May the 4th...

...be with you.

"You're taking positions that are totally absurd to me."

That was Judge Reggie Walton to the prosecutors during the Roger Clemens' trial yesterday.  What got him so upset?  According to SI:

Pettitte, Clemens' longtime friend and former teammate, was on the stand for a second day in the trial that is to determine whether Clemens lied at a 2008 congressional deposition and hearing when he denied taking steroids and human growth hormone.
During cross-examination, Clemens' lawyers got exactly the answers they wanted.
Might Pettitte have misunderstood when Clemens supposedly acknowledged using human growth hormone to Pettitte in a conversation during the 1999-2000 offseason?
"I could have,'' Pettitte answered.
Is it fair to say there is a "50-50'' chance that Pettitte misunderstood?
"I'd say that's fair,'' Pettitte replied.
The government tried to salvage their witness, but prosecutor Steven Durham's follow-up questions were lacking - at least in the minds of Clemens' lawyers and, more importantly, U.S. District Judge Reggie Walton. Clemens' lawyers moved to strike Pettitte's testimony about the 1999-2000 conversation as "insufficiently definitive.''
The judge seemed to agree, openly wondering why Pettitte wasn't asked for a current, definitive recollection of the conversation. He repeatedly berated Durham, who was also part of the government team last July when prosecutors showed the jury a snippet of inadmissible videotaped evidence, prompting the mistrial.
"I was waiting for you to ask, and you didn't ask that,'' Walton said.
"My understanding is that (Pettitte's) position is at this time, he is conflicted. ... His testimony now before the jury is `I don't know,''' the judge continued. "I thought that what we would hear is, `Mr. Pettitte, currently, what is your memory of what Mr. Clemens told you back in 1999?'''
In other words, the jury might have concluded that maybe Pettitte did "misremember'' the conversation, as Clemens has claimed.
Durham tried to contend that he addressed the matter in a different way. The defense will file a brief in support of its position, and Walton could rule on Pettitte's testimony as early as Thursday.

It didn't get much better with the next witness:

Prosecutors had planned to call Steve Fehr, an attorney for the Major League Baseball players' union. Fehr was supposed to help show, in an indirect manner, that Clemens was aware that former Sen. George Mitchell had tried to contact Clemens when putting together the 2007 Mitchell Report on drug use in baseball. Clemens was named in the report, prompting Congress to call the February 2008 hearing at which Clemens testified.
Walton said he didn't understand what Fehr's testimony would accomplish and that it could amount to "trampling on the attorney-client privilege'' because it relies on Fehr's conversations with Clemens' lawyers. Walton said the government should use other evidence to show that Clemens was aware of the Mitchell request.
"Maybe I'm dense,'' Walton said, his voice rising. "I'm starting to think that maybe I just don't understand the law - because you're taking positions that are totally absurd to me.''
The government kept trying to argue its case, but Walton would have none of it.
"You're beating a dead horse, and you're not going to make it come alive,'' Walton said. "You're not going to win this one.''
Nevertheless, Walton said he would allow the government to do some research and file a brief before making a final decision.

11th Circuit sides with Hustler

Yesterday we discussed dirty words.  Today Hustler: The case involves the publication of 20-year old nude photos of Nancy Benoit after she and her child were murdered by her husband Chris Benoit.  The jury awarded $19 million in punis against Hustler, which the judge reduced to $250k. 

The 11th Circuit said no punitives were permissible:
 

There was substantial, consistent, and uncontroverted testimony from numerous LFP employees showing that they honestly and reasonably (albeit mistakenly) believed at the time that the photographs fit under the newsworthiness exception to the right of publicity.

***

The strongest evidence supporting our conclusion that this mistake on LFP’s part was reasonable is the fact that the district court in this case initially dismissed Toffoloni’s case because the court agreed with LFP that the photographs met the newsworthiness exception. Toffoloni v. LFP Publ’g Grp., No. 1:08-cv-421-TWT, 2008 WL 4559866, at *2-3 (N.D. Ga. Oct. 6, 2008). Although that decision of the district court was ultimately reversed in Hustler I, we do not believe that publishers should be held to a higher standard than that of the learned district judge.

"Deliver me not over unto the will of mine enemies..."

"...For false witnesses are risen up against me."  That was The defense attorney for Colombo crime family street boss Thomas “Tommy Shots” Gioeli during his closing arguments yesterday.  The NY Post has more:

Perlmutter implored the Brooklyn federal court jury to be careful in weighing the source of the evidence amassed against Gioeli.
"You must evaluate the credibility of these witnesses to decide if you can believe them," the attorney said.
That's when the spiritual tone evaporated in the silent courtroom, as Perlmutter described the ex-mobsters who testified against Gioeli as government witnesses, calling them "untrustworthy, unreliable, desperate individuals."
"You know what else they are? Rats!" Perlmutter said of the FBI informants.
Furthermore, even if Gioeli admittedly was at the scene at one of the premeditated mob hits, the attorney argued, that doesn't mean that he played a role in the killing.
"Simply because he was there, he is not guilty of that murder," Perlmutter said.

2.  The NY Times discusses bad words in the Supreme Court:

The most versatile of the classic Anglo-Saxon swear words has, diligent research reveals, made just one appearance in oral arguments before the Supreme Court. The cursing, in 1971, probably won the case, which concerned the prosecution of a vulgar protest against the draft during the Vietnam War. By repeating the word in court, the protester’s lawyer showed that it could have a role in public discourse. Over the next two decades or so, the word was used in nine Supreme Court decisions, typically in quotations of something a criminal had said. Its last appearance was in 1993.

Popular culture has grown coarser over the years, and the word is commonplace in hit songs and ubiquitous on cable television. The Supreme Court has moved in the opposite direction.

The justices do not want to hear the word even when the case before them turns on it. In arguments in 2008 and 2011, they considered two aspects of a case about whether the government may punish the broadcasting of four-letter words from four-letter celebrities like Bono and Cher, but no lawyer or justice said the words. When an appeals court first heard the case in 2006, judges uttered and examined the key word, considering whether its every permutation had a sexual connotation. 

3.  Looks like John Goodman is going to get a new trial.  Roy is doing a great job (via the PBP):

One juror in the panel that convicted polo mogul John Goodman of DUI manslaughter last month said he was not convinced of Goodman's guilt.

Juror Michael St. John made the revelation this afternoon as Circuit Judge Jeffrey Colbath interviewed the six jurors and two alternates on the case in response to allegations of juror misconduct in the case surrounding the Feb. 2010 drowning death of 23-year-old Scott Wilson. St. John said that he was pressured by other jurors to find Goodman guilty of DUI manslaughter.
"So when I asked you at the end of the case whether the verdict was your verdict, and you looked at me and said yes, why did you say that?" Colbath asked St. John.
"I didn't look at anyone," St. John responded. "I didn't look at him, I didn't look at any of the other jurors. I just looked at the floor when you asked me."

4.  Former NFL players are charged with ID-theft (via Jay Weaver):

 Three former National Football League players have been arrested by the FBI on federal charges in connection with an alleged scheme to steal people’s identities and file false tax returns in others’ names to collect thousands of dollars in refunds, according to authorities.

The three ex-NFL players charged with defrauding the federal government and ID theft are: William Joseph, a University of Miami defensive tackle drafted in the first round by the New York Giants in 2003; Michael Bennett, a University of Wisconsin running back also drafted in the first round by the Minnesota Vikings in 2001; and Louis Gachelin, a Syracuse University defensive tackle who was drafted by the New England Patriots in 2004.

Joseph and Gachelin are Miami natives; Bennett was born in Milwaukee. All three were questioned after their arrests Monday by FBI agents at the bureau’s North Miami Beach regional office. They were then transferred to the Federal Detention Center in downtown Miami for court appearances Tuesday afternoon before U.S. Magistrate Judge Robert Dube, according to the clerk’s office. Details of the alleged scheme are expected to be disclosed in a criminal complaint to be released later Tuesday.

Did secretary at grand jury suite violate grand jury secrecy?

1.     Jay Weaver covers Tamika Jasper-Barbary's motion to dismiss by Scott Srebnick before Judge Scola.  Looks like she has a good shot to prevail:

 Now, her defense attorney says he has uncovered a lack of evidence that could sink the government’s case against her.
The snitch — a convicted trafficker identified only as “L.B.” in the indictment — never testified before a federal grand jury, nor did a panel ever convene to hear his testimony. So, even if Jasper-Barbary had told her husband about L.B., she couldn’t have violated the grand jury’s secrecy or broken any laws, her attorney says.
“I think the government is playing games with this indictment,” Miami attorney Scott Srebnick told U.S. District Judge Robert Scola at a hearing last week. “Now we know there was no Miami grand jury sitting in this case.”
Court documents show prosecutors don’t dispute these facts. They acknowledge that a late November email shows Jasper-Barbary arranged a federal drug agent’s one-on-one interview with L.B. for the following month in a room of the grand jury suite at the downtown Miami federal courthouse.

If there was no grand jury and Jasper-Barbary had no duty of secrecy, then what's the deal:

Srebnick countered that Jasper-Barbary — who made $57,000 a year before her unpaid suspension in January — was not included in the seven categories of people who are obligated under federal law to maintain grand jury secrecy.
“There is no allegation that she or anyone else sought to influence L.B. to provide false evidence to the grand jury, or to avoid the grand jury altogether, or that she intended any harm to L.B,” Srebnick argued in a motion. “The only thing she allegedly did was disclose information, which is not a crime absent a legal duty to maintain secrecy.”

There are also claims of misconduct:

He argued that a Drug Enforcement Administration agent gave “misleading testimony” before a Fort Pierce federal grand jury, which returned the indictment against Jasper-Barbary, her husband and seven others in January. The agent affirmed that the main target of the investigation, Barbary, learned from his wife that Bennett was “being brought before a federal grand jury.”
But that was not the truth, Srebnick argues in court papers, because Bennett was never even scheduled to appear before the grand jury. As a result, the agent’s testimony “infected” the Fort Pierce panel, which proceeded to adopt the “government’s theory” that “Jasper-Barbary joined the drug conspiracies through her alleged obstruction of justice.”

My favorite part of the story:

Agents also found a book in the couple’s home. The title: Busted by the Feds: The Book for Defendants Facing Federal Prosecution.

Read more here: http://www.miamiherald.com/2012/04/28/2773405_p2/indicted-miami-grand-jury-worker.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/04/28/2773405_p2/indicted-miami-grand-jury-worker.html#storylink=cpy

2.  And by the way, in case you didn't see the post from late Friday evening, the JNC cut the judgeship applicants to three:

Robin Rosenberg
William Thomas
John Thornton

All three are state judges and they are all really good. It will be interesting to see who the President selects. 

Read more here: http://www.miamiherald.com/2012/04/28/2773405/indicted-miami-grand-jury-worker.html?story_link=email_msg#storylink=cpy

Read more here: http://www.miamiherald.com/2012/04/28/2773405/indicted-miami-grand-jury-worker.html?story_link=email_msg#storylink=cpy

BREAKING -- JNC cuts list to 3 for federal judgeship

The three finalists for the Ft. Pierce slot are:

Robin Rosenberg
William Thomas
John Thornton


Congrats!

Federal Friday

Lots happening on this Friday in the SDFLA -- all of the federal practitioners and judges were in West Palm Beach at the Federal Bench and Bar Conference, with one exception.  Congrats to Adam Rabin for putting together a really nice event and to Judge Jordan for his remarks during the lunch hour. 

The one exception is that the Federal JNC members weren't there as they were interviewing the applicants for the Ft. Pierce open seat.  As soon as I hear who made the cut, I will post.  Tipsters, please email me and I will keep it confidential as always.

Judge Ungaro rules drug testing of state employees unconstitutional

The well-written 37-page order is here. 

From the Palm Beach Post:

Miami U.S. District Judge Ursula Ungaro Thursday morning ruling that random, suspicionless testing of some 85,000 workers violates the Fourth Amendment ban on unreasonable searches and seizures also raises doubts about a new state law quietly signed by Scott this spring allowing the governor’s agency heads to require urine tests of new and existing workers.
“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing,” Ungaro wrote in her order issued this morning, citing previous U.S. Supreme Court orders which decided that urine tests are considered government searches.
Scott issued an executive order requiring random drug testing of new hires and all state workers after he took office last year. But he suspended the tests in June after labor unions and the ACLU challenged the order, objecting that the tests are a violation of the constitutional right to protection from unreasonable searches and seizures by the government. Instead, Scott limited his order for all but corrections officers pending the outcome of the Miami case.
***
Ungaro rejected Scott’s lawyers’ arguments and data showing that about 1 percent of workers at certain agencies who underwent the drug screens tested positive. And she was not persuaded by the governor’s arguments that private sector drug testing shows widespread drug use among workers. She also did not agree that prospective or current state workers could seek employment elsewhere if they object to the tests. New hires, but not current state workers switching jobs, could be required to take the tests, Ungaro ruled.
“All of the upheld drug-testing policies were tailored to address a specific, serious problem. In contrast, the rationale for the Governor’s policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace,” Ungaro wrote.

Congrats to the ACLU on a great victory.  The governor said he will appeal.