Weeds or native plants?

Judge Posner discusses and uses pictures!

Good times.

It's an 8th Amendment Term from SCOTUS. From Rory Little at SCOTUSblog:

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.” Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.” Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.” Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty. All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2). One can expect that the smoldering embers of the Glossip debate will be quickly reignited. This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

...

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert. petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import. Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions. But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment. In at least some of these cases – with that of the Carr brothers being the best example – there seems to be no doubt about guilt. The horrific character of multiple rapes and murders is undeniable. Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences. Such cases thus starkly showcase the divergent views on the Eighth Amendment – and a nine-Justice Court is not different in this regard from much of America. So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

And locally, former TD Banker Frank Spinosa is going to plead guilty.

Supermoon Sunday

It's more exciting than watching the Dolphins.  Yikes.  SO bad.

ICYMI, Friday night was the big Federal Bar shindig.

The Clerk, Steve Larimore, won the Ned Davis award.  It's a really important honor and I'm glad we remember Judge Davis and his wife Pat every year.  Congrats to Steve!

We also welcome the new President of the organization, Oliver Ruiz, and wish outgoing President Candace Duff well.  She did a great job and the organization is in good hands with Oliver.

Finally, no jail for this former secret service agent who used counterfeit money.  From Paula McMahon:

Cynthia LaCroix, 51, former office administrator for the Secret Service's West Palm Beach branch, eventually admitted she had been stealing forged bills that were supposed to be burned or shredded. Though the agency is best known for protecting the president and other dignitaries, it also investigates financial crimes, fraud and counterfeiting.

Earlier this year, LaCroix pleaded guilty to possessing counterfeit notes and lying to federal investigators when they questioned her.

Authorities said LaCroix spent the phony money at local malls and pocketed authentic change. Federal prosecutors recommended she serve 12 months in federal prison.

But Friday, LaCroix's previously clean record and her tragic motive convinced U.S. District Judge Kenneth Marra to sentence her to six months of house arrest and two years of probation. He said imprisonment was unnecessary.

Sobbing as she apologized profusely in federal court in West Palm Beach on Friday afternoon, LaCroix said she stole the money so she could help her son, who struggled with drug addiction for years before dying from a drug overdose. She is now raising his two young children.

"Ad hominem attacks, irrespective of how effective they may be, cannot obfuscate the requirement that the government must prove its case beyond a reasonable doubt. While this Court, and even John Adams, might have concurred with the government’s characterization of McLean, in order to obtain a conviction the government must present evidence as to each element of an offense—and that is precisely what it failed to do here."

That was visiting district judge Harvey Schlesinger for a unanimous 11th Circuit, affirming the judgment of acquittal for David McLean in this interesting opinion.

R.I.P. Yogi

He was an original. How many originals are left?







What's going on in the District?  Any trials or interesting hearings?  Email me!  You too judges!

In the meantime, Trump or Colbert?



Here is SCOTUSBlog's first Petitions to Watch on the Long Conference.

And the feds brought this child porn case, with a guy who was encrypting his data, via Paula McMahon.

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: