The SOTU Bear Hug

That was Justice Ginsburg and President Obama:

How nice.

Meantime, Obama let the Justices know (in a nicer way this time) that he wasn't pleased with the Voting Rights decision.  From the WSJ:



Chastened after his 2010 State of the Union address, when his explicit criticism of a Supreme Court decision sparked a rebuke from several justices, President Barack Obama took a more subtle approach Tuesday regarding a ruling he considers misguided. The reference in Tuesday’s address to Congress was so subtle, in fact, that television camera operators apparently didn’t realize what he was referring to, and failed to cut to attending justices for a reaction shot.
“Last year, part of the Voting Rights Act was weakened,” Mr. Obama said, invoking the passive voice to avoid mention of the entity that did the weakening: the Supreme Court. The high court voted 5-4 along conservative-liberal lines to free states with a history of discrimination from their obligation to obtain federal approval before changing election procedures.
Five justices were in the audience. Two, Chief Justice John Roberts and Justice Anthony Kennedy, found that the formula for identifying states requiring federal oversight no longer was constitutional. Three dissented from the ruling, Shelby County v. Holder—Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Their facial expressions couldn’t be seen.
“But conservative Republicans and liberal Democrats are working to strengthen it,” Mr. Obama continued, referring to a bill co-sponsored by Rep. F. James Sensenbrenner Jr. (R., Wis.), Rep. John Conyers Jr. (D., Mich.) and Sen. Patrick Leahy (D., Vt.). The bill would create a new formula for determining which jurisdictions had violated voting rights so egregiously in recent years to justify federal oversight.
Mr. Obama added a comment perhaps inspired by a case now pending before the justices, McCutcheon v. Federal Election Commission, which would lift limits on aggregate campaign contributions a single individual can make, which current law caps at about $125,000 over a two-year cycle.
“It should be the power of our vote, not the size of our bank account, that drives our democracy,” the president said, but again the justices’ reaction was not displayed to television viewers.
Four justices skipped Tuesday’s event. Justices Antonin Scalia and Clarence Thomas have avoided it for years. Justice Sonia Sotomayor was in California. And Justice Samuel Alito—who visibly mouthed “not so” when President Obama in 2010 criticized the decision called Citizens United, which lifted limits on corporate and political spending—hasn’t been seen in the House chamber since.


Bryan Garner, is an expert on how lawyers write and talk, and he's also the editor of Black's Law Dictionary.  He's added these new terms to the book, which he picked up from ATL founder David Lat.  From Garner's twitter account:


Three neologisms by @DavidLat that I've defined for Black's Law Dictionary (10/e): "bench-slap," "judicial diva," and "litigatrix."

Justice Alito visiting the District

Info here:

Joint Luncheon with the Palm Beach County Bar Association and the Forum Club with Guest Speaker U.S. Supreme Court Justice Samuel Alito

Date 

Monday, February 3, 2014

Time 

11:15 AM-1:15 PM

 

Registration Closes 

Wednesday, January 29, 2014 11:00 PM

 

Location 

Palm Beach County Convention Center

Event Cost

• Guest of a Member ($55.00)
• Judges ($0.00)
• Members ($45.00)

Are you a Belieber?

You should be in the CJA panel.  A bunch of favorable verdicts last week for them... A NG across the board for Al Levin in a felon in possession case.  A hung jury for Rick DoCobo, and a NG on the 7-year 924(c)s for Marty Feigenbaum.  

--UM Law Review is putting on a pretty cool program called Leading from Below on February 14-15. The two-day Symposium will examine the discretion and role of the Federal District Court Judge. The keynote speaker is the Honorable Jack B. Weinstein. One of our own, Judge Kathleen Williams, will also be speaking. And the price is right -- it's free and you'll get 9 CLE credits. Click here for more information and to register.

--If you were trying to file something or log onto PACER on Friday, it was a no go.  But it wasn't a cyber-attack as initially reported.  From the WSJ:

A shutdown of numerous federal court websites on Friday, initially attributed to a cyberattack, was actually the result of technical problems, the Federal Bureau of Investigation said.

The service disruption prevented some attorneys from filing documents electronically and others from reading court records.

At first, a spokeswoman for the federal court system said the shutdowns were the result of a denial of service attack—a kind of blunt force assault that overwhelms a website's ability to handle regular users by inundating the site with meaningless traffic. She said the incident "affected an unknown number of courts around the country," as well as the systems for reading and filing court documents.

Later Friday night, however, an FBI spokeswoman said the service interruption was because of technical problems in the federal court computer system and not a cyber attack.

--Finally, Judge Kozinski is the best.  He said this in an opinion concurring in part last week: "As best the record showed, Enmund was a schmo hired to drive the getaway car for a robbery gone wrong" 

Justin Bieber Arrested! Justin Bieber Arrested!

The other blogs this morning might be talking about the Bieber arrest on SoBe, but state court doesn't have the stranglehold on interesting cases.  Check out this one -- the sex tape defense! -- from our federal court in Ft. Lauderdale:

Jurors may have to see some stuff they might never be able to unsee if a defendant who's acting as his own attorney gets his way.
The South Florida man wants to introduce sex tapes and intimate photographs of himself and his wife as evidence in his criminal trial to try to prove that his marriage was real and not just undertaken for immigration purposes.
The trial of Rogerio Scotton — which starts Thursday in federal court in Fort Lauderdale — has nothing to do with sex.
The Brazilian-born former professional racecar driver, who lived in Boca Raton and Margate before his arrest in March 2012, is charged with 27 counts of mail fraud and two counts of lying to immigration authorities.
The 43-year-old businessman is accused of operating a multimillion dollar mail fraud involving shipping companies FedEx, UPS and DHL. Prosecutors say he stole millions of dollars from the shippers by creating phony accounts that fraudulently billed major companies like Target, WalMart and Apple between 2007 and 2012.

To top it off, Scotton is pro-se.  Judge Rosenbaum is presiding.  She is such a good egg that she didn't just continue this until she was confirmed so some other judge would have to deal.  And she is trying so hard to give this guy a fair trial:

He wants U.S. District Judge Robin Rosenbaum to let him show what she called videos and photographs of "you and your wife engaged, I guess, in some very intimate acts" to the jurors who will decide his innocence or guilt.
Scotton hopes to undermine the prosecution's allegation that he lied about details of his marriage to a Cuban woman to get permanent resident status here. The 25-year U.S. resident said he has visible proof that the couple had a genuine marriage.
Scotton's desire to show jurors visual depictions of the more intimate side of the couple's relationship caused the judge to schedule a court hearing Wednesday to view the footage and photos and decide if it would be legally appropriate.
The judge told Scotton she wasn't going to just "play that stuff in front of the jury and see what's on there" without vetting it.
"I don't think that it would be fair to your wife," Rosenbaum told Scotton, explaining she needs to ensure that he gets a fair trial without unnecessarily violating his wife's privacy or introducing irrelevant matters.
"Why is the privacy of my wife important at this point?" Scotton asked the judge. "I'm facing jail time."
"[Let's] see if we can figure out a less intrusive way to prove the same thing," Rosenbaum told him.

How much joking is too much in the Supreme Court?

There was a bunch of it in this week's really interesting argument regarding anonymous tips.  From the AP:

There were no sound effects and certainly no cameras on hand when Supreme Court Justice Antonin Scalia turned an already entertaining argument over a traffic stop on a two-lane road in northern California into drama worthy of Hollywood.
Not even information that a carload of terrorists heading to Los Angeles with an atomic bomb would be enough to justify police stopping the car, if the tip came from an anonymous source, Scalia suggested Tuesday, using an extreme example to urge a lawyer for two suspects appealing their conviction to stand firm.
"I want you to say, 'Let the car go. Bye-bye, LA,'" Scalia said, drawing laughter from the audience as well as some colleagues.
While the rest of Washington stayed home in the snow, the Supreme Court was in session Tuesday and the justices had what, for them, seemed a rollicking good time.
The legal issue before the court is whether an anonymous tip about reckless driving is enough under the Fourth Amendment for police to pull over a car, without an officer's corroboration of dangerous driving.
Two brothers pleaded guilty to transporting marijuana after California Highway Patrol officers pulled over their silver Ford 150 pickup based on a report of reckless driving.
The officers did not observe erratic driving, but acted after dispatchers received a 911 call saying the vehicle had run the caller off the road and identifying it by its model, color and license plate. A subsequent search revealed four large bags of marijuana. The brothers argue in their appeal that the traffic stop violated their constitutional rights, based on an earlier high court ruling that anonymous tips by themselves ordinarily are not sufficient for police to detain or search someone.
The justices often try to test the arguments of the lawyers before them by hypothesizing about extreme positions. In this debate, Chief Justice John Roberts came up with a tip about a girl being tossed in the trunk of a car and kidnapped. Not enough, lawyer Paul Kleven said on behalf of the brothers.
"You get an A for consistency. I'm not sure about common sense," Justice Anthony Kennedy said.
But Scalia proved a stricter grader, after Kleven hesitated to agree that the car with the nuclear weapon couldn't be stopped. "That may be a situation, again, where the court decides that he risk is so great," Kleven began before Scalia cut in.
"So you see, he's not consistent," the justice said.
Lawyers for California and the Obama administration, defending the traffic stop based on the anonymous tip, said keeping the public safe from drunken drivers outweighs the intrusion of a traffic stop. They said a tip about someone driving recklessly would be enough because reckless driving often follows having had too much to drink.
But Justice Sonia Sotomayor said people use the term "reckless" differently, suggesting she might not accept the governments' argument.
Sotomayor gave as an example her mother, who doesn't like it when the justice tops 50 miles per hour behind the wheel. "She thinks that when I'm going 51, I'm speeding and reckless," Sotomayor said.

 Meanwhile, the New York Times had a good read about kosher meals in prisons:

Captive diners know that a good meal is hard to find.

Airplane passengers, for instance, have been known to order kosher meals, even if they are not Jewish, in the hope of getting a fresher, tastier, more tolerable tray of food. It turns out that prison inmates are no different.

Florida is now under a court order to begin serving kosher food to eligible inmates, a routine and court-tested practice in most states. But state prison officials expressed alarm recently over the surge in prisoners, many of them gentiles, who have stated an interest in going kosher.

Their concern: The cost of religious meals is four times as much as the standard fare, said Michael D. Crews, who is expected to be confirmed as secretary of the Department of Corrections in March.

“The last number I saw Monday was 4,417,” Mr. Crews said of inmate requests at his recent confirmation hearing before a State Senate committee. “Once they start having the meals, we could see the number balloon.”

To which, Senator Greg Evers, the Republican chairman of the Senate Criminal Justice Committee remarked: “Is bread and water considered kosher? Just a thought. Just a thought.”

Scalia's joke was much better than Evers'.....

Read more here: http://www.miamiherald.com/2014/01/21/3884185/justices-weigh-anonymous-tips.html#emlnl=Afternoon_Update_Newsletter#storylink=cpy

Should the police be able to search your phone without a warrant?

The Supreme Court is finally going to look at whether you have an expectation of privacy in your phone.  I think if you asked 100 people on the street what they thought, more than 90 would say that their phones should be off limits to the police without a warrant. But our government is taking the position that searching a phone should be permitted incident to arrest.  From Adam Liptak:

The Supreme Court on Friday agreed to hear a pair of cases about whether the police need a warrant to search the cellphones of people they arrest, presenting a major test of the meaning of the Fourth Amendment in the digital age.

The court has long allowed warrantless searches in connection with arrests, saying they are justified by the need to find weapons and to prevent the destruction of evidence. The question for the justices in the new cases is whether the potentially vast amounts of data held on smartphones warrant a different approach under the Fourth Amendment, which bars unreasonable searches.

The lower courts are divided. In one of the cases the court agreed to hear, the federal appeals court in Boston in May threw out evidence gathered after the police there inspected the call log of a drug dealer’s rudimentary flip phone. “Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format, on a cellphone, carried on the person,” Judge Norman H. Stahl wrote for a divided three-judge panel of the court.

“That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email, and voice mail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records,” he added.

When the full appeals court declined to rehear the case, Chief Judge Sandra L. Lynch said she hoped the justices would soon address the “very important and very complex” questions presented by it. “Only the Supreme Court can finally resolve these issues, and I hope it will,” she wrote.

In urging the Supreme Court to hear the case, United States v. Wurie, No. 13-212, Solicitor General Donald B. Verrilli Jr. said courts have long endorsed inspection of anything carried by the people they arrest, including wallets, calendars, pocket diaries, address books and pagers.

In February, a state appeals court in California applied the principles established in those cases to allow a search of a smartphone containing much more information than the one seized in Boston. That case arose from the arrest of David L. Riley, who was pulled over for having an expired auto registration. The police found loaded guns in the car and, on inspecting Mr. Riley’s smartphone, entries they associated with a street gang.

A more comprehensive search of the phone led to information that linked Mr. Riley to a shooting. He was later convicted of attempted murder and sentenced to 15 years to life.

His lawyers asked the Supreme Court to hear the case, Riley v. California, No. 13-132, to determine how the Fourth Amendment applies to a device “that happens to include a phone” but is in essence a computer “capable of storing a virtually limitless amount of information.” They argued that a warrant should be required “before allowing the police to rummage through the digital contents of such a device.”

In agreeing Friday to hear that case, the justices said they would decide a narrower question than the one proposed by Mr. Riley’s lawyers, that of whether evidence admitted at Mr. Riley’s trial was obtained by a search that violated his Fourth Amendment rights.

In other news, two judges got in trouble last week, and it took quite a bit for it to become public.  Here's the story about Boyce F. Martin Jr. and Richard Cebull:

Lifetime appointments to the bench, the legitimate need to keep judges apart from the political hurly burly, and their own institutional insularity combine to make the conduct of the federal judiciary extremely opaque and difficult to hold to account. So it's worth noting that on Friday, the Judicial Conference's Committee on Judicial Conduct and Disability, which reviews cases of misconduct by federal judges, published two different decisions involving judicial misconduct where the essential issue before the panel was whether to make public the alleged misconduct or keep it cloaked behind the judicial trappings of secrecy and confidentiality.
In both cases, the committee opted in favor of openness. How it got there -- and the backstory on both cases -- is fascinating.

Dean Alex

Alex Acosta, the excellent Dean of the FIU Law School, has applied to be the Dean at the University of Florida.  From the DBR:

Alex Acosta, law dean of the Florida International, has applied to become dean of the University of Florida Levin College of Law.
Acosta, who has led FIU's law school for four years, is one of 24 semifinalists to head the Gainesville school. The list will be narrowed down to finalists today for future interviews.
Other semifinalists include Ileana Porras, associate law dean of academic affairs at the University of Miami, and Martha Barnett, a partner and lobbyist at Holland & Knight's Tallahassee office.
UF law dean Robert Jerry announced in August that he would step down after completing his 11th year in June.
Acosta, a former U.S. attorney in Miami, was recently appointed to another five-year term. Founded in 2000, the FIU law school is South Florida's newest and its only public one.
Acosta, 45, is credited with its rapid rise in the U.S. News & World Report's ranking from unranked—below 160 out of 184 schools—to 105 and increasing median LSAT scores, grade point averages and Florida Bar passage rates.
In his letter to the UF search committee, Acosta noted he has helped boost female enrollment from 46.2 percent to 51.6 percent and minority enrollment from 53.2 percent to 59.6 percent. He also boasts of raising $1.55 million, saying, "My fundraising has been outstanding."
"I previously served in three presidentially appointed, Senate-confirmed positions in federal government," Acosta said of his time with the Justice Department and the National Labor Relations Board. "I offer an unusual combination of experience in the academy, government and law practice."
When he applied to be the FIU dean, Acosta acknowledged his one failing was his lack of teaching experience.
Leonard Strickman, FIU's first law dean, said he thinks Acosta would do a good job at UF and does not begrudge his applying.

Good luck to Alex!

Brrrrrrrrrrr

Here's what's going on:

1.  Justice Scalia doesn't like advocated who read from their notes:

What an awkward exchange in the opening of Marvin M. Brandt Revocable Trust v. United States, between Justice Scalia and Steven Lechner, who was making his first appearance before the Nine.
Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -­
JUSTICE SCALIA: Counsel, you are not reading this, are you?

Oh isn’t that uncomfortable.
A moment later, Justice Breyer kindly intervened:

JUSTICE BREYER: It’s all right.

What do you all think -- jerk move by Scalia or not?

2.  We're #1 in ID Theft cases.  From Curt Anderson:

Florida has the nation’s highest rate of identity theft, led by the fraud-wracked Miami area, and thieves are increasingly using the ill-gotten personal information to rip off the government through fraudulent tax refunds, a top federal prosecutor said Wednesday.

The identity theft rate in Florida in 2012 was more than 361 complaints for every 100,000 residents, according to the most recent Federal Trade Commission data. Georgia was next at 194 complaints per 100,000 residents, followed by California and Michigan at about 122 complaints each and New York at 110. The 2012 figures are the most recent.

Among metropolitan areas, the Miami region topped the identity theft charts — just as it has previously for Medicare fraud and mortgage fraud — at more than 645 complaints for every 100,000 residents, according to the FTC. Florida has all five top identity theft regions: Naples, Tampa-St. Petersburg, Fort Myers-Cape Coral and Tallahassee round out the national top five.

3.  We aren't #1 in Health Care Fraud though.  That goes to the Southern District of Illinois.  From TRAC:

The Southern District of Illinois (East St. Louis) led the nation with 10.1
prosecutions of this statute per one million people, over eight times the
national average of 1.2 prosecutions per million. In second place was the
Southern District of Florida (Miami) with 8.8 prosecutions per million,
followed by South Carolina with 7.2 prosecutions per million.