Inside baseball at SCOTUS

Tom Goldstein has all the goods here on how SCOTUSblog got it right on Health Care day and CNN/FOX got it wrong.

One thing that is totally annoying:

The Supreme Court will not grant SCOTUSblog a press credential. Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston. There are six other members of our team nearby, running nine computers on eight separate Internet connections.

Why wouldn't the Court give SCOTUSblog access when it is the site most people are relying on for SCOTUS news?  And to boot, the Court won't email the opinion:

The Court’s own technical staff prepares to load the opinion on to the Court’s website. In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced. But now it relies only on its website, where opinions are released approximately two minutes later. The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.
But it does. At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever. It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling. And millions of people are now on the site anxiously looking for the decision. They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again. In the face of the crushing demand, the Court cannot publish its own decision.
The opinion will not appear on the website for a half-hour. So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

The article explains how CNN and Fox do not at all get it right.  Fun read.
Another fun article, but not related to the law, is this piece on the '83 Fleer baseball card set:

A fan here named Scott Mortimer has his own pursuit, with July 31 as the date to watch. That is when the Class AA Erie Seawolves come to Manchester to play the New Hampshire Fisher Cats. The hitting coach for Erie is Jerry Martin, a former outfielder who hit .251 for five teams from 1974 to 1984. Scott Mortimer needs him.
Mortimer, 41, is a stay-at-home father on a worldwide baseball scavenger hunt. He is trying to get autographs on all 660 cards in the 1983 Fleer baseball card set. After six years of trying, he is down to his final 99. One of the blank cards is Martin’s.
“I don’t know what kind of person Jerry Martin is, if he’d be willing to sign the card, if he would even pop out of the dugout before the umpires come out,” Mortimer said at his home last Sunday. “But that’s part of the excitement.”
Mortimer calls it the 83F Project and runs a blog with images of the autographs. He is part of a tribe of collectors who put their twist on a child’s hobby, mining a subset of the industry for fun, not profit. He trades with other collectors pursuing their own autographed sets, and has friends in other countries — scouts, in a way — who keep a lookout for his targets.

Judge Carnes...

...starts off his latest opinion (Larry Butler vs. Sheriff of Palm Beach County) this way:

In one of his ballads, Jim Croce warned that there are four things that you
just don’t do: “You don’t tug on Superman’s cape/ You don’t spit into the wind/
You don’t pull the mask off that old Lone Ranger/ And you don’t mess around
with Jim.” He could have added a fifth warning to that list: “And you don’t let a
pistol-packing mother catch you naked in her daughter’s closet.”

It gets better:

It all started with a phone call.2 Nineteen-year-old Uzuri Collier called
Larry Butler, who was of a similar age, and invited him to her house. Butler
responded to the invitation the way most young men over the age of consent
would have—he went. Once Butler was at Uzuri’s house, he and she consented to
watch television for a while. Then they consented to do what young couples alone
in a house have been consenting to do since the memory of man (and woman)
runneth not to the contrary. The record does not disclose how long these two
young people had known each other in the dictionary sense, but that afternoon in
Uzuri’s bedroom they also knew each other in the biblical sense. While doing so,
and while clothed in the manner that is customary in such matters, which is to say
not at all, they heard someone coming into the house.

The opinion is packed with this sort of fun writing, and it ends this way:

The amended complaint and Butler’s briefs leave no doubt that he feels
mistreated, and with what appears to be some justification. If the allegations are
true, Collier’s treatment of Butler was badder than old King Kong and meaner
than a junkyard dog. She might even have acted like the meanest hunk of woman
anybody had ever seen. Still, the fact that the mistreatment was mean does not
mean that the mistreatment was under color of law. Because the alleged
mistreatment of Butler was not inflicted under color of law, the district court
correctly dismissed his § 1983 claims. Butler will have to seek his remedies under
state law and in state court.

Florida Bar proposes advisory opinion re 2255 waivers

Back in September, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement (see Blog coverage here). Over strong opposition by the government, the Bar just proposed this advisory opinion on the subject:

A member of The Florida Bar has requested an opinion regarding the ethical propriety of offering or advising a criminal defendant to accept a plea offer in which the criminal defendant waives past or future ineffective assistance of counsel and prosecutorial misconduct. The committee first notes that whether particular plea agreements are lawful, enforceable and meet constitutional requirements are legal questions outside the scope of an ethics opinion. Reviewing these issues in light of ethics considerations, the committee concludes that both offering and recommending acceptance of such a plea offer is improper. ***

The Committee concludes that a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer's own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer's own performance.

Regarding the prosecutor's conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee's opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.

As I've said before, it's odd to me that the government opposed this opinion:

Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up. Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?

Well, now it's unethical for prosecutors to ask or defense lawyers to advise clients to sign 2255 waivers. Congrats to all of the lawyers who pushed for this rule. I know Michael Caruso spoke at the Florida Bar meeting in support of the opinion. Also, Bruce Reinhart was the member of the Florida Bar who requested than an opinion be issued.

Fourth of July

Hope everyone had a nice holiday yesterday.  Those in San Diego were supposedly disappointed that all the fireworks for the show went off at once, but it looks pretty cool to me:



Meantime, everyone is still debating "tax" or "penalty." Romney says it's now a tax because the Supreme Court said so, but he is not happy about it:

Emphasizing his disagreement with the Supreme Court’s decision to uphold President Obama’s healthcare law, Mitt Romney criticized Chief Justice John G. Roberts Jr. on Wednesday, stating that Roberts reached a conclusion that was inappropriate and “took a departure” from sound reasoning. Before the healthcare ruling, Romney had praised Roberts. His website says he would “nominate justices in the mold of Chief Justice Roberts and Justices Scalia, Thomas and Alito,” candidates who “exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written.” But Romney displayed a cooler attitude toward Roberts in his interview with CBS News’ Jan Crawford on Wednesday near his vacation retreat of Wolfeboro, N.H. When Crawford asked whether he would nominate a justice like Roberts, now that the chief justice voted to uphold the president’s healthcare law, Romney answered that he “certainly wouldn’t nominate someone who I knew” was going to come out with a decision that I “vehemently disagreed with.” Roberts’ decision to side with the liberals of the court, Romney added, gave the impression his “decision was made not based upon [a] constitutional foundation but instead, [a] political consideration about the relationship between the branches of government.” Romney called Roberts “a very bright person,” according to a transcript provided by CBS News, and said he would look to nominate justices with intelligence who “believe in following the Constitution.”

Judge Cooke sides with Docs over Glocks

Jay Weaver covers the story here:

A federal judge has blocked the state of Florida from enforcing a new law pushed by firearm advocates that banned thousands of doctors from discussing gun ownership with their patients.
U.S. District Judge Marcia Cooke, who had already issued a preliminary injunction last September, made her decision permanent late Friday when she ruled in favor of groups of physicians who asserted the state violated their free speech rights. She said the law was so “vague” that it violated the First Amendment rights of doctors, noting the legislation’s privacy provisions “fail to provide any standards for practitioners to follow.”
The physicians’ lawsuit, an ideological battle between advocates of free speech and the right to bear arms, has been dubbed “Docs vs. Glocks.” The state Department of Health could appeal her summary judgment, which addressed legislation signed into law last year by Gov. Rick Scott.
In her 25-page ruling, Cooke clearly sided with the physicians, saying evidence showed that physicians began “self-censoring” because of the “chilling” effect of the legislation.
“What is curious about this law — and what makes it different from so many other laws involving practitioners’ speech — is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient,” Cooke wrote, citing the benefit of such “preventive medicine.”
“The state asserts that it has an interest in protecting the exercise of the fundamental right to keep and bear arms,” Cooke wrote in another section about the Second Amendment issue. “I do not disagree that the government has such an interest in protecting its citizens’ fundamental rights. The Firearm Owners’ Privacy Act, however, simply does not interfere with the right to keep and bear arms.”

Read more here: http://www.miamiherald.com/2012/07/02/2879089/miami-federal-judge-sides-with.html#storylink=twt#storylink=cpy

Bill Matthewman sworn in today

Congrats to our newest Magistrate Judge. Judge Matthewman will be sitting in West Palm Beach, along with another new Magistrate -- Dave Brannon.

End of Term

The Supreme Court is now on summer break till October. There are a bunch of good articles about the end of the Term, but the place to go is SCOTUSBlog, which has pages and pages of stats-- really anything you could ask about the Term is broken down statistically. Here are some of the take-away stats highlighted by the blog:

The Sixth Circuit continued its abysmal streak in the Supreme Court. Between OT08 and OT10, cases originating in the Sixth Circuit were affirmed only once in 18 attempts. All 5 cases from the Sixth Circuit were reversed during OT11. [Page 3].

The Court released a rare 5-4 summary reversal this Term in American Tradition Partnership v. Bullock — a rarity because four Justices can usually grant certiorari in a case and force oral arguments, thereby eliminating the need for a dissenting opinion. [Page 5].

The Court has decided fewer merits cases after oral argument, 65, than it has during any time in the last twenty years. The Court was already cruising to a relatively low number of merits cases when it finished granting cases for oral argument during OT11 in January, but the dismissals of Vasquez v. United States and First American Financial v. Edwards, the rebriefing of Kiobel v. Royal Dutch Petroleum, and the eventual consolidation of Jackson v. Hobbs with Miller v. Alabama for purposes of the opinion have resulted in the Court issuing a record low number of opinions in fully briefed merits cases. [Page 9].

Although it issued a low number of signed merits cases, the Court did released a high number of summary reversals, 10. From OT00-OT10, the Court averaged 6 summary reversals per Term. [Page 10].

Justices Scalia and Thomas have finished the Term with the highest rate of agreement on the judgment across all cases. They agreed 93.3% of the time. Justices Scalia and Ginsburg finished with the lowest rate, agreeing 56.0% of the time. [Page 23].

The two fastest signed majority opinions of OT11 were authored by Justice Scalia. He produced Greene v. Fisher in 28 days and RadLax v. Amalgamated Bank in 36 days. Justices Ginsburg, Sotomayor, and Kagan each authored 2 of the top 10 fastest opinions. [Page 27].

Fascinating stuff. I thought this stat was particularly interesting:

Justice Kennedy is, for the fourth consecutive Term, the Justice most likely to appear in the majority. This Term he voted with the majority in 69 out of the 74 cases he voted in, marking the second-highest percentage of the past five Terms (93.2%) and falling only to his frequency in the majority from last Term (93.8%). Chief Justice Roberts, who himself has become a mainstay of recent majority opinions, had the second-highest frequency in the majority (91.9%). In 3 of the last 4 Terms, the Chief Justice has been either the most likely or second-most likely Justice to appear in the majority of a decision. Just as she was last Term, Justice Ginsburg is the Justice least likely to vote with the majority; she votes with the majority in 69.3% of all cases.

69 out of 74 for Kennedy is amazing. It really is his Court. One big asterisk though in that he lost the biggest case of the Term. It must kill Kennedy that he had to dissent in the Health Care cases and that he couldn't convince Roberts to come back to the conservative Justices.

Enjoy the summer SCOTUS.

The Health Care Ruling is a Big win for....

...the Supreme Court. 

The Chief Justice, by joining the left and upholding the law, saved the Supreme Court from being looked at as only a political body.  If it would have struck down the ACA on political 5-4 voting lines, it would have been Bush v. Gore all over again (which was the Rehnquist Court, not the Roberts Court), and the Court would have been delegitimized.  But now, even though Republicans and Democrats will fight over this in the upcoming elections, the Court will be seen as more neutral than in the past.

"It's our Super Bowl."

That's how Tom Goldstein describes today on the live blog over at SCOTUSBlog, which is worth headed to right now. 

I'm actually very excited to see what the Court does on the lying about a military honor case...

I'll hopefully post something this afternoon with some discussion about the cases today.

UPDATE -- the reason you should have been at SCOTUSBlog instead of CNN is that CNN reported "Individual Mandate Struck Down" for about 6 minutes before realizing its mistake.  So bad.  Goldstein, Howe & Company got it right from the get go.  Bloggers are better than MSM....

UPDATE 2 -- Here's the lengthy healthcare opinion.

P.S. Valor Act struck down...

Judge Robin Rosenbaum confirmed!

92-3 by the Senate. Well done and congratulations!

Update-- to answer the questions in the comments, per Glenn Sugameli, the only No votes (GOP Sens. Lee [UT], DeMint [SC] and Paul [KY]) were from those who have been continuing to vote NO on all judicial nominees in protest of three President Obama Executive branch nominees

11th Circuit decides whether the "act of masturbating while sitting beside another person ... satisf[ies] the 'with another person' requirement of the statute."

It does not.  The Federal Public Defender's office deserves a hand for this win.

The facts of USA v. Randolph Scott:

In a one-count information, the government charged Scott with “knowingly
attempt[ing] to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person . . . .” Scott pleaded not
guilty and the parties consented to a bench trial before a magistrate judge. At trial,
the government called Lauren Wyscaver as its only witness. She testified that she
was sitting in a chair in the waiting room of Miami Veterans Affairs Hospital
when Scott approached her and asked if he could sit in the chair next to her. She
agreed, and the two began talking about their respective military service, why they
were at the hospital, and the weather. There were four or five other people in the
waiting room, which had approximately 20 chairs.
According to Wyscaver, within the first few minutes of their conversation,
Scott “tried to touch [her] ankle, but [she] pulled away.” Wyscaver became
uncomfortable and started to ignore Scott, but he continued talking to her. Scott
told Wyscaver that he thought she was pretty and offered to pay her to give him
her phone number. Wyscaver testified that Scott then, as “nonchalantly as you can
do it,” reached down into his pants and started masturbating. “Once he did that,”
she said, “I sat up and I walked into the nurse’s triage room because I was
frightened.” Wyscaver eventually reported Scott’s conduct to a security guard.
Based on that evidence, the magistrate judge concluded that Scott had
attempted to “masturbat[e] or fondl[e] himself with another person who is”
Wyscaver. For that reason, the magistrate judge ruled that Scott had violated the
Assimilative Crimes Act by attempting to commit an “unnatural and lascivious act
with another person” in violation of Fla. Stat. Ann. § 800.02. The magistrate
judge sentenced Scott to 68 days in prison, followed by one year of probation.
The district court affirmed his conviction and sentence, and Scott now appeals
only his conviction.

So what did the court decide:

The government argues that Scott was masturbating “with” Wyscaver
because “he was sexually attracted to her” and because he stared at her while
masturbating. But the “with another person” element of section 800.02 is not
satisfied simply because a defendant is sexually aroused or erotically inspired by
another person. If mere arousal or inspiration were enough, Conforti would have
come out the other way. Nor does the fact that a defendant stares at another
person while committing an act mean that the defendant committed that act with
another person.
Even viewing the evidence in the light most favorable to the verdict, there is
insufficient evidence to support the conclusion that Scott “knowingly attempt[ed]
to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person,” which is what the
information alleged. A reasonable factfinder could not have found that Scott was
masturbating “with another person” within the meaning of section 800.02.

Well, there you go -- staring at another person doesn't mean you committed an act with that person.

Putting aside all of the funny one-liners, can someone please explain to me why the feds brought this case in the first place, which is unlike the ICE chief, Anthony V. Mangione who is apparently set to plead guilty.

On a separate note -- GOOD LUCK TO ROBIN ROSENBAUM TODAY.

Where will you be this morning?

At the Heat Parade?

Or at ScotusBlog live blogging the Supreme Court opinions as they come out?

Should be a very exciting Monday morning.

If you are bored waiting for either, here's a good piece about Scalia's dissents.  Some highlights:

Morrison v. Olson (1988): The Court voted to uphold the Independent Counsel Act; Scalia was the only dissenter.

Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

PGA Tour, Inc. v. Martin (2001): A lawsuit brought by the disabled golfer Casey Martin, who wanted to be allowed to ride in a golf cart between shots, something that the P.G.A. prohibited at the time. The Court ruled in Martin’s favor.

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

And here's a picture of the police in front of the federal courthouse this morning:

 I feel much safer!

Robin Rosenbaum's vote set for Tuesday

At 11:00am on Tuesday, June 26, the Senate will proceed to the consideration of Executive Calendar #652, the nomination of Robin Rosenbaum, of Florida, to be United States District Judge for the Southern District of Florida.  There will be 30 minutes for debate prior to a vote on confirmation of the nomination. Senators should expect the vote to begin at approximately noon on Tuesday.

GOOD LUCK!

Hat Tip -- Glenn Sugameli.

Crack, Fines, & the Supreme Court

No health care opinions, but two criminal law opinions today, both favoring the defense.  From ScotusBlog:

We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases.  The opinion is by Breyer.  The Seventh Circuit is vacated and remanded.  The vote is 5-4.  Justice Scalia dissents, joined by the Chief and Alito and Thomas.
The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes.  Dorsey and Hill have the more traditional line-up that we have come to expect in 5-4 cases.

The full opinion is at this link.

Re Fines and Apprendi:

Justice Sotomayor has opinion. The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3. Justice Breyer dissents, joined by Kennedy and Alito.

The full opinion is available at this link.

Don't drink the Thallium

From the 11th yesterday in Trepal v. Florida, a death penalty case:

In 1991, a Florida jury convicted Trepal, a sophisticated chemist and Mensa member, of murdering his neighbor Peggy Carr and attempting to murder six other members of Carr's family. Trepal poisoned the victims by adding the toxic element thallium to bottles of Coca-Cola in the Carrs' home.

Trepal’s trial lasted a month, with more than 70 witnesses together providing overwhelming evidence of Trepal’s guilt. For example, several independent witnesses chronicled Trepal’s long-running conflicts with and animosity toward the Carr family. Evidence established Trepal’s extensive
knowledge of chemistry, as well as his possession of chemistry laboratory equipment, a number of toxic chemicals, and a homemade journal on poisons and poison detection in human organs. Finally, multiple experts uniformly testified that (1) the victims were poisoned by thallium, (2) thallium was found in both the empty and unopened Coca-Cola bottles in the victims’ home, and (3) thallium was found in a brown bottle in Trepal’s garage. Thallium is a heavy metallic element that is both rare and toxic to humans. When dissolved, it is odorless and tasteless. A lethal dose of thallium is approximately 14 milligrams per kilogram of body weight, which for an average person is around 1 gram of thallium.

The appeal involves fascinating Giglio claims regarding the FBI chemist, but in the end, the court finds them harmless.  Harmless error regarding a lying chemist in a death penalty case seems like a hard (thallium?) pill to swallow.

Roger Clemens acquitted

Congrats to Rusty Hardin and his team for this great result.  I wonder if the Feds are starting to get the message that these sorts of cases (Clemens, John Edwards, etc) are a waste.  The federal government used to bring the biggest and most serious cases and leave the rest to the discretion of the States.  Now, it seems, the feds bring anything they can bring -- big or small, important or not.  If Republicans are as serious about small government as they claim to be, then I would think they should push to reduce the machinery of the federal criminal justice system. 

Heat

For all the credit Lebron is getting this post-season, he's not getting enough.  He's put the Heat on his shoulders in the playoffs.  Wade has been average.  Bosh has been hurt and hasn't been 100% since he's been back.  Miller can't hit the side of a barn.  The only role player doing anything is Battier.  Lebron has really been unstoppable. 

My personal email account (Hotmail) got hit with a virus this weekend.  What a pain.  How does that happen anyway?  I'm trying to figure out how to stop it in the future, but the advice on the net (change your password often and check your computer for viruses) doesn't seem like it will prevent the hack.

We're nearing the end of the SCOTUS Term.  Here are the remaining cases to be decided, which obviously includes the health care cases.  I'm betting that Michael Caruso gets cert in the Padilla case.  We'll see...

Rajat Gupta was convicted pretty quickly.  The over-under line on his sentence is ten years.  Any bettors?

For those who are bored and looking for some summer reading, check out this NY Times article about a guy who crossed Niagra on a wire.  If you are looking for a good beach book, try Ender's Game, which I just finished and recommend. 

Willie and Ben answering questions from Michael Caruso and the CJA lawyers

The annual CJA conference in Naples

That's appellate specialist Paul Rashkind giving the Supreme Court update.

"When in doubt, affirm."

That's what Judge Moreno told Judge Jordan at his investiture yesterday, to much applause and laughter. Justice O'Connor spoke, as did Judge Dubina and U.S. Attorney Willie Ferrer.

Meantime, big news in the District. The U.S. Attorney's office has dismissed its case against Irfan Kahn, a case originally assigned to Judge Jordan but transferred to Judge Scola. Kahn was represnted by Federal Public Defender Michael Caruso and AFPD Sowmya Bharathi. Here is the press release from last year from the U.S. Attorney's office, which discussed taking down the Pakistani Taliban. There was much fanfare, including news reports around the world (and on this blog). Here's the NY Times article from last year detailing the arrest.

I wonder what press there will be about the dismissal.

Adalberto Jordan to be invested

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

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

Ho hum Monday

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

Other than that, the SDFLA is pretty quiet.

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

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

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

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

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

Alicia Otazo-Reyes...

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

Congrats to Judge Otazo-Reyes!

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

Trust us!

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

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

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

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

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

Judge Altonaga orders new trial for e-discovery violations

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

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

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

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

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

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

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

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

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

"Their conduct was outrageous, disgusting, abhorrent. [I] would go so far as to describe it as being the most outrageous in … 25 years on the bench."

That was Judge Turnoff in the contempt hearing of two lawyers whose conduct has gone from bad to worse.  The Sun-Sentinel has the details here.  From the end of the article, explaining Paul Petruzzi's efforts to get his client's money back:

While it looked as if Turnoff might lock up Mayas because of his actions, the judge stopped short of that on Friday. Instead, he ordered Mayas to report daily to pre-trial release officers, surrender his passport — and hire a lawyer who is qualified to represent him in federal court.

The judge gave both sides 10 days to file legal arguments about the contempt issue, and indicated he expects to see Mayas and Roy together in his courtroom very soon so he can hear the full story.

Outside court, Petruzzi said he suspects “pigs will fly” before his client gets any money from Roy or Mayas or they pay Petruzzi's $7,500 — and rising — bill, as ordered by the judge.

“But I'm not going to stop until we do [get the money], because it's wrong,” Petruzzi said. “Neither of these guys ought to be practicing law anywhere.”

Meantime, the Ninth Circuit is trading jabs in a mining case of all things.  From the WSJ blog quoting from the dissent:

“No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.
“Unfortunately,” he added, “I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role.”

Last week was a good one for Mike Tein.  He was cleared by the Bar and his client in a lengthy medicare fraud case was found not guilty of two counts and hung on another.  The Miami Herald covers the case in which the DOJ prosecutor, Jennifer Saulino, obtained guilty verdicts for the other defendants:

The 12-person Miami jury convicted psychiatrists Mark Willner of Weston and Alberto Ayala of Coral Gables, the medical directors for American Therapeutic Corp., for their roles in a $205 million scheme to fleece the taxpayer-funded program for the elderly and disabled. The jurors found them not guilty on other healthcare fraud offenses.
In addition, the jury convicted Vanja Abreu, Ph.D, program director for American Therapeutic in Miami-Dade, of the same healthcare-fraud conspiracy offense, and two other defendants, Hilario Morris and Curtis Gates, of paying kickbacks to residential home operators in exchange for providing patients.
However, the jurors, who deliberated for five days after a nearly two-month trial, could not reach conspiracy verdicts against Lydia Ward, Ph.D., program director for American Therapeutic in Broward, Nichole Eckert, a Fort Lauderdale therapist, or Morris and Gates. Justice Department lawyers said they plan to retry those defendants on the deadlocked counts.

Read more here: http://www.miamiherald.com/2012/06/01/v-fullstory/2827660/miami-medicare-fraud-jurors-tell.html#storylink=cpy

  One final note -- the NY Times has this op-ed about federal judges writing their own opinions:

THERE is a crisis in the federal appellate judiciary. No, I’m not referring to the high number of judicial vacancies or overloaded case dockets — though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I’m talking about the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work.

With so much news and controversy about what federal appellate judges say in their opinions, it would be natural for a layperson to assume that such opinions actually come from judges’ own pens (or keyboards). But ever since the beginning of the law-clerk age, which dates back at least 70 years, most judges have been content to cast their vote in a case and then merely outline the shape of their argument — while leaving it to their clerks to do the hard work of shaping the language, researching the relevant precedents and so on. Almost all federal appellate judges today follow this procedure. 

***

There is also the matter of intellectual integrity. Put simply, it cannot be accepted as legitimate that judges can put their names on opinions that they did not write. It’s not quite plagiarism, but it puts me in mind of the product known in the academic world as “managed books”: a professor will use research assistants to not only research a project but also write a first draft — but nonetheless the professor claims the work as his own. The managed books approach has been condemned as an affront to intellectual integrity. There is no principled reason the judicial counterpart should not be similarly condemned. I am reminded of Henry J. Friendly, the great judge of the Second Circuit, who explained that he wrote his own opinions because “they pay me to do that.”

Younger members of the judiciary need to take a hard look at themselves and ask how what they are doing stacks up against the known examples of judging at its highest level — not just Judge Posner and his contemporaries who write, but also gifted writers among judges of earlier eras like Learned Hand and Oliver Wendell Holmes Jr. The next generation will need to accept the opportunities and challenges of appellate judging and dare to do all the work that befits a judge.

 I think the piece way overstates the "crisis" about this issue...  But what do you all think?

"I bear no animosity toward the prosecutors, even though they pursued false charges based on fabricated evidence."

Ben Kuehne is the only person I know who could say such a thing and actually mean it.  Ben is quoted in Jay Weaver's article about John Sellers, who prosecuted Ben and who also prosecuted banker Sergio Masvidal. 

Masvidal was represented by Joe DeMaria, who was able to get his client's name cleared.  Although OPR concluded that his conduct was "reckless," the Justice Department let him keep his job:

Five years after unsuccessfully targeting two prominent Miami figures — one a banker, the other a lawyer — in separate cases, a Justice Department prosecutor faces a July disciplinary trial by Maryland Bar regulators.


John W. Sellers left the Justice Department in 2010 amid an internal probe concluding that he committed “reckless” misconduct in a money-laundering case against Miami-based American Express Bank International, which was headed by banker Sergio Masvidal.
***
Masvidal’s Miami lawyer, Joseph DeMaria, said the Justice Department should have fired Sellers after concluding that he had committed reckless misconduct, according to the agency’s internal probe in 2010.

Sellers now works as a Treasury Department attorney on the federal bailout program for the banking industry.

“The Justice Department let him sneak out the back door to the Treasury Department so he could keep his same salary, benefits and pension,” DeMaria said. “And now he’s working as an attorney on the federal bailout. How ridiculous is that?”

Indeed. 

The article ends with this quote from Ben:  “Lawyers reap what they sow. He will need to answer for his own conduct.”   But prosecutors who engage in misconduct rarely have to answer for their conduct.  That's part of the problem.  OPR rarely does anything, and the few times it does do something, it's a slap on the wrist.  See, e.g., Ted Stevens' prosecutors. 


In this case, the Maryland Bar has initiated a case against Sellers, so it will be interesting to see what happens. (Here's the Maryland complaint).  The problem is that even when the Bar tries to disclipline prosecutors, DOJ claims that they are immune even from Bar rules, and of course, civil remedies are not available.

Welcome to Amercia!

It's just a typo for goodness sake.





In more important news, what do you think of the 30-day sentence on the Rutgers student convicted of the hate crime?  Not surprisingly, the prosecutors weren't happy, but the judge defended the sentence:

No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”

***

On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate. The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice. 

 ***

 While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing. Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.  

In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend. Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.

Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said.

But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.” That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.

In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail. Under state statute, Mr. Ravi could serve as little as 20 days, if he earns work credits and rewards for good behavior in jail.

The judge said he had relied on the statute’s recommendation in imposing the fine, and set it at an amount he considered “affordable, impactful and proportionate.”

Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.”

He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy.

“I also know his age,” Judge Berman added, calling it a mitigating factor.

“I believe justice compels me to deviate from the guidelines,” he said.

Back in business

A big thanks to Rumpole, SFL, and Jeff Marcus for their wonderful blogging while I took a break.

Nothing much happened while I was gone -- there was naked face eating, the Heat kept on winning, and Heath Bell blew some saves. 

More importantly:

-- Lewis Tein was cleared.

-- Interesting maneuvering in the 11th Circuit with the recent judges taking senior status.  More here.

-- The Unabomber gets into the Harvard alumni book.

-- The Vatican is in chaos because a butler released some documents.

If you want something really interesting to read, check out this article in the WSJ about why we lie.  It's a wonderful piece that explains, in part, that stiffer jail sentences don't really deter criminals.  From the intro:

Not too long ago, one of my students, named Peter, told me a story that captures rather nicely our society's misguided efforts to deal with dishonesty. One day, Peter locked himself out of his house. After a spell, the locksmith pulled up in his truck and picked the lock in about a minute.
"I was amazed at how quickly and easily this guy was able to open the door," Peter said. The locksmith told him that locks are on doors only to keep honest people honest. One percent of people will always be honest and never steal. Another 1% will always be dishonest and always try to pick your lock and steal your television; locks won't do much to protect you from the hardened thieves, who can get into your house if they really want to. The purpose of locks, the locksmith said, is to protect you from the 98% of mostly honest people who might be tempted to try your door if it had no lock.
We tend to think that people are either honest or dishonest. In the age of Bernie Madoff and Mark McGwire, James Frey and John Edwards, we like to believe that most people are virtuous, but a few bad apples spoil the bunch. If this were true, society might easily remedy its problems with cheating and dishonesty. Human-resources departments could screen for cheaters when hiring. Dishonest financial advisers or building contractors could be flagged quickly and shunned. Cheaters in sports and other arenas would be easy to spot before they rose to the tops of their professions.
But that is not how dishonesty works. Over the past decade or so, my colleagues and I have taken a close look at why people cheat, using a variety of experiments and looking at a panoply of unique data sets—from insurance claims to employment histories to the treatment records of doctors and dentists. What we have found, in a nutshell: Everybody has the capacity to be dishonest, and almost everybody cheats—just by a little. Except for a few outliers at the top and bottom, the behavior of almost everyone is driven by two opposing motivations. On the one hand, we want to benefit from cheating and get as much money and glory as possible; on the other hand, we want to view ourselves as honest, honorable people. Sadly, it is this kind of small-scale mass cheating, not the high-profile cases, that is most corrosive to society.

"PROSECUTOR'S RUN OUR SYSTEM"

One last word from Rumpole before your beloved blogger returns from wherever "elite criminal defense attorneys" go when they are not partying at Urban Weekend on Miami Beach. 


Federal judges have had enough with the powers prosecutors wield in federal sentencing, and they are starting to write freely about their frustrations the NY Times reported on Sunday. 

“Prosecutors run our federal justice system today,” Judge William G. Young of Federal District Court in Boston wrote in this
sentencing memorandum.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.”

On the twenty year anniversary of his closing argument in USA v. John Gotti, former federal prosecutor and current United States District Judge for the Eastern District of New York Judge John Gleeson is also at his wits end over the decisions of federal prosecutors to seek lengthy minimum mandatory sentences for small time drug offenders. “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

From the Times article on the case before Judge Gleeson:
The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.

“We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time....  The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Rumpole says: There are similar problems in state court. We have written many times before of the strange scenario played out countless times in state courts where the legislature has invested more power and discretion in the hands of a twenty five year old prosecutor two years out of law school than in the hands of a fifty five year old judge appointed by the Governor or elected because of his/her (supposed) wisdom, experience and abilities. 

Strange. Sad and frustrating, but strange nonetheless.  

Welcome back DOM.  

Another Vacancy on the 11th Circuit -- Is a Compromise Near?

Hi there, SFL filling in for DOM as we hit the long holiday weekend.

It's true our own Judge Jordan was elevated without too much drama, discord, or delay, but that's not the case with Jill Pryor, who was nominated in February to fill Judge Birch's seat but has yet to be confirmed.

Now comes word that Judge J.L. Edmondson plans to go senior, possibly paving the way for a deal:

An intriguing possibility is that Edmondson's decision could allow the White House and the senators to compromise on a package of two nominees to the Eleventh Circuit — namely, Pryor and Troutman Sanders partner Mark Cohen.

Earlier this year, Chambliss and Isakson sent White House Counsel Kathryn Ruemmler a letter indicating they would return blue slips on Pryor and U.S. Magistrate Judge Linda Walker for district court spots and Cohen for the circuit seat.

The Daily Report previously reported that Cohen was vetted late last year by FBI agents and the U.S. Justice Department for the Eleventh Circuit post, an indication the White House had considered him for Birch's seat. Cohen has Democratic connections — he served as Governor Zell Miller's executive counsel and chief of staff.

But, acting as a special assistant attorney general for the state, he defended challenges to Georgia's voter ID law, a statute that Democrats generally consider anathema. Pryor, a partner at the Atlanta litigation boutique Bondurant Mixson & Elmore, previously was a member of the American Civil Liberties Union of Georgia's legal committee.

But it's by no means clear that either the White House or the senators would go for such a package.

Hmm, a Troutman Sanders partner who defended Georgia's voter ID law --  I think that makes you a moderate in the Peanut State.

Funny Bunny Money? Edwards Jury: Four Days and Counting

It's the old axiom: $400 hair cuts never pay.  Senator Edwards's hairgate episode has resurfaced during the trial in the form of a key handwritten letter written by FOJ heiress, Rachel "Bunny" Mellon, to former Edwards aide and star government witness, Andrew Young.  The letter written in response to negative hair press has been dubbed by trial followers as the "haircut letter."  In it, Mellon wrote, "From now on, all haircuts, etc., that are a necessary and IMPORTANT PART OF HIS CAMPAIGN, please send the bills to me. It is a way to help our friend WITHOUT GOVERNMENT RESTRICTIONS."  Over the next 8 months, Mellon sent Young more than $700,000 in checks made out to Young's wife -- payments to support and stash Edwards's mistress and love child.  Another large donor, Fred Barron, also made similar payments.  Neither Mellon (101 years old) nor Barron (deceased) were available to testify at trial.  The jury has been poring over the letter as well as two related letters written by Mellon's personal attorney during its now-four days of deliberations.  The jury is likely stuck on whether payments made to hide Edwards's affair can be reasonably classified as illegal campaign contributions.  Many legal commentators already have poked holes in the government's novel theory of prosecution so I won't bore you with my defense musings.  You can read more here.

Btw, there is a local angle to the case.  Pictured above (stage center just behind D.C. defense superlawyer Abbe Lowell) is the always-dapper DOJ prosecutor and SDFLA alum, Jeff Tsai.  In my former life, I had the pleasure of second-chairing one of Jeff's first trials in the office.  Jeff is a good trial lawyer (and an even better dresser).  His perfect Windsor knots in an office of government schleps were the stuff of legend.  In a different world, he and Senator Edwards would have a beer summit over hair coif tips.