"[The Eleventh Circuit] does not seem to be listening [to the Supreme Court]."

That's the intro to this New York Times article about death penalty habeas cases in which the lawyer's mistakes end up costing their clients.  One such story from the intro to the article:

A few days after Christmas, a divided three-judge panel of the court ruled that Ronald B. Smith, a death row inmate in Alabama, could not pursue a challenge to his conviction and sentence because he had not “properly filed” a document by a certain deadline.

As it happens, there is no dispute that the document was filed on time. But it was not “properly filed,” the majority said, because Mr. Smith’s lawyer did not at the same time pay the $154 filing fee or file a motion to establish something also not in dispute — that his client was indigent.

Nor did the majority place much weight on the fact that the lawyer himself was on probation for public intoxication and was addicted to crystal methamphetamine while he was being less than punctilious. In the months that followed, the lawyer would be charged with drug possession, declare bankruptcy and commit suicide.

 

The 11th in a 2-1 decision said no problem. The conclusion to the article explains that Judge Barkett has been dissenting in these cases:

 

Judge Rosemary Barkett dissented, saying she did not see how the case was materially different from that of Mr. Maples or a 2010 rebuke from the Supreme Court to her court. In that second case, a Florida death row inmate named Albert Holland was given a new opportunity to argue that his lawyer’s inaccessibility and incompetence had caused him to miss a deadline. In a concurrence in April in yet another blown-deadline case, Judge Barkett identified the larger question that runs through these cases: why is it morally permissible to blame clients for their lawyers’ mistakes?

The legal system generally answers by saying that lawyers are their clients’ agents. The answer makes perfect sense when you are talking about sophisticated clients who choose their lawyers, supervise their work and fire them if they turn out to be incompetent or worse.

But the theory turns problematic, Judge Barkett wrote, when the clients are on death row, have no role in the selection of their lawyers and have no real control over them.

Allowing Mr. Smith’s challenge to be heard in a federal court does not mean he would prevail. But, Judge Barkett said, he ought to be allowed to make his case. “It is unjust and inequitable,” she wrote, “to require death row inmates to suffer the consequences of their attorneys’ negligence.”

“It’s 90 percent accurate. Except the tutor is not as nerdy.”

That's Chief Judge Moreno discussing his role in the movie Rudy as Rudy's tutor.  Jay Weaver has a very entertaining article about the Notre Dame vs. Alabama Championship game tonight, and the federal judge ties to the game, including in addition to Judge Moreno, Judges Cohn (huge Bama fan) and Zloch (former ND QB).  More about Rudy:

It’s hard to say which fan has more bragging rights, but one thing is abundantly clear: Moreno’s cavernous chambers on the 12th floor of the ship-shaped federal courthouse in downtown Miami is like a shrine to his alma mater.
In the lobby to his office hangs a framed poster of the movie Rudy, autographed by his former college pal, Daniel E. “Rudy” Ruettiger. It reads: “To Judge Moreno, My Best Friend and #1 Inspiration … Ya Da Best, Rudy.”
The 1993 movie is about Rudy’s 27 seconds of fame during his one-game career as a fifth-string Fighting Irish defensive end. He beat all the odds to get into Notre Dame and onto the football team — thanks, in part, to Moreno.
The pair lived in adjacent dorm rooms in 1973 and ’74, while Moreno attended Notre Dame and Rudy was going to a nearby junior college, Holy Cross. Moreno, who majored in government and international relations, tutored Rudy in math, English and Spanish. Rudy was eventually admitted into Notre Dame, and the rest is history.
In the movie, Hollywood took some artistic license with Rudy’s script and portrayed the “tutor” on the big screen as a nerd who wore two watches and depended on Rudy to get him dates.

 

I particularly like the plaque in Judge Moreno's chambers that says: "Judge like a Champion today." 

And here's Judge Cohn:

“I’ve been an Alabama football fan my whole life,” said Cohn, who was born in Montgomery, raised in Tuskegee and graduated in 1971 from the state university in Tuscaloosa. “When [legendary coach] Bear Bryant came to Alabama in 1958, I was 10 years old. He was a god-like figure in Alabama,” Cohn said. In his Fort Lauderdale chambers, he displays an autographed picture of the current Alabama coach, with the inscription: “To Judge Cohn, Roll Tide, Nick Saban.”

Fun stuff.

Monday news & notes

1.  Anthony Davila is headed to the Supreme Court.  The blog coverage of the appellate case is here and it centered around his lawyer's decision to file an Anders brief before the 11th Circuit.  The appellate court, though, found an interesting issue, and now it's headed to the High Court.  Here's SCOTUSblog's coverage of the issue:

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal. The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out. The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.
 

2.  Openings were conducted on Friday before Judge Scola in the Pakistani Taliban case. The case is moving at an incredible clip.  Voir dire in a couple days, and each party only requested 20 minutes for opening statements. The Herald coverage, via Jay Weaver:

Hafiz Khan, a hunched man with a flowing white beard, was called the “Santa Claus imam” by the youngsters who attended his modest Flagler Mosque in Miami.
But on Friday, a federal prosecutor portrayed the 77-year-old Muslim cleric as an evil man who spewed hateful words about his adopted country and funneled at least $50,000 to support the Pakistani Taliban terrorist organization in violent attacks against U.S. interests overseas.
His goal, Assistant U.S. Attorney John Shipley said in opening statements of Khan’s terrorism trial, was to help arm the Taliban militants with weapons for their mission to topple the Pakistan government and carry out terrorist attacks against the U.S. military abroad.
“This is no man of peace,” Shipley told the 12-person federal jury Friday. “This is not a religious leader that any of you would respect.’’ 

*** 

Hafiz Khan’s attorney, Khurrum Wahid, said in opening statements that prosecutors have created a “caricature” of his client, asserting that his words were “hyperbole” and “contrary” to the Taliban’s violent campaign. Wahid said his client was driven by a “love” for the people in the Swat Valley region of Pakistan, near the Afghanistan border, where he was born and raised before becoming a Muslim leader and founder of a madrassa religious school.

“You’re going to hear he loved helping the poor and needy,” Wahid told jurors. “You’re going to hear he’s not pro-Taliban. In fact, it’s quite the contrary. ... You’re going to hearing of no evidence that the money went for guns. ...You’re going to hear it was for the madrassa, the love of his life.”
The younger Khan’s defense lawyer, Joseph Rosenbaum, minced the prosecution’s case against his client, saying that Izhar rarely came up in FBI-recorded phone conversations and was not personally responsible for sending any money to the Taliban.
Rosenbaum said that Izhar never heard a potentially incriminating voice mail message left on his answering machine by his father to pick up $300 from a South Florida donor, that the father said had been “approved for the mujahideen,” or Taliban militants.
 

3.  Cops vs. Cops. Rick vs. Rick.  The Altonaga trial is underway with Rick Del Toro and Rick Diaz battling it out.  From Scott Hiaasen:

A pair of veteran Miami narcotics detectives testified in federal court Friday against their former supervisor, accusing Sgt. Raul Iglesias of scheming to plant cocaine on a suspect and once carrying what appeared to be a bag of crack in his personal bag.
Detectives Suberto Hernandez and Luis Valdes told jurors that Iglesias asked the pair if they had any “throw-down dope” to plant on a drug suspect after a search of the man during a Jan. 27, 2010, surveillance operation turned up no drugs.
“He looked at myself and Hernandez and he asked for throw-down dope,” said Valdes, an officer for nearly nine years. “I said, ‘We don’t do that here. Nobody on this team does it.’ ”
Iglesias, 40, is on trial facing nine counts of conspiracy to possess cocaine, violating suspects’ civil rights, obstruction of justice and making false statements. The charges stem from what federal prosecutors have described as four separate incidents of misconduct over a four-month period in 2010, when Iglesias led a team in the police department’s Crime Suppression Unit, which targets street-level drug sales.***But under cross-examination from Iglesias’ lawyer, Rick Diaz, Valdes conceded that he did not see Martinez hand the drugs to Iglesias. Nor did he see Iglesias plant the baggie on Rafael Hernandez. Iglesias told the detectives he found the drugs in the back pocket of Rafael Hernandez’s jeans — though neither detective saw Iglesias search the suspect.
Diaz challenged the detectives’ stories and suggested that Iglesias simply found evidence that Detective Hernandez had overlooked. The lawyer questioned how thorough Hernandez was in his search, noting that, in a case in 2004, the detective had failed to find drugs on a suspect who was later found to be carrying them.
And in an interview with Internal Affairs detectives and an FBI agent in May 2010, Diaz told the jury, Detective Hernandez described his search of the suspect as merely a “pat down” — a less intrusive type of search that does not include searching the contents of a suspect’s pockets.
Valdes and Hernandez also said they once saw a bag of what appeared to be crack cocaine in a military-style bag that Iglesias owned. They said the bag was not marked as evidence or part of a police-issued “sting kit” used when officers pretend to be drug dealers in reverse stings. But Diaz argued that the bag may have contained “sham” drugs or household items that merely looked like drugs.
If the detectives thought Iglesias was carrying illegal drugs or planting evidence, Diaz asked, then why didn’t the officers complain to their superiors, or even arrest Iglesias?

“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress...

...But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."

That was Second Circuit Judge Jon O. Newman in an opinion all about the middle finger.  Here's the intro to the opinion:

An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,1 to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal. Plaintiffs-Appellants John Swartz (“John”) and his wife, Judy Mayton-Swartz (“Judy”), appeal the July 8, 2011, judgment of the United States District Court for the Northern District of New York (David N. Hurd, District Judge) granting summary judgment to Defendants-Appellees Richard Insogna, a St. Johnsville, New York, police officer, and Kevin Collins, an officer with the Montgomery, New York, Sheriff’s Department.
 
Accepting, as we must at this stage of the litigation, the Plaintiffs’ version of the facts, we vacate the judgment and remand for further proceedings.

I like footnote 1: See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008).


The NY Times has more:

There is usually no mistaking the act or intent of extending a middle finger.

John Swartz was arrested in May 2006 after he raised his middle finger upon spotting a police radar device in St. Johnsville, N.Y. An officer says he thought Mr. Swartz might be seeking help.

Take John Swartz, for example. In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device.

Mr. Swartz, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof.

The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.

He later filed a civil rights lawsuit, and although a lower court judge dismissed the case, the prestigious United States Court of Appeals for the Second Circuit in Manhattan reversed that decision on Thursday, ruling that Mr. Swartz’s lawsuit can go forward.

The appellate decision offers a rich thumbnail sketch of the history and significance of the raised middle finger, one that traces possibly the first recorded use of the gesture in the United States to 1886, “when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.”

Mr. Swartz’s intent, 120 years later, was undoubtedly similar.

He made the gesture as his fiancée and now wife, Judy Swartz, was driving on the Sunday evening before Memorial Day through St. Johnsville, a village of under 2,000 people, about 50 miles northwest of Albany.

“I couldn’t see the officer, didn’t know who he was,” Mr. Swartz, 62, recalled on Thursday. He explained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes.

“It was very disheartening,” Mr. Swartz said. “They’d do it constantly to the point where they ignored all of their other duties.”

Starting the year with a bang

Yesterday the Pakistani Taliban trial started.

And today, Judge Altonaga starts a trial with "a Miami police sergeant charged with planting cocaine on a suspect and stealing drugs and money from dealers."  In the sergeant's corner is Rick Diaz.  The government is represented by Rick Del Toro. The Herald has more.

Next month, Kim Rothstein is set to plead guilty to a 371 conspiracy count.  I feel bad for her, especially if it was her husband who ratted her out. The Sun-Sentinal has the coverage.

Life in this District is never boring!

SDFLA starts 2013 with Pakistani Taliban trial

Out of the frying pan; into the fire.  That's what Judge Scola must be thinking after just finishing a very lengthy B-girls trial to end 2012, and now starting the Pakistani Taliban trial to begin 2013.

Paula McMahon has the details:

When the high-profile trial of two South Florida religious leaders accused of sending cash to help the Pakistani Taliban begins Wednesday, their defense is expected to argue they were simply offering charity to family and friends in their troubled homeland.
Izhar Khan, 26, was the young imam at a Margate mosque; his father, Hafiz Khan, 77, led a Miami mosque until they were arrested in May 2011 on federal charges they sent cash to the terrorist organization.
The men, both U.S. citizens born in Pakistan, are charged with funneling $50,000 from South Florida to the Taliban between 2008 and 2010. Prosecutors used more than 1,000 wiretapped phone calls, bank records and a confidential informant to make their case.
The case hinges on whether jurors believe the men conspired to help terrorists who target U.S. and Pakistani interests. The Taliban has been linked to al-Qaida and had a role in the failed attempt to bomb New York's Times Square in May 2010 and other attacks, experts say.
Defense attorneys say the men's motives were misinterpreted and the money was for family members affected by violence in the Swat Valley in northwest Pakistan. The money was also to help a school for boys and girls, established long ago by the elder man in his hometown, the defense said.
Both men pleaded not guilty and have been locked up since their arrests. The trial in federal court in Miami is expected to take several weeks.
Jury selection is expected to take a few days. U.S. District Judge Robert Scola Jr. said dozens of potential jurors will fill out questionnaires before he asks about their attitudes toward Islam, terrorism and other possible biases.
Though Hafiz Khan looks frail and confused and comes to court in a wheelchair the judge ruled he was mentally competent for trial and there was evidence he exaggerated some memory problems. At prosecutors' request, jurors shouldn't see the wheelchair, which federal marshals said is used only for convenience to move him quickly from his cell to court.
Izhar Khan was a popular, soft-spoken leader at Margate's moderate Masjid Jamaat Al-Mumineen mosque off Sample Road, congregation members said.
The young man reserved his fervor for basketball and cricket, supporters said. They said he was known for preaching tolerance of other religions and his in-depth religious knowledge. He lived in the U.S. since age 8, records show.

 The courtroom will be missing Federal Defender Michael Caruso, whose client was dismissed from the case months ago.

The case starts today in violation of Rumpole's trial rule #4 -- never try a case in January.

Happy New Year!

I just wanted to wish everyone a happy and healthy new year and thank everyone for stopping by and reading, and for sending tips.

The District changed quite a bit this year and will continue to undergo a transformation in 2013. Should be fun to watch -- and blog about.

Best posts of 2012

Kyle Swenson of the New Times covers local blogs' best posts here, including SDFLA.

I picked the posts about Judge Jordan's confirmation process.  The blog gets lots of traffic when there are posts about new judges and magistrates (thanks to all my tipsters, who get me this information quickly and before the main stream media), and Judge Jordan's confirmation process seemed to get the most attention, including lots of hits from the court family (judges, clerk's office, prosecutors, and defenders) and nationally.


We should have a bunch of new judges to discuss in 2013...