Tuesday morning notes (UPDATED)

1. The Washington Post has a good article about Clarence Thomas and the fascination behind him not asking questions.  A snippet:

Some justices have told others that Thomas sometimes jots down inquiries and urges Justice Stephen G. Breyer, his friend and seatmate on the bench, to pose them.
The two often confer during oral arguments, and Thomas confirmed during a recent appearance at Harvard Law School that the talkative Breyer sometimes throws in a Thomas question.
“I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” a laughing Thomas told the law students. “I’ll say, ‘It was just something I was throwing out.’ So you can blame some of those [Breyer questions] on me.”
And another thing is the Harvard speech itself. Although he described himself during the interview with HLS Dean Martha Minow as “quite introverted” and said he could “go a lifetime without making public appearances,” his extracurricular life is as busy as that of any of his colleagues.
***
He described himself as someone who tends “to get along well with people.” He was lavish with praise for his colleagues — especially the liberals.
He called Justice Ruth Bader Ginsburg the epitome of what a judge should be. “She makes all of us better judges,” he said. He called President Obama’s most recent nominee, Justice Elena Kagan, a delight and said he told her that “it’s going to be a joy disagreeing with you for years to come.”
And Thomas once again explained why he doesn’t ask questions at oral arguments.
“I think it’s unnecessary to deciding cases to ask that many questions and I don’t think it’s helpful,” he said. “I think we should listen to lawyers who are arguing their case and I think we should allow the advocates to advocate.”

 2. In local news, Paul Calli who is representing the Lewis Tein firm, is showing why people shouldn't rush to judgment (via DBR):

A longtime accountant who was fired by the Miccosukee Indians days before she was to give a deposition in the tribe's malpractice lawsuit against the Lewis Tein law firm testified tribal lawyer Bernardo Roman III tried to influence her testimony and wanted her to lie.
Jodi Goldenberg, who worked for the Miccosukees for 21 years, said at the deposition attended by Roman that she was not told why she was fired but suspected there were several reasons.
"One being that I know the truth in some of these cases that are going on, and I think that what I'm going to say is contrary to what the tribe's attorney wants me to say. Maybe he wanted me to appear to be a disgruntled employee," Goldenberg said.

UPDATED:

3.  Two big search cases from the Supreme Court today.  From SCOTUSblog:

First opinion — Harris (dog sniffs) — Kagan for the Court reversing the Florida S. Ct. unanimously.
The Court holds that because training and testing records supported the dog's reliability, and the defendant failed to undermine that evidence, there was probable cause to search the defendant's truck.... 

Here's the opinion in Florida v. Harris....  The Harris opinion does not refer to the Jardines opinion, so we may not get it today after all.  From the Harris opinion: "The Florida Supreme Court flouted this established approach to determining probable cause." (Ouch.)...

Third opinion -- Bailey v. United States -- per Kennedy, the Second Circuit is reversed. The vote is 6-3, with Breyer, Thomas, and Alito dissenting....
The Court holds that Michigan v. Summers is limited to the immediate vicinity of the premises.  Justice Scalia writes separately.  Kagan and Ginsburg join both the Court's opinion and the Scalia concurrence.

This was the case about searching someone on the basis of a warrant to search a house, when they have left the premises.  Here is the opinion in Bailey v. US....
The Court will have more opinions at 10 am tomorrow. Again, we do not know which ones or how many there will be.  The other dog-sniffing case is 11-564, Fla. v. Jardines.  It did not come out today.

Jury duty

Yesterday I was in Rumpole's building serving as a potential juror.  It was an interesting experience.  I wasn't selected to actually sit on a jury, but I participated in Judge Andrea Wolfson's voir dire in a misdemeanor battery case. 

Judge Wolfson was fantastic and ran a very good jury selection. I was impressed by her demeanor and how she handled the lawyers and the jury pool.

It's eye-opening to see the process from the juror's point of view.  I don't think lawyers realize how much waiting around there is, but more on this later.

So what did I miss yesterday?  The Pakistan trial has hit some bumps in the road.  Rhino horn smuggling.  And Justice Scalia is hunting again, this time with Justice Kagan.  He spoke about it during a Q&A with Nina Totenberg at the same time the President gave his State of the Union Address.  From the AP:

Lest anyone think the timing of his talk was anything other than a coincidence, Scalia tried to put those thoughts to rest.
"I didn't set this up tonight just to upstage the president," he said. "The State of the Union is not something I mark on my calendar, like Easter or Yom Kippur."
Scalia said the justices in attendance inevitably keep their eyes on the chief justice, who decides when it is appropriate to applaud.
If the president says the United States is a great country, clap away, he said. But no justice can clap "if it's anything anybody can disagree with," Scalia said.
Prodded by Totenberg, Scalia also commented on the hunting ability of Justice Elena Kagan, who has joined Scalia to shoot quail, pheasant and larger animals.
Last year, on a trip to Wyoming, they had a license to go after antelope and mule deer. But there were none to be found.
Instead, "she ended up killing a white-tailed doe, which she could have done in my driveway" in suburban Virginia, Scalia said.
He said Kagan, who never handled a gun before joining the court, is just a beginner, but "she dropped that doe in just one shot."

Judge Carnes quotes Macbeth in USA v. Davis

Hot off the presses, he starts the opinion this way:

The defendant himself described the events leading up to this appeal when he told the judge, “Sir, I don’t see how you’re going to go forward with this trial. It’s turmoil.” But there was more than just turmoil. With two troubled jurors wanting to be excused and no alternates to replace them, and with a problem defendant stirring the brew, there was “[d]ouble, double, toil and trouble.”* The pot began to simmer in jury selection and boiled over during the trial, after jeopardy had attached. The double trouble produced a mistrial over the defendant’s objection, raising the specter of double jeopardy.

* William Shakespeare, Macbeth, act 4, sc. 1.

The conclusion: "This case having strutted and fretted its hour upon the appellate stage, we conclude that the curtain should be dropped, at least on this Act of it."

"The legal system in this country, it’s not a joke. It’s not a toy for rich idiots to play with."

That's Bill Maher discussing the $5 million lawsuit filed by Donald Trump against him:



The letter from the Cooley lawyer is absurd.

In local news, Curt Anderson covers the Pakistani Taliban case:

Testifying via video from Pakistan, a man accused by the U.S. of conspiring with an elderly Miami-based Muslim cleric to funnel thousands of dollars to Taliban terrorists insisted Monday the money was for innocent purposes, including a potato chip factory run by the cleric's son-in-law.
Ali Rehman was the first of as many as 11 witnesses expected to testify from an Islamabad hotel in defense of 77-year-old Hafiz Khan, who faces four terrorism support and conspiracy counts. Rehman is named in the same indictment and refused to come to the U.S. Other witnesses were unable to get U.S. visas in time. Rehman said he handled three separate $10,000 transactions for Khan in 2008 and 2009. Most of the money, he testified, went to Anayat Ullah, who is married to Khan's daughter Husna and started the potato chip business with his father-in-law as an investor.
Rehman said he has known Ullah since they were children in Pakistan's Swat Valley and wanted to do him a favor. "That favor was that his father was sending him some money, and I used to deliver it to him or sent it to him," said Rehman. He spoke in Pashto that was translated into English for the 12-person jury watching him on flat-screen televisions.

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.