Independent judges beware

It's incredible to me that more lawyers aren't upset about the attack on the independence of the judiciary.

First up is the Second Circuit deciding on its own to remove a judge (without any request from the parties) because she said that she wasn't afraid to rule against the government.  From Jeff Toobin's piece:

The United States Court of Appeals for the Second Circuit just chastised Shira Scheindlin, the trial judge in the case challenging the constitutionality of the N.Y.P.D.’s stop-and-frisk policy, for speaking out about the issue while the trial was going on. In a ruling today, the appeals court said Scheindlin’s statements suggested that her “impartiality might reasonably be questioned.” As a result, all further proceedings in the case, in which Scheindlin found that that city residents’ rights had been violated, will be transferred to another trial judge. The appeals court, in a footnote, in particular cited Scheindlin’s statements to me in a piece for The New Yorker, as well as to the AP and the New York Law Journal. (I have some familiarity with this sort of thing. )
This is preposterous. The Second Circuit took this action on its own, without even a request from the city (the defendant in the case). Apparently, it took the view that there had been such an egregious violation of the rules of judicial conduct that the court had to act on its own—sua sponte, as the lawyers say. It also stayed Scheindlin’s rulings aimed at reforming stop-and-frisk.
Scheindlin did nothing wrong. She talked about her judicial career and her history on the bench in a way that illuminated the work that all judges do. In my experience, it’s a common complaint from judges that the public doesn’t understand their work, and doesn’t care about what they do. Scheindlin’s conduct in this case exemplified the independent tradition of the judiciary. She should be honored for it, not scolded.

Next up is the GOP blocking a nominee to the Court of Appeals in DC:

Next Republicans, who have accused the president of trying to tip the court’s ideological balance in Democrats’ favor, quickly dispensed with the nomination of Patricia Ann Millett to the United States Court of Appeals for the District of Columbia Circuit. A former government lawyer whose husband serves in the military, she has worked in both Republican and Democratic administrations. The White House chose her as a test of how far Republicans would go to derail a qualified nominee.

***

Republican objections to Ms. Millet had nothing to do with her judicial temperament or political leanings. Instead, Republicans said they wanted to refuse Mr. Obama any more appointments to the appeals court, which is widely recognized as second only to the Supreme Court in importance and often rules on politically significant matters like presidential authority and campaign finance.

“Our Democratic colleagues and the administration’s supporters have been actually pretty candid,” said Senator Mitch McConnell of Kentucky, the Republican leader, who pressed his members hard to vote no. “They’ve admitted they want to control the court so it will advance the president’s agenda.”

Another confrontation — on these nominations or others — seems inevitable. Even as Republicans pledged to stop Ms. Millett, two more nominees to the appeals court were working their way through the Senate confirmation pipeline. Robert L. Wilkins, a Federal District Court judge, cleared the Senate Judiciary Committee on Thursday by a 10-8 party-line vote. Cornelia T. L. Pillard, a Georgetown law professor, was already approved by the committee and is awaiting a vote on the Senate floor.

The court is split evenly with four Republican and four Democratic appointees among the judges who regularly hear cases. Among the judges who are semiretired, five are seen as conservative, one as liberal.

There are still three vacancies that Mr. Obama is trying to fill. Republicans are pushing a bill that would eliminate those seats permanently because they argue the court has a light caseload.

That has prompted Democrats to accuse Republicans of trying to change the rules simply because they do not like the president who is picking judges.

“The judiciary is too important to play partisan games with,” said Senator Dianne Feinstein, Democrat of California. “And that’s exactly what’s going on here.”

 

Happy Halloween

Not a lot going on in the SDFLA right now...

Roy Black has an interesting post about appellate advocacy here with lots of good tips and insight.  One thing he says that caught my eye is that he believes that one lawyer should handle the trial and the appeal.  I agree with him:

While preparing for the moot court event, I thought about who should argue the appeal – the trial lawyer or the appellate specialist. I believe in one lawyer – one advocate; one lawyer who has lived the case and knows everything about it. From the investigation to the bail hearing to trial to arguing the appeals. One lawyer should strive to know every detail, to be the one indispensable lawyer who knows every fact, every motion and every precedent. This is the way to being the consummate advocate. The lawyer for the situation. Any situation.   

In other news, Facebook pictures of a gang member's kid on a pony led to his arrest and deportation.  It's unbelievable to me that people don't understand how everyone can see what you post on Facebook.  Via Paula McMahon:

A suspected member of a ruthless criminal gang will be deported — again — after he snuck back into the U.S. and got caught because he posted photos of himself online running pony rides and bounce houses for South Florida kids' parties.Investigators say Dilbert Coreas, 22, of West Palm Beach, is a suspected member of the notorious Central American gang Mara Salvatrucha (MS-13). He was deported to his native El Salvador in November after serving time in state prison for drug-related crimes.Coreas, who has distinctive tattoos of a large cross and a tear drop on his face, caught the attention of detectives from the Palm Beach County Sheriff's Office gang unit when they saw pictures that he posted on Facebook to promote his mother's party-planning business, It'z A Kidz World Party Planning.On Wednesday, Coreas apologized to a federal judge in West Palm Beach for sneaking back into the country just two weeks after he was deported to El Salvador.

NED award goes to Judge Stanley Marcus

Another item that I missed last week while I was away was the Federal Bar's annual Gala, which honored Judge Marcus with the Edward B. Davis award, known as the NED.

Also, Ani Martinez was installed as the new president of the chapter.

Congratulations to both Ani and Judge Marcus.

Catching up

It's nice to be back after an adventure in Broward.  I'm trying to catch up on what's going on.  Email me if you have anything... 

1.  Looks like Mike Pizzi is fighting and going to trial, while his co-defendants cut deals.  Will be an interesting trial:

On Friday, the two-term mayor, surrounded by an entourage of defense lawyers and political supporters, pleaded not guilty to an indictment charging him with seeking kickbacks in exchange for sponsoring federal grant applications that prosecutors say were meant to enrich him.
Even the magistrate judge, John J. O’Sullivan, took notice: “A lot of people here for one person.”
Pizzi, indicted Thursday by a federal grand jury in Miami, is charged with conspiring to commit extortion and four counts of attempted bribery. If convicted, each count carries up to 20 years in prison.
Outside the Miami federal courthouse, Pizzi and his defense team, Ed Shohat, Ben Kuehne and Ralf Rodriguez, declared the former mayor would go to trial instead of cutting a plea deal — as another local mayor and two lobbyists accused of the same crime are expected to do in the coming weeks.
“I am innocent, I am not guilty,” Pizzi said repeatedly, with his lawyers and about 25 supporters standing with him. “And I will be exonerated and found not guilty at trial.”

2.  If it wasn't bad enough for the Dolphins today after their collapse, their star center was served with a subpoena leaving the stadium:

 Miami Dolphins center Mike Pouncey was served a subpoena shortly after Sunday's 27-17 loss to the New England Patriots.
The Massachusetts State Police issued Pouncey the subpoena as he exited the team's locker room at Gillette Stadium.
According to Sports Illustrated, the subpeona is related to an investigation into former Patriots tight end Aaron Hernandez, who is a close friend and college roommate of Pouncey from their days together as teammates at the University of Florida.

 3. One of the world's top sellers of stolen credit card data, Egor Shevelev, who has the online handle Eskalibur, was extradited to South Florida after he being convicted in New York and sentenced to serve a lot of time.  The Sun-Sentinel has the details.

4.  The feds are now using warrantless wiretaps in criminal cases.  Is anyone surprised?

5.  Justice Sonia Sotomayor spoke recently at Arcadia.  There aren't Scalia quips, but still some good stuff:

An important piece of who Sotomayor is seems to be rooted in her days at Princeton. She shared about feeling alienated and her college roommate describing her as Alice in Wonderland. The new culture she had found herself in was a world of prep schools and where her peers enjoyed vacation getaways during Christmas and spring breaks. She admitted that everything scared her about college and that it took her awhile to discover her sense of value in an Ivy League setting. “It took me awhile to understand that even though my experiences were different, they were not unimportant and they had their own value,” she said. “That is probably one of the hardest things … you will likely experience in college. Finding a way to stay true to your sense of value … and having to look at others and say ‘OK, you may be academically smarter, but I bring a new perspective and a different way of looking at the world.’ Keeping that alive in all of us is probably the hardest challenge.”

Blog news

My apologies -- but work takes me away from the blog for the rest of the week.  I promise to be back on Monday morning with all of the happenings in the SDFLA.

“I don’t care what you do. Rig the f------- brakes on his car. F------ take him out. I don’t want to see him anymore.”

According to a Herald report, that is former Miami Lakes Mayor Mike Pizzi discussing his political rival Richard Pulido.

Sounds like a bunch of stupid talk:

In a series of meetings over the next month, however, Pizzi never expanded upon the threats toward Pulido. He soon told McGrath, a retired Hialeah cop who at the time chaired the town’s planning and zoning board, “Forget about him; he will self-destruct himself.” Not long after, police suspended the investigation without charging anybody with anything, officially closing it earlier this year.Pizzi, in a statement on Friday, said he categorically denied “intending personal or political harm to Richard Pulido or anyone else,” saying he had a bit too much to drink that evening and was goaded by McGrath into “meaningless, over the top, silly, ridiculous drinking talk.” He amended his statement Saturday, saying he was actually “humoring” McGrath, a man who he said engaged in “Oliver Stone conspiracy lunacies.”Pizzi’s attorneys also dismissed the probe as a non-story that they say never should have been made public, noting that detectives quickly found there wasn’t evidence to support allegations that the now-suspended Miami Lakes mayor would harm Pulido.They called McGrath an unreliable informant who targeted Pizzi at Shula’s after an evening of drinking — though McGrath told detectives that Pizzi had only two beers. They also argued that McGrath’s recording doesn’t show sinister intent but simply a passionate, drunken politician venting about an opponent.“This was never a real ‘hit’ investigation,” said attorney Ben Kuehne, who is representing Pizzi with attorney Ed Shohat. “And therein lies the problem with the story,” said Shohat.

Read more here: http://www.miamiherald.com/2013/10/19/3700007/suspended-miami-lakes-mayor-pizzi.html#morer#storylink=cpy

Justices don't use email

I guess this is no surprise, and I assume that they wouldn't get much out of the Federal Bar's upcoming talk on social media, but it's still pretty interesting:

"Well, we either talk to each other, which is not a bad thing," said Kagan, to applause from the well-heeled audience of female CEOs and business leaders.
"Or we write memos to each other," she continued.
"And you know, you have to remember that the Court is an institution where...we're not horse trading. We're not bargaining. We're reasoning. And we're trying to persuade people. And often the best way to do that is by putting things down on paper in a kind of careful and deliberate way and saying this is what I think and, and giving people an opportunity to read a memo and to think about it and to reflect on it," she said.
"And so we do a lot of our communicating by these, it looks, it's sort of 19th century. It's very heavy ivory paper—it looks like it came out of the 1800s or something. But it seems to work pretty well," she added. "And when you think about it, how many emails have you sent that you wished you could take back? So, so we're careful and deliberative."

Visiting Judge Bowen issues strongly worded concurrence

From U.S. v. Rodriguez, it's definitely worth a read. Judge Bowen was visiting from the S.D. Georgia.

Judge Martin, for the majority, finds that the government didn't prove up 50 victims at sentencing:

Mr. Rodriguez argues that the District Court clearly erred when it found that his offense involved more than 50 victims. Although he acknowledges that the government presented 42 affidavits of victims who suffered a loss and a summary chart indicating that there were 238 victims total, he points out that the government provided no witnesses or underlying data to authenticate the government’s summary chart. For this reason, Mr. Rodriguez argues that the District Court’s finding is not supported by reliable and specific evidence. We agree.

And here's Judge Bowen's concurrence:

I concur in the opinion in full. I write specially to comment on the Government’s treatment of the sentencing proceedings.

This is another case wherein the Government has failed to come forward with evidence at a critical time. Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought. The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical. In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else.
***

Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude. Responsible advocacy demands more.