Eddie Dominguez leaving DBR

He's done amazing things with that paper, and it's too bad he is leaving. While most newspaper readership is declining, the DBR has been flourishing under Eddie's leadership. He's made the paper relevant and interesting, and he's been able to keep good, talented reporters. Not easy in this environment.

He's headed to City National Bank as Senior VP in charge of Communications, Marketing, and Community Relations, and I wish him well. Now he can take me, and his other sources, out to lunch...

His going away party is this Friday at Bin 18 if you want to see him off.

Everything is a crime these days

The Supreme Court decided to hear a case involving the Stolen Valor Act; i.e., whether it is a crime to lie about prior military service:

The court said Monday it will rule on the constitutionality of a law that makes it a federal crime for people to claim falsely, either in writing or aloud, that they have been awarded the Medal of Honor, a Silver Star, Purple Heart or any other military medal.

The Stolen Valor Act, which passed Congress with overwhelming support in 2006, apparently has been used only a few dozen times, but the underlying issue of false claims of military heroism has struck a chord in an era in which American soldiers are fighting two wars.

At the same time, the justices have issued a series of rulings in recent terms in favor of free expression, striking down California's violent video restrictions and a federal law involving cruelty to animals. It also upheld the right of protesters to picket military funerals with provocative, even offensive, messages.

The federal appeals court in California struck down the military medals law on free speech grounds, and appeals courts in Colorado, Georgia and Missouri are considering similar cases.

The Obama administration is arguing that the law "serves a crucial purpose in safeguarding the military honors system." The administration also says the law is reasonable because it only applies to instances in which the speaker intends to portray himself as a medal recipient. Previous high court rulings also have limited First Amendment protection for false statements, the government said.

This was the case that Judge Kozinski said went too far because everyone lies:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for
career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy
is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social
intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

While the U.S. Supreme Court is hearing that case, the Florida Supreme Court is going to decide whether loud music is a crime or not:

The Florida Supreme Court will soon rule on whether regulating car stereo volume is a violation of drivers' First Amendment rights, possibly eliminating local noise ordinances in one fell swoop.

The court announced Monday that it will hear arguments in State vs. Catalano in February, a case that began when police in St. Petersburg ticketed a corporate lawyer for exceeding the noise limit by blasting a little Justin Timberlake at 7:34 a.m. on his way to work.

Richard T. Catalano fought the $73.50 ticket, and he's fought it all the way to highest levels of state law.

Really Mr. Catalano? Blasting Justice Timberlake?!

In other news, Cain is polling ahead of Obama...

Monday Morning

Nothing much happening this Monday morning, except rain and Siri. Here's some quick news and then your moment of Monday zen:

1. Justice Kagan speaks in Tampa and explains that the Justices don't email:

She also revealed that the justices "ignore 25 years of technology" in communicating with each other.

"The justices do not e-mail each other," she said. "The clerks e-mail each other, but the justices do not." Instead, the justices send each other memos, hand-delivered by clerks. Kagan said she prefers the old-fashioned way of communicating.

2. Drug charges were fabricated in NY. This is a crazy story:

Anderson, testifying under a cooperation agreement with prosecutors, was busted for planting cocaine, a practice known as "flaking," on four men in a Queens bar in 2008 to help out fellow cop Henry Tavarez, whose buy-and-bust activity had been low.

"Tavarez was ... was worried about getting sent back [to patrol] and, you know, the supervisors getting on his case," he recounted at the corruption trial of Brooklyn South narcotics Detective Jason Arbeeny.

"I had decided to give him [Tavarez] the drugs to help him out so that he could say he had a buy," Anderson testified last week in Brooklyn Supreme Court.

He made clear he wasn't about to pass off the two legit arrests he had made in the bar to Tavarez.

"As a detective, you still have a number to reach while you are in the narcotics division," he said.

3. Still waiting to hear who made the cut from the Magistrate interviews last week. Please email me if you know and I will keep your name confidential.

And now your moment of zen:

Judge Jordan voice vote with no opposition

Congrats to Judge Jordan who took the next step today in getting to the 11th Circuit. The judiciary committee's voice vote was unanimous today on Judge Jordan. Senator Sessions even congratulated President Obama on nominating Judge Jordan, who said he had met with him and was impressed with his "12 good years as a district judge" and his prior experience. Cool!

HT: Glenn Sugameli

Feds decide not to retry lawyer and police officer in mortgage fraud case

It's the right decision. After two really long mortgage trials before Judge Cohn, the government needs to cut its losses. From the Sun-Sentinel:

Federal prosecutors said Wednesday they are dropping all criminal charges against a Fort Lauderdale lawyer and a former police officer arrested last year in a mortgage fraud investigation.

The decision to dismiss the cases against attorney Steven Stoll and former Plantation Police Officer Dennis Guaracino comes a month after a Fort Lauderdale federal jury deadlocked on the charges against them.

The two men and Joseph Guaracino, who is Dennise Guaracino's brother, spent more than five months on trial defending themselves against allegations resulting from "Operation Copout" — an inquiry into a group of police officers involved in suspicious real estate transactions.

The U.S. Attorney's Office will continue pursuing its case against Joseph Guaracino, whose first trial also ended in a hung jury, federal prosecutors told U.S. District Judge James I. Cohn.

Not a good day for Joseph Guaracino though... I wonder why the different decision. Anyone have the scoop here?

And I know I'm being annoying on the press release issue, but shouldn't the feds issue a release about its decision to drop the case against the other two. If you google their names, the arrest press release still comes up... If the USAO can do a release on every illegal lobstering arrest (there seems to be a bunch of those on the website), then certainly they can do one here, no?

Telling a story

Roy Black has had quite a bit of great stuff on his blog recently about opening statements and telling a story. He explains why lawyers need to start strong and be dramatic. And of course, he is right on.

I was watching the Republican debate last night and it was evident why Herman Cain is gaining steam with his 999 plan -- it's dramatic, it's easy to understand and it resonates with people. Lawyers could learn a lot from watching Cain in these debates.

Check out this video (embedded below) from the debate at the 54 minute mark where Cain takes on Romney and Romney's 59 point plan (in 160 pages) while describing his own plan as simple and efficient. Romney has a good strong beginning with his answer, but you can see why Cain is doing well and is a good cross-examiner. At the end of Romney's answer, Cain says: So the answer to my question is no, it's not simple.

Bachman tries to go after Cain's plan by saying to flip 999 upside down (which makes it the number of the devil!) and Huntsman tries to say it's the price of pizza. Not so effective... Someone needs to come up with some easy to understand talking points about why 999 doesn't work. If not, Cain is going to keep gaining momentum -- not because the plan will necessarily work. But because he is telling a better story than the rest.

Columbus day reading

Here's some fun reading for those of you at work, like me:

1. The first of the Cuban 5 is out. Now what do we do with him? (Via Curt Anderson)

2. The Glass Ceiling doesn't apply to my law firm. (Via NY Times)

3. Judge Denny Chin talks about the difficult time he had sentencing defendants. (Via NY Times)

4. Justices Scalia and Breyer talk to Congress. (Via NPR) Here's an interesting exchange:

Scalia said he tries to figure out how the framers themselves understood the rights they outlined, and then carry those forward to today. Anything beyond that, he said, would be drafting new rights into the Constitution.

"I don't trust myself to be a good interpreter of what modern American values are. I have very little contact with the American people, I'm sorry to say. You do, and the members of the House probably even more," Scalia said. "So if you want to keep the Constitution up to date with current American values, you ought to decide what it means, and you can kiss us goodbye."

Then Breyer actually helped Scalia make an argument, explaining Scalia's worry that Breyer will end up substituting what he thinks is right for what the Constitution actually says.

"What I say is, yes, you are right about that — and all I can do is be on my guard, write my opinions, try to look to objective circumstances," Breyer said, "and I see the opposite danger — the opposite danger is called rigidity. The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century — work in the way those framers would have wanted them to work had they been able to understand our society."

Then, in a moment of remarkable collegiality, the liberal justice prompted Scalia to make an argument Breyer knew would trump what he had just said. He reminded Scalia about a familiar joke.

Two old friends are camping, Scalia said. When a great, big grizzly bear comes after them, the slower, pudgier friend says they will never outrun the bear. The friend running in front says, "I don't have to outrun that bear. I just have to outrun you."

"It's the same thing with originalism — I just have to show it's better than his [idea]," Scalia said.

It was clear the two justices had debated this hundreds of times. Wednesday's argument just happened to take place before a group of powerful senators. Because of that, the session became a kind of master class in the philosophy of law — and the art of "comity."

5. Scalia also says that the drug laws have hurt the judiciary (Via The Atlantic):

Supreme Court Justice Antonin Scalia isn't a supporter of legalizing drugs. But he does believe that passing federal laws against them has done harm to the U.S. government. "It was a great mistake to put routine drug offenses into the federal courts," he told the Senate Judiciary Committee Wednesday. The Wall Street Journal went on to report Scalia's belief that the laws forced Congress to enlarge the federal court system, and diminished "the elite quality of the federal judiciary."

6. The Sun-Sentinel got the Mangione search warrants.

Judge Jordan’s nomination delayed and will join dozens awaiting Senate Floor votes

GUEST POST BY GLENN SUGAMELI

David Oscar Markus lives in a rational world. Thus, he reasonably believed that the U.S. Senate Judiciary Committee would vote today on the nomination of S.D. Fla. District Judge Adalberto José Jordán to be a United States Circuit Judge for the Eleventh Circuit.

After all, Judge Jordan is strongly supported by his Florida home-state U.S. Senators, The Palm Beach Post Editorial Board urged a truce to avoid any delay of his confirmation, his hearing was uneventful, he was on today’s Committee’s agenda, and Chairman Pat Leahy’s statement explained that:

“Federal judicial vacancies across the country remain above 90. This is the longest extended period of high vacancies in the last 35 years. More than one of every 10 Federal judgeships remains vacant. Today the Committee has the opportunity to make progress and vote on 10 of President Obama's judicial nominees to fill vacancies in California, Missouri, Montana, Nebraska, New York, Washington, West Virginia and Utah, as well as on the 11th Circuit and the Federal Circuit.”

Judiciary Committee Republican senators, however, nearly always exercise their right to delay votes on every judicial nominee until the next week’s Executive Business Meeting the first time they are listed. Today, they delayed Judge Jordan and four others until Oct. 13.

Moe importantly, the fact that Judge Jordan is moving through Committee does NOT mean that he will get a Floor vote anytime soon. True, he has (bipartisan) home state senator support and should be approved without opposition in Committee. But that is also true of nearly all of the many other stalled nominees.

Anonymous and unexplained objections from GOP senators have created an unprecedented backlog of consensus judicial nominees who could and should be approved very quickly. As Senate Judiciary Chairman Pat Leahy explained in July, "we will still have 25 nominees sitting on the calendar who could be disposed of within an hour, yet they are blocked week after week after week.”

Even the most consensus district court nominees are only confirmed after inexcusable and unexplained delays. For example, the New Orleans Times-Picayune’s Oct. 5 Editorial described how

“Nannette Jolivette-Brown will be the first African-American woman to serve on the federal bench in Louisiana, following a unanimous vote by the U.S. Senate Monday confirming her nomination. . . . She had the backing of both Sen. [Mary] Landrieu and Sen. David Vitter, who was a law school classmate at Tulane University. Both urged the Senate Judiciary Committee and the full Senate to confirm her quickly at her confirmation hearing in May.”

There were 27 Committee approved judicial nominees awaiting Floor votes before the Senate belatedly confirmed Jolivette-Brown and five others unanimously. When the Committee approves Judge Jordan and the other delayed nominees next week, there will once again be 27 awaiting Floor votes.

A sweeping nonpartisan push to fill federal judgeships extends from Supreme Court Chief Justice Roberts and Justice Anthony M. Kennedy, to the American Bar Association and Federal Bar Association, to countless editorials boards and commentators from across the nation.

Justice delayed is justice denied, as more than 200 million Americans live in areas where the U.S. Courts have declared vacant judgeships to be judicial emergencies.

-Glenn Sugameli, Staff Attorney, Judging the Environment, Defenders of Wildlife