That's the definition of coincidence.
There was a pretty incredible one today in Judge Middlebrooks' courtroom.
It was jury selection for the cops who were charged with perjury in connection with a Judge Altonaga case. They were charged with lying about AFPD D'Arsey Houlihan's client last year. Well, who was called for jury duty today before Judge Middlebrooks? Mr. Houlihan was. He sat in the box for a bit before the parties realized who he was. Needless to say, he wasn't picked for jury service...
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Thursday, June 10, 2010
Justice Souter on judging
Judging is a really hard and truly human exercise. Judges definitely are not umpires, according to Justice Souter. Here are his remarks at the Harvard commencement. Here are his closing remarks:
So, it is tempting to dismiss the critical rhetoric of lawmaking and activism as simply a rejection of too many of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.
But I have come to understand that he was right, and by the same token I understand that I differ from the critics I’ve described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.
That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.
Dahlia Lithwick has an interesting take on the speech here:
It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.
It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.
So, it is tempting to dismiss the critical rhetoric of lawmaking and activism as simply a rejection of too many of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.
But I have come to understand that he was right, and by the same token I understand that I differ from the critics I’ve described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.
That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.
Dahlia Lithwick has an interesting take on the speech here:
It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.
It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.
Wednesday, June 09, 2010
It's 50 years...
...for Scott Rothstein.
More to follow.
Update #1 -- From the Sun-Sentinel article:
In the courtroom, Rothstein appeared visibly and dramatically changed by his six months in federal custody, much thinner with closely shorn gray hair and a goatee -- almost unrecognizable from the outsize personality he once was.He was wearing dark pants and an off-white dress shirt, and he was shackled at the waist and ankles. A humble Rothstein addressed the judge and the packed gallery, apologizing for all the harm he caused."I am truly and deeply sorry for what I have done. I don't expect your forgiveness. I don't," Rothstein said. "I am ashamed and embarrassed."
Update #2 -- More from Bob Norman, who was there. The post is excellent and worth a read. Here's a lengthy excerpt:
Rothstein looked like he'd lost a good 30 pounds. His hair was grayer still and he wore a goattee. He actually looked tanned and healthy in a long-sleeve white button-up shirt, dark pants, white socks, black sneakers and the chains shackling him.
His wife, Kim, sat in the second row behind him, and wept when Rothstein entered the courtroom. She sat next with her friend, Stacy Weissman at her left, and Scott's father Harvey at her right. Next to Harvey was Scott's sister, Ronni, and next to her was mother Gay. Also in the row was Kim's attorney, Scott Saidel, who sat next to Weissman.
Cohn opened the proceedings by asking if any of Rothstein's victims were present in the courtroom who wanted to speak. In the back row, a black woman stood up and said she'd like to speak. It was Shirley Blades, the mother (I think) of Charles Blades, from the Blades football family.
In what was a bit of a dramatic moment, she was led up to the podium and Cohn let her speak even though she was there to show Rothstein moral support. She simply turned to Rothstein, with tears streaming down her face, and said, "My brother, may God bless you. May God bless you."
That prompted Gay, Ronni, and Kim all to start crying. Blades was followed by Steven Bitton, a Plantation man who was a client of Rothstein's. He said that he was offered a settlement in a lawsuit with the City of Plantation that Rothstein simply never told him about (outside the courtroom he said the offer was for $650,000 and that the city was now claiming was no longer on the table and that the statute of limitations had passed). "I went to see him every month for four years," said Bitton. "... You trust your attorney. You put your faith in him. ... It's not just the investors [who were hurt]."
Then Nurik took the stage and spoke for over an hour on behalf of Rothstein. He started by asking Cohn to focus on "the rule of law, not the rule of mob, not the influence of the media, not the frenzy."
He asked Cohn to sentence Rothstein for "who he is, not for how he's been demonized." He said Rothstein, who turns 48 tomorrow, had lived 43 years as a "caring, loving person" before he turned to a like of crime.
Nurik also said that nobody would come to speak on his behalf -- expect Blades, whom he said was a surprise even to him -- for "fear of vilification ... and demonization" by the media and community.
Cohn asked Nurik why he thought Rothstein "engendered so much public attention."
"Mr. Rothstein lived larger than life," Nurik answered. "Mr. Rothstein was very brash, very vocal ... his face was plastered on every society page ... he was everywhere, doing everything."
Nurik continued that there was a lot "schadenfreude" in this case -- joy in the demise of another -- and that law firms and lawyers in town were "quite frankly jealous ... a lot of lawyers wondered how [RRA] could grows so fast."
"Isn't his lifestyle part of the manner in which the crimes were committed?" asked Cohn.
Nurik said it was "to some degree," specifically in terms of the political contributions and "certain things in town" (I assume he was talking about charity events) that he did to gain "access to certain people."
***
Then, finally, Cohn spoke. And man did he speak. He waxed poetic about Rothstein's case, saying it was "all about image, wealth, power, and influence" and that Rothstein rivaled "Madison Avenue" in the way he marketed himself.
"[Rothstein's] political connections stretch from the sheriff's office on one end of Broward Boulevard all the way to the Fort Lauderdale Police Department on the other end of Broward Boulevard to the governor's mansion in Tallahassee ... and down Pennsylvania Avenue to the White House," Cohn said.
Cohn mentioned the society pages, the political contributions "funneled through Rothstein's attorneys and their wives," his attending sporting events "with BSO brass," all designed to create an "appearance of legitimacy but we now know was all a facade, a fraud.
"This was a This Ponzi scheme was not the result of a poor buisness decision. Quite the contrary, it was fraud at its inception ... causing 400 investors to love $400 million ... many people have been swept up in the tsunami that followed." Cohn not suprisingly said that he believed Nurik's comparison to the Dreier case was "unpersuasive" saying that there could be "no conduct more reviled" thatn Rothstein's forging of court orders.
"The court must take a step back and ask what makes the Rothstein case different," Cohn said. "Why has this case created such a media frenzy? ... I think the primary reason is that Mr. Rothstein infiltrated so many spheres of our daily life ... politics, sports, charities, the society pages, the legal profession, billboards. Mr. Rothstein was seemingly omnipotent. He was everywhere. He was not only everywhere, but everywhere with excess."
Just before he handed down the 50-year sentence (followed by three years of supervised release), Cohn said he felt that "public perception" was important.
While his mother wept, Rothstein didn't give a visible reaction. When Cohn was finished, he was led out of the courtroom through a side door. He didn't look back.
More to follow.
Update #1 -- From the Sun-Sentinel article:
In the courtroom, Rothstein appeared visibly and dramatically changed by his six months in federal custody, much thinner with closely shorn gray hair and a goatee -- almost unrecognizable from the outsize personality he once was.He was wearing dark pants and an off-white dress shirt, and he was shackled at the waist and ankles. A humble Rothstein addressed the judge and the packed gallery, apologizing for all the harm he caused."I am truly and deeply sorry for what I have done. I don't expect your forgiveness. I don't," Rothstein said. "I am ashamed and embarrassed."
Update #2 -- More from Bob Norman, who was there. The post is excellent and worth a read. Here's a lengthy excerpt:
Rothstein looked like he'd lost a good 30 pounds. His hair was grayer still and he wore a goattee. He actually looked tanned and healthy in a long-sleeve white button-up shirt, dark pants, white socks, black sneakers and the chains shackling him.
His wife, Kim, sat in the second row behind him, and wept when Rothstein entered the courtroom. She sat next with her friend, Stacy Weissman at her left, and Scott's father Harvey at her right. Next to Harvey was Scott's sister, Ronni, and next to her was mother Gay. Also in the row was Kim's attorney, Scott Saidel, who sat next to Weissman.
Cohn opened the proceedings by asking if any of Rothstein's victims were present in the courtroom who wanted to speak. In the back row, a black woman stood up and said she'd like to speak. It was Shirley Blades, the mother (I think) of Charles Blades, from the Blades football family.
In what was a bit of a dramatic moment, she was led up to the podium and Cohn let her speak even though she was there to show Rothstein moral support. She simply turned to Rothstein, with tears streaming down her face, and said, "My brother, may God bless you. May God bless you."
That prompted Gay, Ronni, and Kim all to start crying. Blades was followed by Steven Bitton, a Plantation man who was a client of Rothstein's. He said that he was offered a settlement in a lawsuit with the City of Plantation that Rothstein simply never told him about (outside the courtroom he said the offer was for $650,000 and that the city was now claiming was no longer on the table and that the statute of limitations had passed). "I went to see him every month for four years," said Bitton. "... You trust your attorney. You put your faith in him. ... It's not just the investors [who were hurt]."
Then Nurik took the stage and spoke for over an hour on behalf of Rothstein. He started by asking Cohn to focus on "the rule of law, not the rule of mob, not the influence of the media, not the frenzy."
He asked Cohn to sentence Rothstein for "who he is, not for how he's been demonized." He said Rothstein, who turns 48 tomorrow, had lived 43 years as a "caring, loving person" before he turned to a like of crime.
Nurik also said that nobody would come to speak on his behalf -- expect Blades, whom he said was a surprise even to him -- for "fear of vilification ... and demonization" by the media and community.
Cohn asked Nurik why he thought Rothstein "engendered so much public attention."
"Mr. Rothstein lived larger than life," Nurik answered. "Mr. Rothstein was very brash, very vocal ... his face was plastered on every society page ... he was everywhere, doing everything."
Nurik continued that there was a lot "schadenfreude" in this case -- joy in the demise of another -- and that law firms and lawyers in town were "quite frankly jealous ... a lot of lawyers wondered how [RRA] could grows so fast."
"Isn't his lifestyle part of the manner in which the crimes were committed?" asked Cohn.
Nurik said it was "to some degree," specifically in terms of the political contributions and "certain things in town" (I assume he was talking about charity events) that he did to gain "access to certain people."
***
Then, finally, Cohn spoke. And man did he speak. He waxed poetic about Rothstein's case, saying it was "all about image, wealth, power, and influence" and that Rothstein rivaled "Madison Avenue" in the way he marketed himself.
"[Rothstein's] political connections stretch from the sheriff's office on one end of Broward Boulevard all the way to the Fort Lauderdale Police Department on the other end of Broward Boulevard to the governor's mansion in Tallahassee ... and down Pennsylvania Avenue to the White House," Cohn said.
Cohn mentioned the society pages, the political contributions "funneled through Rothstein's attorneys and their wives," his attending sporting events "with BSO brass," all designed to create an "appearance of legitimacy but we now know was all a facade, a fraud.
"This was a This Ponzi scheme was not the result of a poor buisness decision. Quite the contrary, it was fraud at its inception ... causing 400 investors to love $400 million ... many people have been swept up in the tsunami that followed." Cohn not suprisingly said that he believed Nurik's comparison to the Dreier case was "unpersuasive" saying that there could be "no conduct more reviled" thatn Rothstein's forging of court orders.
"The court must take a step back and ask what makes the Rothstein case different," Cohn said. "Why has this case created such a media frenzy? ... I think the primary reason is that Mr. Rothstein infiltrated so many spheres of our daily life ... politics, sports, charities, the society pages, the legal profession, billboards. Mr. Rothstein was seemingly omnipotent. He was everywhere. He was not only everywhere, but everywhere with excess."
Just before he handed down the 50-year sentence (followed by three years of supervised release), Cohn said he felt that "public perception" was important.
While his mother wept, Rothstein didn't give a visible reaction. When Cohn was finished, he was led out of the courtroom through a side door. He didn't look back.
Tuesday, June 08, 2010
How much time will Rothstein get?
We asked that question in our poll here. Most readers are saying that he will get between 40 and 50 years.
The Sun-Sentinel has followed suit in its own poll. Other lawyers have weighed in this article. Here are the results of their poll as I write this post:
Poll: How much time should he get?
Convicted Ponzi schemer Scott Rothstein will be sentenced Wednesday, June 9, in federal court. His lawyer has made a case for Rothstein to serve no more than 30 years. The prosecution has asked that the former high-flying Fort Lauderdale lawyer get 40 years in prison.
What do you think? How much time should Scott Rothstein serve?
10 years or fewer. He didn't have any real victims. (66 responses)
8%
30 years. His lawyer made a good argument. (84 responses)
11%
40 years. The prosecution made a good argument. (216 responses)
27%
100 years or more. He should not see the light of day. (344 responses)
43%
Any prison time would be too good for him. He should be waterboarded and flogged for the rest of his life. (83 responses)
10%
793 total responses
(Results not scientific)
My view of this is that it doesn't much matter because the big sentencing date will be the day Judge Cohn hears the Rule 35 motion, the motion to reduce Scott Rothstein's sentence. True, whatever Rothstein gets tomorrow will be the starting point for the reduction, but at the end of the day, the amount of cooperation credit will drive this sentence. Judge Cohn knows that he will have the discretion to sentence Rothstein to an appropriate sentence after the cooperation motion comes, so I expect a pretty high sentence tomorrow. That said, 30 years is a lot of time, and as I've said before, I'm surprised that Nurik didn't ask for less.
The Sun-Sentinel has followed suit in its own poll. Other lawyers have weighed in this article. Here are the results of their poll as I write this post:
Poll: How much time should he get?
Convicted Ponzi schemer Scott Rothstein will be sentenced Wednesday, June 9, in federal court. His lawyer has made a case for Rothstein to serve no more than 30 years. The prosecution has asked that the former high-flying Fort Lauderdale lawyer get 40 years in prison.
What do you think? How much time should Scott Rothstein serve?
10 years or fewer. He didn't have any real victims. (66 responses)
8%
30 years. His lawyer made a good argument. (84 responses)
11%
40 years. The prosecution made a good argument. (216 responses)
27%
100 years or more. He should not see the light of day. (344 responses)
43%
Any prison time would be too good for him. He should be waterboarded and flogged for the rest of his life. (83 responses)
10%
793 total responses
(Results not scientific)
My view of this is that it doesn't much matter because the big sentencing date will be the day Judge Cohn hears the Rule 35 motion, the motion to reduce Scott Rothstein's sentence. True, whatever Rothstein gets tomorrow will be the starting point for the reduction, but at the end of the day, the amount of cooperation credit will drive this sentence. Judge Cohn knows that he will have the discretion to sentence Rothstein to an appropriate sentence after the cooperation motion comes, so I expect a pretty high sentence tomorrow. That said, 30 years is a lot of time, and as I've said before, I'm surprised that Nurik didn't ask for less.
Monday, June 07, 2010
Monday news and notes
1. The government has asked Judge Cohn to sentence Scott Rothstein to 40 years, a (meaningless?) variance from the statutory maximum of 100 years. (pg. 2: "The Government concedes that a variance in this case is supported by several salient factors. While the Defendant’s criminal activity in this case can only be described as reprehensible, it is beyond dispute that his post-offense conduct has been extraordinary.")
I say meaningless because 40 years is basically a life sentence for 48-year old Rothstein. It may turn out to be important what Judge Cohn does though because a motion to reduce Rothstein's sentence will be coming, so the starting point will be important. If Rothstein gets 30 years this week, and then gets a third off, he will likely have something to look forward to...
Govt Response to Rothstein
2. Nice story on Willy Ferrer today by John Pacenti.
3. The Supremes decided Krupski today. Our prior coverage here. This is the relation-back case that Robert Glazier argued. Unfortunately for Mr. Glazier, he was on the wrong side of this one.
I say meaningless because 40 years is basically a life sentence for 48-year old Rothstein. It may turn out to be important what Judge Cohn does though because a motion to reduce Rothstein's sentence will be coming, so the starting point will be important. If Rothstein gets 30 years this week, and then gets a third off, he will likely have something to look forward to...
Govt Response to Rothstein
2. Nice story on Willy Ferrer today by John Pacenti.
3. The Supremes decided Krupski today. Our prior coverage here. This is the relation-back case that Robert Glazier argued. Unfortunately for Mr. Glazier, he was on the wrong side of this one.
Sunday, June 06, 2010
Scott Rothstein asks Judge Cohn for 30 years...
...and I'm a bit surprised. I thought he'd ask for less. The PSI calls for life (a level 52), but the statutory maximum is 100 years. Rothstein will be 48 the day after his sentencing this week.
Here's his sentencing memo (by Mark Nurik):
Rothstein Sentencing Memo Rothstein himself wrote a 12-page letter to Judge Cohn, asking for leniency, "[b]ut I do not feel sorry for myself nor do I want anyone's sympathy. I deserve and expect the punishment I will receive. What I am deeply and sincerely sorry for is the horrific pain and harm I have inflicted on so many people."
There were also some letters filed on his behalf, one by his parents, but missing was one from his wife Kim Rothstein.
So here you go readers:
Here's his sentencing memo (by Mark Nurik):
Rothstein Sentencing Memo Rothstein himself wrote a 12-page letter to Judge Cohn, asking for leniency, "[b]ut I do not feel sorry for myself nor do I want anyone's sympathy. I deserve and expect the punishment I will receive. What I am deeply and sincerely sorry for is the horrific pain and harm I have inflicted on so many people."
There were also some letters filed on his behalf, one by his parents, but missing was one from his wife Kim Rothstein.
So here you go readers:
Friday, June 04, 2010
Summer time
Professor Rick is finished grading his exams, and is back to blogging. His latest -- on the most recent Supreme Court Miranda case -- is hilarious. Go check it out.
Thursday, June 03, 2010
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...
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