11th Circuit issues 112 opinion reversing one of its own

The case is United States v. Farley, and I confess that I haven't read the whole thing yet. What struck me is that the court reverses Judge Beverly Martin, the newest member of the 11th Circuit, in an opinion she wrote as a district judge. She held at the district level that a 30-year min/man sentence was unconstitutional as cruel and unusual. The 11th Circuit, per Judge Carnes, reversed. This case might have legs to the Supremes...

Quick news and notes

1. Former Broward School Board member Beverly Gallagher gets 37 months in prison. That was the agreed-to sentence. Here's the Sun-Sentinel article.

2. A bodyguard in the Scott Rothstein case pleads guilty. Here's the Herald article:

A Broward County bodyguard pleaded guilty to conspiring to shred financial records at the behest of Scott Rothstein as the Fort Lauderdale lawyer's $1.2 billion Ponzi scheme was collapsing last fall.
Enrique Ros, who came to know Rothstein through security work at the former Versace mansion in South Beach, is scheduled to be sentenced on Aug. 27 on an obstruction of justice charge in Fort Lauderdale federal court.
Ros, 33, of Pembroke Pines, was indicted in March along with business partner Daniel Dromerhauser and reputed Italian Mafia figure Roberto Settineri following an FBI sting operation starring Rothstein. The now-convicted lawyer, facing the heat of a federal investigation into his investment racket, played the lead role as the FBI targeted Settineri and the two businessmen in November.

Shhhhhhhhhhhhh.

“Do you pray to God to forgive you for shooting that boy down?”

That's the question that Van Chester Thompkins was asked after 3 hours of questioning in which he remained silent. Thompkins said yes and the statement was used to convict him. The Supreme Court held 5-4 that staying quiet for 3 hours wasn't enough to invoke one's right to remain silent. From the NYTimes:

Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Tuesday, refining the court’s landmark 1966 ruling in Miranda v. Arizona.
Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that split along familiar ideological lines, did not disturb Miranda’s requirement that suspects be told they have the right to remain silent. But he said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.
Justice Sonia Sotomayor, in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”
Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody.

At least the cops offered him a mint:

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

While the Supremes are chipping away at Miranda, I see that the 11th reversed a conviction yesterday on a suppression issue. Richard Klugh won the case, United States v. Lance Lall.

Sun-Sentinel profiles Judge Jimmy Cohn

Paula McMahon does a very nice job here, describing him as "a true Southern gentleman" and "tough but fair." He's being profiled because he's got three huge sentencings coming up -- Scott Rothstein, Beverly Gallagher, and Fitzroy Salesman. Judge Cohn did what more judges should do and agreed to be interviewed for the article...

Some highlights from McMahon's article:

• Cohn, 61, is a lifelong Democrat nominated to the federal judiciary in 2003 by Republican President George W. Bush and confirmed 96-0 by a Republican-dominated Senate during a bitterly partisan era. His confirmation hearing was described by the Sun Sentinel as "a striking display of harmony in a contentious arena" but Cohn said that, as a Democrat selected by a Republican president, he was unlikely to face opposition.
• Growing up in Tuskegee, Ala., during the civil rights struggles of the 1950s and 60s, the Cohns owned a store and were one of two Jewish families in town. There was no synagogue so Cohn, his parents and his two sisters drove 40 miles west to the Reform temple in Montgomery for religious classes. "The worst part of it was I missed the first half of the NFL game," Cohn said wryly.
• "You want to assimilate, you don't want to be different, no kid wants to be different," Cohn said. "On the other hand, you want to maintain your Jewish heritage and traditions."For Cohn, playing sports was the best way to fit in. He was a quarterback on the Tuskegee High School football team, an all-star second baseman in baseball, ran track and played basketball.
• After passing his bar exams in Alabama and Florida, his sister and parents, who retired to South Florida, persuaded him to interview here. After a brief stint as a Broward public defender, then State Attorney Philip Shaler offered him a $1,000 raise — to $13,000 — to be a prosecutor. Cohn prosecuted cases from 1975 to 1978, working with two men who are still his friends, current State Attorney Mike Satz and defense attorney Richard Garfield.
• Jurors trusted his sincerity and people at the county courthouse still talk about how he won a "not guilty by reason of insanity" jury verdict on a first-degree murder case — a difficult feat under Florida's restrictive law. The defendant, Robert Lee Endicott shot and killed a young woman in Fort Lauderdale in 1979. Endicott is still involuntarily committed 30 years later.
• He awakes at 5 a.m., doesn't use an alarm clock and has never overslept in his life. He's at the gym by 5:30 a.m. and goes to bed by 9 or 9:30 p.m. "unless there's a ball game."

There's a whole lot more, including how Judge Cohn overcame a stutter in the ninth grade, the adoption of his son, how he tried 144 cases one year as a state judge (second place only to Judge Dimitrouleas), watching Seinfeld reruns, loving Alabama, and other gems.

The article is definitely worth a read.

Judge Davis' memorial service

It was a real tribute. So many friends, colleagues, judges, family turned out to pay their respects. Judge Graham spoke beautifully about Judge Davis, as did Ned Davis (the judge's son). We all shared stories about him over drinks, as he would have liked.

Chief Judge Moreno was in Europe and sent this email regarding Judge Davis:

He was a great man and a good friend. I tried cases before him and found him to be the perfect example of a judge I should emulate but whose qualities of patience,fairness and moderation I could never attain. The 10 years we were colleagues were an incredible experience that made him my best friend on the court. When I became Chief we continued our friendship lunching at Abbracci often where I welcomed his sage advice. What a great human being. I consider this loss like losing a second father within 2 months, as I lost my dad in March. I have been in Europe for the last two weeks and do not return until after the funeral. Please explain my absence at the Biltmore to Pat Davis as well as those others (past law clerks,AUSAs, FPDs, private lawyers) personally or even through your blog.Have fun on Thursday and toast to him as that is what Ned would want all of us to do. FAM

Judge Altonaga remembers Judge Davis

There are so many great comments about Judge Davis that were posted, but I thought I'd share with everyone on the front page, this letter from Judge Altonaga:

May 27, 2010

Dear David:

On Monday, May 24, 2010, you shared the story of U.S. District Judge Edward B. Davis, following his passing as a result of complications from open-heart surgery. I write you this letter in the event you would like to share some of my thoughts in the Southern District of Florida Blog.
I had the extraordinary good fortune of being hired by Judge Davis to be his February term law clerk, or "even" clerk as we were known, and worked for him in 1987. Since then, he has been my mentor, advisor, and kindest of friends. Words cannot describe the goodness and compassion of the man or his depth and integrity. Among the counsel and advice he would give his young law clerks or young lawyers as he would call us, was not to be "mean." I don’t believe Judge Davis had a mean bone in his body. Over the last 24 years I have never seen him angry at or impatient with anyone.

Judge Davis was always thoughtful and generous. I remember one time when he offered then-U.S. District Judge Stanley Marcus to share his office and chambers when the Dyer Courthouse was closed for asbestos removal. We shared chambers for several months with Judge Marcus and his law clerks, and while space was tight, the mood was always light and welcoming. On another occasion, when the late Senior Judge Joe Eaton had need of a law clerk for a particular assignment, Judge Davis asked me if I would mind being on loan to Judge Eaton to help him with that assignment, and proceeded to share me with Judge Eaton.

I clerked for Judge Davis during the days when memory typewriters and word processors were all the tools we had and files were brimming over with paper. The Judge would be in the courtroom every day with trials and all manner of hearings. It was his custom to bring in lawyers after the trials and talk to them privately, giving them encouragement and advice on trial practice. In the late afternoons, the chambers was filled with the sound of his laughter and that of the late Judge Eugene Spellman, for they were good friends and at the end of the day Judge Spellman would come to the Judge’s office where stories were shared and a moment of relaxation seized. When the Judge hired us, he would make clear the work day started at 8:00 a.m. and we were to stay with him until he left, which was usually after 7:00 p.m. He worked very hard, and while we all did as well, it was without undue pressure. Certainly I never felt any pressure from him; he always gave assurances that it would all work out.

Whenever I had occasion to travel with the Judge to Key West for trials, he and his wife Pat would include me in their dinners at the end of the work days. In keeping with the Judge’s casual and informal manner, the Courtroom Deputy, Michael Beck, and I would join the Judge and his wife in their hotel room, and from there we would all go together to share a meal.
I, along with countless of his law clerks, have had the extraordinary good fortune of having been offered the opportunity to share Judge Davis. We each became a part of the Judge’s family, so much so, that when after one reunion he sent me a copy of a group picture and signed it, "To Cecilia, my favorite law clerk and judge," I believed it. I came to discover later that he signed copies of the picture in the same way for each of his law clerks, letting each know he or she was his "favorite!" That picture, and another of the two of us in his chambers so many years ago, rests beside my computer where I am reminded daily of the "gentle giant" who has had such an impact on my life.

Judge Davis was my source of inspiration and I credit him with my desire to become a judge. He administered my oath as judge on three separate occasions, the last of which was as a federal district judge. When I joined the Southern District of Florida in 2003, I was humbled to occupy his former office and courtroom.

Judge Davis was the face of kindness, fairness and compassion in our court. May God bless and keep him.

Sincerely,

Cecilia M. Altonaga

RIP Judge Edward B. Davis (w/ updates)

UPDATE -- A public remembrance will be held from 5 p.m.-7 p.m. on Thursday in the Biltmore Hotel's Grenada Ballroom, 1200 Anastasia Ave., Coral Gables. In lieu of flowers, the family suggests memorial donations to La Amistad Foundation, Inc., 8400 La Amistad Cove, Fern Park, FL 32730. The foundation supports a community for mentally ill adults. Burial will be private.

UPDATE 2 -- Full Herald obit here.

Update 3 -- DBR article here.

Update 4 -- If you haven't read the comments, you should. There are some great stories about Judge Davis. Also, the Herald published a beautiful (and much longer) story here than the one that was online yesterday about Judge Davis.

Update 5 -- For those of you who were going to Jeff Sloman's going away party tomorrow night, it was changed to 7pm so that it wouldn't conflict with Judge Davis' memorial.

It is with great sadness that I report that Judge Edward B. Davis passed away today. I will post funeral arrangements as soon as I hear about them.

He was -- for a long long time -- the heart and soul of this District. He was old-school in every way.

My clerkship with the Chief was the best job I've ever had. Judge Davis really thought of the District as a small family, and I thank him for bringing me into it. He was the prototypical federal judge and really as good a person there could be. If you were thinking of how to make the perfect judge, Edward Davis would be the starting point. Lawyers practicing before him loved him even when they lost because they knew they were getting a fair shake and knew that they would get treated with respect. He's one of the last of the old guard of the District...

He led such a full life -- from his family to athletics to his career as a lawyer and then as a judge and then back to practicing. He knew how to balance all the different things we are always struggling to juggle. He also knew how to eat well, drink well, and laugh well.

Judges, practitioners, and friends, please post your stories and memories about Judge Davis in the comments. I will probably leave this up for the rest of the week.

I have so many great stories and memories; I'll share a couple of them here that are coming to mind:

-- During one trial, a prosecutor complained that he worked all weekend updating transcripts and he couldn't get in touch with the defense attorney, who the prosecutor said, was at a Heat game. Judge Davis replied: "I was at that game too."

-- When he introduced us law clerks to other lawyers or judges in town, he would always say, "This is my lawyer."

-- I will always remember Friday afternoon scotch with him where we talked about the week -- trials, hearings, orders we were working on, and what was going on next week. He had this calm to him that rubbed off on all of us.

-- Heat tickets in his shirt pocket.

-- Telling us not to worry about moving cases quickly or the case-load stats or getting reversed by the 11th Circuit. He always said to take your time to make sure it was done right. He never really understood why a lifetime appointee cared about whether he or she was first in the case-load summary statistics.

-- Chambers with Mary and Michael.

-- Asking why he couldn't figure out email and telling us not to be smart when we told him that he needed to plug his computer in (really!) before email would work.

-- Writing "to my favorite law clerk" to each one of his clerks on the clerk reunion photos that were handed out.

-- Ned.

-- Gentleman.

-- Fair.

-- Just.

-- A man's man.

Rest in peace Judge.

Monday morning Lost edition

Is everyone still deciphering last night's 2 1/2 hour Lost finale? I really liked it, and give it a solid B+. One of the great shows in the history of TV was the Lost Season I finale when they took Walt (there's the scene below). The show never really lived up to that moment, but it was still very good after that. I enjoyed how Jack had to fix the island and then how it was Hurley's turn to nurture/protect it. Plus, the purgatory twist in the Sideways world was cool. All in all, a good way to end the show.



Back to business -- John Pacenti is all over social networking and lawyering this morning. He references the 11th Circuit opinion we wrote about here. And yours truly is quoted. Here's a piece:

Social media issues have been litigated on claims of defamation, copyright infringement or violation of free speech, and platforms such as MySpace, Twitter, Facebook, Foursquare and others have become a vital investigative tool for some attorneys. “There is a lot of stuff out there that is totally irrelevant, but every now and then there is a gem, and it’s well worth mining for,” said Richard Sharpstein with Jorden Burt in Miami. “Most lawyers feel it’s an important source of information.” Bob Jarvis, a law professor at the Nova Southeastern University’s Shepard Broad Law Center, said social-networking sites are fair game for any prosecutor or defense attorney. “It’s really no different than a 19th century diary. It’s a person’s thoughts expressed prior to the time of litigation,” Jarvis said.