Happy Groundhog Day

Somehow it's already February...

Interesting story last week about Judge Rakoff. He got annoyed and resigned from a forensic panel he was on because DOJ was dictating what evidence would get disclosed to the defense. But DOJ has backed off and Rakoff is back. From the Washington Post:

A federal judge Friday returned to a presidential commission on forensic science after the U.S. Justice Department reversed a decision to bar the panel from discussing changes that would give criminal defendants more information about forensic evidence before their trials, a federal official said.

U.S. District Judge Jed S. Rakoff of the Southern District of New York had resigned in protest Wednesday from the Obama administration panel, accusing the department of placing “strategic advantage [for prosecutors] over a search for the truth.”

However, Acting U.S. Deputy Attorney General Sally Q. Yates invited Rakoff to return, saying she had not been aware the commission had worked openly on its plans for nearly a year.

Yates told the National Commission on Forensic Science that “it seemed only fair” that it “make its determination as to what information should be provided to the Attorney General.”

“This is obviously a critically important issue to the Department,” Yates said. “We take very seriously our obligation to ensure that defendants receive a fair trial.”

A Justice Department official said the initial decision that pretrial evidence discovery rules were beyond the commission’s scope was made by Yates’s predecessor, James Cole, before his departure Jan. 8. The official, who spoke anonymously because he was not authorized to discuss the issue publicly, added that Yates may not agree with the panel’s suggestions.

Rakoff, the commission’s only federal judge, thanked Yates and said he looks forward to a discussion “on the merits.”

Good for Judge Rakoff.

Here in the SDFLA, we have a visitor from the High Court. Justice Sotomayor is speaking in WPB:

U.S. Supreme Court Justice Sonia Sotomayor will be at the Palm Beach County Convention Center today, speaking at a luncheon gathering of the Forum Club of the Palm Beaches and the county Bar Association.

With 1,250 tickets sold, the event is sold out.

The revolution will not be televised

Forget about TV, you can't even get a seat inside the Supreme Court. From USA Today:

The dignified calm of the U.S. Supreme Court was broken recently when seven protesters, one after another, rose to shout epithets about the growing power of money in American politics — a trend the court has hastened through its rulings.

It was a rare moment of chaos in the court. When the episode ended, Chief Justice John Roberts told spectators, "We will now continue with our tradition of having open court in the Supreme Court."

Roberts' off-the-cuff remark was significant, reminding the public that the nation's highest court is indeed open — and openness can sometimes be messy in a democracy. But as the court continues to add blockbuster cases to its docket, the unfortunate narrow scope of the court's openness deserves scrutiny.

In the next three months, the Supreme Court will hear arguments on three extraordinary landmark issues: same-sex marriage, the future of Obamacare and the constitutionality of lethal injections for capital punishment.

Roberts is correct that the court will be open when those cases are argued — but only to 200 or so members of the public lucky enough to obtain seats. Many will wait in line for days in advance. If past experience is repeated, wealthy individuals who want seats will pay thousands of dollars for others to wait in line for them — an unseemly business that tarnishes the court's image of openness.

Why will only a relative handful of people be able to witness history at the court? Because, as open as it is, the court has long refused to let cameras record or broadcast its proceedings. We have written about this before, but the court's policy continues to amaze people — especially young people, who take transparency and access for granted.

Recent polls have shown strong approval for cameras in the Supreme Court (71%) and record-high agreement that the court should be more open and transparent generally (95%).

The group Fix the Court, which advocates for greater transparency at the Supreme Court, posted an amusing video recently in which random Americans were told that the Super Bowl will not be televised. The interviewees refused to believe it — and, no worries, it will be. But when those interviewed were told that a slightly more important institution — namely, the Supreme Court — is never televised, they were incredulous, and upset.

Fight the Power!

How ridiculous is this -- a PD arrested for doing her job:

Warren Lee Hill executed

The 11th Circuit denied his last stay request (Hull & Marcus, with a dissent by Martin) and the Supreme Court also turned him down yesterday, leading Georgia to execute Warren Lee Hill.

Here's the NY Times:

The State of Georgia executed a convicted murderer, Warren Lee Hill, on Tuesday night, ending a prolonged legal fight that led to a series of court-ordered reprieves and frequently tested the state’s standards for capital punishment.

The Georgia attorney general’s office confirmed Mr. Hill’s death at a state prison in Jackson, southeast of Atlanta. He was 54.

The execution would “live on as a moral stain on the people of this state and on the courts that allowed this to happen,” Brian Kammer, one of Mr. Hill’s lawyers, said shortly before the sentence was carried out.

The execution came at the end of a day in which state officials and the federal courts denied Mr. Hill’s final appeals, which focused on claims of intellectual disability and whether Georgia law made it essentially impossible to avoid a death sentences on those grounds.

The United States Supreme Court turned down the appeal Tuesday night; the court said Justices Stephen G. Breyer and Sonia Sotomayor had supported issuing a stay of execution. Earlier Tuesday, the State Board of Pardons and Paroles rejected a request for clemency from Mr. Hill, who was sentenced to death for the 1990 murder of another inmate, Joseph Handspike.

At the time of Mr. Handspike’s death, Mr. Hill was in prison for killing his girlfriend in 1985.

Although Mr. Hill’s appeals sometimes involved questions about Georgia’s lethal injection protocols, his last legal campaign dealt with a contention of an intellectual disability. Mr. Hill, with an I.Q. of 70, had “the emotional and cognitive functioning of an 11-year-old boy,” Mr. Kammer said.

“Warren Lee Hill is intellectually disabled,” Mr. Hill’s lawyers told the Supreme Court in a filing. “The lower Georgia courts have said this twice. All of respondent’s experts have acknowledged this fact.” ***

In a ruling announced less than 30 minutes before the scheduled start of the execution, the justices rejected Mr. Hill’s appeal.

Surveillance nation

You are being watched and tracked all of the time. Do you care? From Fox:

The Justice Department has acknowledged constructing a database to track the movements of millions of vehicles across the U.S. in real time.

The program, whose existence was first reported by The Wall Street Journal, is primarily overseen by the Drug Enforcement Agency (DEA) to combat drug trafficking near the U.S.-Mexico border. However, government emails indicate that the agency has been working to expand the database throughout the United States over the past several years.

A Justice Department spokesman told Fox News that the tracking program is compliant with federal, claiming it "includes protocols that limit who can access the database and all of the license plate information is deleted after 90 days." In 2012, a DEA agent testified before a House subcommittee that the program was inaugurated in December 2008 and information gathered by it was available to federal, state, and local law enforcement organizations.

It is not clear whether the tracking is overseen or approved by any court.

Rare view inside the Supreme Court during protest

“No one is buying a judge for $500. But it could buy you a continuance down the road.”

That was one Florida Judge running for re-election back in 2002 (see par. 46). The Supreme Court heard argument this week on whether judges running for election in Florida should be able to personally solicit campaign contributions.  From SCOTUSBlog:

If there is one thing that the Roberts Court seems consistently willing to protect, it’s speech – even controversial or unpopular speech like violent video games, protests at the funeral of a fallen soldier, lies about receiving military medals, and dog-fighting videos. And for the Court’s five more conservative Justices, this enthusiasm for the First Amendment extends to the campaign-finance arena. In recent years, a closely divided Court has struck down a ban on independent campaign spending by corporations and unions as well as the overall caps on how much one person can contribute to campaigns for federal office. But yesterday’s oral argument in Williams-Yulee v. The Florida Bar, a Tampa lawyer’s challenge to a Florida rule that prohibited her from personally contacting would-be donors to ask them to contribute to her campaign for a job as a trial judge, hinted that, when it comes to the First Amendment, judges might be different. After all, some Justices suggested, it would be undignified for judges – who, Justice Ruth Bader Ginsburg said, are supposed to be “above the fray” – to go around asking people for money.
Arguing on behalf of Lanell Williams-Yulee, attorney Andrew Pincus told the nine Justices that Florida had punished his client for sending out form letters asking for contributions that were “completely” legal in Florida. And if the Florida rule prohibiting personal solicitations by potential judges is really intended to protect the would-be donors from feeling coerced to contribute, Pincus argued, then at the very least there should be no ban for mass mailings like the one at issue in this case, which are so impersonal that they don’t place any pressure on the people who receive them. But Justice Anthony Kennedy countered that Pincus’s proposed rule would make it difficult for courts to draw a line between what is and is not allowed. There are “all sorts of gradations,” he told Pincus. What about a letter from a potential judge to one person? What about a letter to five people?
Other Justices, such as Justice Antonin Scalia, suggested that there was more to the rule than just preventing coercion – for example, an interest in judges being dignified. Scalia observed that “there’s stuff we don’t let judges do” – such as publish op-eds in newspapers to respond to criticisms of their decisions.
Pincus may have found more success with his argument that the overall scheme of the Florida rule doesn’t make sense. After all, for example, although would-be judges can’t contact potential donors to ask for money, they can send notes directly to donors to thank them for their contributions, and their campaign committees can reach out on their behalf. The additional step of banning personal solicitations by judges, he contended, doesn’t actually make any difference. Some of the Court’s more liberal Justices were skeptical, arguing that the extra personal touch does make a difference when you are asking for money. Justice Sonia Sotomayor noted that it’s “very, very, very rare” for a lawyer to turn her down when she makes a request. Getting a signed letter or personal phone call from a judge, she suggested, would be more likely to lead to a contribution than a letter signed by the judge’s campaign committee. Justice Stephen Breyer echoed these concerns, telling Pincus that his “instinct is” that when someone else writes the letter, it doesn’t have the same effect.
But that argument seemed to find more traction with some of the Court’s more conservative Justices. When Barry Richard, arguing on behalf of the Florida Bar, emphasized that the Florida rule was designed to cut the direct link between a would-be judge and donor that creates corruption when a donor expects to receive something for his contribution, Justice Scalia rejected that premise. Once you can send a thank-you note directly to a donor to thank him for the campaign contribution, Scalia insisted, that’s no longer true, because there is a direct link. And Justice Samuel Alito asked Richard (somewhat rhetorically) to explain what additional damage would result from Williams-Yulee’s direct contact with would-be donors, compared with having a campaign committee send out fundraising letters which specifically say that the judge gave the committee the donor’s name, that the committee will let the judge know if a contribution is made, and that the judge will then write a thank-you note.

 Meantime, there were protestors in the High Court yesterday:

A handful of spectators disrupted the opening of Wednesday morning’s Supreme Court session by rising one by one from their seats to shout protests over the Citizens United decision and other populist themes on the fifth anniversary of the controversial ruling.

Just after the Justices had taken the bench at 10 a.m., and as they were about to announce opinions, a woman stood from her seat near the back of the courtroom and said, “I rise on behalf of democracy.” She continued with a mention of Citizens United, the 2010 ruling that removed limits on independent political expenditures by corporations and unions. Three Supreme Court police officers quickly converged on her, causing a loud commotion as they pushed through an area of the courtroom where single wooden chairs are in use, forcefully subdued her, and then removed her from the courtroom.
As what at first seemed like the lone demonstrator was removed, Chief Justice John G. Roberts Jr. quipped, “Our second order of business this morning …” to laughs from the crowded courtroom.
But before he could finish that thought, a second demonstrators stood and said, “One person, one vote.” It was perhaps a continuation of the Citizens United theme, or a reference to a key phrase from the Court’s voting rights jurisprudence. As the second protestor was being approached by officers, a third and a fourth one stood and uttered similar lines.

The Chief Justice was heard to mutter, “Oh, please.”

As more officers entered the courtroom to deal with those protestors, a man in a back corner stood and said, “We are the ninety-nine percent,” a populist slogan referring to those not in the wealthiest one percent of the nation. After he delivered the line, this protestor looked around nervously as there were no police officers immediately near him.

As another protestor rose near the same corner, the Chief Justice felt obliged to come to the aid of the police force. “We have a couple of more over here,” Roberts said, pointing to the corner.
After six or seven demonstrators had said their lines and were removed, which had taken several minutes, it appeared the protest was over.
“We will now continue with our tradition of having open court in the Supreme Court,” Chief Justice Roberts said. He announced that Justice Sonia Sotomayor would deliver the first opinion of the day, and the rhythms of the courtroom soon settled back to normalcy.

Judge Jose Gonzalez celebrates 50 years on the bench

Wow, what an accomplishment for such a good and nice man.  Last week the Court recognized Judge Gonzalez at the Ft. Lauderdale courthouse (good thing it wasn't raining!).  Lots of law clerks, friends and family attended, including good friend Justice Stevens.  Pretty neat.  Here's a picture of Judge Gonzalez with his law clerks: