Joking at the Supreme Court

The WSJ Blog points out funny exchanges at the Supreme Court. I reprint their fun post here (by the way, our funniest judge -- according to the poll at the right -- is Chief Judge Moreno, by a wide margin...):

The Law Blog’s Laugh-In At the Supreme Court: Wow

Posted by Peter Lattman

The big news out of the Supreme Court yesterday concerned what they didn’t do. The justices declined to hear an appeal of a D.C. Circuit ruling that terminally ill patients who have run out of medical options have a constitutional right to try experimental drugs that have not yet received FDA approval. Here’s the NYT story and prior Law Blog coverage.

On the lighter side, let’s bring back a Law Blog feature in very low demand — The Law Blog’s Laugh-In At the Supreme Court! The decidedly unfunny issue on the docket yesterday: federalism. The question, as stated by the Times: What happens when a state chooses to give criminal suspects more protection than the federal Constitution requires?

Leave it to Justice Scalia to make federalism funny. Yesterday, he asked Stephen McCullough, a lawyer for the state Virginia, about the line between valid and invalid state searches. With that, an avalanche of laughter ensued. Get ready to giggle, Law Blog readers!

Justice Scalia: Mr. McCullough, the proposition that you’re arguing, does it apply at the Federal level as well? Suppose — suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right? So I go in and search his house; and sure enough, there is marijuana. And I bring it to the police’s attention, and they eventually arrest him. Is that lawful search?

McCullough: If there is State action –

Justice Scalia: I’m a State actor, I guess. You know –
(Laughter.)

McCullough: If you have State actors –

Justice Scalia: You know, a Supreme Court Justice should not be –
(Laughter.)

Justice Scalia: — should not be living next door to somebody growing marijuana. It doesn’t seem right.

McCullough: That’s not a smart neighbor.
(Laughter.)

McCullough: If you have State action and you enter into someone’s home, then the Constitution affords a heightened level of protection. But –

Justice Scalia: Don’t dance around. Is it — is it rendered an unreasonable search by the fact that I’m not a law enforcement officer at all?

McCullough: I don’t think the fact of — no. The fact that –

Justice Scalia: So any Federal employee can go crashing around conducting searches and seizures?

McCullough: So long –

Justice Scalia: So long as he has probable cause?

McCullough: That’s correct.

Justice Scalia: That’s fantastic.
(Laughter.)

Justice Scalia: Do you really think that?

McCullough: I think if there is State action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy.

Justice Scalia: Or that you are an administrative law judge at the, you know, Bureau of Customs? It doesn’t matter?

McCullough: I think that’s right. That if you have — if the State -

Justice Scalia: What about a janitor? You’re a janitor, a federally employed janitor.

McCullough: Your Honor –

Justice Scalia: His neighbor is growing marijuana, and he’s just as offended as a Supreme Court Justice would be. Can he conduct a search?

McCullough: I think if he’s doing it on behalf of the State, the answer is yes.

Justice Scalia: Wow.

To recuse or not to recuse...

Judge Gold recused on the Ted Klein mold case. Julie Kay, in the National Law Journal, speculates that the entire Southern District bench may follow suit:

U.S. District Judge Alan Gold in Miami has recused himself from a Freedom of Information case brought by the children of deceased magistrate judge Ted Klein against the General Services Administration. Gold's judicial assistant confirmed Monday that Gold has recused himself from the controversial case. Many are speculating that the entire Southern District of Florida bench will wind up recusing themselves and a judge in another district will hear the case. On Dec. 28, the children of deceased Magistrate Judge Ted Klein filed a complaint in Miami federal court accusing the General Services Administration of failing to comply with a Freedom of Information Act request seeking information about the David Dyer Federal Courthouse.

UPDATE -- This morning a judge from the Nothern District of Georgia has been assigned the case.

"Life or less? Padilla to learn his fate"

Jay Weaver wonders here what will happen to Jose Padilla. The intro to the article:

By week's end, Jose Padilla, a seemingly lost soul who drifted from gang member to Islamic convert to terrorist recruit, will learn whether he spends the rest of his life behind bars.
The decision is likely to hinge on a federal judge's interpretation of a strict sentencing provision of criminal law dealing with terrorism.
Last week, U.S. District Judge Marcia Cooke listened patiently to endless hours of defense argument during a marathon-like sentencing hearing that the former Broward County resident and two co-defendants committed no specific acts to aid extremists in ''violent jihad'' against foreign governments. A jury last summer convicted each on charges of conspiring to commit murder in holy wars and providing ''material support'' to that end.
''Where is the evidence?'' Padilla's attorney, Michael Caruso, declared at one point.

Tom Mulvihill on the front page of the NY Times

Interesting article here about the Venezuelan case that's been getting lots of national and international press.

From the intro to the article:

One day last August, an airport policewoman in Buenos Aires noticed something peculiar as she was monitoring a baggage scanner: the appearance of six perfect, dense rectangles inside a suitcase.
She asked the passenger, Guido Alejandro Antonini Wilson, one of eight people aboard a private plane chartered by Argentina’s national oil company that flew from Caracas, to open the case. “He became frozen and did not say a word,” the policewoman later said in a radio interview.
When he did open it, nearly $800,000 in cash spilled out.
Mr. Antonini, a businessman with Venezuelan and American citizenship, is now at the center of a spy mystery and diplomatic imbroglio involving Argentina, Venezuela and the United States. American officials portray the episode as a rare glimpse into President Hugo Chávez’s use of oil wealth to spread his influence, saying the cash was destined for the campaign of Cristina Fernández de Kirchner, Argentina’s new president.
Venezuela and Argentina describe it as an amateurish American attempt to smear their governments. Mrs. Kirchner has called the case a “garbage operation” by Americans, while Venezuela’s official news agency claimed this week that it was a plot by the Central Intelligence Agency.

And for those of you who read Spanish, here's' an article in which I am asked about Mulvihill.

P.S. The Sun-Sentinel ran a story this morning about our blog here. Surely, I can post it, right?

Padilla sentencing to continue next week...

Still no sentence for Jose Padilla and his co-defendants. Apparently, sparks are flying (via CSM). And more here from the Sun-Sentinel.

Is there anything more stressful for litigants and judges than sentencing hearings? I'm sure everyone will be relieved when this is over.

Gagged?

Unfortunately, I will not be blogging about the Liberty City 7 case any more until the following issue is cleared up:

As regular readers know, Judge Lenard gagged the defendants for the retrial. She also gagged acquitted defendant Lyglenson Lemorin and his lawyer Joel DeFabio. I recently filed a notice of appearance for Mr. DeFabio to litigate the gag order, and Judge Lenard issued the following order:

"[T]he gag order previously issued by the Court on December 13, 2007 applies to Lyglenson Lemorin, who is now a witness for the defense in this case (see D.E. 772), and his agents, as well as to Joel DeFabio, Esq., who has been appointed by the Court to represent Mr. Lemorin as a witness associated with the defense in this case, and TO MR. DEFABIO'S AGENTS as well. . . " (emphasis added)

Because I am now one of DeFabio's agents, I take it that I cannot speak about the case. I filed a motion to clarify that today, but until that is ruled on, I don't think I will be posting about the case.

Minor roles or leaders or something else?

Apparently, that's one of the big fights at the Jose Padilla sentencing (for all three co-defendants). From the AP:

Prosecutors say the three defendants were part of a conspiracy involving armed conflicts over decades in places like Kosovo, Afghanistan, Somalia and Chechnya and involving tens of thousands of people. Hassoun was depicted as a recruiter, Jayyousi as a financier and propagandist and Padilla as a recruit for al-Qaida.
"The charged conspiracy is exceedingly broad," said Padilla attorney Michael Caruso. "You have to concede that Mr. Padilla played a minimal role."
But prosecutor Russell Killinger said Padilla is "a trained al-Qaida killer" who was recruited to attend an al-Qaida training camp. He called Padilla's bid for a lenient sentence "astonishing."
"He's an instrument of the scheme itself," Killinger said.

The defendant's role in the offense will have an impact on the guideline level and will also impact Judge Cooke's ultimate sentencing decision....

Judge Huck denies Noriega's request to block extradition

Vanessa Blum has the details here:

Miami federal judge signed off on U.S. plans Wednesday to send former Panamanian dictator Manuel Noriega to France to face money-laundering charges, finding the French government has given sufficient assurances it would continue to treat Noriega as a prisoner of war under the Geneva Conventions.The ruling from U.S. District Judge Paul Huck, which followed three earlier court decisions approving the planned extradition, addressed concerns raised by Noriega's attorneys over France's refusal to formally designate Noriega a prisoner of war."Without that status of being declared a prisoner of war, there is no guarantee he will continue to receive those benefits," said Jon May, one of Noriega's attorneys.
Huck disagreed, saying he was satisfied with France's commitment to treat Noriega, 73, in accordance with the Geneva Conventions."What more could Noriega ask for or be entitled to?" Huck asked. "It's the benefits. It's not the nicety that he's called a prisoner of war."

More from the AP:

The ruling clears the way for Noriega's lawyers to appeal his extradition to the 11th U.S. Circuit Court of Appeals in Atlanta. U.S. lawyers say Noriega's extradition will not take place until the legal process is concluded.
"It is on hold," said Assistant U.S. Attorney Sean Cronin.