Busy!

Each one of these items probably deserves its own post, but I've fallen behind on interesting stories and am going to include them all here in one post. Thanks to all the tipsters and commenters who have been sending me juicy items.

1. The jury is still out in the night vision goggle case. The prosecution gave a 90 minute closing today and Sharhazad Gholikhan gave a 90 minute closing in her own defense. The jury went out around lunchtime and were discharged for the day at 5pm. Vanessa Blum has the details here. Some of my favorite lines from her closing: She said her only crime was a "conspiracy of marriage." She explained she came to the U.S. voluntarily because she was innocent: "I came. Why? Because I'm clean."

2. No COLA increase for federal judges. Tony Mauro at BLT writes it up here. (HT: Captain). “Wrong time. Wrong place,” Sen. Claire McCaskill, (D-Mo.) exclaimed on the Senate floor Dec. 11. “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay. They die with the same salary they have today.” To counter: Federal judges are the only federal employees who will begin 2009 without a COLA. James Duff, director of the Administrative Office of the U.S. Courts, acknowledged that these are “challenging times” for the economy, but he added in a statement, “That is no reason for Congress to treat federal judges differently than all other federal employees, including members of Congress.” Our prior coverage on this subject is here.

3. Judge Zloch wrote an 82-page blockbuster order finding the Sex Offender and Registration Act (SORNA), which is part of the Adam Walsh Act, unconstitutional. Here's the Order. It's worth a read. It's hard to summarize such a lengthy opinion here, but it basically says that the Act violates the commerce clause because there is no link with registration and commerce. Here's the conclusion:

While providing Congress with the power to regulate sex
offenders in the manner attempted by SORNA would admittedly aid
Congress in its goal to protect the public, it is not has not among
Congress’s enumerated powers. Congress has never been accorded the
general police power it has sought to exercise in SORNA. See
Lopez, 514 U.S. 596-98 (Thomas, J., concurring); Cohens v.
Virginia, 19 U.S. (6 Wheat.) at 426. Cases are legion that note
that the federal government does not have the residual power held
by the states. E.g., Lopez, 514 U.S. at 584-602 (Thomas, J.,
concurring).
With statutes like those at issue here, Congress’s desire to
aid in the protection of society against sexual predators is
understandable and laudable. However, “the powers of the
legislature are defined, and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written.” Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). Specifically, the
grant of power made under the Commerce Clause is limited. Lopez,
514 U.S. at 552-553 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at
189-95). Therefore, the statutes challenged herein cannot be
upheld. Section 16913 transgresses entirely the limits set on

Congress by the Commerce Clause. It cannot be defended except by
adulteration of the text of the Constitution and controlling
caselaw. Section 2250 also exceeds that grant of power made to
Congress under the Commerce Clause. It is in no way a regulation
of persons in interstate commerce but an exertion of a general
police power through an illusory and impermissible jurisdictional
nexus. Thus, the Court declares that § 16913 is unconstitutional
in that Congress lacks the power to enact the same under the
Commerce Clause. Because an unconstitutional law is no law at all,
Defendant Edward Myers shall go hence without day.

And for you grammar nerds, check out footnote one of the opinion:

Many courts and commentators, especially in the passages
quoted herein, render the possessive of “Congress” as “Congress’.”
For clarity as to the number of congresses being referred to and
staying faithful to the traditional rules of grammar, the Court
will employ the natural construction “Congress’s” when referring to
the possessive singular of our national legislature. See William
Strunk, Jr. and E.B. White, The Elements of Style 1 (4th ed. 2000).

4. The Broward chapter of the Federal Bar is big time. Check out its inaugural 16-page newsletter. The most fun part is the interview with Chief Judge Moreno. His first job in college: working as a janitor at Notre Dame during summers. Favorite Movies: Rudy and Remember the Titans. Favorite Songs: Notre Dame Victory March and God Bless America. (I was sort of with you on the movies, Chief, but those are really your favorite songs?) Favorite Hobbies: Golf, Travel, and Food.

Tons of other fun stuff in the interview. Some good quotes: "When you're a judge you rule your own fiefdom, as Chief you are accountable for the whole kingdom." Courthouses should be like "secular temples" to inspire respect in the community just as cathedrals were built on a grand scale to capture the feeling of a divine presence. "I love jurors and lawyers, and the back and forth of trial and legal arguments."

5. Speaking of Judge Moreno, he sentenced Dr. Ana Alvarez-Jacinto to 30 years in prison today, 8 years more than the sentence recommended by federal prosecutors in this medicare fraud case. Jay Weaver's article is here.

"I thought I loved him, but now, when I look back, I feared him so much. I was his slave."

That was Sharhazad Mir Gholikhan during her 7 hours of direct testimony over the last two days before Judge Cohn. She has been representing herself during this retrial (Bill Barzee represented her during the first trial and has been standby counsel in this case. He directed her.) The prosecutor only had 5 minutes of cross after 7 hours of direct. Smart move? We're about to find out. Closing arguments are this morning.

Here's Vanessa Blum's coverage of this fascinating trial:

As an Iranian woman, Sharhazad Mir Gholikhan says she was required to wear a head covering, forced to marry a man she barely knew and forbidden to travel without her husband's consent.But in the Fort Lauderdale federal courtroom where Gholikhan is on trial, the 31-year-old mother is making her own decisions and acting as her own attorney.Gholikhan's defense to charges she tried to export American-made night vision goggles to Iran: that she had no choice but to obey the orders of her former husband, who dragged her into the illegal plot."Once you get married in Iran, your husband has control over you," she told the American jury deciding her case.
The jury is expected to begin deliberating today. If convicted, she could face more than 10 years in prison.

What can a prosecutor say to the media?

Rumpole takes state prosecutor David Waksman to task for his comments to the press after a not guilty by reason of insanity verdict, which raises the question about what prosecutors can say to the press. This NY Times editorial addresses the recent comments by Patrick Fitzgerald in the Gov. Blago fiasco. It starts out laying out the basic standards for prosecutors:

Prosecutors have a special place in our criminal justice system. The American Bar Association’s Model Rules of Professional Conduct note that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” and therefore owes a “special duty” to the court.
The United States Court of Appeals for the Ninth Circuit has emphasized that “a prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.” Another United States Court of Appeals has observed that “prosecutors sometimes forget that the prosecutor’s special duty is not to convict, but to secure justice.”

Does this apply to high profile cases?

There is no question that these principles extend to public statements, particularly in high-profile cases that engender public interest and press coverage. The obvious risk is that a prosecutor’s statements outside the courtroom, particularly statements that pillory a defendant, will taint the pool of prospective jurors and make it less likely that a defendant can receive a fair trial. For this reason, and also because it is fundamentally fair to do so, courts limit the prerogatives of lawyers, particularly prosecutors, to make public statements about pending cases.

So what did Fitzgerald say?

Against this backdrop, it is hard to feel comfortable with Mr. Fitzgerald’s remarks in announcing the charges that Mr. Blagojevich’s conduct amounted to a “political corruption crime spree” and “would make Lincoln roll over in his grave,” that “the breadth of corruption laid out in these charges is staggering,” that Mr. Blagojevich “put a ‘for sale’ sign on the naming of a United States senator” and that his conduct was “cynical” and “appalling” and has “taken us to a truly new low.”

To conclude:

This is not to express an opinion, one way or another, about Mr. Blagojevich’s guilt or innocence. But he is entitled to a fair trial, and it is hard to escape the conclusion that such a trial has become less likely as a result of these public remarks by this otherwise very competent and effective prosecutor.
In 1935, in a case read by virtually every law student since, the Supreme Court issued an eloquent statement of the special role of prosecutors:
“The United States attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
As able a courtroom lawyer as Mr. Fitzgerald is, he — indeed, all prosecutors — might consider limiting pejorative characterizations of a defendant to open court, after the jury is in the box.

The Waksman comments are less problematic because they were after the jury reached its verdict. And Rumpole's commentors raise some pretty good defenses for Waskman. But can anyone defend Fitzgerald's comments?

!!!!

He's got pretty good reflexes!

FECA matter

The government has moved to dismiss the wrongful death lawsuit filed by Ted Klein's family.

Julie Kay has the details here:

A wrongful death case brought by the children of a federal magistrate judge in Miami who they say died due to moldy conditions at a federal courthouse should be dismissed for lack of jurisdiction, the government is arguing. In a motion to dismiss filed on Nov. 28, attorneys for the Justice Department argued that the only remedy open to Andrew and Jennifer Klein, children of former Magistrate Judge Ted Klein, is the Federal Employees' Compensation Act. "The FECA was enacted to provide benefits to federal employees injured or killed in the course of performing their duties," states the motion. "It serves as the sole remedy against the United States for any on-the-job injury or death. Liah Catanese, an attorney for the Kleins at Alan Goldfarb P.A. in Miami, declined comment, saying their response would be laid out soon in a court document.

Any FECA experts out there? Is the government correct?

Could the CEO of Coca-Cola win dismissal of a suit that contends he personally put mice in soda bottles?

That's the hypo that Justice Breyer presented at a recent oral argument. From the ABA Journal, which has been providing great coverage lately:

The issue before the court is whether Javaid Iqbal’s suit against former Attorney General John Ashcroft and FBI director Robert Mueller is specific enough to withstand a motion for summary judgment, the New York Times reports. Igbal contends that after Sept. 11 he was put in jail where he was beaten and subjected to extreme temperatures and constant light. He pleaded guilty to identity fraud and was deported to Pakistan, but was cleared of any involvement in terrorism, according to the Washington Post.
Iqbal claims Ashcroft and Mueller formulated policies that singled him out because of his nationality and religion. Most of the justices who spoke appeared sympathetic to the government’s argument in favor of dismissal, report the Los Angeles Times and Legal Times. Only Justices Ruth Bader Ginsburg and David H. Souter spoke in favor of allowing the suit.
One of those appearing to side with the government was Justice Stephen G. Breyer, who advanced the mouse-in-a-bottle hypothetical. Breyer explained the hypo this way, according to a separate Legal Times story:
"Jones sues the president of Coca-Cola. His claim is the president personally put a mouse in the bottle. Now, he has no reason for thinking that. Then his lawyer says: 'OK, I'm now going to take seven depositions of the president of Coca-Cola.' The president of Coca-Cola says: 'You know, I don't have time for this; there is no basis. ... I don't want to go and spend the time to answer questions.' "
Breyer asked if the Federal Rules of Civil Procedure would allow dismissal. Solicitor General Gregory Garre said the suit could be tossed under Rule 8. He noted the Supreme Court 2007 decision in Bell Atlantic v. Twombly, which interpreted the rule as requiring plaintiffs to “show a plausible entitlement to relief."

Federal judges to get COLA if...

...the auto industry is bailed out. Thanks to a helpful comment, I see from the WSJ law blog that:

So this $14 billion bailout bill currently making its way through the halls of Congress stands mostly to benefit the U.S. auto industry. But it also, oddly, stands to benefit federal district judges.
Here’s why: The bill attaches an annual cost-of-living adjustment — or COLA — for federal judges, which, when implemented, will bring them in line with members of Congress, who get a $5,000 boost at the start of the year. District judges and members of Congress make $169,300. Here’s the AP story. Click here, here and here for other LB posts on the topic of judicial pay, which has been raging for years.
Senate Majority Leader Harry Reid, D-Nev., insisted that the judicial pay raise go into the bill. The Senate passed the judicial pay measure as a separate bill in November, but the House never acted. As a result, Reid has taken the unusual step of linking the obscure but important judicial pay issue to the unpopular auto bailout.
There is concern among many policymakers that judges are not paid enough relative to the importance of their offices, and in six of the past 13 years, judges have been denied their pay raise as lawmakers opted not to take their own COLA.

I will be candid with you. I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

While the Third DCA is bashing a juvenile judge, check out this bashing by Justice Souter of a lawyer who was arguing on Tuesday in the High Court. Ouch... You never really want to hear that your argument is "utterly irrational." From Adam Liptak's NYTimes article:

There were flashes of incredulity and anger from justices at the Supreme Court on Tuesday as they considered whether Tennessee prosecutors had committed misconduct in obtaining and defending a death sentence against a man who murdered a Memphis couple in 1980.
Gary B. Cone admitted to the murders, and the only defense he offered at his trial was that he had been in an amphetamine psychosis. Prosecutors worked hard to discredit the defense, calling it “baloney.” Years later, though, it turned out that prosecutors had withheld evidence from Mr. Cone’s lawyers that would have supported his claim.
Jennifer L. Smith, a lawyer in the state attorney general’s office, was vigorous in her defense of the prosecutors’ conduct. She said that they had no legal or ethical obligation to provide the information to the defense and that it would not have mattered anyway.
Justice David H. Souter, who served as the attorney general of New Hampshire early in his career, did not like those answers. “I will be candid with you,” he told Ms. Smith. “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
After Mr. Cone’s lawyers finally obtained the withheld evidence more than a decade after his conviction, prosecutors gave the courts a series of wildly inconsistent reasons for why Mr. Cone’s conviction and death sentence should not be re-examined in light of the new information. The issue had already been decided, they said. Or it had been presented too late. Or it had never been presented at all.
On this point, Ms. Smith was willing to acknowledge that prosecutors had made missteps. “We have confessed that there was an error by the state,” she said. But she seemed to place some of the blame on Mr. Cone, saying his lawyers had filed unwieldy and confusing papers.
"He buried all his good arguments,” Ms. Smith said of Mr. Cone.

Oh... It was the defense lawyer's fault for burying all those good arguments! Breyer wasn't buying it.

Justice Stephen G. Breyer said Mr. Cone’s briefs had been clear enough.
“Don’t you think,” Justice Breyer asked Ms. Smith, that Mr. Cone was “saying in his briefs: ‘I’ve been getting the runaround. First, they tell me it’s one thing; then they tell me another’?”

If we really want to solve the Brady problem, discovery rules in federal criminal cases need to be fixed. To see the absurdity of the federal criminal discovery, one need only compare it to federal civil discovery. The best prosecutors are the ones who say, I'll give you everything -- I have an open file policy. Those prosecutors typically have the strongest cases and get the most pleas from defendants. When non-lawyers hear that you find out the witnesses and exhibits on the first day of a federal criminal trial, they can't believe it. Their jaws drop when they hear that you get the prior statements of witnesses when the witness actually takes the stand. More and more, judges are forcing prosecutors to turn over some material earlier, which is helpful. But there should be more liberal rules about witness statements being disclosed (including summaries of those statements by agents), and witness and exhibit lists being disclosed.