Justice Scalia during oral argument on Arizona voting law: "No problemo"

Yes, Justice Scalia lapsed into Spanglish during oral argument on the question of whether Arizona can require proof of citizenship to vote in federal elections:

JUSTICE SCALIA: You think "may require

only" means shall require only? Is that -- is that your

submission? "May require only" means shall require

only?

MR. SRINIVASAN: It "may require only" in

effect means shall require information that's necessary,

but may only require that information. I think the

statute would make very little sense if the EAC

discharged its statutory responsibility by having a

Federal form that required nothing other than the name.

That wouldn't be within anybody's conceivable conception

of a rational objective of Congress that would enable

the EAC to -­

JUSTICE SCALIA: It would not be a problem

if the State could require it. It would not be a

problem. When -- when the commission fails to do what

enables the State to assess qualifications, the State'll

do it. No problemo.

 The NY Times says that oral argument seemed split along ideological lines:

 The Supreme Court appeared divided along familiar lines on Monday as it heard arguments over whether Arizona can require proof of citizenship from people seeking to register to vote in federal elections.

Several of the court’s more liberal justices sounded doubtful about a state law that imposes requirements beyond those called for by a federal law.

“Many people don’t have the documents that Arizona requires,” Justice Sonia Sotomayor said.

The Arizona law, enacted in 2004 by a ballot initiative, requires prospective voters to prove that they are citizens by submitting copies of or information concerning various documents, including birth certificates, passports, naturalization papers or Arizona driver’s licenses, which are available only to people who are in the state lawfully.

The question for the justices was whether that state law conflicted with the National Voter Registration Act of 1993, which allows voters to register using a federal form that asks, “Are you a citizen of the United States?” Prospective voters must check a box yes or no, and they must sign the form, swearing that they are citizens under penalty of perjury.

Several members of the court’s conservative wing indicated that the state was free to impose additional requirements to make sure only citizens vote.

Justice Antonin Scalia said the federal form was inadequate. “So it’s under oath,” he said. “Big deal. If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”

“Under oath,” he added, “is not proof at all. It’s just a statement.”

Patricia A. Millett, a lawyer for several groups challenging the Arizona law, responded that “statements under oath in criminal cases are proof beyond a reasonable doubt” sufficient to lead to the death penalty.

She added that tens of thousands of people had been rejected from the registration rolls because of the Arizona law, though there was no evidence that they were not citizens.

Meantime, Justice Kagan was speaking on Gideon and said that indigent defendants weren't entitled to Cadillac lawyers, just Ford Tauruses (via BLT):

Indigent defendants aren't entitled to "the best defense money can buy," U.S. Supreme Court Justice Elena Kagan said on Friday at a U.S. Justice Department event marking the 50th anniversary of the high court's landmark Gideon v. Wainwright decision, which guaranteed that people accused of crimes have the right to a lawyer even if they can't pay.
Speaking before a standing-room only crowd in DOJ's Great Hall with U.S. Attorney General Eric Holder Jr. and former Vice President Walter Mondale, Kagan said the provision of a "Cadillac" lawyer isn't a right for poor defendants. But they should at least have a "Ford Taurus" defense, complete with a lawyer who has the skills, resources and competence necessary to thoroughly advise a client.
"We don't have the resources to make [a Cadillac defense] happen," Kagan said. "And I'm not sure if we did have the resources that that's exactly what we should want."
But even a Taurus defense is hard to come by, she said. In the five decades since the March 18, 1963, decision, states have faced challenges adhering to the high court's unanimous decision that found that "lawyers in criminal courts are necessities, not luxuries." If a person facing a felony charge is too poor to hire a lawyer, the court ruled, the government is obligated to provide one for free. Subsequent decisions expanded the right to juvenile proceedings and certain misdemeanors.

Cert granted in United States v. Kaley

This is Howard Srebnick and Richard Strafer's case dealing with whether a defendant is entitled to a pretrial hearing to challenge forfeiture.  SCOTUSBlog has this quick summary:

 The Court also granted review on whether an individual faced with the forfeiture of property that may be the proceeds of a crime has a right to a pre-trial hearing to challenge the basis for possible forfeiture.  The Justice Department agreed that the Court should address this issue because of a division among lower courts on it; the case is Kaley, et al. v. U.S. (12-464).

Here's the 11th Circuit opinion, which Judge Marcus wrote.  Judge Edmondson concurred but said he would have decided the case differently.  Judge Marra handled the case at the trial level.   There was a circuit split.

Wow---prosecutorial misconduct leads to reversal of death penalty conviction

The Ninth Circuit reversed a death row conviction due to prosecutorial misconduct.  The opinion, by Judge Kozinski, is here.  The Trial Insider blog summarizes the case this way:

Kozinski wrote, “This is a disturbing case. There’s no physical evidence linking Debra Milke to the crime, and she has maintained her innocence since the day she was arrested.”
The only evidence linking her to the murder of her son by two men she asked to take him to see Santa Claus in 1990 was the word of Detective Armando Saldate, Jr., “a police officer with a long history of misconduct that includes lying under oath as well as accepting sexual favors in exchange for leniency and lying about it.”
Young Christopher had asked his mother to let him see Santa Claus at the mall and she agreed to let him go with her roommate James Styers. Styers picked up a friend, Roger Scott, and instead of the mall, drove the boy to a ravine outside town where they shot him in the head. They drove to the mall and reported Christopher missing. The motive was allegedly a plot by Styers and Scott to collect social security benefits and insurance as a result of the boy’s death, according to the court.
Police began to suspect the two men almost immediately. Saldate was one of the officers questioning the two men. Scott led the officers to Christopher’s body. Scott purportedly said at some point that Milke was involved, but neither man would testify against her and the statement was excluded as hearsay at her trial.
But Saldate seized on the statement and went to question Milke. She was taken to a small room at Pinal County jail where Saldate abruptly told the 25-year-old woman her son was dead. He said he didn’t “buy” her sobbing because she had no tears, according to the opinion.
He continued to question her, without tape recording the conversation as instructed. Saldate claims Milke opened up to him within 30 minutes, waived her Miranda rights, and confessed to a murder conspiracy with the two men.
She has consistently denied involvement in the murder and said she had asked for a lawyer but was ignored. Saldate even testified he destroyed his interview notes after writing his official report. In the end, the jury believed Saldate and convicted Milke. What jurors didn’t know was Saldate’s “long history of lying under oath and other misconduct,” Kozinski said. “The state knew about this misconduct but didn’t disclose it,” despite the requirements of long-standing legal precedents. (Brady v. Maryland and Giglio v. U.S.)

And here's Thomson Reuters:

The detective testified that Milke told him she had contemplated having an abortion while pregnant with Christopher and had complained to Styers about her son. The detective said she confessed to conspiring to the murder, although she protested her innocence and denied the claim.
In its ruling, the court said the state failed to disclose Saldate's substantial misconduct record, which included four court cases where judges tossed out confessions or indictments because he lied under oath.
The court said that, without the detective's testimony, the prosecution had no case against her, as there was no physical evidence linking her to the crime and neither of her supposed co-conspirators - Styers and Scott - would testify against her.
"The panel held that the state remained unconstitutionally silent instead of disclosing information about Det. Saldate's history of misconduct and accompanying court orders and disciplinary action," the ruling said.
"Some of the misconduct wasn't disclosed until the case came to federal court and, even today, some evidence relevant to Saldate's credibility hasn't been produced, perhaps because it's been destroyed."
The appeals court ordered the state to provide Milke's counsel with the detective's personnel records. The district court was then ordered to release Milke, who is one of three women listed on Arizona's death row, unless the state should decide to retry her.

Judge Dube retires

Magistrate Judge Dube has been part of the court family for a long long time.  Today he retired, and the court had a nice luncheon for him.  In classic Dube fashion, he started off his remarks: "I am a humble man, but I agree with all the nice things you said about me."  Good stuff. 

When I was a clerk back in 1997, Judge Dube made a point of introducing himself to the new clerks and offering any help we needed in figuring out how the court worked.  He also helped us all get involved in the Federal Bar Association, a group he ran for over 25 years.

His longtime clerk Lourdes Fernandez gave some really nice heartfelt remarks about her 10 years with Judge Dube.

He's a good man. 

Here's a picture of him from the luncheon:

Federal Bar Luncheon on trial advocacy

Yesterday the Federal Bar Association had its monthly luncheon at the Banker's Club on trial advocacy.  On the panel:  Judges Altonaga, Martinez & Scola.  It's always interesting to hear the judges' take on what works in trials.  I liked Judge Scola's comment that there is a big difference between being a litigator and a trial lawyer...

While the talk on trials was going on, a case in West Palm Beach that was set to start ended up resolving by way of misdemeanor.  The plea, where the felony counts were dropped, was worked out during the middle of a Kastigar hearing.  Jeffrey Neiman, Jack Goldberger, Bruce Reinhart, and Theresa Van Vliet were the defense lawyers.  Jon Burstein covers the case involving anti-aging clinics here. 

11th Circuit has oral argument only 11% of the time

That's second fewest in the country.  Seems way too low.  Only the Fourth Circuit is worse at 10.5%.  The Second Circuit, which has about the same number of cases, has oral argument 23% of the time. 

A few weeks back Rumpole asked whether his readers would rather be a state Supreme Court Justice or a federal district judge.  Well, a Montana Supreme Court Justice has just been nominated to the district court.  So, at least for him, the answer is the feds.

And finally, more sequestration fall out for the judiciary.  BLT covers it:

The AO identified a slew of other problems posed by sequestration: fewer probation officers to supervise ex-offenders; a 20 percent cut in funding for drug testing and mental health treatment; case processing backlogs because of fewer clerk's office staff; a 30 percent cut in funding for court security systems; delays in payments to court-appointed criminal defense lawyers; and "deep cuts" to information technology programs.
"Reductions of this magnitude strike at the heart of our entire system of justice and spread throughout the country," Gibbons said. "The longer the sequestration stays in place, the more severe will be its impact on the courts and those who use them."

"Basically, every Friday the Federal Public Defender's Office will be closed."

That's FPD Michael Caruso describing one of the effects of the sequester on his office.  John Pacenti covers the issue in today's DBR:

Now, the sequester's mandatory budget cuts are about to hit home, slowing many facets of the federal justice system in South Florida.
Criminal sentencing hearings in federal court will be suspended Fridays — a favorite day for many judges. This is a result of unpaid furloughs hitting prosecutors, public defenders and federal marshals over the next six months.
Each Federal Public Defender employee in the Southern District of Florida must take 22 unpaid days between April 1 and the end of the government's fiscal year, which ends Sept. 30. It translates into almost one day each week.
***
"The real cost is to the employees of the office," Caruso said. "We have single moms and we have parents who are saving for their kids' college, and we have people who need to pay their mortgage. Every employee is taking a 20 percent pay cut."
Sources told the Daily Business Review that each prosecutor in the Southern District will take 14 furlough days, but the office did not confirm that figure.
U.S. Attorney Wifredo Ferrer's office referred all questions about budget cuts to the office of Attorney General Eric Holder in Washington.
The Justice Department released a letter from Holder to U.S. Senator Barbara A. Mikulski, D-Maryland, chairwoman of the Appropriations Committee, outlining sequester budget cuts for prosecutors, civil attorneys, the U.S. Bureau of Prisons, U.S. Marshals Service and the Executive Office for Immigration Review.
The Marshals Service is facing furloughs of up to 13 days; employees at the Bureau of Prisons will face on average 12 day.

 

 Picture of Federal Defender Michael Caruso by DBR J. Albert Diaz

NY Times covers airport case

OK, so it was a little more involved than that because the characters were a world-renowned physicist and a super model.  The physicist chatted with the model online and really wanted to meet her in person.  All he had to do was carry one of her bags....  You know where this is going:

Frampton didn’t plan on a long trip. He needed to be back to teach. So he left his car at the airport. Soon, he hoped, he’d be returning with Milani on his arm. The first thing that went wrong was that the e-ticket Milani sent Frampton for the Toronto-Santiago leg of his journey turned out to be invalid, leaving him stranded in the Toronto airport for a full day. Frampton finally arrived in La Paz four days after he set out. He hoped to meet Milani the next morning, but by then she had been called away to another photo shoot in Brussels. She promised to send him a ticket to join her there, so Frampton, who had checked into the Eva Palace Hotel, worked on a physics paper while he waited for it to arrive. He and Milani kept in regular contact. A ticket to Buenos Aires eventually came, with the promise that another ticket to Brussels was on the way. All Milani asked was that Frampton do her a favor: bring her a bag that she had left in La Paz.

While in Bolivia, Frampton corresponded with an old friend, John Dixon, a physicist and lawyer who lives in Ontario. When Frampton explained what he was up to, Dixon became alarmed. His warnings to Frampton were unequivocal, Dixon told me not long ago, still clearly upset: “I said: ‘Well, inside that suitcase sewn into the lining will be cocaine. You’re in big trouble.’ Paul said, ‘I’ll be careful, I’ll make sure there isn’t cocaine in there and if there is, I’ll ask them to remove it.’ I thought they were probably going to kidnap him and torture him to get his money. I didn’t know he didn’t have money. I said, ‘Well, you’re going to be killed, Paul, so whom should I contact when you disappear?’ And he said, ‘You can contact my brother and my former wife.’ ” Frampton later told me that he shrugged off Dixon’s warnings about drugs as melodramatic, adding that he rarely pays attention to the opinions of others.

On the evening of Jan. 20, nine days after he arrived in Bolivia, a man Frampton describes as Hispanic but whom he didn’t get a good look at handed him a bag out on the dark street in front of his hotel. Frampton was expecting to be given an Hermès or a Louis Vuitton, but the bag was an utterly commonplace black cloth suitcase with wheels. Once he was back in his room, he opened it. It was empty. He wrote to Milani, asking why this particular suitcase was so important. She told him it had “sentimental value.” The next morning, he filled it with his dirty laundry and headed to the airport.

Frampton flew from La Paz to Buenos Aires, crossing the border without incident. He says that he spent the next 40 hours in Ezeiza airport, without sleeping, mainly “doing physics” and checking his e-mail regularly in hopes that an e-ticket to Brussels would arrive. But by the time the ticket materialized, Frampton had gotten a friend to send him a ticket to Raleigh. He had been gone for 15 days and was ready to go home. Because there was always the chance that Milani would come to North Carolina and want her bag, he checked two bags, his and hers, and went to the gate. Soon he heard his name called over the loudspeaker. He thought it must be for an upgrade to first class, but when he arrived at the airline counter, he was greeted by several policemen. Asked to identify his luggage — “That’s my bag,” he said, “the other one’s not my bag, but I checked it in” — he waited while the police tested the contents of a package found in the “Milani” suitcase. Within hours, he was under arrest.

 The article is a fun read, but it leaves a lot of important details till the end.  Meantime, this is the woman who Professor Frampton was trying to meet:

And here is Frampton: