenegger commute the sentence:

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”

That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?

That's "a pretty sorry state of affairs with respect to what goes on in the statehouse."

That was Judge Zloch during the change of plea for Alan Mendelsohn.

From the AP:

A politically connected eye doctor and prominent fundraiser pleaded guilty Thursday to a federal conspiracy charge, admitting he filed false tax returns, lied to FBI agents and diverted tens of thousands of dollars in contributions for his own use.
During a plea hearing, Dr. Alan Mendelsohn said he got caught up in a Tallahassee pay-to-play system in which politicians reward those who funnel money to the right places and punish people who refuse.
Mendelsohn, who lobbied legislators on various health issues, told U.S. District Judge William Zloch of one instance in which he paid $82,000 to an associate of former state Sen. Mandy Dawson, a Democrat who had demanded repeatedly that Mendelsohn "hire" the aide.
"Otherwise, we had the great fear of being retaliated against legislatively," Mendelsohn told the judge, adding that such practices are common in state government.
Zloch responded that it was "a pretty sorry state of affairs with respect to what goes on in the statehouse."

In other news, Rumpole is covering the very sad story of Judge Robert Pineiro's death. The comments on the blog about him are lovely and I wish his family well during this terrible time.

Judge Cooke's annual holiday party

Judge Cooke has an annual party outside her chambers where she serves lots of delish desserts. Here is Jan Smith partaking in the fun:

Fun with the new SDFLA website

I was looking at the revamped district website (that was discussed here), and there are some neat features it has. For example, you can pull recently filed criminal cases, recently filed civil cases, and recent jury verdicts. You could always do this on CM/ECF, but you had to pay for it. Now it's free. Good stuff.

What you see is what you get.

Well not always. We've covered stories of government witnesses testifying in disguise. Well now a defendant gets to cover up...

From the NY Times:

When John Ditullio goes on trial on Monday, jurors will not see the large swastika tattooed on his neck. Or the crude insult tattooed on the other side of his neck. Or any of the other markings he has acquired since being jailed on charges related to a double stabbing that wounded a woman and killed a teenager in 2006.

Mr. Ditullio’s lawyer successfully argued that the tattoos could be distracting or prejudicial to the jurors, who under the law are supposed to consider only the facts presented to them. The case shows some of the challenges lawyers face when trying to get clients ready for trial — whether that means hitting the consignment shop for decent clothes for an impoverished client or telling wealthy clients to leave the bling at home.
“It’s easier to give someone who looks like you a fair shake,” said Bjorn E. Brunvand, Mr. Ditullio’s lawyer.
The court approved the judicial equivalent of an extreme makeover, paying $125 a day for the services of a cosmetologist to cover up the tattoos that Mr. Ditullio has gotten since his arrest. This is Mr. Ditullio’s second trial for the murder; the first, which also involved the services of a cosmetologist, ended last year in a mistrial. If convicted, he could face the death penalty.
“There’s no doubt in my mind — without the makeup being used, there’s no way a jury could look at John and judge him fairly,” Mr. Brunvand said in an interview in his office here. “It’s too frightening when you see him with the tattoos. It’s a scary picture.”

Hence the cosmetologist. Chele, the owner of the company performing the work, said the process takes about 45 minutes
The first stage is a reddish layer to obscure the greenish tinge of the ink — “You cover a color with a color,” she explained. Then comes Dermablend, a cosmetic aid that smoothes and obscures and is used to cover scars and pigmentation disorders like vitiligo. A flesh-toned layer is then sprayed on with an air gun, and finally, to avoid the porcelain-doll look that comes from an even-hued coat, a final color touchup intended to, as theatrical makeup artists say, “put blood back in.”
The cosmetologist asked that she not be identified by her full name out of fear of reprisal and lost business. “We mostly do weddings,” she said.

What say you readers? Should this defendant get a make-up job to get a fair trial or should the jury see him as he is?

Cameras in the 9th Circuit

Check it out today at 1pm on CSPAN -- it's the oral argument in the Prop 8 case in the 9th Circuit. From the LA Times:

Forget the latest episode of "House." The big TV event on Monday, at least in California, will be the U.S. 9th Circuit Court of Appeals hearing on Proposition 8, airing on C-SPAN. A panel of two appellate judges known to have liberal leanings and one with a more conservative reputation will consider the state's ban on same-sex marriage, passed by voters in 2008 but tossed out by a federal judge earlier this year.

We agree with U.S. District Judge Vaughn R. Walker's ruling that found the proposition unconstitutional, and with his finding that gay men and lesbians have historically been targets of discrimination. As such, they are entitled to the highest level of protection from the courts under the 14th Amendment to the U.S. Constitution against new laws that seek to strip them of their rights — including the right to marry. We also agree that there was no rational basis for Proposition 8. During the trial, even opponents of gay marriage were unable to articulate any ways in which such marriages would harm those of heterosexual couples, one of the contentions made by the defense. The defense's other claims — that heterosexual couples make better parents and that the purpose of marriage is responsible procreation — also fell apart under the lightest of scrutiny.

Another Mortgage Fraud NG verdict

This time it was before Judge Graham on a retrial of a bunch of defendants (the first jury hung). Trial took about a month. Defense lawyers were: Mike Smith, Sherri Romano, Orlando do Campo, Len Fenn, Marty Feigenbaum, Scott Sakin, Peter Patanzo, and Israel Escinosa. Congrats.

More of these cases need to go to trial.

Tom Meeks receives Court's "Unsung Hero" award

This week, the Southern District of Florida bench awarded Tom Meeks the "Unsung Hero" award for his work on the local rules committee. Congratulations! Last year Brian Spector received it. Here's a picture of Meeks giving his acceptance speech. (That's Judge Palermo's head on the right.)

Congrats to the 3 who made the cut

A reliable source tells me that the Federal JNC will recommend Jerald Bagley, John O'Sullivan, and Bob Scola to the Senators. Congratulations to those three!

Interesting facts: all three are judges, two state and one federal magistrate. Bagley and Scola were finalists for the last seat as well. Kathy Williams is still waiting to be confirmed for that seat...

UPDATE-- Kendall Coffey sent this email late last night to the 16 applicants:

On behalf of the Southern District Conference of the Florida Federal Judicial Nominating Commission, I want to express our appreciation for the time you spent with us during your interview today. You are to be commended for your impressive presentation and qualifications as well as for your service to the public and to our profession. Because of the high quality of the applicants, these were truly difficult decisions. As a result of the deliberations that followed the interviews, the District Conference members have selected the following finalists whose names will be forwarded to Senator Nelson and Senator LeMieux in accordance with Rule 27 of the Florida Federal JNC Rules of Procedure:

Jerald Bagley

John J. O’Sullivan

Robert N. Scola, Jr.


Again, we are grateful for the opportunity to have met with you and truly appreciate your participation in this important process.

Kendall Coffey

Good luck to the applicants for Judge Huck's seat

The JNC is conducting interviews all day today. Good luck to all 16.

Justice Stevens weekend

Justice Stevens was everywhere this weekend. In the NY Times, discussing the death penalty:

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.
But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.
The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

The whole review by Justice Stevens is worth a read.

Stevens was also on 60 Minutes:



It's amazing to watch him -- he still seems young and vibrant. I didn't know that his father was convicted and that an appellate court reversed the conviction. He discusses how that impacted him as a kid and as a judge. He also was at the game where Babe Ruth called the shot, and he talks about that as well. Great stuff.

UPDATE -- Rumpole has more on the Stevens interview here.

Happy Thanksgiving pardons?

While President Obama pardons a turkey today, he has yet to pardon one human being! On a lighter note, this video is making the rounds again:



Yikes!

In any event, happy turkey day to you all. We have a lot to be thankful for.

Happy Thanksgiving

Most people emailing me this link about the boy who was charged with mutilating and killing cats who was cleared today are saying something like: "He has a lot to be thankful for! They dismissed today."

This kid's life has been ruined by these charges. I think those of us involved in the criminal justice system sometimes forget how much the fact of being charged really affects someone's life. The prosecutors ended up doing the right thing, but now what? How does Tyler Weinman get his life back? He was in high school when he got charged...

Here's the Herald article:

Prosecutors on Wednesday dropped their case against accused serial cat killer Tyler Weinman after two scientific experts determined that an animal, not the teen, was to blame for a string of grisly feline mutilations in South Miami-Dade last year.

That means Tyler Weinman, 19, is now a free man.

``Our job is to seek the truth and the truth is that this was done by an animal predator, not by a human being,'' Miami-Dade State Attorney Katherine Fernández Rundle said Wednesday.

Police and prosecutors -- who initially relied on the opinions of Miami-Dade's Animal Services department -- built a circumstantial and highly publicized case in the mutilations that terrorized pet owners across the upscale cities of Cutler Bay and Palmetto Bay.

Weinman was initially accused of slaying 19 cats in South Miami-Dade, was faced a slew of burglary and cruelty to animal felonies.

``I'm so happy right now,'' said defense attorney David Macey. ``Vindication. I'm thrilled. And Tyler is elated that justice has prevailed.''

No DNA linked Weinman to eight preserved animal carcasses and finally, a defense forensic veterinarian concluded that an animal was to blame for the killings. Two state experts agreed.

``They peeled back underneath the skin and found puncture wounds and that was the end of the case,'' Fernández Rundle said. ``This is a classic case of scientific evidence trumping a circumstantial case.''

Kimba Wood is cool

Check out this motion and Judge Wood's awesome response.

Courtesy of the WSJ Law Blog:

The Manhattan lawyer recently asked New York federal judge Kimba Wood to grant him a day’s reprieve in a criminal trial to attend the bris of his grandson. Epstein’s daughter has not yet given birth — so he doesn’t yet know the sex of the baby. But Epstein wanted to give Judge Wood ample notice to consider his request, given that his daughter’s due date is Dec. 3, smack in the middle of the scheduled trial.
So Epstein was stuck in the slightly awkward position of asking Judge Wood for a day off if, in fact, the baby turns out to be a boy. If it’s a girl, well, no bris, no day off needed.

Wrote Epstein...:

Should the child be a girl, not much will happen in the way of public
celebration. Some may even be disappointed, but will do their best to conceal
this by saying, “as long as it’s a healthy baby.” . . . However, should the baby
be a boy, then hoo hah! Hordes of friends and family will arrive . . . for
the joyous celebration . . . known as the bris. . . . My presence at the bris is
not strictly commanded, although my absence will never be forgotten by those
that matter.

Judge Wood, in a note written at the bottom of the letter, granted the request. But she did Epstein one better. Wrote Wood:

Mr. Epstein will be permitted to attend the bris, in the joyous event that
a son is born. But the Court would like to balance the scales. If a daughter is
born, there will be a public celebration in Court, with readings from poetry
celebrating girls and women.

Federal JNC to interview all 16 applicants (updated)

I have it on good authority that all 16 applicants will be interviewed on November 30. I wonder if we can get Dore to live blog the interviews.

UPDATE -- Confirmed. See here. The 16 interviews start and end with Magistrates (Seltzer & O'Sullivan). Only a 40 minute lunch!

One commenter told me: "There are more JNC members than applicants!"

Unlike Justice Breyer, Justice Scalia is a techie

I posted last week about how Justice Breyer didn't really understand text messaging or Facebook. Well, Justice Scalia is different -- he even has an iPad and an iPod! From ABT:

By this point, the conversation started to shift into the home stretch, so Jan Crawford turned to fun stuff and lighter fare. She asked Justice Scalia: Do you have an iPod?
One might have expected Scalia, whose jurisprudence often involves traveling back in time to when particular constitutional provisions were enacted, to declare that he listens to all his music on a Victrola — but no. As it turns out, he does have an iPod!
This response seemed to catch Crawford by surprise. She asked him if he uploads the music himself; he said that he does, and that his playlist consists mostly of classical music and opera.
(It’s amusing to imagine Justice Scalia, one of the greatest legal minds in our nation, loading up his own iPod like a mere mortal. Couldn’t he ask a staffer to do it, or maybe one of his many grandchildren? But then again, if Justice Elena Kagan can fetch her own pizza, then Justice Scalia can load his own iPod.)
As it turns out, Scalia is more tech-savvy than one might have expected from a 74-year-old. He composes his opinions on a computer (unlike Chief Justice Roberts, who writes in longhand). In fact, said Scalia, “I can hardly write in longhand anymore” — which he’s reminded of whenever he has to write a handwritten condolence note.
When he has to take materials home for work, he uses a thumb drive, or accesses the Court computer system remotely. And perhaps most excitingly, as I previously reported on Twitter, Scalia has an iPad! He uses it for working at home; staff members load the parties’ briefs on to it.

I wonder whether the SDFLA judges are more like Breyer or Scalia. I know many of them email from their phones (I actually saw one judge recently in her car emailing as she was driving), but do they Facebook, Twitter, read the blogs, etc?

There's lots more fun stuff at ABT on Scalia, so go check it out.

Wesley Snipes surrenders

The judge said it was time: "The defendant Snipes had a fair trial; he has had a full, fair and thorough review of his conviction and sentence. ... The time has come for the judgment to be enforced," the judge wrote in his 16-page decision.

From Bop.gov: 1. WESLEY TRENT SNIPES 43355-018 48-Black-M UNKNOWN IN TRANSIT

Baby steps

The 9th Circuit will air the Prop 8 case on TV!

According to SCOTUSBlog:

The Ninth Circuit Court agreed on Wednesday to allow live and delayed broadcasting of the Dec. 6 oral argument on the constitutionality of Proposition 8 — California’s ban on same-sex marriage. In a brief order, the Court cleared live broadcasting by C-SPAN, the cable network. It also gave permission to a San Francisco station, KGO-TV, an ABC affiliate, to provide coverage.

It's something at least. HT: BL

Judge Camp is going to plead guilty today. I'll post the plea agreement as soon as it's public. The Times Herald reports:

Senior U.S. District Judge Jack Camp is scheduled to enter a plea of guilty today in federal court on two misdemeanor counts and one count of aiding and abetting another’s drug possession, according to Newnan attorney Michael Kam, one of the attorneys representing Camp.

What do you think is a fair sentence?

"It's quite clear, we don't have a Facebook page."

That was Justice Breyer at a speech yesterday. More:

If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... 'The Social Network,' which I couldn't even understand," he said.
Oy.

It doesn't get better:

Although Breyer was making a point about judicial philosophy, he also touched on the court's sometimes limited grasp of technological developments. For example, Chief Justice John Roberts in a public employee privacy case before the court earlier this year tried to figure out the role of a text-messaging service in enabling an exchange between two people.

"I thought, you know, you push a button; it goes right to the other thing," Roberts said. Responded Justice Antonin Scalia: "You mean it doesn't go right to the other thing?"

And in a recent case dealing with a California law regulating the sale or rental of violent video games to children, Justice Anthony Kennedy pressed a skeptical state lawyer on whether the v-chip blocking device, rather than a state law, could be used to keep children away from the games.

"V-chips won't work?" Kennedy asked, before the lawyer politely explained they are limited to television programming.
I do agree with Breyer here:

Breyer said he disagrees with those who argue that originalism is "a good system because it will keep the subjective impulses of the judge under control."

"If you want to have history solve everything, let's get nine historians and not nine judges," Breyer said. "And you'll discover that the nine historians are fighting about the various points on which these cases turn anyway."

Adam Liptak from the NY Times has an interesting article today about how vague Supreme Court opinions are and how lower courts are struggling trying to figure them out. Here's a passage from the article dealing with the text messaging case:

In the privacy case that infuriated Justice Scalia and mystified Judge Hull, City of Ontario v. Quon, the Supreme Court ruled that a California police department had not violated the constitutional privacy rights of a member of a SWAT team when it audited the text messages on a pager the city had issued him.

Justice Kennedy took the unusual step of accepting three important points in the case only for the sake of argument, and he spent much of his opinion explaining that the court had taken pains to decide as little as possible.

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” Justice Kennedy went on. “On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.”

Given that, he said, the case should be decided on grounds so narrow that the decision would have almost no precedential effect. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” he wrote.

In his concurrence, Justice Scalia decried this approach.

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Many scholars say there is an important place in Supreme Court jurisprudence for incremental rulings, purposeful ambiguity and the delegation of discretion to lower court judges.

“If the goal is to clear up any conflict in the lower court opinions, then you may want a clearer opinion,” Professor Spriggs said. “But a real bright line may create some injustices in the system.”

We're # 2!!

From the New Times: "MIA Ranked Second Most Hellish Airport in U.S. for Second Year Running". We were bested by Newark. Newark!

I actually like the new D terminal, despite the really long walks. The train 3 floors up isn't really convenient. But at least there are some restaurants along the way.

Howard Stern & Billy Joel

Okay, I know this is way off topic, but I couldn't get out of my car this morning, listening to Howard Stern interview Billy Joel. It was fantastic hearing him play his music in the studio and explaining how the song was written, etc. Here's one of his best to get your Tuesday morning started:




Okay, one more:

Monday morning quick hits

-- No word yet on who has interviews from the JNC. We do know that interviews will take place on November 30.

-- The NY Times covers Miami cyber-criminal Albert Gonzalez in a lengthy article. It's a fascinating piece about how Gonzalez fell back into a life of crime after cooperating with the feds. He explains that he would have been better off just serving his time instead of snitching in the first place.

-- Does anyone really think that we should still have judicial elections? This is ridiculous.

-- First opinions of the Term come out today. Check out ScotusBlog around 10am.

-- Judge Cooke won't be in trial this week. She's in Atlanta sitting as a visiting judge on the 11th Circuit.

UPDATE -- the Supreme Court decided one case, Abbott v. United States, No. 09-479, holding that Section 924(c) and does not preclude the imposition of mandatory minimum sentences for different counts of conviction.

Who's the most at blame here?

The trial judge, the appellate judges, the prosecutor or the defense attorney? Via Volokh, you'll see totally absurd events unfold:

Here’s what happened in the middle of a trial of parents for killing their child through child abuse (felony murder under Georgia law):

[T]he prosecutor, in the final moments of her concluding argument on behalf of
the State, “clicked” her fingers at which signal one of the deputies in the
courtroom turned out the lights and an associate prosecutor “popped out a cake
out of a grocery bag” complete with eight candles, which were then lit with a
lighter brought into the courtroom; the prosecutor and her associate then
proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory
words to “Happy Birthday.”

The dissent (in Smith v. State, decided Monday by the Georgia Supreme Court) argued that this was prosecutorial misconduct that required reversing the convictions, even though the defense lawyer did not object:

There was no legitimate reason for what the prosecutor did. It was neither
argument nor rebuttal, because there is nothing at all in the record about
birthdays and birthday cakes to raise even the slightest possibility that the
prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary
restrictions, that eliminated the possibility of the victim experiencing the
type of birthday event dramatized by the prosecutor. The prosecutor’s birthday
production was not meant to be argument or rebuttal: it was a theatrical stunt
spun out of pure fantasy. Its sole purpose was to prejudice the rights of
appellants before the jury in an impermissible attempt to invoke the jury’s
passions and divert the jury from the evidence. It offended the dignity and
decorum of the court and violated every precept of professionalism and fair
play. Yet the trial court did absolutely nothing. The event played itself out
without the trial judge performing his duty to maintain decorum in the
courtroom. Moreover, after observing this “‘preposterous’” performance, the
trial court took no steps of any kind to minimize the prejudice. There was no
rebuke to counsel; there was no direction to the jury to ignore the spectacle
they had just witnessed; there was no charge to the jury that sympathy for the
victim was to play no role in their verdict.

[Footnote: I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was
deliberately pandering to the television audience observing the proceedings on
Court TV. See defense counsel’s testimony at the hearing on appellants’ motion
for new trial (“I understand the cameras were rolling and everybody wants to be
Nancy Grace’s friend”).]

The majority agreed the prosecutor’s behavior was improper, but concluded that the defense lawyer’s decision not to object was a strategic judgment, and therefore not grounds for reversal. (“Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the ‘Happy Birthday’ song during closing argument. Specifically, Arora thought that the ‘Happy Brithday’ song was so ‘preposterous,’ ‘absurd,’ and ‘over the top’ that ‘it would turn the jurors off,’ and that he should not call any more attention to it by objecting to it.”)

HT: MC

16 Applicants for Judge Huck's seat

Jerald Bagley
Betty Butchko
Mary Barzee
Darrin Gayles
Michael Hanzman
Judy Korchin
Robert Levenson
Peter Lopez
Ana Marie Martinez
Caroline Heck Miller
John O’Sullivan
Robin Rosenbaum
Robert Scola
Barry Seltzer
Will Thomas
John Thornton

I'm struck by the very low number of applicants. Looks like 8 state court judges applied and 3 federal magistrates. Only two private practitioners.

I'll have more soon.



- Posted using BlogPress from my iPhone

If a tree falls in a forest and no one is around to hear it, does it make a sound?

Well maybe, if that tree is DOJ... Here's DOJ saying the fraud guidelines need to be updated (from Main Justice). Federal judges were also piping in, with one calling the loss guidelines "a crock."

I'm sure the DOJ officials at this conference weren't staying in the forest though; they were probably staying at the Ritz. Kosher Meatball Blog (I still don't get the name) has more on this OIG report entitled "A Review of U.S. Attorney Travel that Exceeded the Government Lodging Rate." It's not pretty.

Miami Herald cites SDFLA and SFLawyers!

Pretty cool. Meantime, I can't get the CHiPs theme song out of my head.

Over the weekend, Jay Weaver profiled Eric Bustillo, the SEC chief. It's a nice piece. Here's the intro:

A product of Jesuit schools in Latin America, Eric Bustillo entered Tulane University in fall 1981.
Within months, his bright future would take a dark turn: He and his friends were returning to the New Orleans campus one night when their car swerved to avoid another and slammed into a tree. Bustillo's spinal cord was severed, leaving him paralyzed.
Today, as he sits in a wheelchair in his corner office overlooking Biscayne Bay, Bustillo displays only optimism. A lawyer for more than 20 years, he is director of the Miami regional office of the U.S. Securities and Exchange Commission, in charge of protecting investors in a region riddled with fraud, from old-fashioned boiler rooms to newfangled Ponzi schemes.
``I could have wallowed in my misfortune, or worked hard, educated myself and not let it become an obstacle,'' said Bustillo, 45, born in New Jersey to Cuban exile parents who moved the family around to Venezuela, Panama and other countries.

Looks like Ponch is going to have a few solo missions on the California Highway Patrol for awhile

SFLawyers previously covered Larry Wilcox's (Jon Baker in CHiPs) case here. He actually pleaded guilty before Judge Cohn today. Here's the actual plea agreement. He's obviously cooperating in this securities fraud case and his sentence is capped at 5 years. He agreed to all of the enhancements in his agreement for a one month conspiracy in 2009, including amount of loss, abuse of trust, sophisticated means, officer/director, and he agreed not to ask for a variance or appeal. So, he will have to hope the government goes to bat for him on his cooperation. If not, he's looking at 2 years by my count.

Friday

Finally, some good cool weather.

Justice Stevens gave this cool speech -- and he uses trilogies too:

Today I plan to say a few words about memorials, mosques, and monuments. Like Lieutenant Ichikawa, who is being honored today, I served in the Pacific theater during World War II. The Empire of Japan was our principle enemy in that theatre. Lieutenant Ichikawa, like literally thousands of other patriotic Japanese Americans including residents of Hawai'i as well as residents of the Mainland -made a magnificent contribution to our war effort there.

In other news:
Gary Kravitz, Murray Greenberg, and Nathaniel Persily of Columbia Law School, along with the St. Thomas Law Review have put together a symposium next weekend (November 12-13, 2010) entitled Bush v. Gore: A DecadeLater. Panelists inclue Greenberg, Persily, Ben Ginsberg, Kendall Coffey, Ben Kuehne, Joe Klock, Jim Bopp, Justice Fred Lewis, Judge Nikki Clark, Jeff Erlich, Paul Hancock, Kim Tucker and an academic panel including Jim Gibson, Nelson Lund and Edward Foley.

This event will be held at St. Thomas and admission is free. The symposium has been approved for a maximum of 7 CLE credits.

SCHEDULE OF EVENTS:

Friday, November 12, 2010

Welcoming Remarks 4:00-4:15 p.m.

The View from the Litigants 4:15-5:45 p.m.

Saturday, November 13, 2010

Continental Breakfast 8:30-9:00 a.m.

The View from the Administrators 9:00-10:30 a.m.

The View from the Bench 10:30 a.m.-12:00 p.m.

Luncheon Panel-
The View from Academia 12:15-2:00 p.m.

Closing Remarks 2:00-2:15 p.m.

Registration is required prior to November 10, 2010. Please contact the Law Review Office at lawrev@stu.edu or phone (305) 623-2380.

St. Thomas Law Review
St. Thomas University School of Law
16401 NW 37th Avenue
Miami Gardens, FL 33054

Happy Halloween

This press release found its way to my inbox: DEFENDANT CHARGED WITH IMPORTING CANDY LACED WITH COCAINE ON FLIGHT TO FORT LAUDERDALE.

Well, I had to read more:

According to the criminal complaint, on November 1, 2010, Perez arrived into Fort Lauderdale/Hollywood International Airport on a flight from Bogota, Colombia. Perez proceeded to the CBP enclosure and presented himself and his luggage to CBP officers for inspection and entry into the United States. Within the luggage claimed by Perez, there were multiple paper shopping bags containing different articles of clothing. In addition, Perez claimed bags containing various types of candies. CBP discovered that the bottom of these bags contained cocaine. Upon this discovery, CBP gave closer inspection to the bags of candy claimed by Perez. CBP field-tested one of each type of candy and found that each type of candy field tested positive for cocaine. In total, CBP determined that Perez was in possession of approximately 9.6 kilograms of cocaine. Subsequently, ICE special agents arrested Torres Perez on the federal criminal charges.

Yikes, that's a lot of candy!

When you have 5 minutes to kill...

Hat tip: AMM

"If Mr. Rothstein thinks setting up Mr. Settineri is going to get him a get-out-of-jail card, he's sadly mistaken.''

That was Jeff Weiner after Judge Cohen sentenced his client Roberto Settineri to four years (via the Miami Herald):


Defense attorney Jeffrey Weiner and federal prosecutors recommended that Settineri receive four years' imprisonment at his sentencing Wednesday morning in Fort Lauderdale.
The U.S. District Judge James Cohn called it a ``fair resolution.'' The maximum is five years.
In exchange for his guilty plea in August, Assistant U.S. Attorney Cynthia Stone dropped the original conspiracy charges, which carried up to 20 years in prison.
After Settineri's sentencing, Weiner said that his client could actually be released from prison in about two years. Settineri received credit for eight months of detention since his arrest in March. The judge also allowed him to enter a 500-hour alcohol abuse program in prison, which, if completed, would cut an additional year off his sentence.
Weiner said that while his client said nothing at his sentencing, Settineri took full responsibility and apologized for his wrongdoing in a court filing.
``His life was fine until he made this terrible mistake in judgment,'' Weiner said. ``He thought he was helping a friend in need. He's embarrassed about it.''

"Some of the Grimm’s fairy tales are quite grim." -- Justice Scalia during oral argument yesterday

So were some of those election results...

Here's the NY Times article on the violent video game argument in the Supreme Court:

The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”
“What’s a deviant violent video game?” asked Justice Antonin Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?”
“Some of the Grimm’s fairy tales are quite grim,” he added. “Are you going to ban them, too?”
Justice Stephen G. Breyer took the other side. He said common sense should allow the government to help parents protect children from games that include depictions of “gratuitous, painful, excruciating, torturing violence upon small children and women.”

Scalia got the better of Alito in this exchange:

But Justice Scalia said there was nothing in the tradition of American free speech that would allow the government to ban depictions of violence. The thought, he said, would have been foreign to the drafters of the First Amendment, drawing a needling comment from Justice Samuel A. Alito Jr., the lone dissenter in the Stevens case.
“What Justice Scalia wants to know,” Justice Alito said, “is what James Madison thought about video games.”
“No,” Justice Scalia responded, “I want to know what James Madison thought about violence.”

And they better not ban Mortal Kombat!

Justice Elena Kagan, the court’s newest and youngest member, seemed to be the only justice with even a passing familiarity with the genre under review, even if it was secondhand.
“You think Mortal Kombat is prohibited by this statute?” she asked Mr. Morazzini. It is, she added, “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”
Mr. Morazzini said the game was “a candidate” for government regulation.

There was another big oral argument yesterday -- US v. Skilling:

A three-judge appeals court panel grilled attorneys for former Enron CEO Jeff Skilling and the government on Monday, trying to decide whether to throw out or order new trials on any of Skilling's 19 convictions.
His defense lawyer, Daniel Petrocelli, argued the U.S. Supreme Court's decision that the government was wrong to use a particular legal theory in charging Skilling with conspiracy means that charge and the remaining 18 should be thrown out.
The government contends that a rational jury would have convicted even without the faulty theory that he deprived Enron of his "honest services," because evidence overwhelmingly supported Skilling's guilt.
But the hearing, in which each side had 30 minutes to provide oral arguments, was more about the judges' questions than the lawyers' answers.
Judge Edward Prado asked if it would make more sense for the federal district court where Skilling was tried in 2006 to decide the issues raised by the Supreme Court decision.
Determining if the "honest services" theory tainted the other charges would involve digging into the voluminous details of the five-month trial, Prado said.
Petrocelli said nothing would prevent the appeals court from sending the issue to the trial judge, but that the question is one of law.
"The court isn't being asked to act as a 13th juror," or guess what the original jury was thinking, Petrocelli said. Rather it needs to look at the court record and determine if a "reasonable jury" could find Skilling not guilty based on the evidence.
"The record is filled with acquittal evidence," Petrocelli said.

You can access the audio of yesterday's Fifth Circuit oral argument via this link (53.7MB Windows Media audio file). Why don't we have that in the 11th Circuit?

Go vote!

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Monday

What's new on this rainy Monday? Well, the Supreme Court took a bunch of cases, including one concerning Miranda warnings and minors. In the District, Judge Middlebrooks and Judge Graham both started mortgage fraud trials this morning. A bunch of those cases are now starting to go and there have been a bunch of acquittals for straw buyers. What else?

“Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals."

That was the enlightened District Attorney in Aspen, Colorado. Here's the intro to the article:

It may come as a surprise to casual observers of this ritzy ski resort that the majority of people accused of crimes in the Aspen area qualify as indigent, and therefore have a right to a court-appointed attorney.The Colorado State Public Defender handles those cases out of its Glenwood Springs office, where four attorneys cover the caseload in Pitkin, Garfield and Rio Blanco counties.The district attorney’s office handles the same area with 14 prosecutors, including elected District Attorney Martin Beeson. Beeson met with the Pitkin County commissioners this week, asking for a $600,000-plus contribution to his $3 million budget covering the tri-county area. He declined to cut his budget by 5 percent, as the commissioners had asked, and the county board appears poised to grant his full request.Colorado public defenders have no such county budget review, and no elected leader. Their funding comes out of the state’s general fund, which is approved by the state Legislature. The expenditures out of their Glenwood office in 2010 totaled $663,910, and their 2011 state budget is in the works in Denver.

While we are on quotes, there's this great one that ATL pointed out:

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan21), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.
21 See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh . . .” to which Kirk replies, “the needs of the few.”

Finally, there's Darrell Cook:

Darrell Cook detailed his "love of the Rangers that has gone generally unrequited for thirty-eight (38) years." He asked the court to postpone a pretrial conference, which was set for 1 p.m. Wednesday, so that "justice may be done."
By justice, he meant: "That Darrell can be present in San Francisco for Game 1 of the World Series while Cliff Lee wields his usual style of Post-Season justice to the hapless souls that are otherwise known as the Giants lineup," according to a footnote.

Here's the whole motion for a fun read. Too bad the Rangers lost.

Must read sentencing order in Irey case

I wrote about the lengthy 11th Circuit en banc opinion in US v. Irey here. Professor Berman covers what has happened since, including Judge Presnell's opinion in response to the 11th Circuit. Here's the intro and conclusion:

This matter comes before the Court on the Unopposed Motion for Continuance of Resentencing Hearing Pending Review in United States Supreme Court (Doc. 80). As the motion’s title suggests, the parties seek to have this Court delay its resentencing of the Defendant, William Irey (“Irey”), on the chance that the Supreme Court will grant his petition for writ of certiorari, due to be filed on October 27, 2010. As things now stand, this Court is obligated by the July 29, 2010 decision of the United States Court of Appeals for the Eleventh Circuit (henceforth, the “July 29 Order”) to impose a 30-year sentence on Irey. Given that Irey is in the early stages of serving the 17-and-a-half-year sentence originally imposed by this court, there is no pressing need to impose the longer sentence — a fact apparently recognized by the Government, which does not oppose the motion. For these reasons, the motion will be granted, and the resentencing will be continued.
Under normal circumstances, that would be the end of the matter. But these are not normal circumstances. The July 29 Order raises a host of important issues, a fact recognized both by the Defendant in the instant motion and by the appellate court in the order itself. The pendency of the petition for a writ of certiorari provides the Court with a rare opportunity to respond to certain aspects of the appellate decision, prior to its possible review by the Supreme Court, with information that only the undersigned possesses. In addition, the July 29 Order has certain implications that affect the courts that are tasked with the imposition of criminal sentences — implications that might not be apparent to the parties themselves. The Court believes that a discussion of these points may assist the Supreme Court in determining whether the petition ought to be granted.
It is for these reasons, and not out of any disrespect for the Circuit Court’s authority to reverse the sentence I imposed, that I will take this opportunity to respond to certain portions of the July 29 Order....
I normally conclude the sentencing process by coming back to a consideration of the need for the sentence imposed to promote respect for the law and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A). These are subjective factors that overlay the other statutory considerations. As I said at the sentencing, “I just do the best I can under the circumstances. It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a thirty year sentence . . . is greater than necessary to accomplish the statutory objectives.” (Tr. at 61).
The Circuit Court acknowledged that I properly calculated the guideline score, committed no procedural error, and gave thorough and thoughtful consideration to the statutory sentencing factors. Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me, and concluded that there were no mitigating circumstances to justify any sentence other than the 30-year guideline sentence.
This is an extraordinary and unprecedented result. The Circuit Court has effectively usurped my sentencing discretion and raised serious questions regarding Irey’s right to due process. I concede that the majority opinion has raised valid concerns about the reasonableness of the sentence I imposed. Were this case remanded to me for re-sentencing, I would take these concerns into account and exercise my discretion accordingly. But as it now stands, I will not be given that opportunity. Nor, it appears, will Irey be given the opportunity to confront the facts and arguments raised for the first time on appeal, which resulted in a 12 and a half year increase in his sentence.
In his separate opinion, Judge Tjoflat states that the majority opinion’s approach — i.e., resentencing defendants on appeal — does “immense and immeasurable institutional damage.” Irey III at 1267. In my opinion, it also undermines the basic tenets of sentencing law developed over the past five years, and opens a Pandora’s box of new sentencing issues. I regret that my sentencing of this defendant — including any errors I made in doing so — appears to have led to this result.

SDFLA launches new website

Check it out here.

Make sure to look at it from your phone and your desktop as it has a mobile version.

After you take a look, then you can take this survey.

I think it's a big improvement.

State Court

So I don't know what Rumpole is always complaining about. I was in state court this morning. No lines. Nice Judge. I even found a meter... Then, back in the office by 10:15. All good.

Let's see what happened this weekend -- Scalia and Kagan go skeet shooting. Seriously:

According to two witnesses, Supreme Court Justice Antonin Scalia took fellow Justice Elena Kagan out for a lesson in skeet shooting at his shooting club in Virginia last week.
The witnesses saw Scalia at the Fairfax Rod and Gun Club, where he is a member, around noon on Wednesday of last week. He was with a woman who was noticeably diminutive in height, like Kagan, who stands at about five feet three inches. The witnesses, who got a very close look at the pair, say that the woman was the newest Supreme Court Justice.
Scalia was bending down in order to teach Kagan how to hold the shotgun, the witnesses say, and the pair were shooting skeet.

Maureen Dowd on the Court: "Supremely Bad Judgment." The conclusion:

The 5-to-4 Citizens United decision last January gave corporations, foreign contributors, unions, Big Energy, Big Oil and superrich conservatives a green light to surreptitiously funnel in as much money as they want, whenever they want to elect or unelect candidates. As if that weren’t enough to breed corruption, Thomas was the only justice — in a rare case of detaching his hip from Antonin Scalia’s — to write a separate opinion calling for an end to donor disclosures.
In Bush v. Gore, the Supreme Court chose the Republican president. In Citizens United, the court may return Republicans to control of Congress. So much for conservatives’ professed disdain of judicial activism. And so much for the public’s long-held trust in the impartiality of the nation’s highest court.
Justice Stephen Breyer recently rejected the image of the high court as “nine junior varsity politicians.” But it’s even worse than that. The court has gone beyond mere politicization. Its liberals are moderate and reasonable, while the conservatives are dug in, guzzling Tea.
Thomas and Scalia have flouted ethics rules by attending seminars sponsored by Koch Industries, an energy and manufacturing conglomerate run by billionaire brothers that has donated more than $100 million to far-right causes.
Christine O’Donnell may not believe in the separation of church and state, but the Supreme Court does not believe in the separation of powers.
O.K., have a good day!

"Calling John Roberts"

That's the headline of Linda Greenhouse's article in the NYTimes, calling for Justice Roberts to issue a strong end-of-year report explaining that the Senate is imperiling the judicial branch with all of the vacancies (as Justice Rehnquist had done in the past). Here is the conclusion to the article:


Unlike the president’s State of the Union message, which is required by Article II, Section 3 of the Constitution, the annual report on the state of the judiciary is a modern tradition. It was begun just 40 years ago by Chief Justice Warren E. Burger and carried on with enthusiasm by Chief Justice Rehnquist, who often used it for significant pronouncements on judicial policy.
Chief Justice Roberts has had a rather problematic relationship to the tradition during his five years in office. The focus of his first report, on Dec. 31, 2005, was judicial pay. Noting that federal judges’ earning power had eroded by 24 percent since 1969, he said that Congress’s failure to raise judicial salaries presented a “direct threat to judicial independence.” While in my view he was completely right on the merits of the issue, some members of Congress resented what they viewed as hyperbole from the new chief justice, and the public responded with a shrug. The much-deserved pay raise has yet to happen.
Then last year, Chief Justice Roberts went minimalist, so much so that it left many people scratching their heads. Here was his report, in full, minus the statistical appendix:

Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice.

Best wishes in the New Year.

Tony Mauro, a longtime observer of the court, responded on The Blog of Legal Times, “Imagine if the president, instead of giving a full State of the Union address, sent a note to Congress telling the legislative branch that life is good, all is O.K., and let’s catch up next year.”
I’m willing to assume that last year’s baffling report was the result of judicial modesty rather than an idea deficit. In any event, I look forward to waking up on New Year’s Day to this headline or its reasonable equivalent: “Senate Imperils Judicial System, Roberts Says.”

Why aren't more judges speaking out against the guidelines?

Here's an article about Judge John Gleeson's recent response to DOJ's criticism of fraud sentences:

A federal judge in Brooklyn has rebutted the criticism by a top Department of Justice official that many federal judges have "lost" their "moorings to the sentencing guidelines" in major fraud cases.
The attack on a "regime" of judges who impose fraud sentences "inconsistently and without regard to the federal sentencing guidelines" appeared in a letter sent in June by Jonathan J. Wroblewski, the director of the Office of Policy and Legislation to the chief of the U.S. Sentencing Commission, Judge William K. Sessions III.
Last week, Eastern District Judge John Gleeson responded to Wroblewski's implication that, as Gleeson put it, fraud sentences "are inexplicably and unjustifiably all over the lot."
In a 16-page "statement of reasons" for a fraud sentence, Gleeson wrote that the discrepancies between guideline sentences and actual sentences is not evidence of the unmooring of judges, but rather indicative of the difficulty of capturing the nuances of a complex case in a list of guidelines.
The 539-page Sentencing Guidelines Manual is only one of eight factors that judges are statutorily required to consider at sentencing, Gleeson added.
He also noted that if judges had truly become unmoored from the guidelines, then prosecutors would appeal sentences more frequently -- only 18 of the 1,711 below-range fraud sentences issued last year were appealed.
"[I]n determining whether reforms are needed, and especially in determining whether the existing guideline should be burdened with even more adjustments, the Commission should examine whether our system already provides an adequate solution for the claimed 'unacceptable' outcomes the Department complains about," Gleeson wrote in United States v. Ovid, 09-CR-216. "I suggest that it does, in the form of appellate review, and for all of the handwringing in the DOJ Letter about unacceptable sentences, the Department for the most part has not even tried to avail itself of that solution."

Gleeson is no push over. He is a former federal prosecutor and the prosecutor who put away John Gotti. He's tough but he's known as fair and extremely smart. I'm hoping that, like Gleeson and others are doing, more and more judges will start to stand up to these draconian guidelines that have no relationship to the goals of sentencing.

Hat tip -- Sentencing Law and Policy

Domestic disputes resulting from marital infidelities and culminating in a thumb burn are appropriately handled by local law enforcement authorities.

That was Paul Clement to the Supreme Court in this fascinating case about the reach of the feds and whether the 10th Amendment could be a new weapon in the fight against the over-criminalization by the federal government. From the NY Times:

The Tea Party’s favorite part of the Constitution — the 10th Amendment, which limits federal power — arrived at the Supreme Court last week. In keeping with the spirit of the times, it came wrapped in the plot of a soap opera.

The amendment has played a starring role in challenges to the recent federal health care legislation. But the justices have not made the task of divining their own views particularly easy.

Their most recent consideration of where Congress’s constitutional power ends came in a case involving the civil commitment of sex offenders.

Now the court has decided to consider what to do about a woman hellbent on poisoning her best friend.

The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant. Ms. Bond’s mood darkened, though, when it emerged that her husband was the father. “I am going to make your life a living hell,” she said, according to her now-former friend, Myrlinda Haynes.

Ms. Bond, a microbiologist, certainly tried. On about two dozen occasions, she spread lethal chemicals on her friend’s car, mailbox and doorknob.

Ms. Haynes, who managed to escape serious injury, complained to the local police. They did not respond with particular vigor. After checking to see whether the white powder on her car was cocaine, they advised her to have it cleaned.

Federal postal inspectors were more helpful. They videotaped Ms. Bond stealing mail and putting poison in the muffler of Ms. Haynes’s car.

When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory. They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.

Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say. In federal court, she got six years.

Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.

She relied on the 10th Amendment, the one so beloved by Tea Party activists. It says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Now on to the First Amendment (via ATL). Go to the 2:20 mark... It's too good to pass up:

Monday news and notes

1. The jury in Judge Lenard's case dealing with the Chinese ammo resulted in a hung jury; the jury deliberated for over a week.

2. Justice Sotomayor really likes "12 Angry Men".

3. New York Times raises "age-old question" of jury service in the context of blogging: "Mr. Slutsky’s posts raised the age-old question of what jurors may or may not reveal about their jury service. They also highlighted a 21st-century nuance of dealing with jurors who use blogs and other forms of social media to share their existence with the world."

4. We're on a NYTimes roll this morning. Here's an editorial saying that states shouldn't block DNA tests. Duh.

5. And in a case close to my heart, the South Carolina Supreme Court will determine whether poker is a game of skill or luck:

Hold 'em, Dennis said, is determined more by "the relative skill of the player" than anything else. "A more skilled player will consistently beat a less skilled player, and a player's skill can be improved over time through study and practice," he added.
Because of that skill factor, Dennis said he expected his ruling would survive the court's "dominate factor test" that the justices have relied on when evaluating whether players' ability matters -- versus chance -- in determining the legality of games. Dennis also called the state's anti- gambling laws as applied to the case "unconstitutionally vague and overbroad."
Dennis' opinion tossed out the convictions of five players who had been arrested in the police raid but opted to fight the charges.
McMaster appealed, saying the judge went too far by declaring one gambling game to be more skill-oriented than another.
"In the General Assembly's view, the ills resulting from games played for money does not depend upon the particular game or the nature in which it was played," he said.

Of course there is skill involved in the game. The defense has the better of this argument by a long shot. And why are the police arresting card players? Sheesh.

The average teenager now sends 3,339 texts per month.

In keeping with the off-blog news for the week, check out this CNN article on texting:

If you needed more proof that texting is on the rise, here's a stat for you: the average teenager sends over 3,000 texts per month. That's more than six texts per waking hour.
According to a new study from Nielsen, our society has gone mad with texting, data usage and app downloads. Nielsen analyzed the mobile data habits of over 60,000 mobile subscribers and surveyed over 3,000 teens during April, May and June of this year. The numbers they came up with are astounding.
The number of texts being sent is on the rise, especially among teenagers age 13 to 17. According to Nielsen, the average teenager now sends 3,339 texts per month.
There's more, though: teen females send an incredible 4,050 text per month, while teen males send an average of 2,539 texts. Teens are sending 8 percent more texts than they were this time last year.
Other age groups don't even come close, either; the average 18 to 24-year-old sends "only" 1,630 texts per month. The average only drops with other age groups. However, in every age bracket, the number of texts sent has increased when compared to last year. Texting is a more important means of communication than ever.

Thank goodness we haven't gotten to the point where we are texting with opposing counsel...

Ethical question of the day: Should judges be able to do stand-up comedy when they aren't on the bench? New Jersey says no:

A judge walks into a bar and launches into a stand-up routine. The bartender asks, "Is this a joke?" The judge says, "Let me check with the Advisory Committee on Extrajudicial Activities."
That's not exactly how South Hackensack, N.J., Judge Vincenzo Sicari -- alias comic "Vince August" -- got into an ethics pickle. But he did make the inquiry, and the outcome wasn't so funny: The panel that regulates New Jersey municipal judges' moonlighting said he can't decide cases by day and do shtick by night.
Sicari, though his term on the bench ends Dec. 31, isn't taking the ultimatum lying down. He's asked the state Supreme Court for review, and the justices on Oct. 8 agreed to hear the case, In the Matter of Opinion No. 12-08 of the Supreme Court Committee on Extrajudicial Activities, A-23-10.

What are the odds?

Check out this USA Today article:

Unlike many moms, Barbara Soper never gets her kids' birthdays confused. That's because her first was born on Aug, 8, 2008, her second on Sept. 9, 2009 and her most recent on Oct. 10, 2010.

Yes, that's 8-8-08, 9-9-09 and 10-10-10.

1 in a billion, right? Not so fast:

While the dates might seem "incredibly rare," they're really not. Such a lineup can only happen in the first 12 years of the century and at least 10 months apart, says Shannon McWeeney, a professor of biostatistics at the Oregon Health Sciences University in Portland.
"Given that the first birth occurred in that window, the probability is not as astronomical as you might be compelled to think," she says.In fact, it's not that high a number at all, says Philip Stark, a professor of statistics at the University of California, Berkeley. "The 'chance' you get depends on the assumptions you make," he says. One set of assumptions gives a chance of about 1 in 50 million. More realistic assumptions — including allowing at least 11 months between births — increases it to about 1 in 2,500. Since thousands of women in the United States had kids in 2008, 2009 and 2010, this suddenly seems a little less extraordinary. But humans "like to look for patterns, to make sense of things" he says.For the Sopers, three is simply their lucky number — "we don't have any more planned," says Barbara.

What does this have to do with the SDFLA? I couldn't really figure that out either. But it's a neat story. So there.

Tuesday morning

1. Rumpole and the NYTimes take on Supreme Court specialists. I usually really like Adam Liptak, but I think he (and Rumpole) got this one all wrong. Take the example they cite in the lead to the article:

Humberto Fernandez-Vargas, deported to Mexico, had run out of options. A federal appeals court said he could not return to the United States to live with his American wife and son. And his lawyer did not have the expertise or money to pursue the case further.

Then the cavalry arrived. Leading lawyers from around the country, sensing that the case was one of the rare ones that might reach the Supreme Court, called to offer free help. Mr. Fernandez-Vargas’s immigration lawyer was delighted, and he chose a lawyer from a prominent firm here.

But there was a catch, and then a controversy. The catch was that the Washington lawyer, David M. Gossett, would take the case only if he could argue before the Supreme Court himself.

The controversy was that groups representing immigrants were furious, suspicious of the new lawyer’s interest in the case and fearful of a Supreme Court ruling that would curtail the rights of immigrants nationwide.

Indeed, Mr. Gossett faced a barrage of hostile questions from the justices, and in June 2006 the court ruled against his client, 8 to 1. The ruling wiped out decisions in much of the nation — notably from the federal appeals court in California — that had favored immigrants.

So let me get this straight -- Humberto Fernandez-Vargas, having lost and waiting to get deported after serving a federal prison sentence, should not fight his case and lay down because it might not be good for others. Please. That's not how our adversary system works. Gossett was fighting for his client and was able to get cert granted! Instead of being villified by immigration groups and a front page article in the New York Times, he should be getting kudos.

This morning the Court will hear argument on whether vaccine makers should have immunity:
At issue is whether a no-fault system established by Congress about 25 years ago to compensate children and others injured by commonly used vaccines should protect manufacturers from virtually all product liability lawsuits. The law was an effort to strike a balance between the need to provide care for those injured by vaccines, some of them severely, and the need to protect manufacturers from undue litigation.

Under the 1986 National Childhood Vaccine Injury Act, such claims typically proceed through an alternative legal system known as “vaccine court.” Under that system, a person is compensated if their injury is among those officially recognized as caused by a vaccine. That person, or their parents, can choose to reject that award and sue the vaccine’s manufacturer, but they then face severe legal hurdles created by law to deter such actions.

The case before the Supreme Court is not related to autism. But the biggest effect of the court’s ruling, lawyers said, will be on hundreds of pending lawsuits that contend a link exists between childhood vaccines and autism. Repeated scientific studies have found no such connection.

In other news, everyone is just SHOCKED about the Judge Jack Camp story.

And Justice Kagan is sporting conservative robes.