Thursday news and notes

1. Elena Kagan had another good day yesterday answering questions. Here's one funny exchange, where Senator Specter one-ups her:



2. The Herald reports here that the government actually sent an apology to Sergio Masvidal, who was represented by Joe DeMaria. He's the banker that the government and American Express agreed to blackball. It's a remarkable letter, which admits that the secret side-deal isn't DOJ policy:

Government apology to Sergio Masvidal

“Like all Jews, I was probably at a Chinese restaurant.”

That was Elena Kagan yesterday at her confirmation hearings when asked where she was on Christmas day when a would-be terrorist was trying to blow up a plane over Detroit. (For more great quotes, see AboveTheLaw here).

Today is day 3. It's tough to watch the Senators drone on, but Kagan is doing a nice job. She's witty and professorial. It's interesting to compare her to Roberts, Alito, and Sotomayor. Kagan is certainly Roberts' equal, although they have very different styles. Roberts came across as the quintessential appellate judge, while Kagan is the professor. Both get A's for their performances. Alito and Sotomayor also had similar performances but again much different styles.

The hearings seem to try and get candidates to explain how they will judge or what they think judging entails. Of course, the nominees try not to answer these questions. But you get a sense of the person by how they answer the questions. Kagan (like Roberts) comes across as bright, witty, and engaging -- and certainly qualified.

Skilling/Black ripple effects

The 11th Circuit gets to reconsider the cases of former Alabama Governor Don Siegelman and ex-HealthSouth CEO Richard Scrushy. They were convicted of bribery and honest services fraud, which are now subject to attack because of the Skilling decision.

Monday morning (JPS edition)

1. Today is John Paul Stevens' last day on the Court. He has been a Justice for 35 years -- third longest ever on the Court. He took over for Justice Douglas -- interestingly, the longest serving Justice ever. At 90, he's also the second oldest serving Justice, behind Justice Oliver Wendell Holmes. He'll retire to his home in Ft. Lauderdale.

2. The Court issued its last 4 opinions today, including Bilski! Lots of interesting stuff that I'll post about soon.

3. As Stevens steps down, Elena Kagan starts her confirmation hearings. Noah Feldman discusses the current state of the Court and the lack of progressives in this weekend's NY Times magazine.

4. Justice Ginsburg's husband, Martin, passed away yesterday. AboveTheLaw has a nice story about him.

5. In other news, the CJA lawyers had their seminar this weekend; Lew Freeman's sentencing was continued until July 23; and no more CocoDorm.

CJA Lawyers getaway

The District's Criminal Justice Act lawyers had their annual seminar in Naples. Chief Judge Moreno, Judge Cooke, and Judge O'Sullivan attended.

So did the U.S. Attorney, Willy Ferrer, and his second-in-command Ben Greenberg. Big shout out to Ferrer and Greenberg for coming -- they were the first USAO dynamic duo to ever accept an invite in the 13 years of doing this seminar. And they said all the right things.

1. Variances. Since Booker was decided, prosecutors still have mechanistically asked for guideline sentences. This was the mandate from the top -- the guidelines were always reasonable even though the Supreme Court made clear that this was not the case. In fact, the 11th Circuit has said again and again that there is no presumption that a guideline sentence was reasonable. No matter, prosecutors went in and always asked for a guideline sentence. Our district judges started complaining, and Ferrer and Greenberg said that their prosecutors will not simply ask for a guideline sentence in every case as that is unhelpful to the court.

2. Indictments and Plea Agreements. There have been a series of memos (from Thornburgh to Ashroft to Gonzalez) requiring that prosecutors charge defendants with the most serious charge they could bring (including 851 enhancements, etc) and requiring prosecutors to offer plea plea agreements only to the most serious charge in an indictment. The new Holder memo has changed all of that, and Ferrer & Greenberg said that they will make sure that the Holder memo gets implemented in their office ASAP. Although no specifics were really offered as the Holder memo is relatively new, they are studying how to make sure that there is "horizontal equity" (their term) and fairness.

3. Discovery. There are new memos on discovery obligations (including Brady/Giglio) as well. Ferrer & Greenberg said that all prosecutors are undergoing training to learn about these memos and their discovery obligations in general. Although many line prosecutors are still telling the defense bar that they are only required to disclose what is required under Rule 16, Ferrer & Greenberg assured the CJA lawyers that this was going to change under their watch.

So, there you have it -- they said all the right things. Now we'll see what happens. After they left, most of the lawyers were grumbling that they hadn't seen any change so far. No prosecutors were asking for variances and no one had seen any open file discovery. But Ferrer made clear that he's only been there a month and that it would take some time to get all of these changes in place and the prosecutors trained on these changes. It was a great sign that they accepted the invitation to come speak to the group.

No Bliski yet

But the High Court did decide the honest services cases and found that the statute only covers bribes and kickbacks. Jeff Skilling and Conrad Black have to go fight about harmless error in the appellate courts now.

Interestingly (take note Rumpole), the Court did not strike down the statute as vague. But Scalia (along with Thomas and Kennedy) adopted the position of the National Association of Criminal Defense Attorneys, and wrote that the statute should be thrown out altogether.

Today’s Supreme Court Opinions on honest services fraud:

Skilling:
http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

Black: http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

Weyhrauch: http://www.supremecourt.gov/opinions/09pdf/08-1196.pdf

How much time should Lew Freeman get?

Update: I've been told that the govt is asking for at least 15 years; probation 12.5; and the defense 7.5. Not confirmed.

Judge Huck is set to sentence him on Friday.

Joe DeMaria filed this sentencing memo on Freeman's behalf on Monday. It's an interesting contrast to the memo filed for Scott Rothstein, especially in tone. Also of note is that Freeman still seems to have the support of the community -- 277 letters were filed on his behalf. The biggest difference, of course, is the loss; here it's somewhere in the millions, not the billions.

I believe that the probation office calculated the guidelines at 78-87 months based on a high loss calculation, but the parties will be fighting over loss. The maximum sentence is 20 years.

What sentence will Lew Freeman receive from Judge Huck
	5 years or less.
	A guidelines sentence of 78-87 months (as calculated by probation).
	10 years.
	The max -- 20 years.
pollcode.com free polls

Here is the sentencing memo:

Lewis Freeman Sentencing Memorandum

John Pacenti's article on the upcoming sentencing is here.

It's official --

-- Jonathan Goodman is now a magistrate judge. The background check is over and JG is good to go. Congrats!

But, we're still waiting for the White House to nominate Kathy Williams. What is taking so long? It's just ridiculous. Obama has really failed so far with the federal judiciary. Here's the latest article by msnbc.com:

Democrats control the White House and have the largest congressional majorities enjoyed by a chief executive in decades. But President Barack Obama isn't off to a brisk pace when it comes to putting his imprint on the third branch of government — the federal courts — and some of his allies are disappointed, particularly with the prospect of a slimmed-down Senate majority after the midterm elections.

At the highest level, the Supreme Court, Obama is already having a major impact. His first nominee, Sonia Sotomayor, was confirmed to the high court last year and his second, Elena Kagan, seems well on her way to confirmation. Obama's predecessor, George W. Bush, did not get his second (and final) justice until 2006, six years into his presidency.

But the vast majority of federal cases never reach the high court; they are decided by appeals court judges, making appointments to that level crucial to determining a president's judicial legacy.

The Senate has confirmed nine of Obama’s 21 appeals court nominees. That compares with eight out of 30 appeals court nominees confirmed for Bush at the same point in his first term as president.

But unlike Bush, Obama was elected with a majority of the popular vote and works with a Senate in which his party has 59 senators — at least for now.

“You’d expect President Obama, elected with a comfortable margin and with the number of Democratic senators there now are, to have had a lot more judges confirmed by now,” said Russell Wheeler, former deputy director of the Federal Judicial Center, the research agency for the federal courts. Wheeler is a fellow at the Brookings Institution.

Eleven prominent liberal law professors complained to Obama in an open letter in February that “your Administration must act with far more energy and dispatch in the vitally important task of nominating and confirming federal judges.”