Judge Marcus reverses death penalty in 100-page opinion

Since Blogger has been down, I've had some time to catch up on 11th Circuit opinions, even these really long ones. Here's the intro from Ferrell v. Georgia (which was joined by Judges Tjoflat and Black):

After thorough review of this ample record, we are compelled to reverse in part the judgment of the district court. We hold that the state court’s rejection of Ferrell’s ineffective-assistance claims was an unreasonable application of Strickland v. Washington, and, accordingly, we reverse the district court’s denial of habeas relief from Ferrell’s death sentence. Neither the jury nor the sentencing judge was ever told, because defense counsel never discovered that Ferrell suffers from extensive, disabling mental health problems and diseases including organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe epilepsy. Nor
did they learn that the defendant had attempted suicide at age eleven, or that because of these mental health issues, Ferrell exhibits increased impulsivity and
decreased sound judgment; that his conduct was not entirely volitional; or that his
judgment and mental flexibility were significantly impaired by organic brain damage. Nor, finally were they ever told that Ferrell’s father was physically abusive to his children, especially to Ferrell, waking them in the middle of the night to beat them (sometimes after stripping them naked) with razor strops, fan belts, and old used belts; that the family was repeatedly evicted from their homes and hungry, and lived in fear of those to whom the father owed gambling debts; or that Ferrell’s mother suffered from clinical depression, suicidal ideations, rage blackouts, and urges to physically injure her children.

Funny email exchange

Julie Kay wrote a story on a funny email exchange that has been making the rounds. I love the sign off by Harrell: "all the best". Too funny. Here's the exchange:

From: Harrell, Michael P.
Sent: Wednesday, May 04, 2011 1:23 PM
To: Biff.Marshall@gray-robinson.com
Cc: Adams, Lep; Silva, Albert P.; Neal, Austin; Wanek, Brian N.; Long, J Craig; Howell, Chanley T.; Harper, C. David; Hedrick, Charles V.; Lever Jr., Chauncey W.; Adams, Christi; Griffin, Christopher L.; Kise, Christopher M.; Creely, Curt P.; Bachrach, Daniel (Dan); Zenov, Darin I.; Cook, David C.; Woodson, R Duke; Baxa Jr., Edmund T.; Lotzia, Emerson M.; Magee, Emily; Cerezo, Francisco J.; Ridley, Fred S.; Davis, Gardner F.; Koch, Gary D.; Fernandez-Quincoces, Guillermo J.; Raij, Irwin P.; Arkin, J. G; Grodin, James; Manzi, James A.; Hamilton, John; Horan, John; Lord Jr., John S. (Jack); Tucker IV, John A.; Vetter, John C.; Kilman, Jonathan P.; Fowler, Kevin; Hyde, Kevin E.; Reck, Kevin A.; Ross, Kevin K.; Wolfson, Mark J.; Traber, Martin A.; Smith, Leslie; Breuer, Matthew G.; Annis, Michael D.; Gay, Michael; Kirwan, Michael B.; Matthews, Michael P.; Okaty, Michael; Strickland, Wes; Shivers, Olin G.; Rosenthal, Paul; Wolfe, Randolph J.; Davis, Richard; Bernstein, Robert S.; Hosay, Robert H.; Meek, E. Robert; Barquet, Roy; Callen, Scott; Richburg, Scott D.; Crane, Stephen A.; Szabo, Stephen J.; Vazquez, Steven W.; Edwards, Ted B.; Little, Thomas M.; Maida, Thomas; Maurer, Thomas; Munro II, Thomas; Little, Walter C.; Davis, William E.; Guthrie, William C. (Bill)
Subject: RE: Opportunities

Biff: we've never met but you seem to be an ass who is extremely fond of himself.

all the best,

Mike Harrell

From: Byrd F. "Biff" Marshall, Jr. [mailto:
Sent: Wednesday, May 04, 2011 12:41 PM
To: Gay, Michael
Cc: Adams, Lep; Silva, Albert P.; Neal, Austin; Wanek, Brian N.; Long, J Craig; Howell, Chanley T.; Harper, C. David; Hedrick, Charles V.; Lever Jr., Chauncey W.; Adams, Christi; Griffin, Christopher L.; Kise, Christopher M.; Creely, Curt P.; Bachrach, Daniel (Dan); Zenov, Darin I.; Cook, David C.; Woodson, R Duke; Baxa Jr., Edmund T.; Lotzia, Emerson M.; Magee, Emily; Cerezo, Francisco J.; Ridley, Fred S.; Davis, Gardner F.; Koch, Gary D.; Fernandez-Quincoces, Guillermo J.; Raij, Irwin P.; Arkin, J. G; Grodin, James; Manzi, James A.; Hamilton, John; Horan, John; Lord Jr., John S. (Jack); Tucker IV, John A.; Vetter, John C.; Kilman, Jonathan P.; Fowler, Kevin; Hyde, Kevin E.; Reck, Kevin A.; Ross, Kevin K.; Wolfson, Mark J.; Traber, Martin A.; Smith, Leslie; Breuer, Matthew G.; Annis, Michael D.; Gay, Michael; Kirwan, Michael B.; Matthews, Michael P.; Okaty, Michael; Strickland, Wes; Shivers, Olin G.; Rosenthal, Paul; Wolfe, Randolph J.; Davis, Richard; Bernstein, Robert S.; Hosay, Robert H.; Meek, E. Robert; Barquet, Roy; Callen, Scott; Richburg, Scott D.; Crane, Stephen A.; Szabo, Stephen J.; Vazquez, Steven W.; Edwards, Ted B.; Little, Thomas M.; Maida, Thomas; Maurer, Thomas; Munro II, Thomas; Little, Walter C.; Davis, William E.; Guthrie, William C. (Bill)
Subject: Opportunities

Michael, as I told you a few months ago, we are pleased that Foley thinks so highly of our partners that your firm decided to contact a number of them about joining Foley as partners (a couple have been told they would be great office leaders). As of the most recent call (yesterday), about 20 of my partners have told me about the Foley calls they received (most consider this a compliment as your firm is well respected) . The partners are in Tampa, Tallahassee, Miami, Orlando, and Jacksonville (our Lakeland partners feel slighted).

Foley is a great firm, and if any of our partners are unhappy, I will encourage them to talk with your firm. We are also hiring in all these cities, and rather than asking headhunters and others to contact each of your Florida partners individually, I decided to copy them with this note and let them know things are going well at Gray Robinson.

I hope all is well.

Byrd F. "Biff" Marshall, Jr.

President

GrayRobinson, P.A.

Back at it

A case in the District of Oregon took me out of our district the last two days (up and back in 36 hours). And a bunch has been happening. Here goes:

1. Remember this press release from the feds about the charges against 27 defendants for "selling cut" for cocaine and heroin? Well, the government dismissed against all the defendants yesterday, including one who already had pled guilty. The charges were strange here -- conspiracy to aid and abet the sale of drugs, or a double inchoate crime. I'm told that many of these defendants were held at FDC since the charges back in February...

2. A mixed result in the 11th for Siegelman and Scrushy after the remand from the Supreme Court. Here's a little from the AP:

The 11th U.S. Circuit Court of Appeals said in a ruling Tuesday that there was not enough evidence to convict Siegelman and Scrushy of two bribery counts, which involved a hospital license and equipment. But the appeals court rejected a request for a new trial and let stand convictions on five counts against Siegelman and four against Scrushy. The court said they must be resentenced to reflect the reduced number of counts.

***

"This does not come as a surprise. This whole thing has been a disappointment," said Siegleman, who vowed to continue his appeals.

Scrushy's attorney, Art Leach, said he had not had time to study the decision. But he said his client, who has been in federal prison nearly five years, would argue for a shorter sentence with two convictions thrown out.

Justice Department spokeswoman Laura Sweeney said prosecutors were pleased with the decision.

3. The state judiciary is in trouble. Two of the best -- Mary Barzee and Izzy Reyes -- have recently left, and more are rumored to be leaving soon. Barzee is headed to my friends at Stearns Weaver. It's a great fit, and she'll do great there.

4. No word on Mike Walsh. Really hope he is okay.

Arrest warrant issued for defense lawyer

Judge Cohn issued an arrest warrant for Michael Walsh this morning for not showing up for trial. I'm traveling today, so I am not up on all the details. Looks like a terrible situation. I hope he is okay.

Update-- Here is the Herald coverage:

A federal judge Tuesday issued an arrest warrant for a defense attorney
after he failed to show up for the start of a major mortgage-fraud trial
of a former Plantation police officer; his brother, also an ex-cop; and
a real estate lawyer.

Miami attorney Michael D. Walsh, 44, did not appear to represent the
alleged ringleader and main defendant, Joseph Guaracino, in Fort
Lauderdale federal court on Monday, nor did he appear for a "show
cause'' hearing Tuesday morning on why he should not be held in contempt
of court.

On Monday, Walsh went to South Miami Hospital, but U.S. marshals were
unable to find him when they went there to serve him with papers on the
hearing set for Tuesday morning, according to authorities. After he did
not show up for the hearing, U.S. District Judge James Cohn issued the
contempt order. The marshals are now looking for him to serve the
warrant.

Monday news and notes

This summary is not available. Please click here to view the post.

Congrats to Bob Scola (UPDATED)

The White House officially nominated him yesterday. Congrats!

Now we need to get the Congress to confirm him and Kathy Williams. The holdup is inexcusable.

Here's the press release from the White House:

The White House
Office of the Press Secretary
For Immediate Release
May 04, 2011
President Obama Nominates Six Judges to United States District Courts
WASHINGTON, DC - Today, President Obama nominated Dana L. Christensen, Katherine B. Forrest, Justice John M. Gerrard, Judge Yvonne Gonzalez Rogers, Edgardo Ramos, and Judge Robert N. Scola, Jr. for District Court judgeships.

"These individuals have demonstrated the talent, expertise, and fair-mindedness Americans expect and deserve from their judicial system," said President Barack Obama. "I am grateful for their willingness to serve and confident that they will apply the law with the utmost impartiality and integrity."

Judge Robert N. Scola, Jr.: Nominee for the United States District Court for the Southern District of Florida

Judge Robert N. Scola, Jr. serves as a Judge on Florida's Eleventh Judicial Circuit, where he has presided over criminal, civil, and family law matters since 1995. Prior to joining the bench, he spent a decade in private practice as both a sole practitioner and, from 1992 to 1993, at the law firm of Quinon, Strafer & Scola, as a criminal defense attorney representing a wide range of defendants in both state and federal courts. Judge Scola began his law practice at the Miami-Dade Office of the State Attorney, where he worked from 1980 to 1986. He received his J.D., cum laude, in 1980 from Boston College Law School and his B.A. in 1977 from Brown University.


UPDATED

Federal Bar President Brett Barfield tells me that the Federal Bar Luncheon next week will address the judicial confirmation process and what's taking so long. Here's the info:

The Federal Bar Association

SOUTH FLORIDA CHAPTER

LUNCHEON MEETING

When: Wednesday, May 11, 2011

Where: The Bankers Club

Guest Speaker: Bruce Moyer, the Federal Bar Association's National Counsel for Government Relations. We'll leave plenty of time to relax and catch up with each other before and after Bruce's talk at this last FBA lunch before the summer break.

The Federal Bar Association maintains a national presence in Washington through its advocacy and representation in the halls of Congress, the White House and throughout the Executive Branch. Coordinating that effort is Bruce Moyer, the FBA’s Counsel for Government Relations, a thirty-year Washington attorney and legislative representative. Bruce will address the challenges currently facing the federal judiciary, including the judicial vacancies crisis, and the significant role that the FBA is playing to sustain and support the federal courts and the administration of justice.



Time: 11:45 a.m. - 1:00 p.m.



Valet parking is available for $5.00 on

Flagler Street at Biscayne in front of Mia Restaurant. The

Bankers Club validates only valet parking



Cost: $35.00 for members

$50.00 for non-members

$20.00 for government, academic, and public interest lawyers



SPACE IS LIMITED: RSVP by reply to this email (fba@hklaw.com) or by calling (305) 789-7614 by Friday, May 6!



Please make checks payable to Federal Bar Association, c/o Brett Barfield,701 Brickell Avenue, Suite 3000 Miami, FL 33131

Happy Star Wars day

May the 4th be with you.




For my fellow nerds: http://m.wired.com/wiredscience/2011/05/may-the-4th-be-with-you-could-han-shoot-second/

So you want to be a Magistrate?

There are two openings in West Palm Beach. From a blast email sent from the Court yesterday:

Subject: Vacancy of U.S. Magistrate Judge (Two Positions)
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida. These appointments will succeed incumbents, who will be retiring on or about January 6, 2012 and May 27, 2012 respectively, and both positions will be located in the West Palm Beach Division. The full vacancy announcement and application can be located on the Court's website, www.flsd.uscourts.gov, with applications due no later than 5:00 p.m. on May 31, 2011. For more information, contact Steven M. Larimore, Clerk of Court, U.S. District Court, 400 North Miami Avenue, Room 8N09, Miami, FL 33128, or the Chair of the Magistrate Judge Merit Selection Panel, John Mariani, Esq., 525 Okeechobee Blvd, Suite 1100, West Palm Beach, FL 33401.