Posner vs. Ginsburg

Oh, this one ought to be good. Via the WSJ, seems like Judge Richard Posner doesn't like the way Supreme Court Justices are behaving:

He says mock trials of fictitious characters don’t “contribute to anyone’s enlightenment.” For Judge Posner, the hobby symptomizes the broader ills of contemporary “celebrity culture.”

“That’s the problem with presidents and Supreme Court justices and billionaires. They think that because they are successful in one sphere they’re experts in everything,” Judge Posner says. Supreme Court justices should stop “preening” and return to “their dignified anonymity,” he says.

But Justice Ruth Bader Ginsburg (happy b-day today!) struck back, and laughed when advised of Posner's critique:

“He’s an odd person to say that, considering the range of his writings, including ‘Sex and Reason,’ ” said Justice Ginsburg, a regular mock trial participant.

Indeed, Judge Posner is among the best-known of the nation’s judges, having been profiled in magazines, contributed to the popular and academic press, and written dozens of books on law, literature, economics and other topics. He also remains a force on the University of Chicago’s law faculty.

At least Posner likes good movies:

Rather than mock trials, the judge prefers modernizing or parodying classic texts. One of his favorites updated a Jane Austen novel from 19th century England to present-day Beverly Hills.

“The movie ‘Clueless’ is a parody of ‘Emma,’” he says, with the Alicia Silverstone character, Cher Horowitz, substituting for Austen’s Emma Woodhouse.

The best trial lawyers are good poker players

At least that's what I've been told. Well, if that's true, naybe soon we will have some trial bots:

Poker bots are not new, but until recently they were not very good. Humans were better at the nuances of the game — at bluffing, for instance — and could routinely beat the machines. But artificial intelligence has come a long way in the last few years, far enough that poker bots are now good enough to win tens of thousands of dollars on major game sites, which are clamping down on them.
***
It turns out to be a lot easier to build a perfect chess player than a poker whiz. Chess is a perfect information game: if you look at a chessboard, you know the exact state of the game from both players’ perspectives. And the rules of the game are not affected by chance, like the drawing of a card.

But in poker, an imperfect information game, there are many unknown variables. A player does not know his opponents’ cards and may not know their style of play — how aggressive they tend to be, for instance, or how often they bluff.

Unlike a chess bot, a poker bot does most of its work before the match, running millions of simulations before the first card is dealt. But even with the large amounts of memory available with today’s computers, storing — or even computing — information for every possible scenario would be implausible.

It used to be that robots could conduct sentencing hearings, but judges now have discretion again, thank goodness. Now the Supreme Court is just trying to make sure that judges know it:

But perhaps his fortunes have turned again. The Supreme Court plucked his petition from the thousands that make their way to the court each year. This month, Pepper won his case in a victory that gives federal judges more leeway to provide second chances to the criminals who come before them.

The ruling will clarify the rules that guide judges as they try to set sentences that both comport with national norms and ensure justice is done in individual cases.

But Pepper v. United States also is a reminder of the real people behind the court's cases. It comes with a story that might make even the most objective balls-and-strikes umpire on the mahogany bench feel a tinge of (can it be said?) empathy.

Justice Sonia Sotomayor, who wrote the court's 8 to 1 decision, summed up the parameters of Pepper's journey through the halls of justice pretty well.

"At the time of his initial sentencing in 2004, Pepper was a 25-year-old drug addict who was unemployed, estranged from his family and had recently sold drugs as part of a methamphetamine conspiracy," Sotomayor wrote. "By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had re-established a relationship with his father, and was married and supporting his wife's daughter."

UPDATED -- In today's DBR, John Pacenti covers another area where discretion is really needed -- the sentencing of the aging. The sentencing commission has finally changed the guideline in this area, but it's not enough if judges aren't going to consider age. Joel Hirschhorn has some great quotes in the article. Here's one:

"The BOP has a long and sad rich history of finding that those who are sent to their facility are competent to stand trial," Hirschhorn said. "If BOP decides he no longer has frontotemporal lobe dementia and they send him back for sentencing, I will ask the judge to enter an order to give me a sample of the waters the doctors are drinking."

Friday notes (UPDATED)

1. Gotta love 4th Amendment under-garments. Are those body scanners constitutional anyway?

2. Speaking of the 4th Amendment, did the police violate Charlie Sheen's 4th Amendment rights? Sheen tweeted that he the police were respectful. Good thing for them because Sheen knows how to sue.

3. Say it ain't so Snoop.

4. Judge Posner on a lawyer lying about the number of words in his brief: "We add that the appellants’ brief is rambling, and would be more effective if compressed to 14,000 words."

5. I like when Justice Scalia is angry.

AFTERNOON UPDATE:

6. Judge Camp got 30 days in the grey-bar hotel.

7. The 11th Circuit wades into the world of rap videos and whether they should be played in criminal trials. The Court finds plain error but deems it harmless:

Based upon our independent review of the rap video and the totality of the record, we conclude that it was error under Fed. R. Evid. 403 to play this rap video to the jury. We recognize that the video could be construed to discuss Gamory inasmuch as the lyrics referred to JB, a white crib, a Range Rover, drugs and Hush Money and because the artist in the video, Tone Flowa, wore a necklace with a “JB” insignia that was similar to cuff links seized during the search of Gamory’s residence. But the substance of the rap video was heavily prejudicial. The lyrics presented a substantial danger of unfair prejudice because they contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle. At the same time, the video was not clearly probative of Gamory’s guilt. We cannot ignore the simple fact that Gamory was not in the video. Neither was there any evidence that Gamory authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by Gamory.

We are also mindful of the fact that the government introduced the rap video at the end of its case after it had already presented significant evidence that Gamory was JB and he owned Hush Money Entertainment. These facts were not seriously contested at the time the video was introduced and such evidence was therefore cumulative. In short, the probative value of the rap video was minimal at best, and more importantly was substantially outweighed by the video’s unfair prejudice.

Further, there is little doubt that the rap video was inadmissible hearsay. The rap video contained a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Subject to certain exceptions not applicable to Gamory’s case, the hearsay statements were inadmissible. See Fed. R. Evid. 802–804. In this Court, the government disavowed that the purpose of the video was to prove the truth of the matter asserted, but the District Court record contradicts that assertion. The prosecutor at trial stated as follows:

I believe that the reference of drug money is Hush Money, drug money is Hush Money which is said repeatedly throughout that video is very relevant to the issues for which are being tried here today, that being that the Government contends that Mr. Gamory is a drug dealer.

***

We conclude that the errors relating to the admission of the rap video were harmless.

So the life sentence sticks. (HT:CC)

Great Event for the Steven E. Chaykin Fellowship Trust

Steven E. Chaykin

In Memoriam: 1951-2008
President UM Citizens Board 2007-2008
Member, Florida Bar Board of Governors

A Reception and Private Concert by

DEREK TRUCKS AND SUSAN TEDESCHI BAND

When: Saturday, April 9, 2011
6:30 pm -- Cocktail Reception; 8:15 pm -- Concert

Where: Gusman Hall, University of Miami, Coral Gables Campus

All proceeds benefit the Steven E. Chaykin Endowed Fellowship at the University of Miami School of Law To support students involved with the Center for Ethics and Public Service.

Founded in 1996, the UM School of Law's Center for Ethics and Public Service is an interdisciplinary program devoted to the values of ethical judgment, professional responsibility and public service in law and society. Steven Chaykin was a passionate advocate and supporter of the Center, and these are values that were
synonymous with his life.

Steven E. Chaykin Fellowship Trust
169 East Flagler Street, Suite 1200 - Miami, Florida 33131
Contact Susan for details 305-374-7771
email: susan@mandel-law.com

Here's the website for the Fellowship Trust.

Judge Gold is Zen

Judge Gold gave a nice talk today about civility in court. But it wasn't the same old talk. His theory is that stress is causing the incivility among both lawyers and judges. And he gave practical tips for trying to get rid of stress. In fact, Judge Gold is starting a group of lawyers and judges to deal with these issues. So what do you all think we can do to decrease the insane stress and pressure that each of us faces every day?

“My wife tells me what to do.”

That was Matt Gulla, the main snitch against the cops in the mortgage fraud trial, when asked whether another co-defendant told him what to do. "The answer momentarily caught [the defense lawyer] off guard, before he drew a titter throughout the courtroom by retorting that wives are the presumed bosses in the spousal pecking order."

A titter, huh?

That reminds me of the cross-examination question of a special agent getting thrown back at a defense lawyer many years ago: Question: "Aren't all agents special agents?" Answer: "My mom doesn't think so."

More from James Burnett, who is covering the case for the Herald:

“Yes” and “I don’t recall” became mantras Tuesday for Gulla, who has already accepted a plea deal that could send him to jail for less than three years, as defense attorneys pushed him repeatedly to admit carrying out the fraudulent transactions.

Gulla admitted that he and partner Rene Rodriguez, who has also accepted a plea deal, persuaded lenders to approve the applications, by making up fake lease agreements for properties the defendants already owned, to try to show non-existent rental income. Many of the fake leases used the names of Gulla’s high school classmates and in-laws. He said he and Rodriguez also stacked the deck for the accused cops by falsely telling lenders the defendants planned to make the investment properties their primary residences. The ultimate goal, Gulla said, was to secure better interest rates and larger loans for the defendants.

Under stiff cross examination by several defense attorneys Tuesday, Gulla explained how they were able to beat the system: Submitting fake documents and documents intentionally incorrectly filled out on the assumption that lenders simply wouldn’t catch on. Perhaps the most important toothless policy that Gulla and Rodriguez used to their advantage was the Stated Income Program, which essentially allowed potential home buyers to get loans with little to no proof of their income and credit worthiness.

But Gulla insisted the defendants were aware of his deceptions to lenders, and sometimes found humor in it.

He had testified Monday that once he bumped into Mittauer at an attorney’s office, where the alleged fraud ring held mortgage closings. When he asked Mittauer why he was there, Gulla testified Mittauer responded that he was just “trying to figure out where I’m moving this week,” an apparent reference to the frequently used “primary residence” lie.

“It was kind of sad, really,” Gulla said. “We both just kind of laughed about it.”

741 days

That's how long Judge Hurley has been waiting for Kathy Williams to be confirmed and take over his seat. The Sun-Sentinel covers the story:

"One of the great concerns for the court as an institution is that over time we'll have other vacancies, and if the vacancies aren't filled in a timely manner," legal logjams eventually will prevent people from getting their day in court, he said.
With two of his colleagues - U.S. District Judges Alan Gold in January and Paul Huck in July - joining him on what is known as senior status, his concern is more than academic.

The glacial speed of the U.S. Senate's judicial confirmation process, blamed on partisan politics, has hobbled courts throughout the country.
***
Among local attorneys, the conclusion seems obvious: "It's just partisan politics," Val Rodriguez said.

Miami attorney Neal Sonnett, a former president of the American Judicature Society, which focuses on promoting an independent judiciary, agreed. Last year Republican senators blocked the confirmation process, hoping they would seize control of the Senate in the November elections, he said. Now it appears some are intent on stalling nominations until after the 2012 elections, when they hope to put one of their own back in the White House, he said.

So far, attorneys said they haven't seen lengthy delays in getting cases heard and resolved in South Florida. Chief U.S. District Judge Federico Moreno said the district is lucky because seven senior judges still handle some cases. Further, Hurley said, case filings have slowed, in part, because of the economy.

While he credits the 15 full-time judges with moving cases quickly, attorney Ted Babbitt says eventually something has to give.

"The average person is going to get hurt because they're going to have to wait to have their cases heard," he said.

In other news:

--Maybe trial lawyers should try this on game day.

--The sentencing fight over how much time former Judge Jack Camp should get is probation or a whopping 15 days.

Cheese Touch!

The United States has charged some people with selling bad cheese.

This is all I could think of: