President's Day News & Notes (Supreme Court style)

The Southern District of Florida is pretty quiet today, so here's some Supreme Court news for those of you in the office:

1.  Justice Stevens is still active.  Here are some good stories:

In his early days as a justice, Stevens recalled, Brennan persuaded him to attend the exclusive Gridiron Club dinner put on by Washington journalists. Brennan insisted on loaning Stevens his suit with tails for the occasion.
The problem, Stevens said, was that "Brennan was a good deal heavier than I was." As a result, Stevens worried all evening that the suit "would not protect my dignity." But it all turned out well. Stevens was seated next to the famed dancer and actress Ginger Rogers. "It was one of the best evenings I ever had, and I owe that to Bill Brennan."
As on other occasions since retiring in 2010, Stevens was critical of some of the decisions the court has handed down since he left. Both Snyder v. Phelps and United States v. Alvarez, he said, were too protective of false speech. The Snyder case went in favor of virulent protesters at military funerals, and Alvarez struck down a federal law that made it a crime to falsely claim to have won a military Medal of Honor.
The Alvarez ruling, Stevens said, "sends a terrible message to the youth of our nation and to the general public as well" by announcing a constitutional right to lie.
Neither Snyder nor Alvarez were 5-4 decisions, so the fact that Stevens would have voted differently than his successor Elena Kagan would not have made a difference in the outcome.
Still, Stevens' remarks underscored what a difference a single justice can make, even on a nine-member court. He recounted how, in Harte-Hanks Communications v. Connaughton, a libel decision he authored in 1989, he was first assigned to write a propress majority opinion. When he read the record, however, he changed his mind, deciding it was a rare instance when the press should be held liable for defaming a political candidate. The rest of the court followed Stevens' lead.
The behind-the-scenes maneuvering in the court's long line of libel cases is the focus of a powerful new book that was discussed at the conference. Written by court scholar Steve Wermiel and Lee Levine, partner at Levine Sullivan Koch & Schulz, "The Progeny: Justice William J. Brennan's Fight to Preserve the Legacy of New York Times v. Sullivan" makes it clear that court opinions can be the product of months — and sometimes years — of negotiations and rewrites.

2.  Justice Scalia tackles the very important question of whether Chicago pizza is really pizza:

Scalia also displayed his famous sarcastic wit throughout, lastly directing it at Chicago deep dish pizza during questioning after his speech. He said he liked both Chicago and New York style pizza, but Chicago style “shouldn’t be called pizza” he said. “It’s very tasty, but it’s not pizza.”

Judge Seitz's Portrait Hanging

Congratulations to Judge Seitz on her portrait hanging yesterday on the 13th Floor of the Wilkie Ferguson Courthouse.  Although I wasn't able to attend, I heard it was a lovely event and a huge turnout.

11th Circuit weighs in on Juan Carlos Chavez case

Rumpole has all of the details on the case and execution, which occurred yesterday. 

Chavez tried to get a stay from the 11th Circuit and the Supreme Court, both of which were denied.  The 11th Circuit opinion, written by Carnes, with a concurrence from Martin is here.

This is how Judge Carnes starts the majority opinion:

Juan Carlos Chavez kidnapped a nine-year-old boy at gunpoint, anally raped
him, verbally taunted and terrorized him, shot him to death, dismembered his body,
discarded his body parts in three planters, and then filled those planters with
concrete. See Chavez v. State, 832 So. 2d 730, 738–41 (Fla. 2002). Facing
imminent execution, Chavez has filed a lawsuit claiming that he may experience
unnecessary pain when the State of Florida executes him by lethal injection. After
conducting an evidentiary hearing, the district court denied Chavez’s request for a
temporary restraining order, preliminary injunction, or stay of execution. This is
his appeal.

That's some powerful writing.

Kitterman convicted and juror says that jury believed Rothstein

Paula McMahon interviewed one of the jurors, which is always fascinating.  Here's what she had to say:

Her attorney, Valentin Rodriguez Jr., said Kitterman and he were "deeply disappointed" but had no regrets about their trial strategy.
"We felt he was essential to our defense … the jury needed to see him and how manipulative he was and is," Rodriguez said.
Juror Susan Schweiger, of West Palm Beach, said she thought Rothstein was "pretty much" a credible witness and jurors believed most of what he said.
"I don't understand why he was called by the defense because he did not help her," Schweiger said. "I think he was, for the most part, telling the truth. I think he lied about some stuff because you don't change your nature totally like that but we believed him."
She said jurors did not hold Kitterman's battle with drug and alcohol addiction against her at all, but believed she was guilty of the crimes prosecutors accused her of committing.

Here are the results from the poll taken a few days ago, which the readers got right:


Should the defense have called Scott Rothstein to the stand in the Kitterman trial? (multiple answers allowed)
Selection  No, it's just way too risky 21 votes 
 No, it's better to point the finger at the prosecutor for not calling him 20 votes 
No, it was just a publicity stunt by the defense 4 votes 
Yes, you can dirty up the government by calling him 6 votes 
 Yes, you need to take such risks as the defense 9 votes 
Yes, it will make for a nice comparison when Kitterman testifies 11 votes 

Judge Robin Rosenbaum testifying live before the Senate now

Watch here.

UPDATE -- Judge Rosenbaum was just excused (9:31).  She did great.

Kitterman strikes back

She testified in her own defense yesterday, taking on Scott Rothstein.  From the DBR:

Kitterman testified when she joined the Rothstein Rosenfeldt Adler law firm in 2003, she immediately had to ward off Rothstein's sexual advances. She said he threatened to fire her numerous times and called her names like "idiot." Rothstein also had a knack for showing up at the same public place as Kitterman, such as restaurants."Mr. Rothstein had a temper. He was one of those people who had two sides," Kitterman said. "He was a very scary person, but he could be a very kind."Kitterman faces three counts of wire fraud conspiracy. Closing statements before Senior U.S. District Judge Daniel T.K. Hurley in West Palm Beach were expected Tuesday.Rothstein's mistreatment of women in his firm has been a key component to Kitterman's defense. The 12-member jury has 11 women on it.Kitterman said she never thought about filing a sexual harassment complaint against Rothstein with the Equal Employment Opportunity Commission."I was a new lawyer," she said. "I was scared. I just couldn't do something like that."Kitterman testified Rothstein's harassment of her ended when she went to the firm's only other equity partner, Stuart Rosenfeldt, in 2006 and asked to be reassigned so she didn't work directly with the firm's chairman.

The Sun-Sentinel also covers the case and Judge Hurley's ruling to allow the prosecution to cross Kitterman regarding her recovery from addiction:

But federal prosecutor Paul Schwartz's cross-examination cut directly to what prosecutors say was one of many motives Kitterman had to commit crimes at Rothstein's behest.
"You were addicted to alcohol and cocaine," Schwartz said to Kitterman.
Kitterman acknowledged she is a recovering addict and said that after "partying" on Aug. 7, 2007, she realized she had hit rock bottom and called her mother for help. Her mother called Rothstein, and he helped them find a four-week rehab program called "Challenges," Kitterman said.
When she returned to work a month later, Rothstein agreed to pay her salary for the time she had been absent, she said.
And when she told Rothstein that there was negative talk going around about her stint in rehab, Rothstein dispatched an email to the entire firm telling anyone who judged her poorly to resign by the next day.
Every year after that, she said, she thanked him on the anniversary of her gaining sobriety.
Prosecutors read aloud from an August 2009 email she sent Rothstein — just four months after the conference call and two months before the law firm imploded.
In it, she thanked him for his "friendship, love and support" and wrote that "words cannot express" the debt of gratitude she and her family owed to him.
Kitterman testified that she has remained clean and sober to this day. She said she is proud of her continued sobriety but embarrassed that she was in rehab and didn't raise the issue herself in court because she did not think it was relevant.
Senior U.S. District Judge Daniel T. K. Hurley told jurors he was allowing them to hear about Kitterman's drug and alcohol abuse because prosecutors believe it shows some of the reasons they say she was willing to commit crimes for Rothstein.

Will be interesting to see what the jury does.

Should the Kitterman defense have called Scott Rothstein?

That's the question that John Pacenti asks in today's DBR:

West Palm Beach attorney Valentin Rodriguez looked exhausted after verbally sparring with Scott Rothstein.
The disbarred law firm chairman and the mastermind of Florida's largest Ponzi scheme was called as a defense witness for Rodriguez's client, Boca Raton attorney Christina Kitterman.
"Scott Rothstein is not going to win this battle," Rodriguez said defiantly outside the West Palm Beach federal courthouse after the first day of Rothstein's testimony Wednesday. "But he can absolutely pick up on what you are trying to do."
Rothstein's well-documented arrogance made its inevitable appearance during questioning by Rodriguez, a polite-almost-to-a-fault attorney with a knack for quietly getting under the skin of witnesses.
...West Palm Beach attorney Peter Feldman, Rodriguez's co-counsel in Kitterman's case, said, "We knew the risk of calling him as he is unpredictable. I think that risk was outweighed by the jury being able to see him—live and in color—conducting his rock-star lifestyle."
Rodriguez called Rothstein over prosecution objections, bringing one of South Florida's most notorious figures into the public eye for the first time in four years in the first criminal trial centered on his $1.2 billion Ponzi scheme.

So, I will put the question to you to decide:

Should the defense have called Scott Rothstein to the stand in the Kitterman trial? (multiple answers allowed)
	No, it's just way too risky
	No, it's better to point the finger at the prosecutor for not calling him
	No, it was just a publicity stunt by the defense
	Yes, you can dirty up the government by calling him
	Yes, you need to take such risks as the defense
	Yes, it will make for a nice comparison when Kitterman testifies
pollcode.com free polls

Rothstein Rothstein Rothstein!

Everyone was a buzz yesterday over Scott Rothstein testifying before Judge Hurley in West Palm Beach.  Paula McMahon covered it well.  Here are some highlights:

• With a white goatee and closely cut hair that was grayer than the last time he was seen publicly some three-and-a-half years ago, Rothstein, 51, took the witness stand handcuffed and shackled, wearing a bright blue, collared T-shirt and jeans.
  Rothstein — who was subpoenaed by defense attorney Valentin Rodriguez Jr. to testify in the wire fraud trial of Christina Kitterman, a former attorney who worked at the Rothstein Rosenfeldt Adler law firm — appeared in court much earlier than expected because of security concerns.

• Additionally, Rothstein testified he had a sexual relationship with Kitterman.
  “We were two friends who fooled around from time to time, Rothstein testified, alleging Kitterman “pulled me into a bathroom stall to make out with me” at Runway 84 in Fort Lauderdale.
  “We were friends, there's no polite way to say this — we were friends with benefits,” he said. “I loved her and cared about her and I believe she loved and cared about me.”
  “I am NOT happy about being here,” Rothstein said, saying he wished he didn't have to testify about someone he cares about.
• “What ended up happening ... My ego and, at that particular time, my desire for power and money and some of my partners' desire for power and money” led to Rothstein starting his fraud to try to keep his failing law firm afloat, he testified.
  “We grew before we should have grown,” Rothstein told the jury. “I refused to fail and I let this Ponzi scheme explode.”
  “At that time, I had an ego that was out of control,” he continued.
  
• “My wife was indicted for things that she did and also things that I told her to do.”
  He said he told her, during a phone conversation after he briefly fled to Morocco in late 2009, to hide some expensive watches from the government.
  “At a later point in time, before the government took everything, I had had conversations with her [Kim] about making certain that we did not end up on the street ... I didn't tell her what to take, other than the watches.”
• Was Rothstein upset about the length of the sentence imposed by Cohn, Kitterman's lawyer Valentin Rodriguez Jr. asked.
  “That would be an understatement, yes sir,” Rothstein replied.
  Prosecutors filed a court document on June 8, 2011, saying Rothstein should qualify for a sentence reduction for his cooperation. The final decision would lie with Cohn.
  No further action has been taken on the request, Rothstein said, because his cooperation is not complete yet.
  
  
• A second hitch, he testified, is: “I understand there's been an issue pertaining to my failure to tell” the truth to federal authorities about the fact he knew and was involved in Kim Rothstein's efforts to criminally hide some of their assets.
  He still hopes he will get a sentence reduction because he hopes prosecutors and the judge will accept he only lied about hiding jewelry with his wife Kim and that it was a mistake he made under duress, he said.
  He said he hopes prosecutors and the judge will eventually grant him a sentence reduction and agree “that I don't deserve to die in prison for what I've done.”