Monday morning

I wish I had some exciting stuff to post this Monday morning.  But it's fairly quiet after the soggy weekend. 

1.  Brian Tannebaum covers the politicizing of the judiciary here:

Yesterday the Republican Party of Florida voted unanimously to oppose the retention of three Florida Supreme Court Justices. For those (most people) not paying attention, there is a movement afoot to remove Justices Pariente, Quince, and Lewis because they are viewed as too liberal.

From The Miami Herald:

“The announcement that the Republican Party is engaged in this effort would shock those wonderful Republican statesmen who helped create the merit selection and merit retention processes,” said Talbot “Sandy” D’Alemberte, former president of the American Bar Association who, as a former legislator, helped to craft the law in the early 1970s."

This effort strikes at the heart of the "independence of the judiciary" talk that lawyers are engaging in at every Bar luncheon, conference, and in letters to the editor of bar publications. The jist of it is that judges should not be removed solely based on their rulings. If they commit misconduct or otherwise are not fit to serve, OK, but to campaign against the retention of judges merely because you disagree with their interpretation of the law, is to say that judges should not decide matters on the law but on the will of the public (most of whom believe that the problem with the death penalty is that it's not imposed enough and that the problem with prisons is that they are not full.)

2.  BLT covers the ongoing fight over judicial nominees:

Judicial nominees are still stuck in the Senate, and both political parties are again blaming the other.
Republicans blocked an attempt by Democrats Thursday afternoon to have confirmation votes on 17 non-controversial nominees for U.S. district courts across the nation, including 12 who would fill seats in districts considered to be "judicial emergencies."
Senate Minority Leader Mitch McConnell (R-Ky.) raised the objection to the votes, which means Democrats would have to go through a time-consuming cloture process to force a vote on each nominee. McConnell said the Senate already has met historic norms for confirming judges in this presidential year.

"Not only is President Obama being treated fairly in absolute terms, but the Senate is also treating him fairly relative to the number of nominees he has submitted," McConnell said on the Senate floor. "I am happy to work with the majority leader, but we cannot allow the majority to jam us here at the end of this session."
Majority Leader Harry Reid (D-Nev.) pushed for the votes on every district judge nominee awaiting action on the Senate floor, 14 of whom were non-controversial and approved from the Senate Judiciary Committee by voice vote.
"No matter how we try to juggle the numbers, we still have 12 emergencies," Reid said on the floor. "I hope my friends on the other side would at least look at some of those emergencies and see if we could get some help for those beleaguered judges out there and the court personnel."

3.  Justice Kagan's clerks write the first drafts of opinions (via WSJ):

 In a discussion Thursday at the University of Richmond School of Law, Justice Elena Kagan described clerks as having essential duties, such as helping choose the cases the court will consider each year, as well as talking them over with her to get a wide range of views, the Associated Press reported. Her opinions, she added, come from a first draft written by a clerk.
“I know the clerks improve my work,” Justice Kagan said, but added, “They are by no means junior varsity judges.”
The court receives about 8,000 to 9,000 petitions each year, according to Justice Kagan, and clerks help get the number down to about 75 which will be considered.

Getting the last word

Seems like both sides wants the last word in the Scalia vs. Posner cage match.  Last we checked, Scalia called Posner a liar.  Posner responds, and it's covered here:


Now Posner has fired back in a two-page response that he provided to Reuters. "Responding to a Supreme Court Justice who calls one a liar requires special care in expression," Posner said in an accompanying email.
In the response, Posner said he was neither lying nor mistaken in his critique.
"Even if I accepted Scalia's narrow definition of 'legislative history' and applied it to his opinion in Heller, I would not be telling a 'lie,'" Posner wrote in his response. District of Columbia v. Heller is the Supreme Court decision striking down the Washington handgun ban.
In the interview with Reuters on Monday, Scalia said "legislative history" refers to history of the enactment of a bill in the legislature and covers floor speeches and prior committee drafts, not "the history of the times."
Scalia also called legislative history "garbage" and "the last remaining fiction of the common law," noting that lobbyists can get such history inserted into the legislative record to change the meaning of the text that is adopted.
In his response on Thursday, Posner defended his use of the term, writing that Scalia was using legislative history in the gun rights case when he turned to a "variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment."
Scalia may define "legislative history" narrowly, Posner wrote, but his co-author, Bryan Garner, does not. Posner quoted a definition from Black's Law Dictionary, of which Garner is the editor, that describes "legislative history" as: "The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates."
"Background and events leading to the enactment" of the Second Amendment are the focus of Scalia's opinion in the gun rights case, Posner argued.
He also cited pages from the opinion that discuss the Second Amendment's drafting history, which he called "legislative history in its narrowest sense."

Death Penalty appropriate where jury is buying gag gifts for judge and bailiff?

Yesterday, the 11th Circuit said no problem.  First the facts:

Juror MH admitted to giving the Judge white chocolate in the shape of a penis. She testified that she called her husband to request that her friend—who owned a confectionary shop—make chocolate turtles for the jury. ... The friend, in addition to the turtles, included the white chocolate penis as a gag gift to lighten things up. ... Juror MH recalls that Bailiff LP told her that the Judge wanted to see it.

On the last day of the trial, Juror MH testified that she took the chocolate, which was in a box and inside a bag, to the jury room. Juror MH gave the gift to the Judge in the jury room, and the Judge slid the gift into her sleeve. ...

 ***

Bailiff LP received an inappropriate gift of white chocolate in the shape of female breasts from the jurors. ... After Bailiff LP returned from caring for her sick mother, the court clerk gave her a box containing white chocolate breasts monogrammed “[Bailiff’s first name]’s hooters.” Bailiff LP does not know who gave her the gift. She thinks that the gift may been prompted by a discussion at dinner between two of the younger male jurors. The two jurors were discussing how their grandmothers had ample chests and that when their grandmothers hugged them they felt they would be suffocated. Bailiff LP then joined the conversation by lamenting the fact that she would be remembered by her grandchildren for her ample chest. ...

The holding:

 The record establishes that the unfortunate giving of these tasteless gifts was nonetheless inconsequential to the verdicts, and otherwise played no part in the judge’s or jury’s consideration of the case. The two gifts were given independent of each other, given at the conclusion of the trial, and none of the jurors testified that the gifts were based on anything that occurred during trial. Furthermore, at most only a few of the jurors were involved in giving the tasteless gifts. None of the jurors testified that the gifts bore any relation to their decision to find Wellons guilty of murder and rape, and they testified that the gifts did not affect their decision to impose the death penalty.

 ***

We do not condone the acceptance of gifts, de minimus though they may be, by judges or bailiffs during any trial—criminal or civil. Nor do we condone the giving of gifts by the jury to the presiding judge or bailiff during any trial. Trial judges are expected to properly handle these situations, sternly admonish or discipline those involved, and disclose such occurrences to each party so that timely objections can be considered and made. The Judge here neglected to take such steps. Only because we have no doubt that the gifts did not factor into the judge or jury’s ultimate consideration of the case are we able to affirm the denial of habeas relief.

We also acknowledge that the ill-advised actions of a few thoughtless jurors could create the perception that this jury was too busy joking around rather than deciding Wellons’s fate. But these were two isolated incidents in the span of a multi-week trial and we cannot say, on the basis of this record, that the verdicts were tainted.

We put a heavy burden on the twelve men and women of a jury when we take them away from their jobs, families and lives, summon them to the courthouse, sequester them, and ask them to decide whether a person charged with a capital crime should be put to death. Although they were intended to bring a moment of levity to a serious and somber occasion, the gifts were tasteless and inappropriate. But we are unable to conclude that this conduct amounts to juror or judicial misconduct of sufficient constitutional magnitude to warrant habeas corpus relief.

Well, what do you all think?

Does the jury conduct in this case taint the death penalty verdict?
	yes
	no
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Today's Scalia vs. Posner review

This story will never end, and for some reason I can't get enough of it.  Justice Scalia is the latest to fire back.  And Above the Law has all the juicy details:

What are your thoughts on the Richard Posner book review?
“I’m not going to get into this whole thing written for a glossy magazine.”
Okay, I will say this. It was misleading of Judge Posner to claim that I used “legislative history” in District of Columbia v. Heller, the landmark Second Amendment case. There’s a difference between considering “legislative history” — a legal term of art referring to the history of the enactment of a given provision, such as committee reports and floor statements and the like — and looking to the history of the time to get an understanding of how terms in a provision were understood.
(For more on this, see the Thomson Reuters interview. Scalia reportedly said, “To say that I used legislative history is simply, to put it bluntly, a lie.”)

He also had lots of other things to say.  Here's one of my favorite topics:

Should Supreme Court arguments be televised?
No. When I first arrived at the Court, I was in favor. I feel like something of a traitor for changing my mind, but now I’m very much opposed. Proponents claim it would educate; in reality, it would just serve to entertain.
“We spend very little of our time on that nonsense [constitutional rulings on hot-button issues like abortion or gay rights]. Most of our time is spent on the Internal Revenue Code, ERISA — incredibly boring stuff that no one can love, and only a lawyer can understand.”
If SCOTUS arguments were to be televised, we’ll just end up with 15-second soundbites that would give the American people a wrong impression about the work of the Court.

If this topic is boring you, go check out the DOJ stats on corruption convictions since 2002.  New Jersey leads the pack. We rank 9th, but in recent years the numbers are much lower than they were early in the 2000s.

Meantime, Rumpole is discussing Ayn Rand and Bruce Springsteen.  It's an interesting read.

Are long appellate opinions a good or bad thing?

I like them, especially compared to the one word PCA that we see.

 But Judge Edmondson isn't convinced, writing this in a concurrence to a 104 page Judge Carnes opinion:

I stand with Judge Carnes about the correct judgment in this appeal: AFFIRM the District Court’s judgment to deny habeas corpus relief to the state prisoner petitioner.  I -- very respectfully -- do not join in Judge Carnes’s erudite opinion.  I stress that it is not because the opinion says something that I am sure is wrong or I am sure is even likely wrong.  I agree with much of the opinion, at least.  But the opinion says a lot and says more than I think is absolutely needed.
In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk. Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel's other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges' time and attention.)
***
It seems to me that the incidence of long opinions has been on the rise in the last decade or, at least, more are coming across my desk. I should say that I, broadly speaking, do not agree that the length of an opinion necessarily reflects the thought, labor, and care that has been invested by judges in their endeavor to decide the case correctly. The shorter opinions often reflect the greater study and thought leading up to the ultimate decision. Mark Twain touched on a related idea: "If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare."

Here's an article about the underlying case, in which Judge Barkett dissented:

The federal appeals court has upheld a death sentence against man who killed a sheriff’s deputy, even though the condemned inmate’s lead lawyer drank a quart of vodka every day during trial.
The 11th U.S. Circuit Court of Appeals in Atlanta, in a 2-1 decision issued Thursday, said that even though Robert Wayne Holsey’s trial lawyers did not do a competent job, their deficient performance did not prejudice the outcome of the trial. Holsey sits on Georgia’s death row for fatally shooting Baldwin County Deputy Will Robinson after an armed robbery of a convenience store in December 1995.
Holsey’s appellate lawyers noted that his lead trial lawyer, Andrew Prince, drank a quart of vodka every night of Holsey’s trial because he was about to be sued and prosecuted for stealing client funds. During Holsey’s appeal, Prince testified that he “probably shouldn’t have been allowed to represent anybody” because of his condition.
In its ruling, the 11th Circuit said the key question was not whether Holsey’s lawyers were ineffective. It was whether their deficient performance prejudiced the outcome to the point there was a reasonable probability Holsey would not have been sentenced to death.
Judge Ed Carnes, writing the majority opinion, said the abundant aggravating factors — such as the fact Holsey killed a deputy to avoid arrest and had a prior armed robbery conviction — outweighed any additional mitigation evidence Holsey’s lawyers could have presented to the jury had they been doing their job.
Judge J.L. Edmondson concurred with the decision, but he indicated it was a close call as to whether the poor performance of Holsey’s lawyers prejudiced the outcome of the trial.
In dissent, Judge Rosemary Barkett said the jury never learned that Holsey was subjected to abuse so severe, frequent and notorious that his neighbors called his childhood home “the torture chamber.” Holsey’s mother beat him with an extension cord, shoes and a broom and would hold his head under the bathtub faucet, Barkett wrote, also citing testimony that the house was infested with roaches and reeked of urine and rotting food.
Had the jury heard more about Holsey’s “horrific child abuse,” Barkett wrote, there is a substantial probability he would not have been sentenced to death.

Ned Davis Award to Judge Kathy Williams

It was a really nice event at the JW Marriott Marquis. Bernie Pastor was installed as the new president, taking over for two-termer Brett Barfield. Brett did an incredible job and Bernie will as well.

The new FPD Michael Caruso introduced Judge Williams. Both showed why they are such good trial lawyers, telling interesting stories including remembering Judge Davis. Pat Davis was also in the house and it was good to see her doing so well.

Would you do 40 months in federal prison for $100 million?

Maybe crime does pay.

Would you do 40 months in federal prison for $100 million
	Yes
	No
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Busy day at the 11th Circuit

Four published opinions already and it's not 2:30 yet.

The most interesting is Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Priori of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order.

This is the case that Paul Clement argued.  Judge Wilson wrote the opinion and Judge Pryor wrote a partial dissent.  Lots of juicy stuff here including this line:  

The district court attributed this confusion to the “unimpressive” amount of money each group raised for charitable purposes, which led the court to believe that the members of both organizations 'are more interested in dressing up in costumes, conferring titles on each other and playing in a "weird world of princes and knights’ than in performing charitable acts."  During the trial, the judge opined that it was “tragic” that all Dr. Vann had done in her life was study the Knights of Malta and their records. (D.E. 145, 8:1–6.) He also expressed his disbelief that two charitable organizations would spend their time and money on litigation. (D.E. 144, 34:5–7.)
These remarks are wholly inappropriate in the context of a judicial proceeding and a published judicial opinion. Although a judge is not required to check his or her sense of humor at the courthouse door, we must be mindful that the parties rely on the judge to give serious consideration to their claims. Litigants are understandably frustrated when they are subject to the sort of unnecessary belittling commentary about which the parties complain here.

Yet, this wasn't enough for the Court to reassign the case:

We think the district court’s remarks, though offensive to both parties, do not rise to the level of conduct that warrants assignment to a different judge on remand. We are hard-pressed to surmise actual bias in favor of, or against, one party over the other. Moreover, we are confident that, on remand, both parties will be treated with the respect they deserve and that the district court will be able to freshly consider the remanded claims notwithstanding its previously expressed views. And, given the fact-intensive nature of this case, any reassignment would necessarily require duplication of resources expended by the parties and the court. Accordingly, we deny Plaintiff Order’s request for reassignment on remand.