Thursday news and notes

1. DOMA ban now invalid. Via ScotusBlog:

With the approval of President Obama, U.S. Attorney General Eric H. Holder, Jr., notified Congress on Wednesday that the federal government will now argue in court that it is unconstitutional to withhold all federal benefits from same-sex couples who are legally married under their own state’s law. While the government will continue to enforce that part of the Defense of Marriage Act of 1996, Holder said a new evaluation has convinced officials that it violates the Constitution’s guarantee of legal equality. The new position will be advanced first in two new cases pending in federal courts in New York and Connecticut, but also will be put forth in other DOMA cases elsewhere. (A Justice Department news release discussing the new development is here.)

2. Roberts Court says suits against Mazda for bad seatbelts can go forward. Via Jan Crawford:

One of the big raps on the Roberts Court is that it's too sympathetic to Big Business. Today, we got a decision that counters that storyline.

Ever since the Supreme Court made a conservative turn in 2006, critics have pointed to rulings that shut the courthouse door to the little guy--especially the little guy who's trying to sue a giant corporation, such as a manufacturer of medical devices or drugs. In those cases, the Court has said product liability lawsuits are barred under federal law. The rationale is that since federal regulators had approved the devices and the drugs in the first place, the companies aren't liable for defective designs.

What critics don't mention is that some of the liberal justices have been on board with some of those decisions favoring the corporations. And today, the Court showed once again that simplistic narratives aren't always accurate. In a unanimous decision, the justices paved the way for a lawsuit against Mazda Motor Corp., rejecting the company's argument that it should not be subjected to lawsuits over its failure to install shoulder belts in the back seats of its minivans.

3. Pill Mill Mania. Via the Miami Herald:

Narcotics agents across South Florida descended on more than a dozen pain clinics Wednesday, arresting at least 20 people — including five doctors — in the most dramatic effort yet to curb the region’s booming business of illegal prescription narcotics.

The raids from Miami to West Palm Beach were the culmination of a two-year investigation by a task force of federal, state and local investigators, an operation dubbed “Operation Pill Nation.” Undercover agents were dispatched to storefront pain clinics to buy potent painkillers such as oxycodone without any medical justification for the pills, investigators said.

Broward Sheriff Al Lamberti called Wednesday’s raids a new front in a “new kind of drug war”: A war on the massive trafficking of prescription drugs through pain clinics operating with the outward appearance of legitimacy — though inside the clinics, doctors hand out pills without taking medical exams, and armed guards patrol the lobbies.

“Nowadays, the drug dealers are operating out of strip malls,” Lamberti said at a press conference announcing the busts.

Here's the indictment. I have a lot to say about these cases and the new war on drugs. I will post more on this later.

Bob Scola tapped to fill Judge Huck's seat

Although it's not official yet, a number of reliable tipsters have emailed me that Circuit Judge Robert Scola Jr. is being vetted to fill Judge Huck's seat. Remember that Scola, along with Jerald Bagley and John O'Sullivan made the JNC's cut to three. Now, the White House is apparently doing its background on Judge Scola. Congratulations!

Judge Scola should have no issues fitting in -- he's close friends with many of the federal judges, including Chief Judge Moreno and Judge Huck. From his bio page:

■Bachelor of Arts, Brown University, 1977
■JD, Boston College School of Law, 1980
■Honors - Cum Laude
■Admitted to Florida Bar, 1980
■Circuit Court Judge, 1995
■Previous Division - Circuit/Criminal
■Private Practice - Criminal Defense, 1986-1995
■Assistant State Attorney, Deputy Chief Assistant/Major Crimes, 1980-1986

Scola has an excellent reputation on the state bench, and he is a great addition to the federal bench. Now let's see if we can get Kathy Williams and Bob Scola confirmed before the end of the year. Plus, there is still one more seat to fill -- Judge Gold's seat. The JNC has not yet solicited applications for that slot.

Great event this Wednesday

Back to blogging

Thanks Jeff Marcus for a very entertaining week of guest blogging.

In taking the bridge back this weekend, I see that the Herald interviewed Lea Black (Roy Black's wife) for her upcoming role in Real Housewives of Miami. She looks great and here's one funny exchange:

Are your friends and family ready for the scrutiny?

I didn’t tell anybody that I did the show until I finished it, and then I denied it up until Bravo said that they had announced it. So I’m getting a lot of people mad at me. I guess I was shy about it. My husband’s law partner, I think he’s ready to call 911 for oxygen.

I think Lea is going to do great on the show. She's quick witted and is used to sparring with lawyers, so this should be a piece of cake. Plus, I like the shoes...

What Do You Wear to a "Charting Party"?

No, I don't have big weekend plans. And it's a slow pre-holiday weekend news day. So, let's talk healthcare and the Medicare "charting party" case unsealed this week in the SDFLA. DOJ's Medicare Strikeforce has indicted 3 doctors and 17 others, in what the government has dubbed the "nation's largest mental health racket," alleging that unneeded group therapy sessions and sleep studies were being routinely provided at several community mental health centers. Judge Seitz, whose courtroom was my second home as a young AUSA, has drawn the case. The charges stem from an ongoing probe into Miami-based American Therapeutics Corp. Last October, the company and four executives were charged with defrauding Medicare out of more than $200 million dollars. The government claims that medical records were altered at "charting parties" as part of the scheme. [Ok, it's not the go-go "Cocaine Cowboys" days.]

Having spent a lot of time defending and prosecuting health care cases, this case stands out to me for a few reasons. First, doctors have been arrested. You don't see doctors charged very frequently and the stakes could not be higher for them. A conviction, in almost all likelihood, will cost them their medical license and livelihood (not to mention debarment from Medicare). Second, the government is going after medical services provided to patients that are alleged to be unnecessary. Such medical necessity cases focus on medical judgment and proving criminal intent on the part of the physician can be difficult. In the case of mental health services like group therapy, where diagnoses are not black and white, it is even harder. As a defense lawyer, those are facts I like.

SDS, It's Not.

Above the Law has a funny article about our beloved UM School of Law (again). From Cairo to Coral Gables, revolution is in the air. Apparently, there are stirrings (no doubt inspired by Tahir Square) of a student movement to adopt a "Student Bill of Rights." What rights you wonder, since most of the really good ones (the ones people are dying for in Bahrain and elsewhere) already are covered in our real Bill of Rights. What noble selfless cause has gripped the student body politic? Well, fairer grading of course and less "professor autonomy" in the classroom (the obvious problem in higher education). There are 12 "amendments" posted at ATL but here are my 3 favorite with suggestions in italics:

1) The right of students to be given an unbiased legal education shall not be infringed. [And enforced by a well regulated militia. Amend. II]

2) The right of students to take exams that proportionally cover the material discussed in class and presented in the required reading shall not be contravened. [Or Else Cruel and Unusual Punishment Shall be Inflicted on the Professor. Amend. VIII]

[To reduce professor autonomy in the classroom, all professors shall blow a foghorn in class before lecturing on any tested material.]

3) The right of a student to receive a clear explanation from the professor as to how the student received their grade on any graded assignment. [And then petition the Administration for a redress of grievances. Amend. I]

Hey, I'm all for student energy but let's breathe a little. Yes, UM, like a lot of law schools, has a large student class in a depressed job market. So, I have a lot of sympathy for those hard-working students knee-deep in loan debt stressing about their future. Grades matter. I get that.

But, here's the teachable moment. Law students learning how to succeed under a professor's rules in the classroom is great training for . . . being a lawyer. We practitioners have our own professors (they're called Judges) and they lecture us on courtroom practice, not the other way around.

Barry Bonds On Deck; Clemens, Armstrong to Follow?

New developments in the Barry Bonds case now set for trial next month centering around Bond's childhood friend, trainer, and alleged PED pal Greg Anderson. You may recall that Anderson spent a year in the pokey for refusing to testify against Bonds before the grand jury. And Anderson, literally the strong silent type, has not budged since despite a promise from the bench that he'll be jailed for the duration of the trial. All of which posed a major "empty chair" problem for prosecutors or did it? In a surprise, Judge Susan Illston ruled yesterday that portions of an audiotape between Anderson and Bonds' former business partner in which Anderson discussed giving Bonds "the cream" and "the clear" were admissible despite the hearsay nature of the evidence. Judge Illston also has recently suggested that she will tell the jury "something" about why Anderson is not a witness at trial without explicitly mentioning his refusal to testify. Hard to say anything in that spot that isn't downright misleading or prejudicial to Bonds (hmm, "The dog ate our witness"?). So, it looks like an 0-2 count for Barry with Clemens due up later this year. You'd think at some point these guys would listen to some good legal advice and shut up. It's the testifying, stupid. The substance itself, juicing without a prescription, is not the stuff a federal case makes. Everyone knows they're users not traffickers.

Which brings us to today's "Retirement 2.0" announcement by Lance Armstrong, a decision he attributed in part to his "off field" issues (can you say Jeff Novitzky). Rumors have been swirling since the fall about potentially "imminent" charges in the federal investigation. But I am hard-pressed to see a viable charge absent any perjury. Defrauding the U.S. Postal Service out of sponsorship monies? C'mon. Trafficking PEDs to racing teammates? A stretch. Plus, how do you even charge a procedure like blood spinning?

So Lance when you get that subpoena, Just Don't Do It.

Justice Breyer at the DCBA

Great DCBA Event this afternoon at the Hyatt where Justice Stephen Breyer spoke to a packed audience about his new book, "Making Our Democracy Work: A Judge's View," published last September. In the book, Justice Breyer lays out his theory of "pragmatic" jurisprudence, an intellectual counterweight to Justice Scalia's textualist approach. At the talk, Justice Breyer actually credited conversations with Justice Scalia for inspiring him to write the book (now those sessions would be pay-per-view worthy). Justice Breyer was on his game and quite funny at times. You can see why he was known as a great law school professor back in the day. For those that missed or enjoyed like I did, here's a link to a transcript of a Terry Gross ("Fresh Air") interview with Justice Breyer from last September on the book and more.