Thursday news & notes

1.  While one prosecutor is appearing on The Bachelorette, another is writing op-eds for the Wall Street Journal saying that the feds should have the right to search everything, including your computer and phone, are the border.  I'll leave it to you all to decide which is worse. 

2.  Sri to the Supremes? (via the New Yorker)

3. Seems unlikely because Obama is still not doing a good job with his judicial appointments.  How long has Will Thomas been waiting now?  (via NY Times)

Of 856 federal district and circuit court seats, 85 are unfilled — a 10 percent vacancy rate and nearly double the rate at this point in the presidency ofGeorge W. Bush. More than a third of the vacancies have been declared “judicial emergencies” based on court workloads and the length of time the seats have been empty. By far the most important cause of this unfortunate state of affairs is the determination of Senate Republicans, for reasons of politics, ideology and spite, to confirm as few ofPresident Obama’s judicial choices as possible.

Numbers compiled by the Senate Judiciary Committee tell the story. Mr. Obama’s nominees for seats on federal courts of appeal, the system’s top tier below the Supreme Court, have waited an average of 148 days for their confirmation vote following the committee’s approval, more than four times longer than Mr. Bush’s nominees. For Mr. Obama’s nominees to federal district courts, the average wait time has been 102 days, compared with 35 days for Mr. Bush’s district court choices.

4.  Too many lawyers in Miami.  Bennett County, South Dakota, not so much.  (via the NY Times)

5.  The Federal PD in Columbus, Ohio is resigning because of sequestration.  It's getting really bad.  (via NPR)

6.  Meantime, the DOJ is spending like crazy.  (via Politico)

Looking good for Hollywood: Tax dollars are also used at the department to help the entertainment industry. The FBI has its own Investigative Publicity and Public Affairs Unit, which is dedicated to helping Hollywood make movies and TV shows, including “The Kingdom,” “Fast and Furious 4,” “CSI,” “Numb3rs” and “Without a Trace.” This perk for Hollywood comes with an annual price tag of $1.5 million to the American taxpayer.
Meet and greets: In addition, the DOJ staff hosted numerous conferences around the country. In 2010 alone, the department spent nearly $100 million on conferences, which is twice what was spent two years earlier. This includes more than $600,000 in event-planner costs for five conferences, even though the need for this was not shown.

7.  According to this article by ProPublica, no one is policing prosecutorial misconduct, so it appears unlikely that they will care about the above spending.

8.  Finally, Justice Thomas said he didn't know it was news when he spoke at an oral argument recently.  Do you believe him?  (via Pittsburgh Post-Gazette)

Clarence Thomas, the U.S. Supreme Court justice who has become known for his silence from the bench during oral arguments, made national news a few months ago when he spoke, briefly.
So, on Tuesday, when he visited Duquesne University to speak, expansively, a law school student asked the obvious question -- what was Justice Thomas' philosophy about the role of justices in oral arguments?
"Well, first of all, my philosophy about the news is never watching it," Justice Thomas said, to applause and laughter, adding that it was the first he'd heard of the widespread notice given to the moment when, with just a few words, he broke his self-imposed seven-year silence during oral arguments.

Breaking -- Alicia Valle is your new Magistrate

Congrats to all around nice person and long time spokeswoman at the U.S. Attorney's Office Alicia Valle, who will be a great judge. 

I found this bio of her online:

Alicia Olivera Valle has been the Special Counsel to the United States Attorney, Southern District of Florida, since May 2005.  In this capacity, Ms. Valle handles special case-related and other projects and all media for the U.S. Attorney.  Since joining the U.S. Attorney’s Office in 1987, she has successfully prosecuted various high-profile public corruption and white-collar criminal cases in New Jersey and Florida, including cases against the Mayor of Parsippany, the former Manager and Chief of Police for the City of Miami, and the President of the Miami-Dade teacher’s union, all on corruption charges.  During her tenure at the Miami U.S. Attorney’s Office, Ms. Valle has served as Executive Assistant U.S. Attorney, twice Chief of the Economic Crimes Section, and until her promotion to Special Counsel in 2005, as Chief of the Public Corruption Section.  Prior to joining the U.S. Attorney’s Office, Ms. Valle clerked for the Honorable Stewart G. Pollock of the Supreme Court of New Jersey.  She was also an associate with the law firm of Clapp & Eisenberg in Newark, New Jersey.  Ms. Valle received her undergraduate degree from Rutgers University and law degree from Harvard Law School.

Congrats again!

Tuesday news & notes

1.  John Pacenti covers the Kaley case going to the Supreme Court:

On the 50th anniversary of its landmark Gideon ruling giving all criminal defendants access to a lawyer, the U.S. Supreme Court accepted a South Florida case asking whether defendants are entitled to hire the counsel of their choice when federal prosecutors freeze their assets before trial.
The Supreme Court unanimously ruled in the 1963 case of Clarence Gideon, who received a five-year sentence for a pool room theft in Panama City, that state courts are required to provide free representation to indigent defendants under the 14th Amendment. The decision caused the release of 2,000 Florida prisoners.
Fifty years later, the high court agreed to decide whether the federal government can freeze a defendant's assets before trial without an evidentiary hearing.
"Gideon couldn't afford a lawyer, so the government said he had to go to trial without the court appointing one for him," said attorney Howard Srebnick. "Fifty years later, the federal government is now arguing that because court-appointed lawyers are available to indigent defendants, the government can restrain assets needed for counsel of choice without first having to prove to a judge that the government has the evidence and legal authority to justify the restraint."
Srebnick is the partner at Miami criminal defense firm Black, Srebnick, Kornspan & Stumpf. He has teamed up with Miami appellate attorney Richard Strafer in leading the charge for Kerri and Brian Kaley. ( Read Petition for Cert. Read brief.)

2.  Fane Lozman wins again, this time in the 11th Circuit:

 Two months after the U.S. Supreme Court handed Fane Lozman a huge victory in his long-running legal battle with Riviera Beach, another court on Monday paved the way for the fervent activist to seek millions from the city for his troubles.
The 11th Circuit Court of Appeals reinstated a 2008 lawsuit Lozman filed against the city, claiming it repeatedly violated his civil rights by hiring a private investigator to trail him, kicking him out of public meetings and, at one point, having him arrested when he refused to leave.
“Today felt just a tad lower than winning at the Supreme Court,” Lozman said shortly after the decision was announced. “The Supreme Court ruling was a 10. Today was a 9½.”
City officials didn’t return emails or phone calls for comment about their latest loss to the former Marine who became a thorn in their sides shortly after docking his unconventional floating home at the city marina in 2006. City hall was closed Monday as part of budget-cutting measures.
But, while the high court’s ruling may have stung more, the 11th Circuit’s could be more costly.
When the nation’s high court in January ruled that the city improperly used ancient maritime law to seize and ultimately destroy Lozman’s 60-foot two-story floating home, the possible damages were somewhat fixed. City officials were faced with the prospect of paying Lozman for the $167,000 he claims it would cost to replace his home, the $300,000 he spent for attorneys and an undetermined amount to reimburse him for the money he shelled out for living expenses after his home was destroyed.
However, he said, if he succeeds in proving that the city violated his constitutional rights, the damages could skyrocket.
“If I was the city, I’d be concerned,” he said. “That’s a seven-figure sum.”

"He's smart, witty, compassionate, good-looking, nice."

That's Chief Judge Federico Moreno about his former law clerk and current Bachelorette contestant Mike Garofola.

 Rafael Olmeda from The Sun-Sentinel has more in this article:

A graduate of the University of Notre Dame and Fordham Law School, Garofola worked at the firm of Davis Polk and Wardwell for two years before becoming a clerk with U.S. Chief District Court Judge Federico Moreno in Miami.
"He's smart, witty, compassionate, good-looking, nice," Moreno said Friday. "He's a great lawyer. He was a great clerk. And he's a great prosecutor."
Would Moreno let his daughter date Garofola? "I can't answer that!" the judge said. "My daughter knows him. And she's a federal prosecutor."
Moreno declined to say what he thought of Garofola's venture into reality television, reflecting that at age 60, the judge is not part of the show's target audience.

You gotta love Judge Moreno for being a good sport here. 

Friday wrap-up

Well, the blog was dominated this week with The Bachelorette post (which was updated with additional pictures), drawing links from Reality Steve, Above the Law and others.  Interestingly, a number of people emailed me criticizing me for posting it.  The guy is going on national television in prime time, so I'm not sure how posting about it on this blog is harmful to him or anyone else.

Speaking of dating, did you know that Justice O'Connor dated Justice Rehnquist in law school:

She also discussed dating William Rehnquist while at Stanford Law School. "He was fun. We had good times." As for Byron White, O'Connor said, "I thought I was going to die" the first time she experienced his iron-grip handshake.
Then it was time to sign books, which O'Connor said she would do "provided you bring me a glass of wine." Wine was brought and dozens of lawyers queued up with books in hand, good reviews or bad.

SCOTUSBlog has an interesting post on cert-stage amicus briefs and which ones are successful.  NACDL does an excellent job, but the Chamber of Commerce is the best:




Finally, it's furlough Friday, and the Federal Public Defender's office is closed.  But big ups to the Federal Defender himself, Michael Caruso, who is manning the fort in Magistrate Court today (and every Friday) making sure that newly arrested indigent defendants have counsel. 

Local AUSA Mike Garofola to be on The Bachelorette

Thanks to numerous tipsters, the buzz around the courthouse is now confirmed -- Assistant United States Attorney Mike Garofola will be a contestant on the new season of The Bachelorette.  He will be competing with two dozen other men for the love and affection of Desiree Hartsock.

He's used to competing, beating out hundreds of applicants for a federal clerkship and then a job at the United States Attorney's Office.  And as a trial lawyer, he's used to performing for an audience.  So he stands a good chance.

Here's a picture of AUSA Garofola from one of the upcoming episodes in which the contestants play dodgeball:

        

And here's Desiree:






























I asked the U.S. Attorney's office for comment, and Alicia Valle on the office's behalf said: "We wish him luck."  I like that they were good sports about it.

UPDATE -- the initial post had his name misspelled.  It has been corrected, I hope.

UPDATE #2 -- some additional pictures of Mike:

Justice Scalia on childhood in NY

New York Magazine has an interesting series with people describing their childhood in New York.  Justice Scalia is one of them:

It is amazing how many of the names of the kids in this class I remember. The teacher standing in the back—that was a lady named Consuela Goins, and she was a wonderful teacher. Every cloud has a silver lining, and one of the benefits of the exclusion of women from most professions was that we had wonderful teachers, especially the women who today would probably be CEOs. My first crush was a girl in this class whose name was Theresa. She’s the one standing to the right of Mrs. Goins. She’s good-looking; I always had good taste. Hugh McGee was generally the class troublemaker—in the middle seat on the right, two girls behind him and two boys in front of him. He was a really smart student, but he was always getting into trouble.

April Fools

Hope everyone had a nice spring break.  Now back to business.

1.  Adam Liptak doesn't care for Justice O'Connor's book "Out of Order."  From Sunday's review:

The book is short and padded. The main part, only 165 pages long, is interrupted by stock photographs and curious, unexplained editorial cartoons. The Declaration of Independence and the Constitution are included in an appendix. They are surely worth rereading from time to time, but their main purpose here seems to be to add some bulk to a very skimpy effort.

The illustrations are particularly infuriating markers of missed opportunities. In one cartoon from 1981, the year O’Connor joined the court, the Rev. Jerry Falwell is seen on his knees, praying and crying, as she swings in what looks like one of the scales of justice. He is not mentioned in the text, and the reader is left to guess at what he is so worked up about. That he wants O’Connor to vote to strike down Roe v. Wade? (She was, as it turned out, an author of a 1992 joint opinion reaffirming its core, also not discussed in the book.) 

...

The larger problem is not that Justice O’Connor’s little sketches and lessons are wrong. Quite the contrary. The problem is that they are empty. She writes, correctly, that “the court’s only weapon is its moral authority.” But she refuses to give this and similar sentiments substance.

In retirement, she writes, she has “taken up the cause of promoting civics education in our nation’s schools.” But civics are just a skeleton. They need the flesh of argument to come to life, to have bite, to matter.

 2.  Tony Mauro says enough is enough and wants cameras in the High Court.  He is absolutely correct:

Inside the U.S. Supreme Court last week, the justices were doing what they do best: dissecting a difficult legal issue — this time same-sex marriage — in the intense back-and-forth of oral argument.

Over two illuminating mornings, the justices and top-notch advocates worked through most of the pros and cons of giving same-sex marriage constitutional protection — or instead letting the political process continue the debate.
Outside the court, however, the scene was less noble. People seeking seats for the oral arguments were forced to wait in line, with some arriving five days earlier. Tents were pitched, and money changed hands, with some paying as much as $6,000 to a line-waiting service for the chance of securing a seat inside. Inevitably things got messy, and the line seemed more befitting of a music hall or an Apple store on the eve of the release of a new iPhone.
In one sense, the avid interest of those in line was a healthy sign that people really care about the issue and about how the Supreme Court — their Supreme Court — would handle it.
In another sense, it was a disgrace. The notion that spectators have to camp out or spend money to see a public institution do public business is offensive. It is the direct result of the court's arrogant and stubborn refusal to allow cameras to record and broadcast its proceedings. Some of those waiting for days for seats might still do so if cameras were allowed, but it is a safe bet that most would have preferred to watch the oral arguments in the comfort of home on C-SPAN rather than wait in line over several cold and snowy days in March.
While the public shivers, the justices — newcomers and veterans alike — refuse to give in to the reasonable demands of the information age. They are fearful of the changes that cameras might trigger in the dynamics between justices and advocates and with each other — as if the court were a fragile flower, instead of the sturdy institution it is, an institution that usually holds up well under public scrutiny.

3.  Rumpole, posting to this NY Times article on Project Mercy, asks if we have any Judge Gleesons in the Southern District of Florida.  Do we?

5.  Justice Scalia says he should be the "pinup of the criminal defense bar."  Via the Washington Post.

6.  Your Jeffrey Toobin moment of zen: