Hope everyone enjoyed their spring break. It's back to work, and here's what's up:
1. Barry Bonds' trial starts today. Apparently, jail isn't at stake, but his legacy is: a jury will be asked to decide whether baseball's home run king set his historic mark while using a long list of banned drugs.
***
For Bonds, 46, who has not played baseball since he was indicted, the stakes are high - even though most experts doubt he will face prison if convicted.
In 2008, Bonds' trial judge, Susan Illston, sentenced two defendants who were convicted of lying to authorities about steroids in sports to home confinement, not prison. That sets a baseline for sentencing Bonds if he is convicted, experts say.
The trial represents a chance for Bonds to repair a reputation badly tarnished by his association with the BALCO steroid scandal, and, perhaps, to secure a place in baseball history that might otherwise be denied him.
If Bonds is acquitted, his chances of being elected to the Hall of Fame "go way up," said former Major League Baseball Commissioner Fay Vincent. "But if he gets convicted, it's the end of the discussion for at least 30 years."
Roger Clemens, who is on trial next, will be watching this one closely.
2. Interesting case being argued this morning before the Supremes, Davis v. U.S.. The issue: The good-faith exemption to the exclusionary rule allows evidence collected in violation of the Fourth Amendment to be admitted at trial if the police officers conducting the search acted in good faith. Does the good-faith exception to the exclusionary rule apply to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional?
The case came out of the 11th Circuit, and Orin Kerr of the Volokh Conspiracy will be arguing for Mr. Davis. ScotusBlog has great analysis of the case here.
3. You can bet on one thing in Davis -- Justice Alito will vote with the government. From the Sunday NYT: Alito is the least likely justice to show a glimmer of concern for the rights of criminal defendants. He has ruled for the defense in only 17 percent of the criminal cases he has heard since he joined the court, putting him to the right of Roberts, Scalia, Thomas — and every other justice of the past 65 years other than William Rehnquist...
Strangely, the title of the piece is called: "Mysterious Justice." Nothing mysterious about Alito -- he's the most predictably conservative judge on the Court.
4. There's always a lot of talk about how judges should write opinions. Rumpole doesn't like the Judge Selya style of opinion writing (Selya's interview on How Appealing is entertaining). I wonder what he thinks of this.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Monday, March 21, 2011
Thursday, March 17, 2011
March Madness
Today shows why this is the best week of the year in sports. What great games...
Your news for the day:
1. Welcome to the blogosphere Roy Black at Black's Law. He'll be discussing trial practice -- he already has posted on cross-examination. I can attest to Roy's folder method. I saw him use this method years ago during a trial in Savannah, and I have been using it ever since. (Apropos of Savannah and today, we were in trial on St. Patrick's Day, which is the biggest holiday of the year there. Everything closes down, including most of the streets and courthouses. But not our judge -- he had trial (as he did on most Saturdays during those six weeks). Some of the jurors were very late because of the traffic issues and the judge let them have it. After that, the jurors were much more sympathetic to us.)
2. Some light reading from Judge Jack Weinstein.
3. The AO has issued the stats from 2010. Criminal filings are up, but interestingly, appeals are down:
Filings in the regional courts of appeals dropped 3 percent to 55,992 in FY 2010, due to a 7 percent drop in criminal appeals to 12,797 and a 9 percent drop in administrative agency appeals to 7,813. Bankruptcy appeals declined 15 percent to 678, the smallest number filed since 1982. Civil appeals remained stable, dropping by just 27 appeals to 30,940. Original proceedings in the courts of appeals increased 2 percent to 3,764.
Prisoner petitions fell 3 percent to 15,789. Appeals involving pro se litigants declined 2 percent to 27,209.
Re Criminal filings:
Filings of criminal cases (including transfers) increased 2 percent to 78,428. The number of criminal defendants (including transfers) also rose 2 percent to 100,366, surpassing the previous record of 97,982 set in 2009. Proceedings were concluded against 98,311 defendants, 91 percent of whom were convicted, with 89 percent pleading guilty.
Immigration cases, which climbed 9 percent to 28,046, constituted 36 percent of all criminal cases filed, compared to 34 percent in 2009. The majority of immigration filings involved improper reentry of aliens, and 73 percent of all immigration cases were filed in the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas.
Filings addressing fraud grew 12 percent to 9,371 for cases, and rose 13 percent to 12,639 for defendants in these cases.
Twenty percent of all criminal cases were drug offenses, compared to 22 percent in 2009. Cases involving drug offenses decreased 5 percent to 15,785, and defendants in those cases declined 2 percent to 29,410. Marijuana cases dropped 10 percent overall, but filings related to possession of marijuana increased, with cases climbing 26 percent to 1,248 and defendants rising 28 percent to 1,305. Drug cases involving non-marijuana offenses declined 3 percent to 10,817, and defendants in those cases fell 2 percent to 21,918.
Firearms and explosives cases, which account for 9 percent of total criminal case filings, declined 7 percent to 7,248. Defendants in those cases dropped 6 percent to 8,376.
Your news for the day:
1. Welcome to the blogosphere Roy Black at Black's Law. He'll be discussing trial practice -- he already has posted on cross-examination. I can attest to Roy's folder method. I saw him use this method years ago during a trial in Savannah, and I have been using it ever since. (Apropos of Savannah and today, we were in trial on St. Patrick's Day, which is the biggest holiday of the year there. Everything closes down, including most of the streets and courthouses. But not our judge -- he had trial (as he did on most Saturdays during those six weeks). Some of the jurors were very late because of the traffic issues and the judge let them have it. After that, the jurors were much more sympathetic to us.)
2. Some light reading from Judge Jack Weinstein.
3. The AO has issued the stats from 2010. Criminal filings are up, but interestingly, appeals are down:
Filings in the regional courts of appeals dropped 3 percent to 55,992 in FY 2010, due to a 7 percent drop in criminal appeals to 12,797 and a 9 percent drop in administrative agency appeals to 7,813. Bankruptcy appeals declined 15 percent to 678, the smallest number filed since 1982. Civil appeals remained stable, dropping by just 27 appeals to 30,940. Original proceedings in the courts of appeals increased 2 percent to 3,764.
Prisoner petitions fell 3 percent to 15,789. Appeals involving pro se litigants declined 2 percent to 27,209.
Re Criminal filings:
Filings of criminal cases (including transfers) increased 2 percent to 78,428. The number of criminal defendants (including transfers) also rose 2 percent to 100,366, surpassing the previous record of 97,982 set in 2009. Proceedings were concluded against 98,311 defendants, 91 percent of whom were convicted, with 89 percent pleading guilty.
Immigration cases, which climbed 9 percent to 28,046, constituted 36 percent of all criminal cases filed, compared to 34 percent in 2009. The majority of immigration filings involved improper reentry of aliens, and 73 percent of all immigration cases were filed in the District of Arizona, the Southern District of California, the District of New Mexico, and the Southern and Western Districts of Texas.
Filings addressing fraud grew 12 percent to 9,371 for cases, and rose 13 percent to 12,639 for defendants in these cases.
Twenty percent of all criminal cases were drug offenses, compared to 22 percent in 2009. Cases involving drug offenses decreased 5 percent to 15,785, and defendants in those cases declined 2 percent to 29,410. Marijuana cases dropped 10 percent overall, but filings related to possession of marijuana increased, with cases climbing 26 percent to 1,248 and defendants rising 28 percent to 1,305. Drug cases involving non-marijuana offenses declined 3 percent to 10,817, and defendants in those cases fell 2 percent to 21,918.
Firearms and explosives cases, which account for 9 percent of total criminal case filings, declined 7 percent to 7,248. Defendants in those cases dropped 6 percent to 8,376.
Wednesday, March 16, 2011
UM Law drops in rankings form 60 to 77
ABT has all the gory details.
Some other quick hits:
SFL has a really entertaining post discussing the FBA luncheon from last week.
Congrats to Peter Raben for this victory.
Thank goodness for the 9th Circuit.
The drugs used to execute defendants in Georgia may have been illegally imported. Lovely.
Howard Stern is the Rolling Stone cover boy.
Some other quick hits:
SFL has a really entertaining post discussing the FBA luncheon from last week.
Congrats to Peter Raben for this victory.
Thank goodness for the 9th Circuit.
The drugs used to execute defendants in Georgia may have been illegally imported. Lovely.
Howard Stern is the Rolling Stone cover boy.
Tuesday, March 15, 2011
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.
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.
Monday, March 14, 2011
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."
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, March 11, 2011
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)
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)
Thursday, March 10, 2011
Great Event for the Steven E. Chaykin Fellowship Trust
Steven E. ChaykinIn 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.
Wednesday, March 09, 2011
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?
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