Judges read blogs

Even Justices do:

Supreme Court justices – most recently Elena Kagan – routinely cite Bashman's blog as a must-read, and visitors to the chambers of Chief Justice John Roberts Jr. have spied How Appealing displayed on his computer screen. A federal appeals judge once chided a prosecutor in open court for not following the blog and not knowing about a case Bashman had cited.

Judge Jordan answers questions at the Bankers Club

It was a good talk -- Judge Jordan is extremely patient and answered everyone's questions, even the silly ones that drag on and on where lawyers just want to hear themselves say something.  Judge Marcus even joined in on one answer and explained that the judges on the court do not engage in "collective bargaining." 

While we had two circuit judges in attendance (which is about 20% of the court!), there is a fight brewing over President Obama's most recent nomination to the 11th Circuit -- Jill Pryor.  From the AJC:

The 11th Circuit opening, created by Judge Stanley Birch in August 2010, also has been declared a judicial emergency. The circuit has jurisdiction over cases in Georgia, Florida and Alabama.
No pick for any of the vacancies has made it to the committee hearing stage and the process typically slows in an election year, with Republicans hoping for a new administration with more friendly nominees.
But the tango between Georgia’s senators and the White House has been odd even by the standards of the often contentious judicial nomination process, according to longtime observers.
Chambliss and Isakson refuse to say why they are blocking President Barack Obama's nomination of Atlanta attorney Jill Pryor for the 11^th Circuit appeals court, after both senators said they would approve her if she were nominated to the district court.
In January Chambliss and Isakson wrote to the White House saying they would approve Pryor and U.S. Magistrate Linda Walker for the district court openings, and Atlanta attorney Mark Cohen for the appeals slot.
Obama nominated Walker for the district court judgeship in early 2011, but as is often the case with multiple nominees from the same state the White House demanded she be included as a package with federal public defender Natasha Perdew Silas, whom Isakson and Chambliss blocked without giving a reason.
The Senate returned both nominees to the White House at year's end, and Obama has not renominated anyone for the district court openings.
The two senators also have not given "blue slips" to the Senate Judiciary Committee to allow a hearing on Pryor, a longstanding courtesy for home-state senators. Representatives of both senators said they do not comment on judicial nominees.
“They need to explain publicly why they’re holding up her nomination, which has been vacant for a long time,” said University of Richmond law professor Carl Tobias, who studies the confirmation process. “They’re sort of turning the Constitution on its head. The senators don’t nominate and give the president a chance to reject.”
Party politics is a potential motive. According to campaign finance records, Pryor often donates to Democrats, and last year she gave $2,500 to Obama’s re-election campaign.
Cohen, the senators’ preferred appellate pick, served as executive counsel and chief of staff to Gov. Zell Miller.

Glenn Sugameli calls out the senators:

Glenn Sugameli, who tracks judicial nominations for the environmental group Defenders of Wildlife, noted that Georgia's two senators were outspoken in opposing filibusters of President George W. Bush's judicial nominees. In a 2005 joint op-ed in The Atlanta Journal-Constitution Chambliss and Isakson wrote “denial of an up-or-down vote goes against basic principles of fairness."
Sugameli said the turnaround is striking, considering that the senators are preventing a hearing, much less a filibuster.
“To pervert that into a situation where you’re essentially demanding the right to make all of the nominations for all of the slots is outrageous, unwarranted, and ... it really hurts the people not only in Georgia but in the rest of the circuit for whom justice delayed is going to continue to be justice denied,” Sugameli said.

State vs. Feds

Who doesn't love a good fight between the federal and state governments?  Yesterday, the en banc First Circuit decided a fascinating case in which the Government of Rhode Island refused to turn over a murder suspect to the feds because they were seeking the death penalty.  The Providence Journal has more:

If Chafee were to prevail, "Pleau could be permanently immune from prosecution ...," the judges wrote, continuing, "Instead of a place of confinement, the state prison would become a refuge against federal charges."
Chafee had refused to surrender Pleau based on what he called Rhode Island's longstanding opposition to the death penalty. He could face the death penalty for his crimes under federal law.

And here's your moment of zen for the day:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Newt Gingrich & Mitt Romney Alliance Analogies
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive

Jackie Shapiro hosts Mark Wahlberg and the Rock...

... during filming of Pain and Gain, a film based on this Miami New Times article.

Here are some pictures:

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.