"I am not going to testify, your honor"

That was Fitzroy Salesman to Judge Cohn yesterday as both sides rested. Today, closing arguments and the jury should have the case by lunchtime.

Everyone is starting to gear up for the Justice Stevens' retirement. The top three choices to fill his spot. from the AP:

Two of the three top contenders, Judge Diane Wood, 59, of the federal appeals court in Chicago and Solicitor General Elena Kagan, 49, were finalists last year when Obama chose Sonia Sotomayor to replace Justice David Souter.
Judge Merrick Garland, 57, of the federal appeals court in Washington, is a former high-ranking Justice Department official who is well respected and considered least likely to engender significant Republican opposition.
The three high court prospects have different strengths and weaknesses. But even conservative activists say any of the three would likely win confirmation in a Senate in which Democrats control 59 seats. Yet Republican Sen. Jon Kyl of Arizona said Sunday he would not rule out delaying tactics if Obama nominates "an overly ideological person."
A fight over a second Obama Supreme Court nominee could rev up both Democratic and Republican fundraising machines for the November election, even though Stevens' replacement by a liberal-leaning justice would not alter the court's ideological balance.

Still no Floridian.... (although Stevens does live in Ft. Lauderdale...)

I'm back

A big shout out to Rick Bascuas for stepping in last week while I was taking a little time with the kids for Spring Break.


Some quick hits from while I was away:


1. Willie Gary's son is about to be sentenced by Judge Moore in Ft. Pierce. He has a new lawyer (Jeff Weiner) who will be "supervising" 6 other lawyers.


2. Miami's own Robert Glazier will be arguing Krupski v. Costa Crociere, case no. 09-337 in the U.S. Supreme Court this month for the Respondent. Also on the brief is David Horr, Stephanie Wylie, and Brian Scarry of Horr, Novak & Skipp. Here's the opinion from the 11th Circuit, which affirmed Judge Altonaga. The case in a nutshell: The plaintiff was injured on a cruise ship. Shortly before the limitations period ran, the plaintiff filed suit, but named as defendant the ticket seller, rather than the operator of the vessel. About five months later, after the limitations period ran, the plaintiff sued the proper defendant, the operator of the vessel. The question is whether the claim against the proper defendant relates back to the time of filing of the original complaint. The Supreme Court granted certiorari to address conflicting interpretations of Federal Rule of Civil Procedure 15(c).



3. Your top ten for the blog bracket:

SJ Scott

Fake Ed Williams fakeedwilliams

Rothstein's Cell Mate Nicholas

Dan Dan

Male Bondage II 3boysathome

Fake Bill Barzee Fake

ND in ND Jacob

Scooby Snacks quinnelk

SDFLA Blog * David

Medina other half


4. Apparently Rick's call for comments left some of you asking for the blog to be opened up again so that there wouldn't be moderation. Here's the thing -- it would be a lot easier for me not to screen the comments, but people are vicious in the comments and that's not what the blog is for. So I screen them. If you think a comment should go up and it doesn't, email me and we'll talk about it. But I'm not going to let the blog be used for anonymous attacks against people.

5. Wednesday, April 14 will be the fourth Federal Bar luncheon of the season at the Bankers Club. Honorable Barry Garber and Bob Josefsberg of Podhurst Orseck will be speaking.

Signing off

One of the things I’ve been telling the JV-FPD team is that you can tell a lot about someone from reading what they write, even if it isn’t about them. So, you come to feel like you know your favorite author or your favorite musician pretty well. (P.J.’s band used to play at Bar in New Haven and their cassette was in my big yellow Sony Walkman when I walked to the D.C. Metro every day for my 2L internship. So, we go way back.)

For that reason, it was with not a little irritation that I read the two articles about Justice Stevens in the big newspapers today. The Post tracked him down in his SDFla home up in Fort Lauderdale (giving me an excuse to post this in D.O.M.’s space). The Times piece gives a Washington byline, so I guess Adam Liptak did his work by telephone. What irritates me is that they both described him as leading the Court’s “liberal wing” which is just wrong. I have no problem with certain justices being slapped with ideological tags, but insisting that they all should bear one—that Stevens should—is simplistic. At least the Times let J.P.S. say that it’s wrong and explain a little something about having a jurisprudential philosophy.

If the writing wasn’t already on the wall, it is now. Stevens is out, probably in the next few days, with an outside chance that he’ll stay one more term, which is a far greater loss than the articles hint at. All the media care about is that the president will appoint another “liberal” because they don’t get that it’s intelligence and wisdom that matter. And I’m out, too. Back to my own page.

Your own bathroom and $27 million

That’s apparently what you get if you are abandoned by the spy who loved you. And married you. And then went back to Cuba. With the Ray Bans you bought him. As the New Times reports, Ana Margarita Martinez blames the Cuban government for her husband leaving her and somehow was awarded a $7 million default judgment by Miami-Dade Circuit Judge Alan Postman plus $20 million in punitive damages. And she feels absolutely entitled to the money: “Cuba has a debt with me. And Cuba has to pay it.”

Really, lady? You think you’ve got problems? Well, the Associate Dean is trying to get me to teach Evidence three days a week instead of giving me the two-day schedule I asked for. Since I only have to work at all because Cuba took my grandfathers’ stuff, by your logic Cuba should give me at least $80 million. Did I mention there’s been talk about my having to teach in the early morning?

To collect her “debt,” Martinez sued the charter companies who fly between the U.S. and Cuba, alleging that payments they make to a Cuban entity should be garnished to ease her pain. The charter companies removed the case to the SDFla, where the United States just filed a memo with The Chief saying that Martinez gave up her right to seek punitive damages and that she is not authorized to garnish anything anyway. It reads: “¿Que rayos se trae esta descarada?” Actually, los federales seem to be saying that furthering our foreign policy interests is more important than avenging a broken heart. Romance is dead in Washington.

This is not a book you’re reading.

“I thought you didn’t read the comments.”
“I don’t. But I look at whether there are comments.”
“You said they were unaccountable and irrelevant.”
“They are.”
“So what’s the problem?”

That was D.O.M. losing patience with me again. He’s not as bothered by the drop in audience participation as I am. I’m starting to feel like those old people who slowly read the news on NPR, oblivious that they’re producing nothing but a white noise machine.

“Isn’t this a participatory medium? Isn’t the whole point that it’s democratic and open so that everyone can throw his two cents in?”
“So that you can not read what they write?”
“Why are we going in circles with this? What I’m saying is that no one is throwing any cents in. Why does it matter whether I read them?”
“Look, I have work to do. I’ll talk to you later.”
“Whatever, man.”

This land is your land, this land is my land.

In a case filed when I was in high school, the Chief agreed with the Miccosukees yesterday that their lands are being polluted while Florida and the United States figure out how to fix the Everglades. From what I can tell, Special Master John Barkett had recommended a few years back that a reservoir be built. But then the Governor announced a plan to buy up all of U.S. Sugar’s land, which would be even better than a reservoir. Then the economy tanked, and Florida could no longer afford to buy lots of vacant land. Plus, as the Times suggested earlier this month, the whole idea is economically dubious.
The whole matter of restoring the Everglades is, from what I can tell from these filings, really complicated and involves science and phosphorous levels and a case about a permit before Judge Middlebrooks that I don’t even want to get into. Anyway, yesterday, the Chief said, enough is enough; let’s get on with it:

The Court has afforded a good deal of time for the parties to pursue the land deal and determine its viability before compelling the construction of the EAA A-1 Reservoir. Indeed, the Court is only now adopting the Special Master’s Report of July 5, 2006. ... Circumstances have changed despite the best efforts of Governor Crist and the State Parties to materialize a deal that would benefit Everglades Restoration, beyond the benefits of the EAA A-1 Reservoir. The Tribe, however, has convinced this Court with its practical arguments that their lands will ultimately be sacrificed to nutrient pollution and the time has come for the Court to require the parties to abide by commitments made in this litigation.

Still, construction may not be exactly imminent. Citing federalism concerns and noting that technology may open avenues that were unavailable in 2006, the Chief noted that the parties could file 60(b)(5) motions and that Barkett could revise his recommendation.

Dexter Lehtinen represents the Tribe.

It’s only too hard for you.

Even though I actually went downtown today and even had lunch at La Loggia, I didn’t come across anything weird or strange. So, chew on this:

The Supreme Court decided today by a 5-4 vote that José Padilla’s lawyer could and should have advised him regarding the immigration consequences of pleading guilty. This José Padilla was not born in the United States. He pled guilty to a drug crime but claimed his lawyer told him that the plea would not affect his permanent residency. (Ha!) Justice Stevens lets you know how this is going to turn out in his opening lines:

Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War.

OK, got it, he wins. (J.P.S., by the way, served in the Pacific from the time he was 22 to the time he was 25. It freaks out the law students when I tell them, “When Stevens was your age, he was fighting the Japanese.” I think they have trouble comprehending that anyone who fought in WWII is still alive, much less holding down a job, much less writing opinions.)

Skipping ahead, we find that four Justices of the Supreme Court do not believe that a defendant’s counsel should try to explain the immigration consequences of pleading guilty because it’s too hard. Alito and Roberts say in their concurrence that defense lawyers would be better off saying nothing more than that adverse immigration consequences may result: “Because many criminal defense attorneys have little understanding of immigration law, it should follow that a criminal defense attorney who refrains from providing immigration advice does not violate prevailing professional norms.” And Scalia and Thomas go even further and say that anything other than the sentence is beside the point:

In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world ... .

How this was not 9-0 entirely escapes me. How is banishment not a criminal penalty? Wasn’t exile to Siberia a favored punishment of the czars or am I misremembering something? Is this supposedly not punishment because it’s specified in Title 8 rather than Title 18? The more offensive part of this is that the Justices never disclaim expertise over any corner of the law comprised by their vast general jurisdiction. They have no trouble grasping the finer points of criminal law and immigration law as well as patent law, military law, antitrust, bankruptcy, labor, tax, admiralty, whatever. But that’s Alito, Scalia, Roberts, and Thomas—not you.

How the ball bounces

Judge Marra just dealt a blow to the successor to the investors in the failed restaurant and memorabilia emporium, D. Wade’s Place, something I had no idea had ever existed. It seems, according to the order dismissing the complaint, that there is no legal basis for their contention that Dwyane (that’s how that’s apparently spelled) was monopolizing memorabilia by failing to perform on a contract that gave the investors

the right to use his name, fame, nickname, initials, autograph, voice, video or film portrayals, facsimile or original signature, photograph, likeness, and image or facsimile image without Wade’s consent to create personalized memorabilia featuring Wade which could be sold at the restaurants.

I know, I know. You’ve just experienced a certain loss of innocence. Basketball’s all just about making money. Let’s move on.

Plaintiff alleges that the relevant product market in this case is Dwyane Wade personalized sports memorabilia. Plaintiff contends that “[t]here is no substitute for Wade-personalized sports memorabilia (‘Wade Memorabilia’), especially in southern Florida, where the Miami Heat plays."

Quoting heavily from a series of antitrust decisions, Judge Marra observed, and I’m paraphrasing here, that things that are cool—e.g., a Yale education, the make-up from Cats, tickets to Phantom, Pepsi, NBC Must See TV—do not constitute their own relevant markets just because they’re cool.

Bilzen Sumberg &c. and the Tampa outpost of DLA Piper filed the motion.

(Having come to the end of this post, I have to confess that I’m a little surprised D.O.M. doesn’t have Blog tags for the Heat or Wade.)