Episode Two, sponsored by Black’s Law

Roy Black has published a genuinely stirring account of the leader and inspiration that was and is Judge Phillip Hubbart. The essay is poignant and thought-provoking, aspiring to mirror the dedication to excellence personified by its subject. Highly recommended reading, in short.

As a public service, I will encapsulate a significantly more prolix work evincing perhaps not the same commitment to quality as Mr. Black’s. Let’s look just at the majority’s opening line in the en banc Gilbert decision:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.

Truly pregnant: There was an error. At sentencing. No one doubts that. Hell, the Supreme Court said so. But this guy, this “federal prisoner”, wants to have it fixed now.He wants us to correct a sentence eleven years later. Well, where’s it going to stop? How many more of he are there?

All that follows is structured in the predictable way: “He” is a hapless, unrepetent, common criminal. The opinion preempts sympathy by pointing out that, even if he has a point, his sentence might well be the same—then graciously allows that it might be less. Ultimately, it erects “finality of judgment” as the bulwark shielding civilized and free society from such incorrigibles, even taking liberties with Justice Powell, having already violated Justice Holmes.

The short answer to all of it: It is just the sentence, not the judgment, being challenged. Finality is not implicated. Once that dawns, lines like this seem ludicrous: “A federal prisoner’s right to have errors in the calculation of his sentence corrected is not without limits.” No? Well, why not? You can’t just apply the new Supreme Court case and reset the sentence? What’s the big deal? It’s not like anyone’s asking for a trial or anything.

What must have driven Judge Hill to write the scathing dissent D.O.M. quoted at some length the other day is this reduction—this cheapening—of the judicial function from guardian of fairness to administrator of burdens. To claim that there is a higher value than ensuring that Americans are not capriciously incarcerated and that value is finality “of judgment” when really you mean “of penalty” is to abandon excellence as an aspiration. (And they know it; by violently distorting Holmes in ¶ 1, the majority seeks to cloak its abdication with excellence-by-association.) The fright for the future and lack of faith in our institutions that this abandonment symptomizes is so commonplace now that it escapes our notice—until we contrapose it with an image like Roy Black has painted with his essay.

Yesterday at the courthouse

The SEC got a split verdict yesterday in a civil case tried to a jury before Magistrate Judge McAliley. The amended complaint alleged that four people bought Neff Rental stock after receiving inside information that the company was to be acquired.

In December, two of the original defendants entered into settlements, signed by Judge Jordan, that included permanent injunctions against future violations of law. The SEC loves its permanent injunctions because they effectively reduce the burden of proof down to probable cause. But here’s a little nugget of law for defense attorneys and district judges (and future district judges): injunctions against violations of law are neither routine nor automatic. See S.E.C. v. Globus Group, 117 F.Supp.2d 1345 (S.D.Fla. 2000) (Jordan, J.).

The defendant found not liable yesterday was Dr. Sebastian de la Maza, 71-year-old father-in-law to then-Neff CEO and Miami Law graduate Juan Carlos Mas. The theory of defense de la Maza’s attorneys, James Sallah and Jeff Cox, put forth was that de la Maza had followed the stock for years.

And experts get knowledge how exactly?

A new Eleventh Circuit opinion is out today, and it’s the sort of thing that makes you hope for a writ of cert. The government pulled a guy out of prison and had him testify to the jury about how mortgage fraud works. Seriously, that’s just what happened:

Key, a former real estate attorney who was serving time in prison, was called as a witness for the government, and he testified about mortgage fraud.

Let’s pause and reflect for a minute on the fact that we live in a time where federal judges do not even blink when federal prosecutors do this sort of thing; it’s perfectly commonplace.

Okay, ready for the holding now? Here it is:

The district court did not err in permitting Key to testify as a lay witness. Because the part of Key’s testimony that was elicited by the government was based on his own personal knowledge of mortgage fraud, which he had acquired through his experience as a former real estate closing attorney who had engaged in fraudulent transactions of that nature, he did not have to be qualified as an expert under Fed. R. Evid. 702.

What? How do you possibly square that holding with the rule itself which specifically says that experts are people who gain specialized knowledge through “experience, training, or education”? Has no one on the Eleventh Circuit ever seen My Cousin Vinny?

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.