“It presumes that the government is going to have a ministry of truth . . . and I just don’t think that’s our tradition."

That was Justice Kennedy in the Stolen Valor case today.  More:

The Supreme Court jousted for an hour Wednesday about whether the First Amendment allows the government to prosecute people for lying about earning military honors, and, if so, what else might be fair game.
Lying about whether your child received a medal? wondered Justice Samuel A. Alito Jr.
Holocaust deniers? asked Justice Ruth Bader Ginsburg.
People who lie about extramarital affairs? offered Justice Elena Kagan.
Justice Sonia Sotomayor tried out a personal example: “I take offense when someone I’m dating makes a claim that’s not true.”
***
He seemed to have one sure supporter in Justice Antonin Scalia, whose comments were uniformly protective of the government’s interests.
“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished” by those who falsely claimed them, Scalia said.
And Verrilli had one clear skeptic in Sotomayor.
“I thought the core of the First Amendment was to protect even against offensive speech,” she said. “You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming that they got one.”
But the rest of the court seemed more conflicted. Chief Justice John G. Roberts Jr., for instance, asked Verrilli if the government could criminalize lying about whether one received a high school diploma.

In other news, the 11th Circuit came out with a fascinating opinion today (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 USA v. John Doe), creating a Circuit split:

We turn now to the merits of Doe’s appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government’s use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought, because Doe’s decryption and production of the hard drives would not constitute “testimony.” And although that was the Government’s view as well, the Government nonetheless requested act-of-production immunity.13 The district court granted this request.

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

“Drugs are very harmful. They’re very dangerous.”

That's the governor's argument for random drug testing of all state employees.  Judge Ungaro pounced on this silly argument:

A federal judge in Miami Wednesday cast serious doubts about Gov. Rick Scott’s order requiring thousands of state government employees to undergo a random drug test, suggesting his policy “sweeps too broadly.”
U.S. District Judge Ursula Ungaro peppered a government lawyer with questions about the constitutionality of Scott’s policy, saying she had “trouble understanding the circumstances under which the executive order would be valid."

***

Ungaro said she would soon make up her mind about the legal challenge to Scott’s policy by the American Civil Liberties Union of Florida. The group argues that his order violates the Fourth Amendment rights of state workers because the testing requirement is “suspicionless” and therefore an illegal search and seizure.
“For the consent [to the search] to be valid, it has to be voluntary,” ACLU lawyer Shalini Goel Agarwal argued. “This blanket drug testing is unconstitutional.”
The legal challenge to the governor’s order, which has been placed on hold by Scott himself until the dispute is resolved, centers on whether the state has a constitutional right to require random drug tests of existing public workers and mandatory testing of all new employees. The governor issued his order last March.

Read more here: http://www.miamiherald.com/2012/02/21/2654971/federal-judge-in-miami-will-hear.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/02/21/2654971/federal-judge-in-miami-will-hear.html#storylink=cpy

 

 

So you wanna be a federal judge?

Hot off the Court's website:

Pursuant to the instructions set forth in the attached letter from Senator Bill Nelson and Senator Marco Rubio, dated February 16, 2012, the Florida Federal Judicial Nominating Commission is now accepting applications for the following position:

• U.S. District Judge, Southern District of Florida

This vacancy was created by the Senate's recent confirmation of U.S. District Judge Adalberto Jordan to the U.S. Court of Appeals for the Eleventh Circuit.

The revised Rules of Procedure for the Judicial Nominating Commission, dated April 11, 2011, application forms with incorporated instructions, and the names and addresses of the members of the Commission, dated February 14, 2012 are available at the following websites:

1. The Florida Bar (www.floridabar.org)
2. U.S. District Court for the Northern District of Florida (www.flnd.uscourts.gov)
3. U.S. District Court for the Middle District of Florida (www.flmd.uscourts.gov)
4. U.S. District Court for the Southern District of Florida (www.flsd.uscourts.gov)

In addition, these materials may also be obtained from the Commission's Statewide Chair:
John M. Fitzgibbons
The Law Office of John M. Fitzgibbons
707 North Franklin St
Suite 700
Tampa, FL 33602
Telephone: 813-221-8800

Completed applications must be received by the Commission's Statewide Chair and each Commission member in the manner specified by the Rules of Procedure by 5:00pm., Monday, March 26th, 2012. Applicants who are selected by the Commission for personal interviews will be interviewed on Friday, April 27th, 2012 at the Judge's Conference Room, 14th Floor, Wilkie D. Ferguson, Jr. U.S. Courthouse, 400 North Miami Avenue, Miami, Florida. The names of the applicants who are selected for personal interviews with the Commission, as well as the interview times, will be published on each website on or before April 18, 2012.

Snitching aint easy

The Herald has an interesting article this morning about a "cooperating witness" who wants to cut 13.5 years off of his sentence.  Chief Judge Moreno wants more information:

A federal prosecutor Tuesday recommended cutting one-time Haitian drug lord Jacques Ketant’s 27-year prison sentence by half, citing his “invaluable information” that helped authorities convict a dozen fellow traffickers, politicians and police officers from Haiti.


But U.S. District Judge Federico Moreno delayed his decision, saying he wants more details about the government’s attempt to recover $15 million in drug profits from Ketant, who was convicted in 2003 of smuggling 30 tons of cocaine into South Florida and New York.

Moreno also inquired about the status of Ketant’s Port-au-Prince mansion as well as an art collection of more than 200 paintings that boasted a Monet.

“It should be worth at least a million dollars,” Moreno said of the painting by the French Impressionist painter. “You don’t know where the Monet is?”

Assistant U.S. Attorney Lynn Kirkpatrick said the U.S. government already seized the Monet, was able to recover only a small portion of the drug profits, and that Ketant’s mansion was turned over to the Haitian government.

Uh-oh -- I hope that Monet isn't sitting in a DEA warehouse somewhere in Miami getting all moldy.  I wonder why the U.S. gets it as opposed to Haiti where this guy committed most of his crimes, except possibly murder which is alleged to have occurred here:

But the judge really caught the prosecutor and defense attorney by surprise when he disclosed that he had recently received a letter from a man who said Ketant was responsible for the alleged 1997 killing of his mother in South Florida, according to Moreno, who did not disclose names nor file the letter in the court record.


In court, Kirkpatrick said she was unfamiliar with the murder allegation and Oliva said it was unfounded.

The judge ordered both sides to address his questions within two weeks before he holds another hearing on the proposed sentence reduction for Ketant, who is imprisoned in Arkansas.

Ketant, 48, had lived as a virtually untouchable kingpin in his hilltop mansion overlooking Port-au-Prince. In 2003, Haitian President Jean Bertrand Aristide expelled him under U.S. pressure because Ketant’s bodyguards beat up an official at a private school attended by children of U.S. Embassy personnel.

Stolen Valor Act debated in High Court today

Hope everyone had a nice long weekend....

Today the Supreme Court is debating a fascinating case about how far the federal criminal code can be expanded.  The Stolen Valor Act makes to falsely claim to have been awarded military honors and decorations.  But are such lies covered by the First Amendment?  From the Washington Post:

The case has generated huge interest and divided First Amendment advocates, including the media, and veterans groups, who see the act as a necessary weapon to discourage what appears to a boomlet of self-aggrandizers.
According to a brief filed by the Veterans of Foreign Wars and two dozen veterans groups: “Pretenders have included a U.S. Attorney, member of Congress, ambassador, judge, Pulitzer Prize-winning historian and bestselling author, manager of a Major League Baseball team, Navy captain, police chief, top executive at a world-famous research laboratory, director of state veterans programs, university administrator, pastor, candidate for countywide office, mayor, physician, and more than one police officer.”
“This case is about theft, not lying in general,” wrote D.C. lawyer Michael T. Morley in the brief. “Alvarez, and others like him, have misappropriated for their own benefit an unearned share of the two centuries’ worth of goodwill and prestige associated with American military awards.”
But the U.S. Court of Appeals for the 9th Circuit in San Francisco agreed with Alvarez that the law did not meet the high standard courts must apply to attempts to restrict speech.
“Saints may always tell the truth, but for mortals living means lying,” Chief Judge Alex Kozinski wrote in response to the government’s request that the decision be reconsidered.
“Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship” and set up the government as “truth police” with the power to punish.
Other judges have seen it differently. The U.S. Court of Appeals for the 10th Circuit, in a separate Stolen Valor case, upheld the law’s constitutionality.
“As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech,” U.S. Circuit Judge Timothy M. Tymkovich wrote for another divided panel.

 Gotta love Kozinski....

Tony Mauro has a nice summary of what to look out for in today's argument here.  I will post the argument when it goes online.  Should be interesting.

What's better than one Pryor on the 11th Circuit?

Well, two Pryor's of course.  Today, President Obama officially nominated Jill Pryor (no relation to Bill Pryor) to the 11th Circuit, a day after Judge Jordan was confirmed to that Court. Judge Edmonson must be very proud -- his former clerk will get to serve on the court with him.

From the White House Press Release:

President Obama Nominates Jill A. Pryor to Serve on the US Court of Appeals

WASHINGTON, DC – Today, President Obama nominated Jill A. Pryor to serve on the United States Court of Appeals for the Eleventh Circuit.

“Jill A. Pryor has displayed exceptional dedication to the legal profession through her work and I am honored to nominate her to serve the American people as a judge on the United States Court of Appeals,” President Obama said. "She will be a diligent, judicious and esteemed addition to the Eleventh Circuit bench."

Jill A. Pryor is a partner at the law firm of Bondurant, Mixson & Elmore, LLP, in Atlanta, Georgia, where she specializes in complex business litigation at both the trial and appellate levels.

Pryor was born and raised in Harrisburg, Pennsylvania. She received her B.A. in 1985 from the College of William & Mary, graduating Phi Beta Kappa. She then attended Yale Law School, where she served on the editorial board of the Yale Law Journal and obtained her J.D. in 1988. After graduating from law school, Pryor clerked for the Honorable J.L. Edmondson of the United States Court of Appeals for the Eleventh Circuit. She joined Bondurant, Mixson & Elmore as an associate in 1989, becoming a partner at the firm in 1997. She represents both plaintiffs and defendants in the areas of business torts, corporate governance and shareholder disputes, class actions, trade secrets, intellectual property, fraud, and the Georgia and federal RICO laws.

Throughout her career, Pryor has been actively involved in the Atlanta legal community. She currently serves on the State Bar of Georgia Board of Governors and on the Board of Directors for the Georgia Legal Services Program. She has also served as President of the Georgia Association for Women Lawyers and as Chair of the State Bar of Georgia’s Appellate Practice Section. Additionally, Pryor was formerly a member of the Lawyers Advisory Committee of the United States Court of Appeals for the Eleventh Circuit as well as a member of the Executive Committee of the American Bar Association’s Council of Appellate Lawyers.

Judge Jordan confirmed 94-5!

Congratulations to the judge and his family. What a great addition to the 11th Circuit. He will be missed on the trial bench...

Glenn Sugameli has all of the scoop here, here, and here.

Judge Adalberto Jordan's vote at noon today

Barring any unforeseen roadblocks, he should be on the 11th today.

Here's the Herald with the latest.