In defense of old judges

The blawgosphere is all aflutter about this Slate article criticizing life tenure for federal judges because some really old judges are making mistakes. As if young judges don't. (See the cover of the DBR today about a young Broward state judge who is defending himself before the JQC because he "made a mistake.")

The WSJ summarizes some statistics from the article:

About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older;

Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago;

The number of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years.

The increase, explains the Slate piece, is largely attributed to a few factors. Life tenure for federal judges is written into the Constitution; people are living much longer lives than they did in 1789; and the job of a federal judge has over the years actually gotten less taxing in many ways.

So what? I miss the old (school) judges from our District -- Davis, Roettger, Spellman, Atkins, Highsmith, etc. Each of them (and others that I'm forgetting -- I must be getting old) had a real sense of justice and brought that to each case. The stories in the Slate piece are horrific, but if there are particular judges who are having issues, then that should be addressed on an individual basis. I don't like the idea of having mandatory retirement for judges. I think they have that in the state system, and it forces good judges off of the bench.

Interestingly, our bench in the Southern District of Florida is now a very young bench. We have no active district judges in their 70s, 80s or 90s. Our Chief judge is in his 50s. Our "older" judges have taken senior status. But even they are young. For example, Judge Huck turned 70 last year, but he seems much much younger and is on top of his game. It would be awful if we forced good judges to retire because they hit a certain age.

Justice Breyer: "And in my experience, too, people did sometimes stick things in my underwear."

Whether their jokes are humorous or not, Supreme Court Justices often get [Laughter]. Not so much when the lawyers try to make a funny. The WaPo has the story here. An excerpt:

Still, nothing is more perishable than what passes for humor at the court. You really have to have been there. To wit, from the transcripts:

JUSTICE BREYER: So you're saying that if the government has the most amazing, let's - I'm trying to think of something more amazing than what I just thought of."

[Laughter.]

Those notations of "[Laughter]" have now formed the basis of two studies of the court. In 2005, Boston University law professor Jay Wexler counted the number of times "[Laughter]" was noted in the court's transcripts, attributed the funny to whichever justice's comments preceded it, and declared Scalia the court's funniest justice.

***

It is from an inexplicable tangle of words from Breyer in a 2009 oral argument about the strip search of a teenage girl, in which the justice was attempting to show that perhaps it was not unusual for children at school to be seen in their underwear.

Justice Breyer: In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear -

[Laughter.]

Justice Breyer: Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know.

Here's a diagram of who gets the most laughs.

I hope everyone is enjoying MLK day. Marlon Hill has an excellent op-ed in the Miami Herald that is worth a read.

“Fighting for the rights of men is not a very popular thing to do in America these days.”

Oh boy (no pun intended). Check out ‘Babe’-Loving NY Lawyer Suspects Female Justices Helped Nix His Ladies Night Appeal. I'm not really sure how to describe it.

Other news items:

--As great as President Obama's speech was, did he make the prosecution's job in seeking the death penalty harder?

--The 9th Circuit has this memorial up for Judge Roll. We need to get our courthouses onto the site. If you happen to snap a picture, http://abovethelaw.com/2011/01/a-request-from-chief-judge-alex-kozinski/#more-53068

--Most legal bloggers are obsessed with legal writing, both good and bad. And I've blogged quite a bit about Judge Carnes. Love him or not, he's a very entertaining writer. Here's the intro from the latest installment:

It has long been said that “the price of freedom is eternal vigilance,”* and maybe as a matter of political philosophy it is. When it comes to pretrial release from custody, however, some are willing to pay for freedom with cold hard cash, and the amount of freedom that one on supervised release has increases as the vigilance of his supervising officer decreases. In this case a drug dealer indicted on state charges who was released pending trial bought himself more freedom by bribing the officer whose duty it was to supervise his release. That officer was convicted under a statute that makes this Court’s jurisdiction over the crime dependent on whether the drug dealer’s freedom, or increments of it, involved “any thing of value of $5,000 or more.” See 18 U.S.C. § 666(a)(1)(B).

How should we value freedom and increments of it in monetary terms? There is lyrical authority for the proposition that, “Freedom’s just another word for nothin’ left to lose / And nothin’ ain’t worth nothin’, but it’s free.” [Kris Kristofferson, “Me and Bobby McGee” (Sony BMG 1971).] Rejecting that view in this case, we adopt instead a non-lyrical, free-market approach that pegs the value of freedom and other intangible benefits to the price settled upon by the bribe-giver and the bribe-taker. Under that approach the value in bribes paid by a defendant on pretrial release to his supervising corrections officer in exchange for greater freedom while on release and freedom from jail does satisfy § 666(a)(1)(B)’s monetary requirement.

*The original source of the quotation is not entirely clear. Those words, or ones like them, have been attributed to Thomas Jefferson and others, but a better documented source is John Philpot Curran, an Irish lawyer and politician. In a speech given on July 10, 1790, concerning the disputed election for the mayor of Dublin, Curran said: “The condition upon which God hath given liberty to man is eternal vigilance. . . .” John Philpot Curran, “On the Right of Election of Lord Mayor of the City of Dublin,” speech before the Privy Council, July 10, 1790, in Irish Eloquence: The Speeches of the Celebrated Irish Orators Philips, Curran and
Grattan 15 (Philadelphia, Desilver, Thomas & Co. 1836); see also Wendell Phillips, speech in Boston, Massachusetts, January 28, 1852 in Speeches Before the Massachusetts Anti-Slavery Society, 13 (Boston, Robert F. Wallcut 1852) (“Eternal vigilance is the price of liberty.”).

--Sam Randall, a former Judge Jordan clerk and current AFPD, has filed a very interesting motion to dismiss a gun charge, alleging that the U.S. Attorney's office is selectively prosecuting African-Americans:

The demographic breakdown of federal felon-in-possession prosecutions in Miami
reveals an alarming racial disparity. Since the start of 2009, the Miami Division of the Federal Public Defender’s Office has handled 77 cases in which the defendant was charged with violating 18 U.S.C.§ 922(g)(1). 91% of those defendants were black (70 out of 77). By contrast, in the last year, the Public Defender’s Office for Miami-Dade County has handled 5,692 cases in which the defendant was charged with violating Fla. Stat. § 790.23(1), which similarly proscribes possession of a firearm by a convicted felon. 77% of those defendants were black (4410 out of 5692; see Exhibit A). Moreover, according to the Department of Justice Bureau of Justice Statistics, in 2006 (the most recent year for which data is available), just 49% of felony defendants in Miami-Dade County were black (see Exhibit B, at page 36).

Here's the entire motion:

Dismiss for Racial Bias

Cheers to Judge Peter Palermo

I'm convinced that Judge Palermo has sipped from the Fountain of Youth. This month he completes his 40th year (!!) with the Court. He was sworn in January of 1971 and was the first magistrate judge appointed. He really is an inspiration. Check out the article below from his swearing in and a picture (below) from his swearing in..

Beware the bloggers

Bob Norman has this piece up today about a Broward County Commission who is afraid of bloggers. It's easy to poke fun at some of the dramatic comments she makes.

But, I actually think Norman makes light of what is a more serious issue -- anonymous commenting on blogs. Rumpole and I have discussed it and dealt with it in our own ways, but it's not an easy problem. The anonymity of commenting makes for (unnecessarily) hurtful speech, and oftentimes takes over the blog itself. I haven't found a good solution for this yet. Currently, I moderate comments, but it makes it difficult for a good dialogue to occur in the comments...

Quick hits

1. How do you prosecute a defendant who is deaf, mute, and illiterate, including no known knowledge of sign language? They are trying.

2. Kyle McEntee and Patrick Lynch are ATL's lawyers of the year. Who, you say? Read about em here.

3. Justice Kagan wrote her first opinion, an 8-1 ruling for credit card companies.

4. F. Lee Bailey says he can prove OJ's innocence. I'm not sure it matters much; OJ is in jail for the next 33 years in Nevada.

5. The 11th Circuit is sleeping in this morning:
Inclement Weather
The Court of Appeals and all administrative offices in Atlanta will be operating on Wednesday, January 12, 2011. Employees are asked to report for duty no later than 10:30 a.m. Those employees who believe that they cannot safely arrive for work by that time should follow normal procedures to request annual leave, which will be granted liberally.

11th Circuit in Atlanta is closed today

It's cold there. From the Court's website:

Inclement Weather
Court of Appeals employees should not report for duty at the Tuttle or Godbold Buildings in Atlanta on Monday, January 10, 2011, unless they are specifically directed to do so by a supervisor.

It's a beautiful day in Miami today. Outside the Ferguson Courthouse this morning, there was the swearing in of all the new representatives. Everyone who spoke mentioned John M. Roll and the other victims who died in the tragedy in Tucson, Arizona, and wished a complete and speedy recovery to Representative Gabrielle Giffords. In addition, Chief Judge Moreno gave a nice shout out to Kathy Williams and urged the new reps to get her confirmed. Well done Chief.

The most hated lawyer in America right now is...

... Judy Clarke, who is going to represent Jared Loughner, who is charged with murdering Chief Federal Judge John M. Roll and others, and attempting to kill Representative Giffords.

She has been the most hated lawyer before, representing the Unabomber, Susan Smith, and Zacarias Moussaoui. She may be the most hated, but she's the reason our system works. What would happen if no lawyer would agree to represent Loughner?

In any event, TalkLeft has an excellent write-up on her:

They don't make defense lawyers any better than Judy. You may remember her from the Susan Smith case in South Carolina, where Smith was charged with drowning her two sons; or the Unabomber case, or the case of Eric Rudolf. Thanks to Judy (and those who helped her), all avoided the death penalty. She also worked on the Zacarias Moussaoui defense team for a while. The AP called her "a one woman dream team."

Judy is a past-President of the National Association of Criminal Defense Lawyers (NACDL), where she's affectionately called "Saint Judy" -- and a friend. She is both a great person and a great lawyer.

From Judy's closing in the guilt phase of Susan Smith:

This is not a case about evil, this is a case about sadness," Clarke said. "She made a horrible, horrible decision to be at that lake that night. She made that decision with a confused mind and a heart that had no hope. But confusion is not evil and hopelessness is not malice."

In the penalty phase of the trial to decide life or death:

Smith's lawyers countered in their opening statement that Smith knows she has "sinned" and "accepts responsibility" for killing her sons.

But defense attorney Judy Clarke also implored the jury to understand that Smith suffered from "mental illness" and had "snapped" on the night of the drownings after a lifetime of emotional trauma. The boys' deaths, Clarke told the jurors, was the result of Smith's own botched suicide attempt.

"Suicide is why we're here. In her own suicidal confusion, she believed the children would go with her, but the body wills to live and Susan jumped out of the car," Clarke said. "Once the car began rolling, those children were lost and Susan's life was lost."

And,

Her voice steady, Clarke rejected [prosecutor] Giese's argument in her 14-minute reply, saying that the boys were the "sunshine" of Smith's life. "Use your common sense, it was not a boyfriend" that propelled the drownings, Clarke told the jury. "Use your common sense, it was not to get rid of an obstacle."

Instead, Clarke urged the jury to see Smith as driven by a "failing life," by emotional problems that stemmed from a father who committed suicide when she was 6 and a stepfather who molested her when she was 16.

"When we talk about Susan's life, we're not trying to gain your sympathy," Clarke said. "We're trying to gain your understanding. Susan Smith tried to cope with a failing life and she sank."

The jury returned a verdict of life in prison.