Happy Thanksgiving

I am thankful for all of you stopping by and reading and sending me your comments and tips. 

I thought you might enjoy this cartoon.  See you Monday.

Do as I say, not as I do

That's the motto of the DOJ.  From TechDirt, DOJ Says Body Camera-Wearing Cops Aren't Allowed To Partner Up With Federal Agencies: "As we've covered before, the DOJ supports the idea of body cameras for local law enforcement agencies. It has set aside over $20 million a year in funding to help these agencies out. But it has no love for body cameras within its own agencies. There are no body cam requirements in place for FBI, DEA, ATF or the US Marshals Service.  In fact, if you're a member of a law enforcement agency which does have mandated body cams, you're no longer welcome to play in the big boys."

Other notes:

-- Do you like being the "law guy" in trial?  The NY Times covers these law guys:

As the public corruption trial of State Assemblyman Sheldon Silver heads to closing arguments on Monday, the clash in the courtroom has been handled largely by well-staffed government and defense legal teams, each with a wealth of experience in handling corruption cases.

But on Thursday, two unfamiliar lawyers took the stage to try to shape the instructions that the judge will give to the jury before deliberations.

In a case in which no witness testified directly to knowledge of an illegal quid pro quo, how Judge Valerie E. Caproni tells jurors to interpret the evidence as it relates to the law could sway deliberations — a fact certainly not lost on the government or the defense.

The two lawyers had largely disappeared during Mr. Silver’s three-week trial in Federal District Court in Manhattan; James M. McDonald sat quietly at the end of the prosecution table, while Robert K. Kry, a defense lawyer, did not even show up in court.

But it was clear late on Thursday, with the parties and the judge seated around a conference table and the jury not present, that Mr. McDonald and Mr. Kry had critical roles as legal specialists in the case — “the law guys,” as several experts put it — a role the public rarely hears about.

-- Oh, and the Marlins suck.

Ovalle's "most Miami story" ever?

He says it might be.  Check it out here.  It involves porn stars, molly, snitches, and all things Miami:

The investigation that cracked open one of the largest synthetic drug rings in Miami history began with an angry naked porn star jumping on her boyfriend’s white Porsche.
The police call to that lovers spat would eventually lift the lid on a cast of characters straight out of a Hollywood buddy movie. In the leading roles: Matthew Anich and Jorge Ramon Hernandez, two guys who boasted seemingly straight-arrow backgrounds of college degrees and military experience but also shared a taste for Miami’s flashy club culture.
They pumped iron, co-owned a tattoo shop, drove fancy cars and chased an array of party girls — all while, prosecutors say, secretly importing club drugs from shady Chinese labs and enlisting a crew of well-placed associates: Sexual conquests wired money overseas and picked up shipments; strippers and at least one DJ peddled pills that brought in millions of dollars.

Read more here: http://www.miamiherald.com/news/local/crime/article45772970.html#storylink=cpy

Other towns reminisce about former Chief Judges, like Charles Evans Hughes.  From the WaPo:

All were in the air last Friday night, when the 17th chief justice of the United States, John G. Roberts Jr., came to the Historical Society of the New York Courts to celebrate the 11th chief justice of the United States, Charles Evans Hughes, about whom it was once said: “He looked like God and talked like God.”
he current self-deprecating chief justice claimed neither distinction in a crisp, 16- minute presentation that evoked frequent laughter. And if you listened closely, it said a few things about Roberts as well: the way he views the responsibilities of the job and his low-key response to the controversies surrounding the court.
If Roberts was nominated as chief justice as an unknown outside legal circles, Hughes arrived as a “brand,” Roberts said. He had a career in law, politics and diplomacy and a white beard that gave the impression he had been sent from central casting.
President Theodore Roosevelt described him as “a bearded iceberg”; Hughes’s political rival William Randolph Hearst labeled him an “animated feather duster.”
He defeated Hearst to become governor of New York, where he developed a reputation as a crusader cleaning up Albany. When President William Howard Taft persuaded him to join the Supreme Court in 1910, he delayed the move to spend a few more months as governor.
He left the court six years later when the Republican Party drafted him at its convention to run against Woodrow Wilson. Hughes lost by 23 electoral votes.
In private practice, he argued cases before the Supreme Court 25 times before President William Harding persuaded him to be secretary of state. And in 1930, President Herbert Hoover nominated him to return to the court as chief justice.
Hughes, who was 86 when he died in 1948, was so iconic, Roberts said, that a letter bearing only a sketch of Hughes and the address “Washington, DC” was delivered, “no questions asked.”
Hughes was the presiding chief justice when the Supreme Court in 1935 moved from its home in the basement of the Capitol to what Roberts called “our current majestic place of work” across the street.
But, more important, Roberts said, Hughes was leading the court during the greatest threat to its independence: Franklin Delano Roosevelt’s plan to add enough friendly justices to gain control of the court, which had been striking down Roosevelt’s programs designed to lift the country out of the Great Depression.
“It fell to Hughes to guide a very unpopular Supreme Court through that high-noon showdown against America’s most popular president since George Washington,” Roberts said.

 When you don't have porn stars and molly, you gotta stick to court-packing plans...

Will the Supreme Court tack to the right?

That seemed to be a real possibility according to SCOTUSBlog's Amy Howe, who spoke today before the Federal Bar Association in Miami.  Last Term many thought that the Court issued left-leaning opinions, including the blockbuster on gay-marriage.  This Term, the docket is chock-full of interesting cases but ones that may lend themselves to opinions written by the conservative wing of the Court -- from abortion to voting to affirmative action.  And the big decisions will come out near the end of the Term, right before the election.  So it will be interesting to see how the opinions affect the general election.

Amy was a fantastic speaker as she always is -- full of knowledge about the cases and the inner-workings of the Court.  Hopefully she will be back again next year, for a 5th time.

RIP Judge Peter Palermo

I'm so sad to report that Judge Palermo passed away this weekend. 

He was 97!

He was appointed back in 1971 as the first Magistrate Judge in the Southern District of Florida.












One of the nicest men I've ever met.

A true gentleman.

And a great story teller.

Old school.

He will be sorely missed.

Congrats to Judge Paul Huck

It was a beautiful portrait hanging ceremony on Friday afternoon for Judge Huck and his year of the fives:

75 years old
25 years married to Donna (who gave a great speech)
15 years as a judge
5 years as a senior judge

The event was packed with friends, family, and former clerks and staff.

And the speeches were funny and warm.

Huck's former law clerk had the place cracking up. He was excellent. (I didn't catch his name. Could someone post it in the comments and then I will update the post).  UPDATED -- it's Adam Deckinger.

Judge Huck even gave the blog a nice shout out, which was very cool!

Here are some pictures:

GUEST POST BY DORE LOUIS ON SILA LUIS v. U.S.

"You’re not looking for CJA rates are you?"

--Chief Justice Roberts to Howard Srebnick when the CJ was asking how a district court is to determine how much money should be used for a fee.

I was able to travel to D.C. to sit in the Supreme Court and watch Howard make his argument in Luis v. US – a case, which as was made clear during oral argument, has the potential to impact any defendant wishing to retain private counsel.

I had never been to the Supreme Court before, so attending the argument of my former professor was an exciting prospect. The pictures of the building and even video you may have seen do nothing for its grandeur. As you stand at the bottom of the steps looking up at the main entrance, you get a very real sense that you are standing before the “temple of justice” that the architect envisioned. The feeling does not diminish as you move through the different portions of the building to the courtroom.

As a member of the Supreme Court bar, there is a special and much shorter line to wait in to enter the building. It is first come first serve, and there are no “placeholders” permitted. When I arrived at 7:15, I was the fourth lawyer waiting to enter, compared with the 80 or so non-lawyers in a different line. Once you receive your pass, you have time to grab some breakfast in the cafeteria and check your phone. In many ways, the building has the feel of any other courthouse – security, lines, procedures, Marshals, etc., but when you realize the history that the Court has made, and look at the scale and architecture of everything, you know you are in a special place.

After breakfast, it is up to the courtroom – the soaring ceiling containing freezes high above the gallery (which interestingly enough, have tablets representing the Ten Commandments), makes the space seem more intimate than it actually is. However, as it fills with the many people who attend, you begin to appreciate that the room is actually quite large. The first order of business was the moving and swearing in of new bar members. It was particularly touching to see a father make the motion (before all 9 justices) on behalf of his daughter. There were new military lawyers being moved in as well – the sight of their perfect uniforms was quite impressive.

As soon as that was over, argument began. The first case was one involving class actions. It was an interesting contrast with Howard’s case. The point the justices were considering was much narrower; it dealt with the application of prior precedent to FLSA claims and the appropriate use of statistical damages models. Howard’s case on the other hand, dealt with much broader constitutional issues that have the potential to effect anybody charged with a crime. Both arguments were interesting in part because the justices were quite combative with the advocates in pressing their positions.

At its core, the question in Luis v. US is whether or not the government can restrain untainted assets and prevent a person from using them to hire a lawyer, under a theory that the assets could later be used to pay a fine or restitution.

Justice Breyer was openly hostile to the proposition and at one point had a rather testy exchange with the assistant solicitor general arguing the matter, which prompted the ASG to use more snark than I had ever witnessed in an appellate argument – in my view it would have more appropriate for him to have said “let me finish answering your questions please” rather than saying the same thing with sarcasm.

Justice Kennedy and Chief Justice Roberts got the ASG to commit that the government’s position necessitated a view that anybody charged with any crime, at any level – municipal, state or federal – could find their untainted assets frozen after being charged, and thus be unable to hire private counsel, solely for the purpose of paying a potential fine or money judgment in the event they were later convicted.

The proposition clearly did not sit well with a number of the justices. I have zero clue as to how the opinion is going to come down.

One interesting thing was Justice Thomas’s animation. Although true to form, he asked no questions, he was quite active on the bench – making notes, referring to the briefs, and on a few separate occasions, sharing comments and a laugh directly with Justice Breyer.

I highly recommend a visit to the Court to watch oral argument – all the better if it is somebody you know who is making it. It was very cool to see one of us up there fighting on an issue that was so important to his client, but equally so to all of us and our clients.

Two notes – 1 – the gift shop in the building sells books written by the Justices – I found that a bit tacky and odd. In my humble opinion, I think there are more appropriate places for that type of business. 2 – Howard made clear that his efforts were supported by and involved the work of numerous others: Scott Srebnick, Ricardo Bascuas and Joshua Shore were on brief. At the table were Roy Black, Scott Srebnick and Scott Kornspan, and Howard mentioned a ton of additional people who assisted him in preparing for the argument.

How does Chief Justice Roberts assign opinion writing

Adam Liptak has this pretty interesting article about a study done by Professor Richard Lazarus:

Chief Justice Roberts made certain that each justice had almost exactly the same number of majority opinions. His record on this score, Professor Lazarus found, is “unmatched by any prior chief justice.”

But not every opinion is equally desirable. Deciding which cases are most important involves an element of judgment, though close observers of the court’s work will agree on them most of the time. Professor Lazarus relied on charts published each term in The New York Times to identify 85 major cases.

That set of decisions tells a fascinating story about the Roberts court. The chief justice assigned about a third of the big opinions to himself and another third to Justice Anthony M. Kennedy.

The assignments to Justice Kennedy have a distinct purpose, Professor Lazarus wrote: to lock in his vote in close cases.

“One of the easiest ways to reduce the risk of the swing justice swinging the other way is to assign the opinion to that justice, thereby ensuring that the opinion is one he or she will be willing to join, even if the court’s holding may be far narrower as a result,” Professor Lazarus wrote.

After Justice Kennedy, Justice Samuel A. Alito Jr. was next in his share of big cases, with 16 percent. Justice Sonia Sotomayor was alone in getting no majority opinions in major cases.

The study’s most surprising finding concerned Justice Alito, the junior member of the court’s conservative wing, and Justice Antonin Scalia, its senior member.

Justice Scalia joined the court in 1986 and is its longest-serving current member. But he received about the same percentage of assignments in big cases as Justice Alito, who did not arrive until 2006. “Especially given how much seniority plays a systemically important role within the court,” Professor Lazarus wrote, “this is a striking result.”

Justice Alito is apt to write opinions of the sort Chief Justice Roberts prefers, Professor Lazarus wrote: incremental, without rhetorical flourishes, and able to command five votes.

So who will write the Luis case being argued this morning by Howard Srebnick? More on that later.