Should federal judges be writing books?

That's the question this Boston Globe article raises in light of Judge Nancy Gertner's new book, In Defense of Women: Memoirs of an Unrepentant Advocate --

The 64-year-old Boston jurist said the book being published by Beacon Press focuses on her two decades as a prominent criminal defense and civil rights lawyer before she joined the bench in 1994. As such, she might not have to worry about the federal Judicial Code of Conduct, which prohibits judges from making public statements about cases that could come before them.
But by devoting a memoir to her years as an “unrepentant advocate’’ for notorious criminal defendants and women who brought sex-discrimination suits, Gertner will almost certainly give ammunition to those who say she tilts toward those litigants instead of prosecutors and corporations.
Gertner, whose sentences of criminal defendants have drawn criticism from federal prosecutors and who was accused of bias by lawyers defending the Boston police in a civil rights suit, said she is not worried.
“The unrepentant advocate stuff ends at my swearing-in,’’ she said, referring to the day in April 1994 when she officially became a judge.
She also emphatically denied that she is biased on the bench in favor of criminal defendants or people fighting corporations or police departments. Just last week, she noted, she dismissed a lawsuit by several customers of Bank of America, N.A., who al leged the bank engaged in deceptive business practices.
“I do believe my record speaks for itself,’’ she said in a telephone interview last week, adding that news outlets tend to cherry-pick rulings that reinforce the stereotype of her as a liberal.

**

Several lawyers who insisted on anonymity because they might have to appear before Gertner said a judge should not be an “unrepentant advocate.’’
In contrast, Harvey Silverglate, a criminal defense and civil rights lawyer and former law partner of Gertner’s, dismissed the notion that judges should be silent about their personal and professional backgrounds or even their views on jurisprudence. Judges, he said, had lives before they entered what he called the “monastery,’’ and it is foolish to pretend otherwise.
“Judges, like other human beings, have predispositions,’’ said Silverglate. “Some are called liberals. Some are called conservatives. To hide these facts doesn’t make them untrue. And so by encouraging judges to talk more, when you have a case before a judge, you have a better idea of what that judge might be interested in and what you might have to say in order to overcome that judge’s predispositions.’’
Asked whether the book will expose his friend to criticism, he said, “Of course. If your question is, ‘Will it expose her to legitimate criticism?’ the answer is no.’’
To be sure, Gertner is not the first sitting federal judge to write a book or even a memoir.
Supreme Court Justice Sandra Day O’Connor wrote a critically acclaimed 2002 memoir with her brother called “Lazy B: Growing Up on a Cattle Ranch in the American Southwest,’’ that described her childhood in Arizona and New Mexico.
Richard A. Posner, an influential judge on the US Court of Appeals for the Seventh Circuit in Chicago and appointee of President Reagan, has written about 40 books on jurisprudence and legal philosophy, some of which plumbed current events. He also blogs and writes magazine articles.

Thursday news and notes

1. Rocket indicted.

2. Big opinion out of the 11th today on jury instructions -- a reversal for not providing the good faith instruction as requested by the defense. It's 67 pages and I haven't digested it yet, but here's the money quote:"The requested instruction properly placed the determination with the jury as to whether they acted in good faith in seeking advice, fully and completely reporting to their accountant, and acting strictly in accordance with the advice."

3. Joel DeFabio says his pimp (of Haitian descent) is being selectively prosecuted when compared to Jeffrey Epstein:

Johnny Saintil, a Fort Lauderdale native of Haitian descent, sits in jail awaiting a federal trial Monday on charges of recruiting two girls for an Internet-based prostitution ring in Broward County. The 28-year-old faces up to life in prison if convicted.
Jeffrey Epstein, a Palm Beach billionaire, ended his one-year probation last month after serving 13 months in jail on two state convictions for soliciting a prostitute who was a minor. He also had to register as a sex offender.
Epstein, 57, came within a whisker of being indicted by the U.S. attorney's office in Miami on essentially the same charges as Saintil -- but involving a much higher number of victims.
Now Saintil's defense attorney, Joel DeFabio, is urging a Fort Lauderdale federal judge to throw out the indictment against his client, arguing ``selective prosecution'' by prosecutors while citing the race and class differences between Saintil, a poor black man, and Epstein, a rich white man.
***
DeFabio points out that Epstein didn't just pay for sex with high school girls -- he also schemed with aides to recruit them for his personal pleasure.
``Epstein was both a pimp and a `john' (an individual who pays the prostitutes for sex),'' DeFabio said in court papers. ``He recruited and paid individuals to go out into the public and find minor girls to have sex with him for money.''
Two other defendants charged with Saintil -- Michael DeFrand and Stanley Wilson -- have joined his selective prosecution petition filed with U.S. District Judge William Zloch.
The U.S. attorney's office countered in court papers that DeFabio's claims are ``unfounded.'' A spokesman declined to comment.

Slow news day in the SDFLA...

...so we'll have to turn to Alabama, via CNN:

"Former Alabama prosecutor arrested on enticement, child porn charges"

Here's the quote from the former prosecutor's defense attorney:

"The facts of the case will turn out to be interesting and (we will) address those when we go to trial."

Interesting? Perhaps not the best choice of words... From the article:

A former Alabama assistant district attorney who specialized in prosecuting sex crimes against minors is accused of enticing what he thought was a teenage girl online for sexual purposes, authorities said.
Steven Giardini was indicted on charges of enticement and solicitation crimes over the computer with the intent to produce child pornography, the Alabama Attorney General's Office said in a statement. Giardini, a former prosecutor in Mobile County, was arrested Tuesday.
The charges stem from the suspect's alleged communication with what he thought was a 15-year-girl, Alabama Attorney General Troy King said in a statement Tuesday. But instead he was communicating with an agent from the FBI's Internet Crimes Against Children division.

More on Judge Huck

Last Monday, I posted about Judge Paul Huck's decision to take senior status. Today, the DBR has more on the story:

District Judge Paul Huck in Miami will take senior status at the end of the month, opening a third seat on the federal bench in South Florida. Huck is the second South Florida judge to announce he’ll take senior status in the past month. U.S. District Judge Alan S. Gold will be going senior in January. Public Defender Kathleen Williams has been nominated to replace U.S. District Judge Daniel T.K. Hurley, but judicial confirmations are on a slow track in the U.S. Senate.

***

Huck, 70, was appointed to the bench a decade ago by thenPresident Bill Clinton, following a 36-year career as a lawyer. Huck said he is going senior because he is able to do so under the court’s “rule of 80.” Under the rule, when a judge’s age, added to his or her years on the bench, totals 80, the judge has the option of staying put, going senior or retiring. The judge receives the same pay for all options. Huck, who is known as one of the hardest-working judges on the bench with a penchant for moving cases to resolution, still plans on working full-time. But he hopes to help out busy districts in other states and to do more teaching at the law schools of the University of Miami and University of Florida — his alma mater — and in high school civics classes. Huck has been hosting high school students in his courtroom to teach them about civics and turned his hallway on the 13th floor of the Miami courthouse into a civics training area with enlarged copies of the Declaration of Independence and the Bill of Rights. “I want to try some cases in some other places,” he said. “Some of our districts are overloaded with long trials and need help, such as in Houston. Plus, I’m getting old.”

***

Huck did say he wants to “allow the position to open up and bring another person on.” Huck also said his decision does not signify any frustrations with the job, saying: “This is the best job in the world. It brings me a great deal of satisfaction. I wrestled with this for awhile.”

In addition to all the comments about Judge Huck being hard-working, the guy is also a mensch. He tries to go to every bar function and to all the going-away parties for PDs and AUSAs. You can tell that he loves the law and being around lawyers.

"2 Hialeah businessmen busted for bilking Medicare for penis pumps"

That headline, from Jay Weaver's article, really says it all, doesn't it? More:

It's one thing that a pair of Hialeah companies were fraudulently billing Medicare for penis pumps at $395 a pop to supposedly help male patients combat impotence.
It's quite another that Charlie RX and Happy Trips also billed the federal healthcare program for vacuum erection systems to aid female patients battle erectile dysfunction, authorities say.
And what's even more remarkable: Medicare paid the two medical equipment providers $28,600 after they submitted a total of $63,000 in false claims for the erection pumps, according to charges unsealed Monday in federal court in Miami.

Happy Trips indeed.

I'm back

Thanks to my guest bloggers -- SFL, Rumpole, and Rick B.

Now back to work.... I hope everyone enjoys the last good week of traffic because school starts in one week and then US1 and I-95 turn back into parking lots.

A couple of quick hits to start your week:

1. Blago jury still out.

2. Justice Sotomayor jokingly compares herself to J.Lo.

3. Blogger convicted after three tries for threatening comments about federal judges.

4. Justice Ginsburg wants the good ol' days back in the Senate.

5. Justice Scalia OK after tripping.

6. Neal Katyal likely to become 10th Justice.

7. A must read dissent by Judge Kozinski on GPS tracking and the 4th Amendment. The intro:

Having previously decimated the protections the Fourth
Amendment accords to the home itself, United States v.
Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting
from the denial of rehearing en banc); United States v.
Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting
from the denial of rehearing en banc), our court now proceeds
to dismantle the zone of privacy we enjoy in the home’s curtilage
and in public. The needs of law enforcement, to which
my colleagues seem inclined to refuse nothing, are quickly
making personal privacy a distant memory. 1984 may have
come a bit later than predicted, but it’s here at last.

And the conclusion:

I don’t think that most people in the United States would
agree with the panel that someone who leaves his car parked
in his driveway outside the door of his home invites people
to crawl under it and attach a device that will track the vehicle’s
every movement and transmit that information to total
strangers. There is something creepy and un-American about
such clandestine and underhanded behavior. To those of us
who have lived under a totalitarian regime, there is an eerie
feeling of déjà vu. This case, if any, deserves the comprehensive,
mature and diverse consideration that an en banc panel
can provide. We are taking a giant leap into the unknown, and
the consequences for ourselves and our children may be dire
and irreversible. Some day, soon, we may wake up and find
we’re living in Oceania.

Let's Talk Judicial Appointments!

We might as well, since President Obama and Senator McConnell did the same the other day:

President Obama and Senate Republican Leader Mitch McConnell had their first one-on-one meeting today, and it dealt primarily with one topic: Confirming judges.
Or, more precisely, Republican holds on Obama judicial nominees.

"Right now there are 12 federal judicial nominees that have passed the Judiciary Committee with a unanimous vote," White House spokesman Robert Gibbs said before the meeting. "There are other judges that have been through the process and approved by the Judiciary Committee."

The meeting concerned "a direct discussion about moving those judges," Gibbs said.

The president is "rightly frustrated" at a pace that is "unrivaled and unmatched in its slowness," Gibbs said, and he added that some recess appointments may be in the offing.

Hmm, that's not good.

According to ACS' nifty website judicialnominations.org, there are now 100 vacancies out of 867 seats on the federal bench.

So that's roughly 10 percent of the judicial branch, with nominees cooling their heels for indefinite periods while they await an uncertain fate in the Senate.

My guess is this will have some deleterious institutional effects on the federal justice system, but what do I know?

This is SFL, hoping I'm wrong (again).

Magistrate Judge Brown Addresses Futility of "Notices of Unavailability"

Judge Brown Notice of Unavailability

Hi kids, SFL here.

Regular readers of my blog know I have a special fondness for this case.

In an order entered yesterday, Magistrate Judge Brown addresses the rather pointless of practice of filing "notices of unavailability," a personal pet peeve of mine:

The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.

He's right.

This is a dated practice of dubious utility.  If you have a conflict with an actual (as opposed to a possible or  hypothetical future) Court deadline, ask the Court to move it.  If you don't want the opposing party to schedule something while you're on vacation, pick up the phone and ask them about it.