Big shoes to fill

The Federal Defender's Office and Carlton Fields have some big shoes to fill.  Beatriz Bronis (Deputy Chief of Appeals at the PD's office) and Stephen Bronis (a partner at CF) are starting the next phase of their lives.  From what I hear, neither is retiring, but Beatriz is leaving the office and Steve will be cutting back but still associated with CF.  Congratulations and good luck!  Both are fantastic lawyers and will be missed.

Two words best describe the majority opinion: “wrong” and “dangerous.” UPDATED with hilarious Kozinski video

That's how Chief Judge Kozinski starts his dissent in United States v. I.E.V.  You gotta love his writing style:

My colleagues ignore these intractable realities and focus
instead on irrelevancies. They mention twice (so they must
think it’s pretty important) that the dog didn’t alert to
weapons. Maj. Op. 10, 16-17 n.6. But the dog did alert to
possible illegal activities that are often accompanied by
firearms. The majority also mentions twice (ditto) that the
dog alerted to possible drugs or humans, as if this matters.
Id. at 10, 18 n.6. It doesn’t: If the dog alerts to something
that might be drugs or humans, that something could be
drugs.
The majority mentions three times (ditto!) that I.E.V. and
his brother were teenagers, as if that matters. Maj. Op. 8, 10,
16. Teenagers are perfectly capable of carrying drugs and
killing people with guns. Teen kills cop, then self, Chicago
Tribune (June 20, 2007), available at
http://articles.chicagotribune.com/2007-06-20/news/07062
00859_1_kills-teen-cop.
The majority mentions four times (DITTO!!!) that San
Ramon didn’t testify, Maj. Op. 3, 5, 19, 20, and argues that
we may not “assum[e] that [he] ‘might legitimately have been
looking for’ a weapon,” id. at 20 (quoting Miles, 247 F.3d at
1015). ...
***

From the conclusion:

It’s easy enough, sitting safely in our chambers, protected
by U.S. Marshals with guns and dogs, surrounded by concrete
barriers and security cameras, to say that officers in the field
had no cause to fear for their safety. But if we’d been there
when I.E.V. and his brother pulled up in their car, heard the
police dog alert and seen one of the suspects fidget like he
was reaching for a weapon, I’d have dived for cover into the
nearest ditch, and my guess is I wouldn’t have been the first
one there.

Update:  One of the funniest videos I've seen (h/t AP):



2.  John Pacenti covers the upcoming trial before Judge Scola involving the issue of depos in Pakistan.  They don't have the Federal Public Defender's resources (because their client has been dismissed out of the case), so preparing has been tough:

In interviews with the Daily Business Review, the attorneys for the father-and-son imams talked about the undertaking and gave a preview of what they plan to argue in front of a jury next month.
It's a defense that will partly center on free speech, a government informant who infiltrated the clerics' mosques and whether the defendants knew money sent to Pakistan was earmarked for the Taliban.
"This is like putting on a wedding for a thousand people with a staff of two," said Joseph Rosenbaum, the Miami attorney for Izhar Khan. "This is a tremendous undertaking."
"Surprisingly, it seems no one has had to do live encrypted video depositions from Pakistan to Miami before. Go figure," said Khurrum Wahid, a partner at Wahid Vizcaino in Pompano Beach. He represents the father.

“He’s not in a black hole in Calcutta.”

That was the government prosecutor to Judge Cooke yesterday about Jose Padilla (via the Miami Herald).  Wiki describes the Black Hole of Calcutta this way:

The Black Hole of Calcutta was a small dungeon in the old Fort William, at Calcutta, India, where troops of the Nawab of Bengal, Siraj ud-Daulah, held British prisoners of war after the capture of the Fort on June 19, 1756.
One of the prisoners, John Zephaniah Holwell, claimed that following the fall of the fort, British and Anglo-Indian soldiers and civilians were held overnight in conditions so cramped that many died from suffocation, heat exhaustion and crushing. He claimed that 123 prisoners died out of 146 prisoners held.
However, the precise number of deaths, and the accuracy of Holwell's claims, have been the subject of controversy.

Well, if he isn't in a small dungeon in the ground where everyone dies, then everything must be just fine...

Padilla's lawyer Michael Caruso responded and got the continuance of the sentencing that he was seeking:

Jose Padilla, the convicted terrorist who once called the Fort Lauderdale-area home before joining the ranks of al-Qaida, won his bid Wednesday to delay his resentencing in Miami federal court.
U.S. District Judge Marcia Cooke granted a defense request to postpone the resentencing from Monday until Jan. 29. His lawyer argued the delay would give Padilla — who seemed more disengaged, gaunt and pale than during his Miami trial more than five years ago — extra time to improve his mental health.

Read more here: http://www.miamiherald.com/2012/11/28/3117335/convicted-al-qaida-recruit-jose.html#storylink=cpy#storylink=cpy

Federal Public Defender Michael Caruso said he believes the government has effectively “tortured” Padilla during his incarceration over the past decade and that he would benefit from visits from his Broward relatives at the Federal Detention Center in downtown Miami, where he was transferred recently. His mother and two brothers attended Wednesday’s hearing, but did not comment.
Padilla, 42, is serving a 17-year prison at the Supermax prison in Florence, Colo., where he’s held in isolation almost all day. He faces up to life in prison at his resentencing, after a federal appeals court last year rejected the judge’s initial sentence as too lenient.
“Since his arrest in May of 2002, the government has systematically attempted to destroy Jose by psychologically torturing him and imprisoning him under the severest of conditions,” Caruso, who represented Padilla at his 2007 trial, wrote in court papers. “Not surprisingly, this psychological torture has taken a toll on Jose.”

Read more here: http://www.miamiherald.com/2012/11/28/3117335/convicted-al-qaida-recruit-jose.html#storylink=cpy#storylink=cpy

Former weatherman victimized again? Federal prosecution imminent?

The New York Daily News covers B-Girl "victim" John Bolaris' latest issue (the blog's past coverage of his testimony is here).  Here are some of the tweets:

And from the article:

A former weatherman couldn’t have forecast his latest scandal, in which his fiancé took over his Twitter account while he was sleeping and unleashed a barrage of racy messages for his fans. John Bolaris, who was suspended from his job as a weather anchor for Fox affiliate WTXF in Philadelphia last year amid the bombshell story that he’d been drugged and robbed by beautiful women in Miami in 2010, was back in the headlines on Tuesday after fiancé Erica Smitheman drunkenly took over his Twitter account and repeatedly promised to post nude pictures of herself. The former Playboy model started her Twitter binge on Sunday night, writing, “Hello this is Erica…love John, he loves you all, I guess it’s ok if I send you all a naked photo or two…don’t tell my love.” She continued to write suggestive tweets referring to her modeling past and hinting that she’d taken over Bolaris’s account behind his back. “This is Erica, I did pose in Playboy…so what,” she wrote. “I will post my naked pictures…John Has no clue.” She also shared sexy pictures of herself and took aim at naysayers, as well as bragging that “sex is great” with her fiancé. “I am tweeting, he is sleeping,” she confirmed in a text to Philly.com, which reached out wondering if the reporter’s account had been hacked. “I am drinkinging and can’t take the haters! Lol,” she wrote, telling the paper she’d been ingesting liquid courage in the form of pinot grigio to write the tweets.

Should you be able to record the police?

In Illinois, the legislature wanted the answer to be no, but the 7th Circuit said the law violated the First Amendment.  The Supreme Court just denied cert, so the injunction is still on the books.  From the Chicago Tribune:

The U.S. Supreme Court on Monday declined to hear an appeal of a controversial Illinois law prohibiting people from recording police officers on the job.
By passing on the issue, the justices left in place a federal appeals court ruling that found that the state's anti-eavesdropping law violates free-speech rights when used against people who audiotape police officers.
A temporary injunction issued after that June ruling effectively bars Cook County State's Attorney Anita Alvarez from prosecuting anyone under the current statute. On Monday, the American Civil Liberties Union, which brought the lawsuit against Alvarez, asked a federal judge hearing the case to make the injunction permanent, said Harvey Grossman, legal director of the ACLU of Illinois.
Grossman said he expected that a permanent injunction would set a precedent across Illinois that effectively cripples enforcement of the law.

It reminds me of this YouTube video:

This Good Wife episode was based on that video. It's a fun watch:

WARNING -- do not forward this blog post!

The police my be reading your email.  According to the NY Times:

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

 A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant. A court in Washington compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws.

In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.

“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.

A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old. 

When the legislature does act, we get strange decisions from the executive:

 Nearly three years later, in a 190-page ruling, Judge Savage sharply criticized the police.

The first police officer had no right to look at the phone without a search warrant, Judge Savage ruled. It was not in “plain view,” she wrote, nor did Ms. Oliver give her consent to search it. The court said Mr. Patino could reasonably have expected the text messages he exchanged with Ms. Oliver to be free from police scrutiny.

The judge then suppressed the bounty of evidence that the prosecution had secured through warrants, including the text message that had initially drawn the police officer’s attention.

“Given the amount of private information that can be readily gleaned from the contents of a person’s cellphone and text messages — and the heightened concerns for privacy as a result — this court will not expand the warrantless search exceptions to include the search of a cellphone and the viewing of text messages,” she wrote.

Mr. Patino remains in jail while the case is on appeal in the state’s Supreme Court. A lawyer for Mr. Patino did not respond to a request for comment.

Just months before Judge Savage’s ruling, the Rhode Island legislature passed a law compelling the police to obtain a warrant to search a cellphone, even if they find it during an arrest. Gov. Lincoln D. Chafee, an independent, vetoed the bill, saying, “The courts, and not the legislature, are better suited to resolve these complex and case-specific issues.”

 Do we have any privacy any more?

Happy Thanksgiving! (UPDATED)

UPDATE -- Judges Carnes and Hill won't be sharing a turkey this holiday.  Check out Judge Hill's dissenting opinion in Rozier v. United States.  A snippet:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.

***

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.” On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution. As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

  Clearly justice is not the intended beneficiary of these procedural safeguards. On the contrary, the safeguards are designed to protect finality. If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional. In any event, I cannot join in this elevation of form over substance; of finality over fairness. Due process is the defining virtue of our system of criminal justice. But we should ask ourselves why. Is it because it achieves finality? Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant. The goal is a correct result – not simply the provision of process. To be sure, we do not guarantee a correct result. But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.
This is especially true where the petitioner is in federal custody, not state custody. We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism. Neither of these considerations is due the erroneously sentenced federal prisoner. It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law. I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin. At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).

Tuesday News & Notes

1.  The Court's Holiday Schedule is here.

2.  Former NFL player Louis Gachelin sentenced to two plus years.  (Via Sun-Sentinel).

3.  Lewis/Tein has some good news covered by the DBR and SFL.  UPDATED -- And Rumpole!

4. Alan Dershowitz interviews Jeffrey Toobin.  Really interesting.

5.  Former state prosecutor in Maine cuts his electronic monitor.  Apparently, that's very rare.

6.  The Washington Times updates the judicial nominees and the waiting time.