Death Penalty appropriate where jury is buying gag gifts for judge and bailiff?

Yesterday, the 11th Circuit said no problem.  First the facts:

Juror MH admitted to giving the Judge white chocolate in the shape of a penis. She testified that she called her husband to request that her friend—who owned a confectionary shop—make chocolate turtles for the jury. ... The friend, in addition to the turtles, included the white chocolate penis as a gag gift to lighten things up. ... Juror MH recalls that Bailiff LP told her that the Judge wanted to see it.

On the last day of the trial, Juror MH testified that she took the chocolate, which was in a box and inside a bag, to the jury room. Juror MH gave the gift to the Judge in the jury room, and the Judge slid the gift into her sleeve. ...

 ***

Bailiff LP received an inappropriate gift of white chocolate in the shape of female breasts from the jurors. ... After Bailiff LP returned from caring for her sick mother, the court clerk gave her a box containing white chocolate breasts monogrammed “[Bailiff’s first name]’s hooters.” Bailiff LP does not know who gave her the gift. She thinks that the gift may been prompted by a discussion at dinner between two of the younger male jurors. The two jurors were discussing how their grandmothers had ample chests and that when their grandmothers hugged them they felt they would be suffocated. Bailiff LP then joined the conversation by lamenting the fact that she would be remembered by her grandchildren for her ample chest. ...

The holding:

 The record establishes that the unfortunate giving of these tasteless gifts was nonetheless inconsequential to the verdicts, and otherwise played no part in the judge’s or jury’s consideration of the case. The two gifts were given independent of each other, given at the conclusion of the trial, and none of the jurors testified that the gifts were based on anything that occurred during trial. Furthermore, at most only a few of the jurors were involved in giving the tasteless gifts. None of the jurors testified that the gifts bore any relation to their decision to find Wellons guilty of murder and rape, and they testified that the gifts did not affect their decision to impose the death penalty.

 ***

We do not condone the acceptance of gifts, de minimus though they may be, by judges or bailiffs during any trial—criminal or civil. Nor do we condone the giving of gifts by the jury to the presiding judge or bailiff during any trial. Trial judges are expected to properly handle these situations, sternly admonish or discipline those involved, and disclose such occurrences to each party so that timely objections can be considered and made. The Judge here neglected to take such steps. Only because we have no doubt that the gifts did not factor into the judge or jury’s ultimate consideration of the case are we able to affirm the denial of habeas relief.

We also acknowledge that the ill-advised actions of a few thoughtless jurors could create the perception that this jury was too busy joking around rather than deciding Wellons’s fate. But these were two isolated incidents in the span of a multi-week trial and we cannot say, on the basis of this record, that the verdicts were tainted.

We put a heavy burden on the twelve men and women of a jury when we take them away from their jobs, families and lives, summon them to the courthouse, sequester them, and ask them to decide whether a person charged with a capital crime should be put to death. Although they were intended to bring a moment of levity to a serious and somber occasion, the gifts were tasteless and inappropriate. But we are unable to conclude that this conduct amounts to juror or judicial misconduct of sufficient constitutional magnitude to warrant habeas corpus relief.

Well, what do you all think?

Does the jury conduct in this case taint the death penalty verdict?
	yes
	no
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Today's Scalia vs. Posner review

This story will never end, and for some reason I can't get enough of it.  Justice Scalia is the latest to fire back.  And Above the Law has all the juicy details:

What are your thoughts on the Richard Posner book review?
“I’m not going to get into this whole thing written for a glossy magazine.”
Okay, I will say this. It was misleading of Judge Posner to claim that I used “legislative history” in District of Columbia v. Heller, the landmark Second Amendment case. There’s a difference between considering “legislative history” — a legal term of art referring to the history of the enactment of a given provision, such as committee reports and floor statements and the like — and looking to the history of the time to get an understanding of how terms in a provision were understood.
(For more on this, see the Thomson Reuters interview. Scalia reportedly said, “To say that I used legislative history is simply, to put it bluntly, a lie.”)

He also had lots of other things to say.  Here's one of my favorite topics:

Should Supreme Court arguments be televised?
No. When I first arrived at the Court, I was in favor. I feel like something of a traitor for changing my mind, but now I’m very much opposed. Proponents claim it would educate; in reality, it would just serve to entertain.
“We spend very little of our time on that nonsense [constitutional rulings on hot-button issues like abortion or gay rights]. Most of our time is spent on the Internal Revenue Code, ERISA — incredibly boring stuff that no one can love, and only a lawyer can understand.”
If SCOTUS arguments were to be televised, we’ll just end up with 15-second soundbites that would give the American people a wrong impression about the work of the Court.

If this topic is boring you, go check out the DOJ stats on corruption convictions since 2002.  New Jersey leads the pack. We rank 9th, but in recent years the numbers are much lower than they were early in the 2000s.

Meantime, Rumpole is discussing Ayn Rand and Bruce Springsteen.  It's an interesting read.

Are long appellate opinions a good or bad thing?

I like them, especially compared to the one word PCA that we see.

 But Judge Edmondson isn't convinced, writing this in a concurrence to a 104 page Judge Carnes opinion:

I stand with Judge Carnes about the correct judgment in this appeal: AFFIRM the District Court’s judgment to deny habeas corpus relief to the state prisoner petitioner.  I -- very respectfully -- do not join in Judge Carnes’s erudite opinion.  I stress that it is not because the opinion says something that I am sure is wrong or I am sure is even likely wrong.  I agree with much of the opinion, at least.  But the opinion says a lot and says more than I think is absolutely needed.
In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk. Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel's other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges' time and attention.)
***
It seems to me that the incidence of long opinions has been on the rise in the last decade or, at least, more are coming across my desk. I should say that I, broadly speaking, do not agree that the length of an opinion necessarily reflects the thought, labor, and care that has been invested by judges in their endeavor to decide the case correctly. The shorter opinions often reflect the greater study and thought leading up to the ultimate decision. Mark Twain touched on a related idea: "If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare."

Here's an article about the underlying case, in which Judge Barkett dissented:

The federal appeals court has upheld a death sentence against man who killed a sheriff’s deputy, even though the condemned inmate’s lead lawyer drank a quart of vodka every day during trial.
The 11th U.S. Circuit Court of Appeals in Atlanta, in a 2-1 decision issued Thursday, said that even though Robert Wayne Holsey’s trial lawyers did not do a competent job, their deficient performance did not prejudice the outcome of the trial. Holsey sits on Georgia’s death row for fatally shooting Baldwin County Deputy Will Robinson after an armed robbery of a convenience store in December 1995.
Holsey’s appellate lawyers noted that his lead trial lawyer, Andrew Prince, drank a quart of vodka every night of Holsey’s trial because he was about to be sued and prosecuted for stealing client funds. During Holsey’s appeal, Prince testified that he “probably shouldn’t have been allowed to represent anybody” because of his condition.
In its ruling, the 11th Circuit said the key question was not whether Holsey’s lawyers were ineffective. It was whether their deficient performance prejudiced the outcome to the point there was a reasonable probability Holsey would not have been sentenced to death.
Judge Ed Carnes, writing the majority opinion, said the abundant aggravating factors — such as the fact Holsey killed a deputy to avoid arrest and had a prior armed robbery conviction — outweighed any additional mitigation evidence Holsey’s lawyers could have presented to the jury had they been doing their job.
Judge J.L. Edmondson concurred with the decision, but he indicated it was a close call as to whether the poor performance of Holsey’s lawyers prejudiced the outcome of the trial.
In dissent, Judge Rosemary Barkett said the jury never learned that Holsey was subjected to abuse so severe, frequent and notorious that his neighbors called his childhood home “the torture chamber.” Holsey’s mother beat him with an extension cord, shoes and a broom and would hold his head under the bathtub faucet, Barkett wrote, also citing testimony that the house was infested with roaches and reeked of urine and rotting food.
Had the jury heard more about Holsey’s “horrific child abuse,” Barkett wrote, there is a substantial probability he would not have been sentenced to death.

Ned Davis Award to Judge Kathy Williams

It was a really nice event at the JW Marriott Marquis. Bernie Pastor was installed as the new president, taking over for two-termer Brett Barfield. Brett did an incredible job and Bernie will as well.

The new FPD Michael Caruso introduced Judge Williams. Both showed why they are such good trial lawyers, telling interesting stories including remembering Judge Davis. Pat Davis was also in the house and it was good to see her doing so well.

Would you do 40 months in federal prison for $100 million?

Maybe crime does pay.

Would you do 40 months in federal prison for $100 million
	Yes
	No
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Busy day at the 11th Circuit

Four published opinions already and it's not 2:30 yet.

The most interesting is Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Priori of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order.

This is the case that Paul Clement argued.  Judge Wilson wrote the opinion and Judge Pryor wrote a partial dissent.  Lots of juicy stuff here including this line:  

The district court attributed this confusion to the “unimpressive” amount of money each group raised for charitable purposes, which led the court to believe that the members of both organizations 'are more interested in dressing up in costumes, conferring titles on each other and playing in a "weird world of princes and knights’ than in performing charitable acts."  During the trial, the judge opined that it was “tragic” that all Dr. Vann had done in her life was study the Knights of Malta and their records. (D.E. 145, 8:1–6.) He also expressed his disbelief that two charitable organizations would spend their time and money on litigation. (D.E. 144, 34:5–7.)
These remarks are wholly inappropriate in the context of a judicial proceeding and a published judicial opinion. Although a judge is not required to check his or her sense of humor at the courthouse door, we must be mindful that the parties rely on the judge to give serious consideration to their claims. Litigants are understandably frustrated when they are subject to the sort of unnecessary belittling commentary about which the parties complain here.

Yet, this wasn't enough for the Court to reassign the case:

We think the district court’s remarks, though offensive to both parties, do not rise to the level of conduct that warrants assignment to a different judge on remand. We are hard-pressed to surmise actual bias in favor of, or against, one party over the other. Moreover, we are confident that, on remand, both parties will be treated with the respect they deserve and that the district court will be able to freshly consider the remanded claims notwithstanding its previously expressed views. And, given the fact-intensive nature of this case, any reassignment would necessarily require duplication of resources expended by the parties and the court. Accordingly, we deny Plaintiff Order’s request for reassignment on remand.

Return of the Posner

Posner criticized the Scalia/Garner book on the interpretation of legal texts.
Garner responded.
Posner now issues this short reply here.  I like it:

Garner says that what I think are mistakes in the book’s description of cases are merely the result of the authors’ decision to “exclude other factors besides the canon” (statutory principle) that each case illustrates “because the examples are there merely to show how each particular canon works” and so the fact “that a given court considered other factors besides the canon is quite irrelevant to our purposes.” That is untrue. When they say that a court “perversely held that roosters are not ‘animals’” they are saying that a court erred by failing to follow a dictionary definition; in fact the court said that roosters are animals, but then gave reasons why this was not dispositive, reasons Scalia and Garner ignore. Garner now says “it would be very hard to find examples in which a single canon was the sole basis for the decision.” Precisely! The authors aren’t going to pin themselves down to a canon that might generate a result they don’t like. They want to play with 57 canons, many of them as I pointed out not textual.
Their approach is typified by the example Garner gives in his letter of a sign that reads “no person may bring a vehicle into the park.” Early in the book the authors say that an ordinance that excludes ambulances from the prohibition “is not the ordinance that the city council adopted,” for an ambulance is a vehicle. Hundreds of pages later they retract that conclusion, citing the common law defense of necessity. Garner in his letter calls this retraction an example of “nuance,” an appeal to a “mitigating doctrine.” I call it having a pocketful of nontextual interpretive principles to draw on whenever textual originalism produces dumb results, such as barring ambulances on rescue missions from parks because the dictionary says an ambulance is a vehicle.

I particularly like this paragraph:

He says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand. The authors summarize a well-known opinion by Holmes (McBoyle v. United States) tersely: “’automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails’”—held not to apply to an airplane.” They use this to illustrate the statutory principle called eiusdem generis, which is Latin for “of the same kind” and means that in a list of specifics that ends with a general term (for example, “cats, dogs, and other animals”) the general term should be interpreted to be similar to the listed terms (so “animals” would not include human beings). The statute under which McBoyle was convicted criminalized the transportation in interstate commerce of a “motor vehicle” known to have been stolen. Scalia and Garner do not mention “motor vehicle,” but consider only whether an airplane (the stolen property that McBoyle had transported across state lines) is the same kind of thing as an automobile, an automobile truck, etc. For Holmes the question was whether an airplane is a “motor vehicle,” and while he alluded to without naming the principle of eiusdem generis, his principal ground for reversing McBoyle’s conviction was unrelated to that principle; it was that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed. He also mentioned legislative history (anathema to Scalia and Garner) in support of his interpretation. All this Scalia and Garner ignore. 

11th Circuit creeping into the tech era

We still aren't streaming video (like the 9th Circuit or the Florida Supreme Court) and we aren't making audio available the day after arguments (like the 5th Circuit), but it's a start:

Effective August 1st, the Eleventh Circuit rules provide that CD recordings of oral arguments may be purchased from the court. 

 IOP 16 following 11th Cir. R. 34-4 states:

16. CD Recordings of Oral Arguments. Oral argument is recorded for the
use of the court. Although the court is not in the court reporting or
audio recording business, copies of the court’s audio recordings of oral
arguments are available for purchase on CD upon payment of the fee
prescribed by the Judicial Conference of the United States in the Court of
Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913,
payable to Clerk, U.S. Court of Appeals, Eleventh Circuit. CD recordings of
oral arguments are available for oral arguments held after August 1, 2012.
The court makes no representations about the quality of the CD recordings
or about how quickly they will become available. Oral argument recordings
are retained for a limited time by the court for its use and then the
recordings are destroyed.

Did Scott Rothstein snitch on his wife? (UPDATED)

That's the theory Charles Lichtman floats in this Herald article about the case:

Charles Lichtman, a Fort Lauderdale attorney for the bankruptcy trustee, said he suspects Scott Rothstein told prosecutors about his wife’s alleged obstruction plot rather than go along with it. The reason: Rothstein is hoping to reduce his 50-year prison sentence by continuing to cooperate with authorities.
“My belief is that Scott came clean on his own accord,” Lichtman said. “In the five weeks of depositions I have sat through with him, we have yet to find an instance where he was untruthful.” 

If that's true, then I have an even lower opinion (if that's possible) of Scott Rothstein than I did before.  Ratting on your own wife?!  Despicable.  

UPDATE -- John Pacenti drills down on the snitching angle:

Berger Singerman partner Charles Lichtman, who represents the bankruptcy trustee for Rothstein's defunct law firm, indicated the ex-lawyer cooperated in the investigation.
"I have reason to believe he responded truthfully to whatever questions he was asked about the circumstances," Lichtman said. "It never made sense to me that there was so much missing jewelry."
The new federal charges filed in two cases don't detail how the missing jewelry was uncovered but give plenty of hints.
"I got to believe there's a good chance Scott Rothstein ratted Kim out because Scott is grasping at straws to get out of prison," said Fort Lauderdale public relations executive Chuck Malkus, who has written a book The Ultimate Ponzi: The Scott Rothstein Story due out in February.
Malkus said he got a tip Kim Rothstein was in a jewelry store in downtown Fort Lauderdale with several high-end watches. When they met, Malkus said Kim Rothstein told him, "I can't go anywhere these days. I can't even get batteries for my watches."

In more pleasant news, my friends have opened up their own law practice: Gelber, Schachter and Greenberg.  Julie Kay covers it here:

Schachter and Greenberg said they decided to leave Stearns Weaver not out of dissatisfaction but out of a desire to start their own law firm.
"We always had an interest in starting our own firm and practice law in a lean, close-knit environment," said Greenberg, son of former Miami-Dade County Attorney Murray Greenberg and brother of Assistant U.S. Attorney Ben Greenberg.
Schachter said, "It was a tough decision, but it's been incredibly gratifying to take control of our careers."

It couldn't have been an easy decision as Stearns Weaver is one of the best places in Miami to work.  I wish them well.

Read more here: http://www.miamiherald.com/2012/09/06/v-fullstory/2987970/scott-rothsteins-wife-others-charged.html#storylink=cpy

Kim Rothstein charged with money laundering, obstruction, and witness tampering.

It's an information, so she's already got a plea agreement in place. From the USAO press release:

Earlier today, an Indictment was filed charging Marin and Daoud on charges of obstruction of justice and perjury. Also today, a Criminal Information was filed charging Kimberly Rothstein, Stacie Weisman and Scott F. Saidel with conspiracy to commit money laundering, to obstruct justice, and to tamper with a witness.

According to the charging documents, former Ft. Lauderdale attorney Scott W. Rothstein, who was the Chief Executive Officer and Chairman of the law firm of Rothstein, Rosenfeldt and Adler, P.A. (RRA), used the funds obtained from the operation of a Ponzi scheme to purchase tens of millions of dollars of real estate, vehicles, vessels, business interests, luxury watches, jewelry and sports memorabilia for himself, his wife, Kimberly Rothstein, and others. As part of his plea agreement, Scott W. Rothstein agreed to forfeit to the government all assets acquired with funds derived through the aforesaid Ponzi scheme. On November 9, 2009, agents of the Internal Revenue Service, Criminal Investigations, went to the Rothstein residence, where Kimberly Rothstein assisted the agents in retrieving what was believed to be all of the available cash, jewelry and luxury watches which had previously been purchased by Scott W. Rothstein with proceeds derived from the Ponzi scheme. In fact, before, during and after the aforesaid seizure by federal agents on November 9, 2009, Kimberly Rothstein, Stacie Weisman, and Scott F. Saidel knowingly took action to conceal certain items of jewelry, valued in excess of one million dollars for the purpose of preventing the government from exercising its authority to take such property into its lawful custody and control. Thereafter, Kimberly Rothstein and Stacie Weisman sold and attempted to sell a portion of this jewelry to and through various persons, including Eddy Marin and Patrick Daoud.

The charging documents further allege that, in connection with civil proceedings instituted by the Trustee in bankruptcy for RRA, all of the defendants took steps to obstruct justice by concealing the true location of certain items of jewelry in order to prevent its availability for use in those proceedings. It is further alleged that Marin and Daoud committed perjury during depositions in connection with those proceedings, and that Kimberly Rothstein, Stacie Weisman and Scott F. Saidel sought to have Scott W. Rothstein testify falsely in connection with those proceedings.

UPDATE--

Kim Rothstein has issued her own press release through her lawyer David Tucker:

In response to the Information filed against Kimberly Rothstein, please be advised that Kim welcomes the opportunity to put a very challenging time in her life behind her.
Kim would like to take the opportunity to express her disappointment, shame, and sadness in regard to all of the victims of her husband, Scott Rothstein’s, actions related to the Ponzi scheme for which he has previously been sentenced. She had no involvement or knowledge of his fraudulent activity.
She takes full responsibility for her actions in regard to the charge filed today.
Kim is a vibrant, diverse, and deeply caring person who looks forward to being a productive citizen in the years to come.
This is a very difficult time in her life and we ask that the media be sensitive to her privacy in this matter. Any inquiries should be directed to her attorneys below.

Headline writer needed

According to Rumpole, my headlines for posts aren't exciting enough.  I need more like "Summer is Over."  Oh well.

Anyway, there's lots of coverage regarding the Posner-Scalia debate, including Brian Garner's latest response in which he says that "Judge Posner went seriously off the rails in his review."  Yikes.  David Lat spoke to Posner and asked if this was personal.  Posner's response:

There is no personal animosity between Justice Scalia and me, or at least not on my side — I haven’t seen him for five or six years (we were at a conference on national security in Ottawa about that long ago). As you point out, we were colleagues in the 1970s at the U. of C. law school before we both became judges. I think I’ve described him in print as the most influential Supreme Court Justice in the period since his appointment, and I certainly adhere to that view.
I suppose it’s unusual for a lower court judge to criticize judicial or extra-judicial work by a Supreme Court Justice in public; but recall that Judge Wilkinson wrote a very critical law review article about Justice Scalia’s opinion in the Heller case. (I wrote a critical article about the opinion, as well, for the New Republic.) It’s probably not an accident that both Judge Wilkinson and I are former academics, to whom disagreement in print, without personal animosity having engendered it, comes naturally.

Meantime, Scalia is in Vegas:

A planned visit by conservative U.S. Supreme Court Justice Antonin Scalia to a Las Vegas Roman Catholic church for a ceremony seeking divine guidance for legal professionals and to a Las Vegas Strip casino reception afterward was drawing criticism Tuesday from a liberal activist who promised demonstrations to mark the events.
Scalia, who is due to begin his 27th year on the court next month, also is scheduled Wednesday to speak to law students and faculty at the Boyd School of Law at the University of Nevada, Las Vegas.
Linda Overbey, a union organizer and volunteer with the advocacy group MoveOn.org, focused on Scalia's planned attendance at a Red Mass liturgy and a reception following the service hosted by the conservative St. Thomas More Society of Nevada at the Palazzo resort. The property is owned by Las Vegas Sands Corp. and its chief, Sheldon Adelson.

 Maybe this could be the subject of a future Pacenti rant.

Wednesday happenings

1.  Nice win for Marc Seitles and Ed Kacerosky, which is covered by John Pacenti in the DBR:

For Seitles, it was the equivalent of going all in during a poker round. He waived attorney-client privilege and laid out what he had for prosecutors. Seitles decided to take "a different road with this case" for the man who was Colombia's air security secretary from 2002 to 2005.
"I never worked harder on something in all my life," he added.
The U.S. attorney's office had no comment on the charge being dropped. The document dismissing the charge Friday supplied no explanation.
Both Seitles and Kacerosky started working pro bono, knowing Ortega's family could no longer afford the long hours it took to root out the truth. Even though the government said it had a cooperating witness, Kacerosky found a co-defendant who told him authorities had arrested the wrong Carlos.
They went through hundreds of hours of phone calls. They found Colombian authorities mixed up not only two airplane brokers named Carlos, but a third who was nicknamed Carlos.
Ortega's family was in tears when they picked him up outside jail.

2.  The lawyer under the microscope of Judge Turnoff took 5 more than 80 times.  Via The Sun-Sentinel:


Disbarred lawyer Emmanuel Roy got a chance Tuesday to explain himself in a South Florida case where a federal judge found Roy behaved so outrageously that he should return $275,000 in exorbitant fees to a former client.
Instead of explaining, Roy invoked his Fifth Amendment right against self-incrimination — more than 80 times in less than an hour — when called to testify in federal court in Miami Tuesday by the lawyer who is now representing Roy's former client.
"I'm exercising my Fifth Amendment right," Roy said in response to questions from lawyer Paul Petruzzi.
The answer was the same regardless of the question — does Roy have any bank accounts, has he hidden assets in other people's names, does he currently live with his wife, could he identify himself in a photograph? It got so repetitive that Roy, who is also facing mortgage fraud charges in New York, abbreviated his answer to "Exercising my Fifth Amendment right" over and over again.

3.  Jay Weaver covers Judge Moore's decision concerning in-state tuition prices for students who live in Florida but have non-resident parents:

A federal judge in Miami has ruled the state is discriminating against potentially thousands of U.S. citizens who live in Florida, by charging them higher out-of-state tuition as nonresident students simply because their parents may lack legal U.S. residency.
U.S. District Judge K. Michael Moore found Tuesday that Florida's rule classifying such students according to their parents' undocumented immigration status violates the Constitution's equal protection provision.
"By virtue of their classification, (these Florida students) are denied a benefit in the form of significantly lower tuition rates to the state's public post-secondary educational institutions," the judge found in a 19-page opinion that was highly critical of the state's policy.
"This creates an additional obstacle for (them) to attain post-secondary education from one of the state's public institutions that is not faced by other residents."
Moore, who was nominated by President George H.W. Bush and confirmed in 1992, further found the policy "does not advance any legitimate state interest, much less the state's important interest in furthering educational opportunities for its own residents."

Read more here: http://www.bellinghamherald.com/2012/09/04/2675656/judge-rules-against-florida-policy.html#storylink=cpy

Tuesday morning news and notes

1.  Adam Liptak has this interesting article in the NY Times about "the death clerk" at the Supreme Court:

The unseemly and unsettling spectacle of a last-minute legal scramble in the shadow of the ultimate deadline, with the condemned inmate waiting for word of his fate just outside the death chamber, may suggest that the Supreme Court does not render considered justice when it is asked to halt an execution.

But it tries. Indeed, the court goes to extraordinary lengths to get ready, and its point person is a staff lawyer named Danny Bickell.

“Cases where there is an execution date,” he said with a sigh, “that’s where I come in.”

Mr. Bickell’s formal title is emergency applications clerk, but capital defense lawyers have an informal title for him, too. They call him the death clerk.

In remarks at a conference of lawyers specializing in federal death penalty work at a hotel here last month, Mr. Bickell provided a rare inside look at the Supreme Court’s oversight of the machinery of death in the United States. 

2.  Another prosecutor behaving badly and again DOJ goes to bat for him.  Via BLT:

A clash between the U.S. Justice Department and the D.C. Office of Bar Counsel over a former federal prosecutor's alleged ethics transgression is playing out in front of a Washington attorney ethics board.
Andrew Kline, a former assistant U.S. attorney in Washington, is challenging an ethics committee's conclusion in March that he didn't play by the rules in a shooting case when he kept certain information to himself that the victim had earlier provided to police.
The Justice Department is backing Kline in the dispute, pending before the D.C. Court of Appeals Board on Professional Responsibility. DOJ lawyers argue that the hearing committee too broadly interpreted a prosecution conduct rule, opening the door for ethics cases and "unwarranted sanctions" against prosecutors. Kline is no longer in government service.
The D.C. Office of Bar Counsel this month filed a response to Kline and DOJ, which submitted an amicus brief in the case supporting the former assistant U.S. attorney. You can read bar counsel's brief here and the DOJ brief here.

At issue in the case is whether Kline, in 2002, should have turned over information the victim told police shortly after the shooting. The victim's recollection cast doubt on the identity of the shooter. Kline obtained the information from a police officer who spoke with the victim at a hospital.
DOJ lawyers contend Kline was not obligated to turn over the victim information because it was not "material," or relevant, to the defense.
Elizabeth Herman, deputy bar counsel, said in her brief that Kline's legal team "selectively picks and highlights information from the criminal trial records and disciplinary hearing in an attempt to distort the record and sanitize his testimony before the committee."

3.  Griselda Blanco was assassinated.  Rumpole covers it here:

The history of Miami includes many characters, some good, some bad. Griselda Blanco, as bad as she was, occupies a place in this town's history. Her murder, if she was indeed killed, does little to assuage  the wide swath of death and destruction she wrought in our town. Blanco's story was the centerpiece of director Billy Corben's Cocaine Cowboys documentary.  If you new ASAs and PDs want to know the history of where you're working, Cocaine Cowboys is a good place to start.

I like Billy's quote in the Herald article: “This is classic live-by-the-sword, die-by-the-sword,” Corben said Monday. “Or in this case, live-by-the-motorcycle-assassin, die-by-the-motorcycle assassin.”

Read more here: http://www.miamiherald.com/2012/09/03/2983362_p2/cocaine-godmother-griselda-blanco.html#storylink=cpy