1-0

C-A-N-E-S

Okay, now that that's off my chest, back to business.

The Chief has formed a committee to look at building a new Broward courthouse. From the DBR:

With its maze-like corridors, dead ends and multi-level pools, the Fort Lauderdale federal courthouse is outdated in the post 9/11 world. The chief judge says it's high time for a replacement. Chief U.S. District Judge Federico Moreno said the courthouse fails to meet the upcoming — and even the current needs — of the Southern District. There are security issues, the courtrooms are small and undignified, and there is a lot of unused space on the tiered floors. But most importantly, Moreno said there is a need to expand. The district’s caseload is shifting north from Miami, and the next federal judge in South Florida will sit in Fort Lauderdale. Moreno has appointed a 16-member committee including judges, magistrates, mayors and a number of high-profile law firm partners, and they plan to hold their first meeting Sept. 15.

Lots of pithy quotes in the article...

George Platt, a Shutts & Bowen partner in Fort Lauderdale, is the committee chairman. He said the current courthouse was built in the mid-1970s. The front entrance features a sun-worshipping tiered staircase, pools and fountains edged with palm trees. But for security reasons, the public must enter through a narrow, dark rear door walled off by a chain-link fence around a ramp. “I would describe it as sort of going into a gulag. It’s a very unpleasant experience,” Platt said. “I guess it was a wonderful idea in someone’s imagination when it was created originally, but once we got into a situation where a courthouse had to be more secure and more efficient, this building has been a disaster.” In recent years, the most prominent feature at the front of the building, the fountain pools, were drained and left empty.

I agree that the building is a disaster, but the actual courtrooms aren't that bad. I like trying cases there: you are close to the jury and to the judge (unlike the Ferguson building). And the acoustics aren't awful like they are in the Tower building in Miami.

For those that are interested, we had the blog Fantasy Football draft last night. I got saddled with the first pick. Here's my (championship) roster:

Philip Rivers
Anquan Boldin
Brandon Marshall
DeSean Jackson
Adrian Peterson
Steve Slaton
Jeremy Shockey
Willie Parker
Knowshon Moreno
Matt Schaub
Chris Henry
Chris Chambers
James Davis
Justin Gage
Kevin Boss
Patrick Crayton
Darrius Heyward-Bey
Mason Crosby
Tennessee Defense
New York Jets Defense

Justice Stevens to retire?

We're a little late on this story, but it's starting to get a lot of traction, so here goes... It looks like Justice Stevens might be on the retirement track as indicated by his lack of hiring law clerks. From the NY Times:

Justice David H. Souter’s failure to hire clerks this spring accurately signaled his decision to step down. On Wednesday, the court confirmed that Justice John Paul Stevens, who is 89, has hired only one clerk, instead of the usual four, for the term starting in October 2010. That ignited speculation that Justice Stevens may be planning to step down next summer.
Or it could merely mean that he is keeping his options open. There is, of course, nothing to prevent Justice Stevens from hiring additional clerks later on. The newest member of the court, Justice Sonia Sotomayor, hired four clerks in short order after her confirmation last month.
The alternative is to hire clerks now for a job that might evaporate later, something Justice Stevens would not do lightly, people who know him said.
“Justice Stevens is a man who cares deeply about treating people with respect,” said Christopher L. Eisgruber, the provost of Princeton University, the author of “The Next Justice: Repairing the Supreme Court Appointment Process” and a former clerk to Justice Stevens.

If Stevens does retire, maybe we'll finally get a Floridian to the Supreme Court... Those will be huge shoes to fill.

In other news, the Padilla oral argument will take place on November 17 in Atlanta.

Have a nice long holiday weekend. Sorry for the short post today.

News & Notes

1. The big interviews are today with Senators Nelson and Martinez. They've flown down here and the interviews will be held at the federal courthouse. But they are closed to the public. (They should be open, shouldn't they?) If anyone hears anything about them, please email me.

2. Holland & Knight got sued. Julie Kay has the details:

The receiver in an alleged $347 million Ponzi scheme has filed a malpractice lawsuit against Holland & Knight and partner Scott MacLeod, claiming they failed to provide investors with crucial information about the disbarred attorney behind the investments. The suit filed Monday in Sarasota Circuit Court accuses the law firm and its attorney of preparing disclosure documents for investors that failed to mention Arthur Nadel, who headed the hedge funds, was a disbarred New York attorney who had drained a client’s escrow account. The suit also accuses Holland & Knight of conflicts of interest by representing Nadel and his investment funds simultaneously. The suit seeks in excess of $50 million in punitive damages, receiver Burt Wiand said. Karen McBride, a spokeswoman for Holland & Knight, said, “the firm’s position remains unchanged. We’ve done nothing wrong and we intend to vigorously defend this.”

3. Guy Lewis & Mike Tein keep growing their firm. Five new associates from UM Law School. Business is good!

4. The University of Miami will honor Steve Chaykin:

The University of Miami School of Law Center for Ethics and Public Service has established a fellowship in memory of the late Steve Chaykin, an Akerman Senterfitt shareholder and criminal defense attorney who died on vacation last year. Chaykin slipped in rapids while trying to rescue his wife, Melissa, who fell into the Colorado river. His wife survived, but Chaykin was knocked unconscious and drowned. The Chaykin fellowship has been established for third-year law students who served in one of the center’s programs or community service clinics. The recipient must display leadership and mentoring skills and a strong sense of ethical judgment, professional responsibility and professionalism. “The fellowship honors the significant, historic contribution that Chaykin made to the South Florida legal profession and to the law school, university community and the civic community,” said Tony Alfieri, a UM professor of ethics and public service and the center’s director.

5. Steve Zack broke his ankle in Napa... Was wine to blame? From Joan Fleischman:

Miami attorney Steve Zack, the American Bar Association's president-elect, won't be traveling for awhile. Zack, 61, broke his right fibula, the smaller of the two main bones near the ankle.
He's to blame, he says, for last week's midday slip-and-fall. Happened in Napa, Calif., but he swears he wasn't tipsy from wine. ``Had gone to tastings the day before.''
So how did it happen? ``Silliest thing. There was loose gravel over a road. My left leg slipped. I tried to catch myself with the right leg and I fell on it. When I heard the pop, I knew it wasn't a good day.'' He's using a wheelchair and crutches, and expects to have a plate put in to help the bone heal straight and stabilize the ankle.
``Last time I broke an ankle was 40 years ago, playing tennis. It seemed to hurt a lot less.''

That's hot -- Paris wins again...

...this time in the Court of Appeals (the 9th Circuit -- here's the opinion). From Reuters:

The celebrity and heiress Paris Hilton may pursue her lawsuit against Hallmark Cards over its use of her picture and catchphrase "That's hot" on a greeting card, a federal appeals court ruled on Monday.
Hilton had contended that Hallmark violated her privacy and right of publicity by ripping off a scene from her reality TV show "The Simple Life" on a birthday card captioned "Paris's First Day as a Waitress."
A three-judge panel of the U.S. 9th Circuit Court of Appeals rejected Hallmark's argument that its depiction of the Hilton Hotels heiress was protected speech as a matter of law.
It sent the case back to a lower court, which had turned aside Hilton's claim of trademark infringement but rejected other Hallmark defenses.

Paris is now 2-0 in federal court... That's huge:



Hat tip: my commentors and WSJ Law Blog.

Lyglenson Lemorin still sits in immigration jail

From Jay Weaver's article in today's Miami Herald:

A Tampa engineering student acquitted of terrorism-related charges walked out of an immigration court a free man earlier this month, after a judge rejected the U.S. government's bid to deport him to his native Egypt on identical charges.
Yet the same immigration judge sided with Department of Homeland Security lawyers last year when he ordered the removal of a Miami man to his native Haiti after he had been acquitted of terror-conspiracy charges.
Why did the immigration judge, Kenneth Hurewitz, grant the release of Youssef Megahed yet order the deportation of Lyglenson Lemorin? The lawyer who represented both men says it's because the evidence was stronger in the Lemorin case, though he disputes it was enough to deport him.
``The government's lawyers misunderstood that every case is different and you must plead what you're going to prove,'' Charles Kuck, an Atlanta attorney, said of the Megahed case. ``They failed to do that.''
Kuck said he believes Lemorin -- one of the so-called Liberty City Seven defendants -- has a good shot at his appeal, which will be considered this fall. Lemorin, 34, remains in custody.
Both Megahed and Lemorin are legal U.S. residents with no criminal histories who have lived in this country for years. Both also experienced a rare kind of ``double jeopardy'' -- being charged a second time in immigration court following acquittals in federal court.
Megahed, a 23-year-old former student at the University of South Florida, was arrested on a 2007 road trip in South Carolina along with a fellow classmate, Ahmed Mohamed. Both were charged with transporting explosives after police found model rocket propellants in the car's trunk.
Mohamed was also charged with providing ``material support'' for terrorism, because he created a You Tube video that showed how to convert a remote control toy vehicle into a bomb. He pleaded guilty to that charge last spring.
In early April, Megahed was acquitted in Tampa federal court on the explosives charges after his defense attorney argued that the materials found in the trunk -- PVC pipe and chemicals -- were homemade fireworks.
But a few days later, Megahed, while leaving a Wal-Mart store with his father, was arrested by Immigration and Customs Enforcement agents. He was charged again with the same terrorism-related explosives offense, only this time in immigration court, which is part of the Justice Department and has a lower standard of proof.
Megahed, who has lived in the United States since he was 11, faced deportation. His family, the Muslim community and others -- including four jurors in his criminal case -- expressed outrage.

They should be outraged. I'm sorry but if you are acquitted in federal court, immigration shouldn't be able to recharge you with the same conduct and be able to deport you based on a lower standard of proof. My prior coverage on this issue is here.

"Gov. Charlie Crist and ex-aide George LeMieux cleared in federal probe"

That's the headline from Jay Weaver's story about the Mutual Benefits case, which keeps taking stranger and stranger turns:

Gov. Charlie Crist and former chief of staff George LeMieux -- the subjects of a federal public corruption investigation -- have been cleared of allegations that they tried to thwart a state criminal probe into a Fort Lauderdale insurance company, according to sources familiar with the ongoing case.
Crist's selection of LeMieux to replace U.S. Sen. Mel Martinez would not have been possible had LeMieux still been under scrutiny by federal prosecutors investigating alleged influence-peddling by Mutual Benefits and its former top executive.
LeMieux was in the cross-hairs of the investigation after a major Republican fundraiser working with the FBI made a secretly recorded phone call to LeMieux at the governor's office in 2007, trying to get LeMieux to implicate himself, sources said.


Our prior coverage of the case and all the secrecy and failed snitching and set-ups is here. It's really amazing to me that the government would rely on criminals to try and set up well-respected and law-abiding citizens without real proof. LeMieux did the right thing:

But the phone call backfired: LeMieux immediately reported it to Crist's general counsel, who called the FBI. Still, LeMieux remained under investigation through much of 2008, along with Crist and several other members of his inner circle from his tenure as Florida attorney general and then as governor.

News & Notes (the PD's edition)

1. Paul Rashkind has been working on Guantanamo cases and he just got a nice win in DC: hearsay is not admissible in the detainee cases. Here's SCOTUSBlog's coverage:

U.S. District Judge Reggie B. Walton went further than any of his District Court colleagues has gone in cutting back on the Pentagon’s option of proving its detention cases by using a kind of evidence that normally would not be allowed in court — hearsay, as a substitute for direct proof of facts. The judge refused to follow the government’s plea that all of its hearsay evidence about an individual detainee should have a special rank, admitted into court with a presumption that it was reliable unless detainees’ lawyers could show it was not.
Judge Walton’s 12-page order outlining a “framework” for processing government offers of hearsay evidence can be downloaded here.

2. The Federal Defenders are participating in the Race for the Cure of breast cancer this October. If you want to help out, see here. (I fixed the link)

3. Interviews for the U.S. Attorney slot and the District Court slot will happen next Wednesday, September 2. Unfortunately, they are not open to the public.

4. One of the judicial candidates, FPD Kathy Williams, is receiving UM's Lawyers in Leadership Award, which recognizes “dedication to public citizenship and leadership.” Rick Bascuas covers it here.

5. Miami officer pocketed Crime Stoppers reward cash (via Miami Herald). To keep up the PD theme, I'm sure a PD got assigned to one of the defendants in the case.

Here's a great scene from My Cousin Vinny to get you to your weekend. Check out the PD's opening at the 4:45 mark...

Judge Kozinski champions right to privacy in computers

The Fourth Amendment is not dead... at least in the Ninth Circuit. Judge Alex Kozinksi,* writing for an en banc Ninth Circuit, ruled that many additional safeguards must be put in place before a computer search can go forward. See United States v. Comprehensive Drug Testing. Here's the summary of the holding by Kozinski:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

My former law-school classmate, Professor Orin Kerr, has been railing on the decision over at the Volokh Conspiracy. Professor Kerr calls the opinion "breathtaking"** and says that it is light on citations to authority. He goes so far as to say: "This is the most free-wheeling, 'look ma no hands' legal decision I've read in a long time."

I think Kerr has got it all wrong here and that the en banc 9th Circuit has got it right. Computer searches are inherently different than any other type of search. And by the very nature of the search, a search warrant for any type of digital information -- no matter how discreet -- will lead to a search of the entire computer. Nowadays, there is nothing more private than a computer, not even your home. The old 4th Amendment analysis plainly hasn't been working with searching computers. And finally, one court had the courage to say so.

I know this isn't Scalia-Dershowitz, but I challenge my old friend Orin to a debate on whether this case was correctly decided. We can do it in blog posts or email or whatever. I hope he accepts. My first question to the good professor is whether he would agree that computer searches are inherently different than any other kind of search.

*Isn't it interesting that Kozinski wrote this opinion. Remember that he's the guy who had the contents of his computer publicly disclosed.

**Interestingly, the same word was used to describe the government's position: "Judge Thomas, too, in his panel dissent, expressed frustration withthe government’s conduct and position, calling it a 'breath-taking expansion of the ‘plain view’ doctrine, which clearly has no application to intermingled private electronic data.' Comprehensive Drug Testing, 513 F.3d at 1117."