Openings in Zimmerman case

Check out the difference in opening statements between the prosecutor (strong and dramatic) and defense (flat footed joke that bombs):



Now the defense:



Wow.

RIP Holly Skolnick

Very very sad news...  Holly Skolnick has passed away.  I really liked Holly -- she was a great person.  Smart, energetic, and fun to be around. She's the second from the left in the picture below (with Ellen Roth, Cheryl Little, and Jane Moscowitz):



 Here's the into from the Herald's obit:

Holly R. Skolnick, a veteran attorney at the Miami-based firm Greenberg Traurig, died on Saturday of melanoma. She was 59.
In an email to firm personnel, co-President Hilarie Bass, said that Skolnick “will be remembered as a close friend to so many of us. A brilliant lawyer, a wonderful friend, and someone who was always committed to finding justice for those who needed her help.
“ Whether as the leader of [the firm’s] pro bono efforts, the chair of the country's most important organization for providing legal assistance to immigrants, or her involvement with Equal Justice Works Fellows, Holly will be remembered for her passion for our legal system and helping all of us to try to fulfill it's promise for everyone.’’
Skolnick held degrees from the University of Wisconsin/Madison, 1976, and Harvard University Law School, 1980.
***
Skolnick is survived by her husband, federal appellate attorney Richard Strafer, daughter Jordan Strafer, and her parents.

Read more here: http://www.miamiherald.com/2013/06/23/3466467/holly-skolnick-prominent-attorney.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/06/23/3466467/holly-skolnick-prominent-attorney.html#storylink=cpy

Celebrate -- pots and pans edition!

Government files two responses to Dore Louis' NSA motion

One is classified and one is public.

 Here's the public one, which was posted by Paula McMahon from the Sun-Sentinel.

She writes:

Federal prosecutors filed two versions of their response in federal court in Fort Lauderdale late Wednesday. The unclassified, publicly filed version was 21 pages long and included several lines that stated "CLASSIFIED INFORMATION REDACTED."
Prosecutors filed a longer, classified version of their response with supporting information under seal with U.S. District Judge Robin Rosenbaum — so even the defense attorneys cannot see it — saying the judge would need additional information to make her ruling.
Prosecutors claimed in court records that the secretive NSA program did not capture "information about where a cellular telephone was geographically located at the time a call was made."
"Thus, the government does not possess the records the defendant seeks," they wrote.
The defense will have an opportunity to respond before the judge issues her ruling, which the prosecution asked should be sealed if it contains any classified information.

If the government does not have the data, then so be it.  But 20 pages seems like a lot of words to say we don't have it.  I found the argument heading on page 17 interesting: "Neither Brady nor Rule 16 permit the defendant to conduct a fishing expedition of highly classified NSA Data." 

Government responds to Dore Louis' motion for NSA records

Last week, the blog broke the story of Dore Louis' motion seeking NSA phone records, and Judge Rosenbaum's order requiring the government to respond.  The story got a lot of attention, which was pretty neat.

The government filed a short motion this morning, asking the Court to appoint a CIPA (Classified Information Security Officer) to watch over the classified information that it will be disclosing to the defense and the Court in its response.  Here's a link to the government's motion, which is unopposed. And here is the most interesting part of it:

As a result of the filing of Brown’s Motion to Compel Production (DE:778) and CIPA Section 5 Notice (DE:779), the government’s response will require the discussion of classified material. Pursuant to the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, and Section 2 of the Security Procedures established under Pub. L. 96-456, 94 Stat. 2025 by the Chief Justice of the United States and promulgated pursuant to Section 9 of CIPA the Court shall designate a CISO in any proceeding in a criminal case in which classified information is reasonably expected to be within.
 To assist the Court and court personnel in handling any motions, pleadings and implementing any orders relating to the CIPA proceedings, the government requests that the Court designate Daniel O. Hartenstein as the CISO for this case, to perform the duties and responsibilities prescribed for CISO’s in the Security Procedures promulgated by the Chief Justice.

All of this means that the government's response is likely to be deemed classified, so the public will not get a chance to see it.  What a shame...

Justice Kagan dials Jenny at 867-5309

Gotta love this -- Justice Kagan cited the famous 1982 Tommy Tutone song in American Trucking Association v. City of Los Angeles:

Under th[e] contract, a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: ‘How am I driving? 213–867–5309‘) and (2) submit a plan listing off-street parking locations for each truck when not in service.

Lots of big decisions coming out this week, and SCOTUSBlog has all of the action. Unless there is some big SDFLA news, there will be very little blogging this week...

Meantime, you can listen to the classic 8675309/Jenny right here.

Supreme Court reverses 11th in Davila v. United States

Apropos of the previous post dealing with the 11th Circuit, the Supreme Court decided Davila today, 9-0:

This case concerns Rule 11 of the Federal Rules of Crim- inal Procedure, which governs guilty pleas. Two provi- sions of that rule are key here. The first, Rule 11(c)(1), instructs that “[t]he court must not participate in [plea] discussions.” The second, Rule 11(h), states: “A variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.”
Anthony Davila, respondent here, entered a guilty plea to conspiracy to defraud the United States by filing false income tax returns. He maintains that he did so because a U. S. Magistrate Judge, at a pre-plea in camera hearing and in flagrant violation of Rule 11(c)(1), told him his best course, given the strength of the Government’s case, was to plead guilty. Three months later, Davila entered a plea on advice of counsel. The hearing on Davila’s plea, con- ducted by a U. S. District Judge, complied in all respects with Rule 11.
The question presented is whether, as the Court of Appeals for the Eleventh Circuit held, the violation of Rule 11(c)(1) by the Magistrate Judge warranted automatic vacatur of Davila’s guilty plea. We hold that Rule 11(h) controls. Under the inquiry that Rule instructs, vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty.

Interesting opinions from the 11th Circuit

1.  Judge Pryor doesn't like dissentals, which I know all too well.  His latest concurral is in Michael Morgan's case.  He starts this way:

I write to respond to the dissents filed by three of my colleagues about the
denial of a rehearing en banc. I continue to adhere to the view expressed by Judges Henry Friendly and Raymond Randolph that dissents from the denial of rehearing en banc, particularly where one did not participate in the decision, are “of dubious policy,” United States v. Shaygan, 676 F.3d 1237, 1238 (11th Cir. 2012) (Pryor, J., respecting the denial of rehearing en banc) (quoting United States v. N.Y., New Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir. 1960) (Friendly, J., concurring in the denial of reh’g en banc, joined by Lumbard, C.J.), and that “denials of rehearing en banc are best followed by silence,” id. (alteration omitted) (quoting Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J.)). But my colleagues do not share that view, and their dissents should not go unanswered. Lest anyone doubt the correctness of our decision in this matter, I must respond to five misunderstandings in the dissents that follow. 

I disagree with Judge Pryor and think Judge Kozinski has it right:

“Cases arguably warranting en banc review are those in which the stakes are unusually high or the law is especially unclear.”⁶⁴ It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals.As Judge Clark put it in the case that started out this essay, “I do believe the court gains standing by encouraging free and thorough canvassing of these issues without the deadening influence of constraining restrictions.”⁶⁵Dissentals are here to stay. Get over it.

2.  The Court of Appeals also addressed some forfeiture issues in the Rothstein matter.  Judge Tjoflat starts off this interesting issue like this:

A number of criminal statutes within the Federal Code mandate that a
defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucre in his law firm’s bank accounts, where it was commingled with the firm’s receipts from legitimate clients. The question this appeal presents is whether the money in the bank accounts at the time the defendant was charged is subject to forfeiture. We hold that it is not.

3.   OK, this isn't the 11th Circuit, but you gotta love how this Second Circuit opinion starts out:

In addition to the awesome cover art, Judge Chin has a cool intro:

In 1972, the Marvel Comics Group published a comic book featuring the "Ghost Rider" -- a motorcycle-riding superhero with supernatural powers and a flaming skull for a head. The issue -- which sold for twenty cents -- told the story of Johnny Blaze, a motorcycle stunt rider who promised his soul to the devil to save his adoptive father from cancer.