Tuesday News & Notes

1. Is Justice Alito the best or worst Justice on the Court? The best... Just ask him. Here's what he said about the 4th Amendment:

Alito moved onto privacy and the 4th Amendment. “Another change in the past decade has been constitutional protection for privacy. During the past ten years, the Court has applied the 4th amendment’s prohibition against unreasonable search and seizure to modern technology. I think this is going to be a very big issue moving forward. The 4th amendment was adopted with traditional property law in mind. What was once new technology (wiretap and eavesdropping), it was difficult to apply old property based standards to the new technology. The Court adopted a new test, and looked to reasonable expectation of privacy on the part of the individuals. That standard worked for a while, but with the development of new technology, it has become very difficult
The first case was “United States v. Jones, which involved placing a GPS tracking device on someone’s car. How do you apply the 4th amendment standard to that situation? What government has done is to take the precedents developed during the pre-digital error and apply them mechanically to the new issues. It has not worked in the Jones case. The Court decided the case on a ground I did not agree with. The Court looked back to common law trespass law–there was a trespass for law enforcement to place electronic device on a car. The placement of the device did not harm–that missed what was really the important issue. That missed the important issue which was the surveillance of the device on the car.
The “second case was Riley v. California–whether police can search the contents of cell phone. In the pre-digital era, police could search the person of someone who is arrested, and if that person has stack of letters, that could be searched. But what do you with a smartphone at the time of arrest. We held that content could not be taken without a warrant or probable cause.”
Alito closed with a call for Congress to address these issues, not the Court. “These are just some of the issues that may come up. The problem is that in making determinations we are put in a position of determining what is a reasonable expectation of privacy. We are very ill-positioned to make these determinations. We are older than the average person. This may come up as a surprise–We are not up on all the latest technology. If privacy is to be protected in the future, that balances the interests of law enforcement and the interest of privacy, legislatures should take the lead. They are in a better position that the courts.”

2. The Detroit Free Press says that the Presidential candidates should have a real debate about the Court. The conclusion:

And in fact, the same impulses that have driven his contempt for discrimination against gays shape his opposition to race-conscious policies like affirmative action. Kennedy doesn’t care whether the government is treating people different in the name of expanding their liberty or confining it; his point is that the government ought not be in the business of treating people differently.

Roberts, too, is a conservative rock, even when he’s voting in favor of preserving the Affordable Care Act. In both rulings, he was exercising deference to Congress’ lawmaking abilities, and the court’s responsibility to carve wide berth — and avoid nitpicking defeatism — in interpreting what the popularly elected branches want or intend to do.

Sounds pretty conservative to me. I doubt Roberts, or Kennedy for that matter, is rushing off to join even the most conservative wings of the Democratic party.

I know the Republican candidates were poking at Roberts only by way of jabbing at Obama; this is primary season, and they know there are votes to be mined in the opposition to just about anything the current president has done.

And I know that, in office, the brash calculations of a debate-stage performance almost always give way to more considered, thoughtful decision-making. Especially when it comes to the high court.

3. Joseph Zada is trying to get an appellate bond from Judge Marra, via the PB Post.

4. The 11th Circuit has rejected a vagueness challenge to the career offender guidelines based on Johnson, via SL&P.

Good luck to those checking on the Florida Bar results

They are in this morning. Good luck to everyone. (And congrats to our own Lauren Doyle for passing!)

The DBR has this local story about a fight between a blogger who used a copyrighted photograph and claimed fair use. Score one for the blogger:

A federal appellate court has ended one of many battles in a widespread landlord-tenant war by upholding the ex-tenant's right to use and blog about an unflattering photo of the ex-landlord, a minority owner of the Miami Heat.

The ruling Thursday by the U.S. Court of Appeals for the Eleventh Circuit upholds a trial court decision for Irina Chevaldina, a former tenant of the California Club Mall in Miami. Ex-landlord Raanan Katz, a billionaire commercial real estate developer, owns the mall and about two dozen others through his company RK Associates.

11th Circuit says Judge Fuller beat his wife and lied about it

Here's the letter to Congress. The AP covered the story:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge— had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.

In a letter to the House Judiciary Committee, the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary.

"This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner.

"Upon receiving their master’s degrees, certifications, and licenses, Plaintiff-Appellant student registered nurse anesthetists are legally able to put people to sleep. We have heard, though never ourselves experienced, that some legal opinions can do the same thing. We are hopeful that this one will not."

That was how Judge Rosenbaum started this opinion.  She also threw in this footnote: "But, then again, the writer is always the last to know."

Good stuff.

UPDATE: This morning Judge Rosenbaum gave us another entertaining introduction to an opinion:

Dorothy may have said it best when she said, “There is no place like home.” Though we are pretty sure that she was not talking about the Fourth Amendment, she may as well have been. Under the Fourth Amendment, the home is a sacrosanct place that enjoys special protection from government intrusion. The government may not enter a person’s home to effect an arrest without a warrant or probable cause plus either consent or exigent circumstances. For this reason, we hold today that, in the absence of exigent circumstances,2 the government may not conduct the equivalent of a Terry3 stop inside a person’s home. But because the law on this point was not clearly established in this Circuit before our decision today, we affirm the district court’s entry of summary judgment on qualified- immunity grounds to Defendant-Appellee Deputy Kevin Pederson, who reached into Plaintiff-Appellant Elvan Moore’s home to arrest and handcuff him when, in the course of what Pederson described as a Terry stop, Moore declined to identify himself in response to Pederson’s questioning. We also affirm the district court’s dismissal of Moore’s state-law claim for intentional infliction of emotional distress.

Meantime, Colbert interviewed Justice Breyer:

“This case was stunningly weak.”

That was Federal Public Defender Michael Caruso about the case against his client Irfan Khan, which was dismissed before trial.  The New Yorker covers the entire case here in a very interesting read, called "The Imam's Curse."  The article starts with a description of how the feds really pumped up this dud of a case:

At dawn on May 14, 2011, more than two dozen federal agents and local police officers converged on a working-class neighborhood near the Miami airport and surrounded a small green-and-white stucco building—Masjid Miami, one of the city’s oldest mosques. Police sealed off a two-block radius, and F.B.I. agents, some armed with AR-15 rifles, assembled outside the door.

Inside, eight men were kneeling for the first prayer of the day. When agents called for them to open up, one of the worshippers, a former police officer, went out and asked them to wait until the prayer was finished. The agents complied, and then they arrested the mosque’s imam, Hafiz Khan, an émigré from a mountainous corner of Pakistan near the Afghan border. Khan was in his late seventies, an albino with thick glasses and a long colorless rush of beard. He had moved to America, with members of his family, in 1994, at the encouragement of a younger brother in Alabama. They became citizens, but Khan spoke no English and rarely left the mosque or a one-room apartment across the street, which he shared with his wife, Fatima. He was known to some of the locals as el viejito barbón—the old bearded man. Kids referred to him as the Santa Claus imam.

While the F.B.I. was arresting Khan, another team of federal agents and police assembled forty miles away, in the city of Margate. They surrounded Jamaat Al-Mu’mineen, a large mosque presided over by Hafiz’s youngest son, Izhar Khan. Izhar, who was twenty-four, was about to lead the morning prayer when agents in F.B.I. windbreakers confronted him in the parking lot. Izhar had moved to Florida when he was eight years old, and he spoke barely accented English. He wore a long dark beard, a black cotton robe, and a skullcap. The agents examined the computers in his office, and when they searched his cell phone they noticed that many of his text messages were about the Miami Heat and other teams.

Meanwhile, a third maneuver in the F.B.I.’s operation against the Khans was unfolding in Los Angeles, where it was 3 A.M. and Izhar’s brother Irfan, a thirty-seven-year-old software programmer, was asleep in his room at the Homestead Studio Suites, an inexpensive business hotel in El Segundo. Married, with two kids, Irfan was a sitcom buff who made hammy jokes about his waistline. (“This won’t be good for my diet!”) He lived in Miami and worked for American Unit, an I.T. company. For the past three months, he had been commuting every two weeks to an assignment in El Segundo. He was awakened by a phone call from the police, advising him to go to the door. He was handcuffed and led to a waiting car, past bomb-sniffing dogs and helmeted men in camouflage.

After the arrests, federal authorities announced that, in all, six people in Florida and abroad had been charged with funnelling tens of thousands of dollars into a conspiracy to “murder, kidnap, or maim persons overseas,” orchestrated by the Pakistani Taliban, an ally of Al Qaeda. The group was known for having trained Faisal Shahzad, a Pakistani-American who, in May, 2010, tried to set off a car bomb in Times Square. In 2012, Pakistani Taliban gunmen boarded a bus in northwest Pakistan and shot Malala Yousafzai, a fifteen-year-old schoolgirl who had called for the education of women.

The F.B.I. had been secretly tracking the Khans for at least a year, monitoring their finances and recording thousands of hours of conversation, in person and on the phone. Two other members of the family were also indicted—a daughter and a seventeen-year-old grandson, who live in Pakistan—along with a Pakistani shopkeeper, who had served as a middleman. In the indictment, they were accused of conspiring to buy guns, shelter the Taliban, and send students “to learn to kill Americans in Afghanistan.” The indictment described phone calls from Miami, in which the father “called for an attack on the Pakistani Assembly” and “called for the death of Pakistan’s President.” The U.S. Attorney Wifredo A. Ferrer told the Sun Sentinel that a list of cash transfers totalling fifty thousand dollars was “just the tip of the iceberg,” and declared, “We will be able to prove that there is more than fifty thousand dollars that went to the Taliban.” Each of the accused faced between forty-five and sixty years in prison.

While the feds do have some resources to fight cases like this, the State Public Defenders do not.  John Oliver does this amazing piece on how state PDs need more funding:

Federal courts are open today...

...while public schools and state court are closed.  I always thought that the feds should line up with the state on this issue and close because it's too hard on everyone with kids home and so on.

But if you are working today, check out the four on the short list for federal judge in the Middle District.

Or this NRP article on an NACDL report on federal indigent defense:

A tough new report has concluded that the federal government's system for defending poor people needs to change. The nearly two-year study by the National Association of Criminal Defense Lawyers said judges who are supposed to be neutral arbiters too often put their fingers on the scales.
The report said defense lawyers for the poor who work in the federal court system need more resources to do their jobs. That means money, not just for themselves, but to pay for experts and investigators.
"Having good, fully resourced defense counsel with access to ancillary services is an absolute must in a society that is arresting 14 million people a year," said Norman Reimer, executive director of the NACDL.
In an adversary system, lawyers for poor defendants say, they need to operate on equal footing with prosecutors. But the study, the first of its kind in more than 20 years, found the source of most concern rests with judges who exercise too much control over the process.
Bonnie Hoffman, a deputy public defender in Virginia, led the task force.
"There's some significant ways we feel the federal system is not measuring up — most importantly, in the area of independence," Hoffman said.
That's because judges are in charge. They have a role in selecting the defense lawyers for the poor clients who appear in court. They act as umpires during a plea hearing or a trial. And then those same judges approve or reject the defense lawyers' fee requests.
"It's a shame to think that somebody agrees to do this work, they do the work that they're asked to do ... to be a zealous advocate for somebody who's accused of a crime," Hoffman said, "and then when they finish that somebody can come back and say, 'I know you did good work ... but we don't feel like we should pay you for all the work that you did.' "

H/T: AB

Or, watch this for your moment of zen:

Thursday News & Notes

1.  Tennis star James Blake not spared awful treatment by the police.  The police have apologized:

The New York Police Department commissioner apologized on Thursday for the mistaken arrest of James Blake, a retired top-10 professional tennis player, who said he was slammed to the ground outside his hotel in Midtown Manhattan.

The commissioner, William J. Bratton, said he wanted “to extend a personal apology’’ to Mr. Blake.

The officer who detained Mr. Blake, who is biracial, has been placed on desk duty. Mr. Bratton expressed concern about “the inappropriateness of the amount of force that was used during the arrest.”

An initial review of video evidence of the arrest, Mr. Bratton said, led him to believe that it may not have been appropriate.

Mr. Blake said he was slammed to the ground by a police officer outside his hotel on Wednesday and detained for 15 minutes after being mistaken for a suspect in an investigation of possible credit card fraud.

2.  DOJ has a sort-of new policy saying they will prosecute more individuals for white-collar fraud and that companies who want to avoid prosecution must snitch on their own employees.  Here's the NY Times story:

Stung by years of criticism that it has coddled Wall Street criminals, the Justice Department issued new policies on Wednesday that prioritize the prosecution of individual employees — not just their companies — and put pressure on corporations to turn over evidence against their executives.

The new rules, issued in a memo to federal prosecutors nationwide, are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.

“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.”

 3.  Football season is here!  Will the Fins finally make the playoffs? 

4.  The Hispanic National Bar Association will be having its 4th annual Anti-Human Trafficking Conference at St. Thomas University School of Law on Friday 9/18 at 9am.  RSVO to Elba Lumbi at elumbi@immigrationmiami.com

Ed Carnes concurs with Ed Carnes

This morning Chief Judge Carnes issued this opinion.  He also concurred with his own majority opinion.

His majority opinion starts this way (with a reference to Downton Abbey: Season 3, Episode 6, see *):

It may be, as the Downton Dowager bemoaned, that “[l]ie is so unmusical a word,”* but it strikes the right note for some of the statements that Dr. Patricia Lynn Hough made in her tax returns. So does 26 U.S.C. § 7206(1), which provides a penalty of imprisonment for a person who willfully files a return “which [she] does not believe to be true and correct as to every material matter.” That is one of the statutes that Hough was convicted of violating. The other is 18 U.S.C. § 371, which prohibits conspiring to defraud an agency of the United States, including the IRS. This is her appeal of those convictions and her sentence.

And below is the opening salvo from his concurrence regarding what a prosecutor can ask character witnesses.  There is a long line of cases in the 11th Circuit holding that a prosecutor cannot assume guilt in asking a character witness whether that would change the witness' opinion of the defendant.  The majority found that violation harmless in this case, but Carnes decided to concur to express his displeasure with this line of cases:

 Not surprisingly, as the author of the Court’s opinion I concur in all of it. I write separately to offer my view about our decisions in Guzman and Candelaria-Gonzalez insofar as they hold that a prosecutor cannot cross-examine the defense’s opinion or reputation character witnesses by asking whether their testimony would change if the defendant had committed the crimes with which she is charged. See United States v. Guzman, 167 F.3d 1350, 1351–52 (11th Cir. 1999); United States v. Candelaria-Gonzalez, 547 F.2d 291, 293–95 (5th Cir. 1977). We are bound to follow prior panel precedent even if we disagree with it, but we are not bound to remain silent about whether it is wrong. And the central holding of Guzman and Candelaria-Gonzalez is wrong.

Candelaria-Gonzalez first announced the erroneous holding in a case involving the cross-examination of defense witnesses who gave testimony about the defendant’s good reputation in the community, 547 F.2d at 293–95, and Guzman extended the holding to cross-examination of witnesses who gave opinion testimony about the defendant’s good character, 167 F.3d at 1351–52. The reason given for the holding was that “[t]hese hypothetical questions [strike] at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294; see Guzman, 167 F.3d at 1352. No they don’t.

Judge Carnes ends his concurrence with a strong defense on cross-examination:

Regardless of how the witness answers the question, it is a proper one on cross-examination because it helps the jury get at the truth. Cross-examination, as Professor Wigmore stated, is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 John Henry Wigmore, Evidence in Trials at Common Law § 1367, at 32 (Chadbourn rev. 1974). That engine for the discovery of truth should be allowed to run at full speed and not be choked to a halt by misunderstandings about conditional questions and answers or by facile references to “Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294. As Thomas Paine observed, “such is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing.” Thomas Paine, Rights of Man 151 (Everyman’s Library ed. 1958) (1791). We ought to do what we can to give truth the liberty of appearing in a trial.