Monday morning

Hope everyone had a nice weekend.  Not much doing in SDFLA. 

What's left of Judge Scola's Pakistani Taliban trial continues today with the defense case.  Curt Anderson is covering it here:

Defense witnesses are set to testify from Pakistan in the South Florida trial of a Muslim cleric charged with financially supporting the Pakistani Taliban.

The first of up to 11 witnesses will testify Monday from an Islamabad hotel. The testimony will be beamed to a Miami federal courtroom via video hookup. Defense lawyers will ask questions in Pakistan, with prosecutors doing cross-examination using the video feed.

 There were a bunch of press conferences last week in the District about a new IRS crackdown on identity theft and tax fraud.  Apparently we are #1 again in this sort of fraud with the highest number of complaints of any state and the highest number for any city.

Also last week, there were a number of really good CLEs.  There was the appellate seminar, which ended up with a party at Judge Barkett's house for all the attendees.  Very cool move by Judge Barkett. 

The DCBA had a huge corporate law seminar at the Coral Gables Country Club, which was well attended.  The guest speaker was Brad Meltzer, who was excellent. 

And FACDL, along with FIU, had Tom Mesereau speak as part of its fantastic trial lawyer seminar series.  All reports say Mesereau (who was Michael Jackson's lawyer) was dynamic.

  Out of District -- this week will be oral argument in the Barry Bonds case.  And the Ninth Circuit has agreed to cameras in the courtroom.  I don't think it will air live, but it's a start.

Read more here: http://www.miamiherald.com/2013/02/11/3227991/testimony-from-pakistan-in-fla.html#storylink=cpy

"Sonia Sotomayor No Longer Interested in Bringing Cameras Into the Supreme Court"

That's the headline from this NY Magazine article. Although Justice Sotomayor testified before Congress that she was in favor of cameras in the High Court, she has changed her mind. Her rationale:

"There's no other public official who is required by the nature of their work to completely explain to the public the basis of their decision," she said, when asked about the hotly debated issue by moderator Thane Rosenbaum.  

"Every Supreme Court decision is rendered with a majority opinion that goes carefully through the analysis of the case and why the end result was reached. Everyone fully explains their views. Looking at oral argument is not going to give you that explanation. Oral argument is the forum in which the judge plays devil's advocate with lawyers.” “I think the process could be more misleading than helpful,” she added. “It's like reading tea leaves. I think if people analyzed it, it is true that in almost every argument you can find a hint of what every judge would rule. But most justices are actually probing all the arguments."

That makes absolutely no sense to me. People may be misled by actually watching oral argument instead of hearing someone else describe it or reading the transcripts? Really?

Meantime, Justice Ginsburg gave a talk at Harvard, which was covered by the Harvard Gazette.

A snippet:

[Dean Martha] Minow inquired about collegiality on the court, which is often deeply split. Ginsburg responded that over the years her husband’s culinary skills have helped foster a friendly atmosphere. He baked birthday cakes for members of the court, she said, and catered their quarterly meetings.

Ginsburg told Harvard Law School Dean Martha Minow that she looks back on her Harvard years with fondness.

In addition, the justices like to hold regular soirees, said Ginsburg, where they forgo work and “just listen to beautiful music.”
But are there times, Minow pressed, when, despite their ritual handshakes before they take the bench, a little animosity breaks through?
Ginsburg said she may occasionally bristle at a “nasty dissent” penned by another justice, but “we are all in this together, and we do revere the institution for which we work.” Still, she said she hoped the court someday will return to the “spirit of bipartisanship which prevailed in the early ’90s.”

"We Found Love In a Hopeless Place"

Not sure Rihanna had this in mind when she wrote that song:

He was one of the most notorious criminals in New York’s recent history, whose execution-style murder of two undercover police officers led a jury to issue the first federal death sentence in the city in more than a half century. 

 Ronell Wilson, right, in 2003, after appearing in court to face charges in the shooting of two undercover police detectives. She was a lonely correction officer, assigned to guard the cell block at the Metropolitan Detention Center in Brooklyn, where he was being held. 

 Inside the federal jail, Ronell Wilson, the convicted killer, and Nancy Gonzalez, his nighttime guard, would talk for hours, according to other inmates. They would disappear together for minutes at a time, behind closed doors. Several times, they were seen kissing, confirming suspicions of an illicit romance. 

 Ms. Gonzalez later admitted that the two had sex repeatedly, with the goal of having a child together. She was aware, she said, of the many possible complications, from the prospect of facing jail herself to the difficulty of telling her child the truth about his father. She explained her motivations to another inmate: “Why not give him a child, as far as giving him some kind of hope?” 

 On Tuesday, Ms. Gonzalez, 29, displaying the full contours of a pregnancy now in its eighth month, was arraigned in federal court on charges of sexual abuse of a person in custody, because an inmate cannot legally consent to sex. The charge carries a maximum sentence of 15 years in prison. She stood before the judge in a black overcoat and sweat pants, softly answering procedural questions while dabbing her eyes with a tissue. 

The press surged around Ms. Gonzalez the instant she stepped out of the courthouse, and she put her head on the shoulder of her lawyer, Anthony L. Ricco. “She’s had a very tragic life and as this case proceeds, you’ll learn more about it and how these affected her judgment,” Mr. Ricco said. He added, “People find love in the strangest places.” 

"[Senior status] is not a done deal until you tell the president."

That's Chief Judge Joel Dubina, saying he may not take senior status after all:

But on Monday, Dubina told the Daily Report that the Administrative Office may have acted too soon. He said he had notified Chief Justice John Roberts that he would relinquish the title of chief judge on Aug. 1 and planned to take senior status that day. He said Roberts needed to know because the chief judge chairs the U.S. Judicial Conference, on which circuit court chief judges serve.
But Dubina said taking senior status “is not a done deal until you tell the president,” an action he has not made yet because of the delay in filling the two Georgia-based seats on the Eleventh Circuit.
President Obama has twice nominated Atlanta litigator Jill Pryor to fill the seat vacated by the retirement of Judge Stanley Birch in August 2010, but she has been blocked by Georgia’s senators, Saxby Chambliss and Johnny Isakson. Another seat was vacated last summer by Judge J.L. Edmondson, who took senior status.
Dubina, who was appointed in 1990 and whose seat is based in Alabama, said he didn’t want to leave his colleagues “in the lurch” with only nine active judges.
He recalled early in his appellate career when the court had several vacancies and only nine judges—with about half the caseload of today. “Nine judges is extremely difficult,” he said, noting that the court suspended its rules requiring two Eleventh Circuit judges on each three-judge panel. Instead the court allowed only one Eleventh Circuit judge on a panel, joined by two visiting judges—a solution that risked the consistency of the court’s precedents, he said.

Speaking of filling vacancies, President Obama is doing so with lots of former federal prosecutors:

President Obama's liberal supporters have been dismayed by some of his judicial appointments, and now they can cite statistics: Obama has nominated former prosecutors more often than either Ronald Reagan or George W. Bush.
In Reagan's two terms, 40.8 percent of the judges he appointed had once been prosecutors. Bush, who like Reagan sought to move the judiciary in a more conservative direction, chose ex-prosecutors for 44.7 percent of his judicial appointments. The figures were 37.3 percent for Bush's father, George H.W. Bush, and 40.7 percent for Bill Clinton.
Obama, who began his second term Jan. 21, has appointed or nominated 219 federal judges, of whom 100 - 45.7 percent - were former prosecutors, according to statistics compiled by the Alliance for Justice.
By contrast, 33 nominees, all but three of them at the trial court level, had been public defenders. Even fewer had worked as poverty or civil rights lawyers.

Judge Turnoff lays down the law

This contempt of court order is worth a read (prior coverage here):

Judge Turnoff issues contempt order

A call to the judiciary

There was an article in the NY Times this weekend about why cops lie.  It's a nice piece, but nothing really new.  Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense:

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS.

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV. 

Those are interesting concepts, but the following 4 statements will encourage more discussion:

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.

VII. ALL JUDGES ARE AWARE OF RULE VI.

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 

There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.

What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor. 

--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).   

--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid. 

--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.      

--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

--Grant motions to suppress when the officer is lying.  This goes to the NY Times article and Dershowitz's rules.

A big part of all of this goes to the court of appeals.  The 11th Circuit rules for the government even more than the district court does.  This has been the culture for a long time.  (When is the last time the court reversed a sentence within or above the guidelines?) But there is new blood on the 11th.  And three new open spots (two now, and one more this summer) will really change the court.

See what happens when there is a blackout during the Super Bowl.  The game is now back on, so I'll get off the soapbox. 

Kim Rothstein vs. Justice Sonia Sotomayor

Kim Rothstein pleaded guilty yesterday while Justice Sonia Sotomayor spoke at the University of Miami campus.  Who got more press in South Florida?  Sadly, Rothstein by a ton.  From Jon Burtstein's story:

Five years ago this week, she was a bride who had just gotten married at South Beach's Versace Mansion to a rich, charismatic attorney who had Fort Lauderdale abuzz.

Three years ago, she was in seclusion after watching her husband, Scott Rothstein, go before a federal judge to plead guilty to the largest financial fraud in South Florida history.

On Friday, Kim Rothstein was back at the federal courthouse in Fort Lauderdale. This time, it was to admit that she too is a criminal.

Rothstein, 38, pleaded guilty to a plot to hide more than $1 million in jewelry from federal authorities as they were seizing her husband's assets to reimburse victims of his swindle. She admitted conspiring with her then-attorney and a friend to secretly sell the jewels, including a 12-carat diamond ring, and to persuade her imprisoned husband to lie under oath about the ring's whereabouts.

She faces up to five years in prison when sentenced April 19 by U.S. District Judge Robin S. Rosenbaum.

Dressed in a dark pantsuit, Rothstein answered Rosenbaum's questions in a clear, steady voice as she pleaded guilty to a felony charge of conspiracy to commit money laundering, obstruct justice and tamper with a witness.

"Are you pleading guilty because you are in fact guilty?" Rosenbaum asked.

"Yes, your honor," Rothstein responded.

She left the courthouse flanked by her defense attorneys, David Tucker and David Kotler. She did not acknowledge the reporters and cameramen outside as she got into a sports utility vehicle waiting for her.

From the Herald story on the Supreme Court Justice visit:

From her days as a young girl in the Bronx being raised by her mother after the death of her father to becoming the first Hispanic on the highest judicial body in the country, U.S. Supreme Court Justice Sonia Sotomayor told the story of her journey before a captivated audience at the University of Miami on Friday night.


Sotomayor spoke with University of Miami President Donna E. Shalala at the BankUnited Center to University of Miami students, Coral Gables residents and perhaps a future Supreme Court justice about the inspiration behind her recently published memoir My Beloved World.

“Love and passion, that is the only way you do something well,” Sotomayor said. “Do a few things, but do them well.”

Sotomayor, 58, spoke of the many things that inspired her to share her story with the world, one of which was in responses to questions she hadn’t expected during her confirmation process, such as how children cope when a parent dies, especially if they don’t have a mother like hers.

“I began to understand that I couldn’t talk to every child in the country,” Sotomayor said. “I could give them the answers in a book.”

Is there a federal judicial clerkship crisis?

Apparently there is because federal judges won't follow the (voluntary) rules about timing of interviews and hiring.  So clerks are getting interviewed and hired earlier and earlier, which is really messing up the process.  What's the solution?  Aaron Zelinsky says take the voluntary out of the rules:

Congress has the power of the purse. It allocates funds for building courthouses, keeping the lights on, and employing staff. For instance, law clerks are employed under 28 U.S.C. 752 (for district courts) and 28 U.S.C. 712 (for circuit courts). If the judiciary really wants to fix the hiring plan, then judges should request that Congress condition salaries for law clerks upon them being hired in compliance with the judicial hiring plan. In other words, if you don't play by the rules, you don't have law clerks.


But wait, isn't that unconstitutional? Nope. The Constitution prevents Congress from lowering the salaries of federal judges, but says nothing about their staff (anyways, such a law could be written to apply only to those hired in the future, not those already employed). And Congress isn't infringing on the judicial power in any way - this law does not effect how judges make use of their clerks, just the timing of how they hire them. And it would leave the actual formation of the plan up to the judiciary.

Federal judges could ask Congress to make the hiring plan mandatory via a proposal from a special judicial working group, or even in Chief Justice Roberts's year end report to Congress. And they should. A new, mandatory plan would be fairer for less-advantaged law students and late-bloomers, more efficient for federal judges, and maybe even better for you.

Good luck with that one...

Meantime, over at his blog, Rumpole asks whether you'd rather be on the Third DCA or on the SDFLA district bench.  Or a Florida Supreme Court Justice or on the 11th Circuit.  Seems to me that the federal positions are much more sought after and are thought of in the legal community as more prestigious.  And speaking of clerks, the feds get the cream of the crop.  I imagine that the district court clerks have better resumes than the clerks on the Florida Supreme Court.  Is that right?