Law Day is May 1

Together with the Federal Bar Association, the Southern District of Florida is hosting Law Day Programs in U.S. Courthouses to educate area high school students. Law Day is an annual celebration of our liberties, a reaffirmation of our loyalty to our country and a rededication to the ideals of equality and justice. The designation of May 1st as “Law Day” is codified in 36 U.S.C. § 113. Click here for more information about the national program.

The American Bar Association’s Law Day theme this year is “Magna Carta: Symbol of Freedom Under Law,” celebrating the 800th anniversary of a document that is an international symbol of the rule of law and an inspiration for many basic rights, including due process, habeas corpus, trial by jury, and the right to travel. The Law Day programs include: a mock trial exploring fourth amendment issues, an animated discussion of the Magna Carta, a dialogue on the tensions between our security and our freedom, and observation of court in session. As part of the local theme of “Diversity and Inclusion in the Law”, a panel of members of the judiciary and the legal community will share personal experiences and obstacles each faced and overcame in order to achieve success in the legal field.

The events will take place on Friday, May 1, 2015 from 8:30 a.m. – 1:30 p.m. at the King building and the Broward courthouse.

For more information or to R.S.V.P. to attend the event, please contact
Jarred Reiling at Jarred_Reiling@flsd.uscourts.gov or
Clay Roberts at Clay_Roberts@flsb.uscourts.gov.

"In the early 1970s, four Florida Supreme Court justices resigned from office following corruption scandals."

That was the U.S. Supreme Court today in decising Williams-Yulee v. The Florida Bar.  From the intro:

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.

 I'm against judicial elections, but if you are gonna have em, then I think you gotta back the First Amendment and a person's right to ask for campaign contributions even if they are running for judge.  I find myself agreeing with Scalia again:

An ethics canon adopted by the Florida Supreme Court bans a candidate in a judicial election from asking anyone, under any circumstances, for a contribution to his campaign. Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech. Intent upon upholding the Canon, however,the Court flattens one settled First Amendment principle after another.
The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content. One need not equate judges with politicians to see that this principle does not grow weaker merely because the censored speech is a judicial candidate’s request for a campaign contribution. Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation.

The big argument today

The Washington Post has interesting clips on the gay marriage argument to listen to here, including the protestor:

Protester briefly disrupts court 
10:29 a.m.:  Before U.S. Solicitor General Donald B. Verrilli Jr. could speak to the justices, a protester inside the chamber stood up and began shouting.
“Homosexuality is an abomination!” the man shouted from the center of the chamber.
He continued yelling about an “abomination to God” as he was quickly taken outside by security, but his shouting could be heard echoing through the building for several minutes.
The interlude was “kind of refreshing,” Scalia remarked. The room chuckled as Verrilli began to make his remarks.
As Verrilli began to discuss Lawrence v. Kansas, giving way to a discussion about the fundamental nature of marriage, the muffled cries of “abomination” could still be heard in the courtroom.

"This embarrassment is something I'll take to my grave."

That was 57-year old Dr. Krishna Tripuraneni before being sentenced by Judge Gayles to 2 years for tax evasion of about $18 million. The government had asked for 3 years and the defense asked for non-incarceration. From the Sun-Sentinel:

The doctor, who built a flourishing medical practice in Wellington, had asked the judge to consider his long history of donating his medical services to needy people and giving generously to deserving causes.

U.S. District Judge Darrin Gayles said he balanced the doctor's significant illegal conduct and his long history of charitable work in deciding the appropriate punishment.

"The thing that stood out to me ... there was this duality — this very serious crime and there are also good works," the judge said.

The judge said he had difficulty discerning the doctor's motive, noting that unlike many defendants, he had no great financial need or a drug problem.

"Perhaps it was the need for more homes, or bigger homes, or more cars ... I don't understand it," Gayles said.

Tripuraneni admitted that he lied about his business expenses and used money from his medical businesses to build an oceanfront mansion in Manalapan. He also used the money to pay for interior design work at other homes he owned, to make pay payments for condos he purchased, and to pay tuition for his son and daughter. Prosecutors said he illegally classified his personal expenses as building repairs and other business-related expenses.

The mansion, which the family named Nirvana, was put on the market earlier this year with an asking price of $25 million. Forbes magazine reported the luxurious 12,244-square-foot home sits on an acre-and-a-half of land between the Atlantic Ocean and Lake Worth Inlet. The agent handling the listing told the magazine the property features a Zen garden and said the family flew in Buddhist monks to bless the home.

Tripuraneni, in a dark grey suit, told the judge he was sincerely sorry for what he did and took full responsibility for his offenses, which spanned five years.

"This embarrassment is something I'll take to my grave," he said.

He said he was too ashamed to face his parents, who are in their 80s and live in India. And he said he dreaded the thought of his future grandchildren learning what he did.

"There will be an asterisk next to my name and it's hard to live with that shame," he said.

Time for a new A.G.

Eric Holder has stepped down and now we have Loretta Lynch. Part of his speech from CNN:

As in his speech when he took office six years ago, Holder laid claim to helping restore the Justice Department's reputation, a tacit shot at the Bush administration and the political scandal that hung over former Attorney General Alberto Gonzales after the firings of U.S. attorneys.

Holder said he was proud of the department's work, which he said was done "free of politicization." He told the Justice staffers they were responsible for a new "golden age" at the Justice Department.

He cited the department's role in the Obama administration's decision to stop defending the Defense of Marriage Act, which has quickened the acceptance of same-sex marriage. He called same-sex marriage the "civil rights issue of our time." He also lauded the department's active role in civil rights enforcement, which has become a major focus in light of a national spate of police shootings and excessive use-of-force incidents.

While Holder listed his accomplishments, much of the ceremony also served as a reminder of the rocky relationship he has had with Republicans, who made him the first sitting cabinet member to be held in contempt of Congress and who regularly used him as the stand-in to take shots at President Obama in political fights.

In other news, gay marriage is before the High Court and Justices Scalia and Kennedy are gonna be fighting on this one. From the Washington Post:

Kennedy is often the deciding vote when the ideologically divided court splits 5 to 4, but in two-thirds of those cases he sides with the conservatives.

But if they often arrive at the same conclusion — one obstacle for same-sex marriage proponents in the current case is Kennedy’s allegiance to states’ rights — Kennedy and Scalia could not be more different in how they view a judge’s role.

Their different approach to gay rights reflects their more fundamental disagreement about how to think about the liberties protected by the Constitution,” said Paul M. Smith, a Washington lawyer who was on the winning side in the Lawrence case.

Scalia believes the only freedoms that should be viewed as protected by the Constitution “are those that have been protected under American law throughout our history, defined at the most specific level,” Smith said. Otherwise, the people decide.

Kennedy, Smith said, “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”

Their battle is compelling, said Allison Orr Larsen, a William and Mary law professor, because it “brings to the forefront the theoretical question in constitutional law: How should courts respond to change when interpreting the Constitution?”

Michael Dorf, a professor at Cornell Law School and a former Kennedy clerk, said his former boss’s decisions on gay rights were not constructed to lead ultimately to a decision on same-sex marriage. But they provided a foundation for how to view new constitutional rights “if that’s where the country moves.”

Scalia, on the other hand, champions the cause of originalism, and Edward Whelan, a former Scalia clerk and president of the Ethics and Public Policy Center, said his former boss learned quickly that “Kennedy’s judicial approach was not anything close to what Scalia’s is.”

“A basic tenet of originalism is that it’s not the role of judges to impose their own moral philosophies,” Whelan said. “Scalia understands the Constitution to leave the vast bulk of policy issues to the democratic processes and rejects the notion that it’s his role to read his own views into the Constitution.”

And here's your Monday moment of zen:

It's been a bad week for law enforcement and dogs

First was the well-covered story of the Supreme Court ruling that traffic stops couldn't be extended, even briefly, to allow for drug-sniffing dogs to take a whiff around the car (yes, Rumpole, that was Scalia in the majority).

And next is this awful story about the FBI lying in courtrooms around the country about hair samples. In this particular case, the FBI convicted a man using hair analysis when the hair at issue was a dog's hair!

In one particularly shocking case from 1978, two FBI-trained hair analysts who helped in the prosecution of a murder case couldn’t even tell the difference between human hair and dog hair.

The case involved a murder in Washington D.C. that year. The victim, a cab driver, was robbed and killed in front of his home. Before long, police centered upon Santae Tribble, then a 17-year-old local from the neighborhood, as a suspect.

Tribble maintained his innocence. But no matter what he said and how much his friends vouched, two FBI forensics experts claimed that a single strand of hair recovered near the scene of the crime matched Tribble’s DNA. Thanks to that evidence, which was groundbreaking at the time, Tribble was found guilty and sentenced to 20 years to life in prison after 40 minutes of jury deliberation, reported the Washington Post.

He would go on to serve 28 years until the truth came out: an independent analysis found that the FBI testimony was flawed. Not a single hair that was found on the scene matched his DNA. After attorneys brought the evidence to the courts, Tribble was exonerated of the crime, though he’d already been released from prison. “The Court finds by clear and convincing evidence that he did not commit the crimes he was convicted of at trial,” a judge wrote in the certificate of innocence released at the time, in 2012.

It gets worse. Not only did none of the hairs presented as evidence in trial belonged to Tribble, the private lab found that one of the hairs actually came from a dog.

“Such is the true state of hair microscopy,” Sandra K. Levick, Tribble’s lawyer, wrote at the time, in 2012. “Two FBI-trained analysts… could not even distinguish human hairs from canine hairs.”

Tribble’s case in not unique. In a Washington Post story released over the weekend, officials from the FBI and the Justice Department acknowledged the extent of their flawed use of hair forensics prosecutions prior to 2000.

The numbers are staggering. Over 95 percent of the cases involving hair evidence that the FBI has reviewed so far contained flawed testimony—257 out of 268 cases.

Ho hum. No one seems to care.

Thorner.v.SonyComputerEntm'tAm.LLC,669F3d1362,1365(Fed.Cir.2012)

That's how the appellant in this Federal Circuit case cited to a case so that it counted as one word instead of 14. The court wasn't amused:

The Federal Rules of Appellate Procedure limit an
appellant’s opening brief to 14,000 “words.” Fed. R. App.
P. 32(a)(7). Appellants attempted in their first corrected
brief to create “words” by squeezing various words together
and deleting the spaces that should appear between the
words. For example, the following is not one word, although
that is how it appears on page 3 of Appellants’ first
corrected opening brief:

Thorner.v.SonyComputerEntm'tAm.LLC,669F3d1362,1365(Fed.Cir.2012)

Instead, when written properly, it is 14 words: Thorner v.
Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365
(Fed. Cir. 2012). Similar matters appeared throughout
the brief.
In the alternative, Appellants move for leave to file a
new “corrected brief.” The new corrected brief does not
bring the actual word count below 14,000 words. For
example, the new corrected brief would, instead of deleting
spaces between words in case citations, replace various
phrases or case citations with abbreviations such as
“TOA1” and list those citations only in the table of authorities.
The Appellants also use abbreviations such as
“CR1” to cross-reference to something that was stated
earlier in the brief, although it is so poorly explained that
it is nearly incomprehensible. Neither the previously filed
brief nor the most recent proffered corrected brief comply
with the court’s rules. Instead, they represent an attempt
to file briefs that, if written properly, exceed the permitted
word limitation.
Appellants have failed to show cause why the brief
should not be stricken and why the appeal should not be
dismissed. Pursuant to the court’s March 17, 2015 order,
the appeal is dismissed.

In local news, the feds are targeting local businesses in a particular geographic area for money laundering. Can they do that? From the AP:

Federal investigators are targeting 700 businesses in the Miami area for enhanced scrutiny to detect trade-based money laundering schemes involving Latin American criminal organizations, authorities announced Tuesday.

U.S. Immigration and Customs Enforcement said the focus would be on electronics exporters, including those in the cellphone business, in five ZIP codes near Miami International Airport. The targeted companies will be required to file certain Treasury Department forms for transactions over $3,000 rather than the current $10,000 threshold.

In addition, the companies will be required to identify people involved in the transactions, focusing especially on third parties who put up the money to complete the deals. Authorities say the program enhances law enforcement's ability to find and prosecute money launderers, including those in the illicit drug trade, counterfeit merchandise sales and human trafficking.

"It's very prevalent among the electronic exporters," said John Tobon, assistant special agent in charge of ICE homeland security investigations in Miami. "These are items that are very easily sold overseas."

The Miami businesses were not identified by name. Tobon said not all of them are wittingly involved in money laundering, although some are created solely for criminal groups to evade U.S. currency laws. Some legitimate exporters view the complex, often all-cash transactions as necessary for doing business in Latin America.

"We want to let them know this is not an acceptable business practice," Tobon said.

The new rules, formally known as a Geographic Targeting Order, were issued by the Financial Crimes Enforcement Network, or FinCEN, which is part of the Treasury Department. A similar order was issued last year covering some 2,000 businesses in the Los Angeles area after raids in that city's fashion district resulted in seizure of $90 million in cash and $30 million in bank accounts traced to Mexican drug cartels.

What should the courts do about confusing statutes?

That was the question yesterday before the Supreme Court, which was looking at the Armed Career Criminal Statute. From the Washington Post:

Johnson was subject to an enhanced sentence because he had previous convictions. But he said that one of them — mere possession of a sawed-off shotgun — should not qualify as violent.

The Supreme Court originally took the case to decide that question. But months after the first argument, apparently unable to agree about the proper disposition of the case, the justices scheduled a new hearing on whether the clause was unconstitutionally vague.

As might be expected, Scalia led the questioning of whether the law could be saved. “Can we just patch up this statute in ways that have nothing to do with its text?” he asked Deputy Solicitor General Michael R. Dreeben, representing the government. He suggested that was a job for Congress.

Scalia said he did not believe it was enough that everyone agreed that some convictions would qualify.

“I suppose you could have a statute that criminalized annoying conduct, right?” Scalia asked. “And according to the government, that would not be unconstitutional, because there’s some stuff that is clearly annoying, right?”

Dreeben said the concern should be less because the burden is on the government.

If a court is not satisfied that a crime fits within the category, “the government loses,” Dreeben said. “The tie goes to the defendant.”

So my question to our district and circuit judges is why aren't more statutes found unconstitutionally vague? It is almost unheard of for the lower courts to do so, leaving it to the Supreme Court to step in. But so few cases get to the Supreme Court that the law is rarely tested. If more district and circuit judges were willing to say what we all know -- that many of these statutes make no sense and criminalize all sorts of benign conduct, the Supreme Court would examine more cases and the law would progress.