Rumpole still barking up the wrong tree with Scalia

Rumpole and I have long disagreed about Justice Scalia.  We've been debating his jurisprudence at least as far back as 2009. See also here.  Well, Scalia has proved Rumpole wrong again as Justice Scalia ruled in favor of the 4th Amendment yesterday in the Florida drug dog case, Florida v. Jardines. But strangely he is still criticizing him in today's post.

 David Ovalle has the details in the Herald article here and he has been tweeting all of the Miami trivia and references to the case over the past 24 hours, including that Judge Will Thomas was vindicated for his ruling and that local Miami cops attended the Supreme Court argument.

In other bad news for police officers, a Ft. Lauderdale jury (before Judge Cohn) ruled that Anthony Caravella (who was cleared by DNA evidence) was set up by two police officers and is entitled to $7 million.  Paula McMahon for the Sun-Sentinel has the story and has been doing great work covering the federal courts in Broward. Here's the intro:

The 9,389 days Anthony Caravella wrongfully spent in prison still haunt him, but he was relieved Tuesday that two former police officers who put him away are finally being held accountable.
Jurors decided that William Mantesta and George Pierson framed Caravella, then a mentally challenged 15 year old, for the 1983 rape and murder of a Miramar woman and should pay him $7 million for the close to 26 years he spent in prison.
The city of Miramar or its insurers may have to pay some or all of the judgment against the former detectives, but legal experts said Caravella, now 44, has a good chance of collecting the money — plus his lawyer's fees and costs.
Former Miramar officer Bill Guess and retired Broward Sheriff's Major Tony Fantigrassi were found not liable after the five-week civil rights trial in federal court in Fort Lauderdale.
"I feel good that it's over with," said Caravella, now 44. "I feel like it took a long time but I'm just glad that everybody knows what happened — that's what I feel good about."
The eight jurors unanimously found Mantesta and Pierson liable. Both men acted with malice or reckless indifference to Caravella, who had an IQ of 67, violated his constitutional rights against being maliciously prosecuted, coerced him into confessing and withheld evidence that could have cleared him soon after his arrest, the jurors decided. DNA set him free in 2009.
"I was worried. I was afraid they were going to get away with it," Caravella said.
His lawyer in the civil suit, Barbara Heyer said: "The system really does work. Truth actually does prevail."

RIP Anthony Lewis (UPDATED with Scalia opinion in favor of 4th Amendment)

He wrote Gideon’s Trumpet and covered the Supreme Court.  From the NY Times obit:

As a reporter, Mr. Lewis brought an entirely new approach to coverage of the Supreme Court, for which he won his second Pulitzer, in 1963.

“He brought context to the law,” said Ronald K. L. Collins, a scholar at the University of Washington who compiled a bibliography of Mr. Lewis’s work. “He had an incredible talent in making the law not only intelligible but also in making it compelling.”

Before Mr. Lewis started covering the Supreme Court, press reports on its decisions were apt to be pedestrian recitations by journalists without legal training, rarely examining the court’s reasoning or grappling with the context and consequences of particular rulings. Mr. Lewis’s thorough knowledge of the court’s work changed that. His articles were virtual tutorials about currents in legal thinking, written with ease and sweep and an ability to render complex matters accessible.

“There’s a kind of lucidity and directness to his prose,” said Joseph Lelyveld, a former executive editor of The Times. “You learned an awful lot of law just from reading Tony Lewis’s accounts of opinions.”

Mr. Lewis wrote several books, two of them classic accounts of landmark decisions of the Warren court, which he revered. Chief Justice Earl Warren led the Supreme Court from 1953 to 1969, corresponding almost precisely with Mr. Lewis’s years in Washington.

One of those books, “Gideon’s Trumpet,” concerned Gideon v. Wainwright, the 1963 decision that guaranteed lawyers to poor defendants charged with serious crimes. It has never been out of print since it was published in 1964.

“There must have been tens of thousands of college students who got it as a graduation gift before going off to law school,” said Yale Kamisar, an authority on criminal procedure who has taught at the University of Michigan and the University of San Diego. 

Meanwhile, the Supreme Court this morning will hear the first of two gay-marriage cases.  There were long lines to get into the Court and line-holders were paid handsomely to get one of the few seats.  The lawyers for both sides made the list of top 100 influential lawyers in the United States by the National Law Journal.  

Italy's High Court overturned the acquittal of Amanda Knox.  I doubt she will be going back voluntarily.  I wonder what the U.S. will do if Italy seeks her extradition.

UPDATE -- Yes, Justice Scalia is a defendant's best friend again -- this time in a dog-sniffing 4th Amendment case:

A 5-4 decision (SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined.).

First paragraph:

We consider whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment.

Last paragraph answer:

The government’s use of trained police dogs to investigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment. The judgment of the Supreme Court of Florida is therefore affirmed.


Congrats to Miami PD Howard Blumberg for this victory!

HT: CC.

Monday notes

1.  Rand Paul: People Shouldn’t Smoke Pot, But They Shouldn’t Go To Jail for Non-Violent Drug Crimes (via Slate):

Liberals are likely scratching their heads today, wondering how a man with whom they disagree on so many things could have uttered such sensible views when it comes to drug policy and the criminal justice system in the United States. In an interview on Fox News Sunday, Sen. Rand Paul of Kentucky said that while he doesn’t want to legalize drugs, he also doesn’t think people should spend time behind bars for non-violent drug crimes. Paul’s statement came on the heels of a bill he introduced with Sen. Patrick Leahy, a Democrat from Vermont, that would give judges greater flexibility in adhering to mandatory minimum sentences for drug crimes, notes the Washington Post.

While arguing against mandatory minimum sentences for smoking pot, Paul pointed out that both President Bush and President Obama could have seen their lives destroyed by marijuana-related arrests, reports the Hill. “Look, the last two presidents could conceivably have been put in jail for their drug use,” Paul said. “Look what would have happened. It would have ruined their lives. They got lucky. But a lot of poor kids, particularly in the inner city, don’t get lucky. They don’t have good attorneys. They go to jail for these things. And I think it’s a big mistake.” Host Chris Wallace replied with a laugh: "Actually, I think it would be the last three presidents, but who's counting?"

2.  John Pacenti does an in depth piece on Lewis Tein and its lawyer Paul Calli:

Lewis Tein hired attorney Paul Calli, a partner at Carlton Fields in Miami, to handle its defense against the civil charges brought by the Miccosukees.Calli has called for sanctions against the tribe in federal court, saying the lawsuit "is a political ploy, attempting to blame the Lewis Tein firm (along with the tribe's former officers, employees, lawyers, accountants and bankers) for internal issues relating to the tribe's business and legal affairs.""The tribe and its lawyer know (or should know) that the tribe's complaint is not supported by facts and law," he wrote in the Oct. 15 pleading. Cooke has taken under advisement the firm's motion to dismiss the amended complaint.Miami criminal defense attorney William Barzee, a supporter of the firm, noted Billie is up for re-election in November."This lawsuit seems nothing more than politics, a means to an end — an effort by current one-term chairman Colley Billie to stay in office by maligning Billy Cypress to prevent him being re-elected," Barzee said. "Lewis Tein and Dexter Lehtinen and the others suffer as collateral damage, casualties in the tribe's internal political blood feud."

3.  The Canes are in the Sweet Sixteen.  They escaped Illinois yesterday, which was a tough matchup for them, but matchup well against Marquette this Thursday.

4.  Rumpole has some good stuff over at his blog this morning on bonds and why judges get stung when they let someone out who flees but never get credit when defendants show up.  The Herald article that he discussed leads to way too many people who should be on bond getting detained.

Go Crimson! Go Canes!

The first weekend of the tourney is the best weekend in sports.

Your moment of zen

John Pacenti's federal court report.

Font issues

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.