Justice Scalia called "friend" of criminal defendants...

...by the LA Times. So there, Rumpole. Check it out:

Justice Antonin Scalia, the Supreme Court's most outspoken and combative conservative, is not often described as friendly to criminals.

But in recent years, Scalia has led an unusual pro-defendant faction at the high court in reversing convictions for murder, drug dealing, wife beating and drunken driving.

Next up in early December is a Chicago rapist who claims his 6th Amendment right to confront his accusers was violated because prosecutors did not put on the witness stand a lab technician from Maryland who conducted the DNA test that sent him to prison.

This claim might have been a loser even during the court's long-past liberal era. But with the relentless Scalia leading the charge, it may well succeed, a prospect that worries prosecutors and crime lab directors across the nation.

Sometimes, Scalia's insistence on following the "original" Constitution leads to unexpected results. And for him, there are no shades of gray and no halfway measures.

The 6th Amendment to the Constitution says the "accused shall enjoy the right … to be confronted with the witnesses against him." To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those "witnesses" who did not or cannot testify in court. He takes this view even if the witness is dead.

Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles' rights because he could not confront or cross-examine her.

"We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding," Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.

How is it possible ...

... that the lead defendant's name is Mullet?

HT: ALC

"The Federal War on Drugs is a total failure."

That's Ron Paul at the Republican debate last night. Of course he's right, but why is he the only one (Democrat or Republican) to admit it?



Have a happy Thanksgiving.

Brian Tannebaum's holiday advice

Check it out here at Above the Law. One nugget:

Do not take your staff out for lunch

Your staff does not want to hang out with you. Not even her, the secretary who you think loves you and thinks your wife is awesome for giving her those stupid baskets of bath salts for Christmas. Your staff wants two things for the holidays — time off and money. I know, you think it’s cool to take them to that great steakhouse you go to three times a month, but is it really fun to watch them quietly and uncomfortably drool at a restaurant they’ve never been to and couldn’t afford unless you were paying for it?

The happiest I ever saw the staff in my office? The Friday before Christmas they arrived at work, were given gift cards, and told they could leave at noon and spend the rest of the afternoon shopping. Think about it — money and getting away from you sooner than expected — it makes you the hero.

Happy happy, joy joy:

Monday morning questions

1. Why don't they teach lawyering in law school (via NY Times)?

2. Why don't we require prosecutors to hand over all exculpatory information (via LA Times)?

3. Why doesn't that Supreme Court allow cameras (Via Time Ideas)?

4. Should Justice Kagan recuse from the health care cases (via USA Today)?

5. What is Justice Stevens doing in retirement (via Washington Post)?

Congrats to our new WPB Magistrates

Kim Abel (former AUSA) and Dave Brannon (former AFPD).

Excellent choices. And I believe that Dave is the first PD to be elevated to the magistrate position. Fantastic!

Manatee education patrol leads to $1 million marijuana seizure

You can't make this stuff up. From the government press release:

A routine patrol by police on Wednesday on Boynton Beach’s Intracoastal Waterway to educate boaters about the start of manatee season led to the discovery of nearly 1,300 pounds of marijuana valued at more than $1 million. As Boynton Beach Police Marine Unit Officers were patrolling the Intracoastal near the Boynton inlet, they observed a 30-foot center console boat heading north at a slow speed with two men aboard. The boat struck two sand bars, and one of its outboard engines was tipped up and not running. The officers headed toward the boat, which docked at the ramp in Harvey J. Oyer Jr., Boat Club Park. The defendants supplied the officers with Florida driver licenses, but could not produce valid registration for the boat. After the officers obtained verbal consent to go aboard, the defendants fled on foot. They were quickly apprehended after a short foot pursuit by Marine Interdiction Agents from U.S. Customs and Border Protection who were in the immediate vicinity.

Meantime, the feds are investigating state police shootings. From the AP:

The U.S. Justice Department launched a civil rights investigation Thursday into whether Miami police officers engaged in a pattern of excessive use of deadly force in the fatal shootings of seven African-American suspects over an eight-month span.

Thomas Perez, assistant attorney general for civil rights, and Miami U.S. Attorney Wifredo Ferrer said the probe will focus not on the individual officers but on whether the Miami Police Department's policies and practices on use of force led to violations of constitutional rights. The investigation is not criminal in nature.

"We're looking at systems. We're not looking at individual culpability," Perez told reporters. "We will follow the facts where the facts lead us. We will peel the onion to its core."

The shootings in inner-city Miami, from July 2010 to February 2011 and including two others that were not fatal, sparked outrage in the African-American community and led to protests at City Hall. The NAACP and American Civil Liberties Union, among others, demanded a federal investigation.

The former police chief, Miguel Exposito, defended the shootings as justified and said they resulted from confrontations caused by more aggressive police tactics in high-crime areas plagued by gangs. Exposito was fired in September for disobeying orders from the city manager, but the uproar over the shootings was a factor in his ouster.

In a written statement Thursday, Exposito said during his tenure people in many inner-city neighborhoods were demanding action against crime and gangs, leading him to double to 130 the number of tactical officers focused on those areas. Exposito said crime went down as a result.

"I trust that this is not an attempt by the U.S. attorney's office to politicize what should otherwise be an apolitical process," Exposito said.

Power outage

Yesterday afternoon the power went out at the courthouse. This was after the feds were called over to FDC to investigate suspicious white powder. Just a regular work day in Miami...

I wish there was some exciting news to tell, but it seems pretty quiet as everyone is getting ready for the holidays. Here are a couple notes:

1. Justice Scalia spoke at St. Thomas University yesterday. I can't find any news reports about his remarks.

2. The Justice Scalia of the 11th Circuit, Judge Carnes, writes this interesting sentencing opinion. Here's the intro:

A defendant convicted of distribution of child pornography is subject to a 5-
level enhancement under § 2G2.2(b)(3)(C) of the sentencing guidelines if the
distribution was to a minor. The defendant in this case distributed child
pornography to an unidentified person, not connected with law enforcement, who
convinced him that she (or he) was a minor. The district court applied the
distribution to a minor enhancement after concluding that the actual age of the
recipient, which has never been determined in this case, does not matter so long as
the defendant thought that the recipient was a minor. In doing so, the court
extended the reasoning of some of our decisions involving fictitious minors
created by law enforcement. Regardless of what we said in those other cases
involving different facts and different guidelines provisions, we reach a different
conclusion because the definition of “minor” in the application note to § 2G2.2
convinces us that here it is more than just the thought that counts.

3. If you win attorney's fees, try to get more than $1.50.

4. Lanny Breuer is complaining about sentencing after Booker, saying there needs to be more consistency. Why don't we just give em all 50 years in jail. That would be consistent.