Something about a civil case

Magistrate Judge Torres entered judgment for the defendants, some music-industry personalities I’ve vaguely heard of but couldn’t pick out of a line-up, in a copyright case brought by some Finns:

Torres on Tuesday approved a motion by Miami-based Timbaland, whose real name is Timothy Mosley, and Nelly Furtado, for summary judgment and refused to allow the Finnish group to seek an overdue copyright and amend its complaint.

Can you make it sound even more boring?

"We're very happy," said GrayRobinson partner Karen Stetson, who represents Timbaland. "We thought from the beginning that this issue was an important one and followed the plain language of the federal Copyright Act. But the other side was trying to get away from the plain language of the Copyright Act."

Can you make it seem utterly crazy?

Stetson, whose co-counsel was Jonathan Gaines from GrayRobinson, said her client spent hundreds of thousands of dollars on discovery and litigation.

Speaking of the music industry and people you’ve never heard of, P.J. Pacifico, whose band used to play in New Haven way back in the day, has a new album out (available on iTunes) that I highly recommend. (Check out his entire oeuvre. You’ll thank me later, as Monk used to say.)

Truthiness at law

D.O.M. has been much pressed for time of late, so I’m going to look at some dissents he’s noted and ultimately make good on his promise to revisit Gilbert. These opinions present a problem I can’t tackle in a single post, so I have to proceed episodically. I want to suggest that what Stephen Colbert dubbed truthiness is spreading through the law like a nasty virus and that, whatever harm truthiness inflicts when spewed by politicians and propagandists, its employ in opinions may be even worse. And the dissenters are sounding the alarm.

D.O.M.’s quote from Judge Wilson’s Duke v. Allen dissent shows that the majority's affirmance of the state courts’ facts is indefensible. “But,” as Justice Scalia recently wrote, “reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand.” Far more grave is this claim by the Duke majority: defense counsel’s saying “‘let the record reflect that the district attorney pointed straight at the defendant when he said that,’ is just an oral motion made by a lawyer; it does not establish the fact of a gesture having been made.”

Leaves you dumbstruck, right? The law now considers a plain statement of fact—let the record reflect—to be a motion. If you’re the dissenting judge, what do you say to that? How do you explain how a record is made to someone who seemingly doesn’t grasp it from the word “record” itself? My first thought was that one could cite a few of the thousands of reported cases where a judge uses the phrase (and maybe for emphasis allude to the scene in My Cousin Vinny where the judge says to the court reporter, “Let the record reflect that counsel is holding up two fingers.”). A judge would hardly make a motion to himself (or to a court reporter), ergo the phrase must not signal a motion.

Judge Wilson chose another tack. In addition to a couple of cases in which counsel used the phrase, he cited evidence gurus Mueller & Kirkpatrick for the proposition that a statement for the record is no motion. But he didn’t cite M&K’s authoritative five-volume Federal Evidence treatise. No, he cited page 17 of their law school textbook, the one I use to teach evidence to UM’s 2Ls and 3Ls. Maybe I’m seeing more than what’s there, but I think that when, in a published case, one judge disputes another judge’s holding with reference to a law school textbook, there’s a veiled message there.

Rick Bascuas to guest blog

Readers of the blog always love when Professor Bascuas is posting. You'll have him all of next week. Enjoy!

WARNING!

Sisters of the Bar, beware:

The central stairs of the new Franklin County Common Pleas Courthouse seem almost to float up from the ground floor, suspended in a foyer of light and glass.
However, the aesthetic appeal of the stairway has an unfortunate side-effect in a building where judges sentence sex offenders: People can see up a woman's skirt from the busy walkway under the stairs.
"If you wear dresses, you're on notice that you might want to take the elevator, as I will be doing," said Judge Julie M. Lynch, who wears dresses exclusively to work.
Although it's probably best not to advertise the issue for fear of abuse, people partial to skirts, dresses and kilts have a right to know about the risk, Lynch said.

Justice Scalia calls other justices insane

I just love it. From his dissent today in Sykes v. United States:

JUSTICE SCALIA, dissenting.
As the Court's opinion acknowledges, this case is “an-other in a series,” ante, at 1. More specifically, it is an at-tempt to clarify, for the fourth time since 2007, whatdistinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C.§924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553
U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case inabout every second or third volume of the United States Reports.

As was perhaps predictable, instead of producing a clar-ification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the samething over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983).
***
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step — indeed, I think it would be highly responsible — to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

One year anniversary of Scott Rothstein's plea

Yup, it's been a whole year since he pled guilty.

Rule 35 requires prosecutors to file a motion to reduce a defendant's sentence based on cooperation withing one year. Well, they just got it in, filing the motion to reduce the 50 year sentence yesterday. The government didn't ask for a specific amount of time off of the sentence. So we will have to wait to see what kind of reduction Rothstein gets.

Any predictions?

Quick news and notes for out of town cases

1. Barzee and Pettus are still waiting for a verdict.

2. Another out of town trial -- Matt Menchel is fighting the feds in DC. He is crossing the case agent. From Law360:

Attorneys for four military equipment company executives accused of trying to bribe Gabon government ministers to win contracts sought to undercut the government’s chief informant in the case in Washington federal court Tuesday, alluding to his past appetites for drugs and prostitutes.

Federal Bureau of Investigations agent Christopher Forvour, the lead case agent for the FBI’s sting operation, admitted to Matthew Menchel, attorney for defendant Pankesh Patel, that the FBI knew about informant Richard Bistrong’s previous habits of using cocaine and frequenting prostitutes, which predated his time as an informant.

3. Miamian Nevin Shapiro got 20 years in New Jersey for a billion dollar Ponzi scheme.

4. Health care is being argued in Atlanta today.

"It just works."

Apple announced its upcoming iCloud service yesterday. This is great news for those of you who live on or frequent Miami Beach. Soon, when the police smash your phone to avoid public scrutiny and accountability, you won't have to preserve the evidence by sticking the SIM card in your mouth. Your iPhone will automatically upload the gunplay and mayhem and send it to your iPad and MacBook. We live in wondrous times.