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Not sure what happened with yesterday's post.  Sorry about that. 

This is Rumpole's territory, but big ups to Phil Reizenstein for hanging a jury 8-4 for not guilty with a death qualified jury.  That doesn't happen every day of the week.  Dave Ovalle from the Herald has the details on some really great lawyering.  

Justice Ginsburg has a trainer.  The WP Post covers this neat story about how she can now do 20 pushups:

Ginsburg and Johnson are an unlikely pair, the world-class lawyer and her physical powerhouse of a trainer. He stands an inch shy of 6 feet, weighs 206 pounds and can pump out 84 push-ups in two minutes. She’s just over 5 feet and just over 100 pounds — and she has passed her own milestone on the green mat.
“When I started, I looked like a survivor of Auschwitz,” Ginsburg said in an interview. “Now I’m up to 20 push-ups.”
And those are old-fashioned, knees-off-the-ground push-ups, her trainer proudly points out.
Discretion is a big part of the unwritten job description for people like Johnson, people who cut hair, cook meals, tailor suits — and keep secrets for those in power. Johnson often knows when his well-known clients are tired or sick — or why they’ve had a rough day on the bench.

The Tourney starts tomorrow, so expect slow blogging for a few days.  Go Canes.

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