Love is in the air...

... at the PD's office!  Check out this nice Herald article about two APDs:

It was not love at first sight, no. Brad Horenstein and Daniela Torrealba met when they were taken to lunch by their respective bosses while working as interns at the Miami-Dade Public Defender’s Office. Their reaction was … well, meh.
"I got a very bad reading," recalls Horenstein, 35. "She was so serious. I didn’t talk to her for a year after that."
From Torrealba, 29: "I didn’t even remember meeting him at the lunch until he reminded me about it. I was in my final semester of law school and I had blinders on."
A few months later the assistant public defenders were singing a different tune — quite literally. On a road trip to Orlando for a legal conference, they realized how much they loved the same music. They sang along to Kavinsky’s Nightcall and Radiohead’s Idioteque and Crystal Castles’ Vanished. They talked. And talked. And talked.
Horenstein was smitten, but it still took him four months to ask her out. Their first date, in February 2013, was at Scarpetta, a high-end Italian restaurant in Miami Beach’s Fontainebleau. They finished the night at The Corner, a hip bar downtown. Soon they became inseparable.
"I knew he was a wonderful guy who was genuinely concerned about his clients and his work, but I had never dated a friend before," Torrealba says. "When he asked me out, it opened my eyes.”
Two years and four months later, Horenstein popped the question. They’re getting married February 2017.
In the meantime the couple has lived together for 16 months in a Brickell area apartment. They spend most of their work hours together, too. They believe the closeness has helped burnish their new love.
He says: "She’s incredibly bright and quick-witted and positive. She’s so much fun to be around."
She says: "He has what people call good moral fiber."

Cool story!   This one from the 6th Circuit, not so much:

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

Oh boy.  Big brother is watching!

Read more here: http://www.miamiherald.com/living/health-fitness/article59222768.html#storylink=cpy

Legal debates...

First: "What's harder, for a man to do 30 pushups or a woman to do 14?"  That's from Althouse discussing the 4th Circuit case of Bauer v. Lynch, which addresses the requirements for the FBI:

"Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness.... [T]he numbers of push-ups men and women must complete are not the same, but... the fundamental issue [is] whether those normalized requirements treat men in a different manner than women.... [A]n employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each."

Second, is Cruz eligible to be President?  From Harvard Law Today:

“Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe, who taught Cruz when he was a student at HLS in 1994.
The crux of the matter is that the Constitution, in Article II, Section 2, Clause 5, states that “no person except a natural born citizen” can be president.
Under English common law, upon which U.S. law was based, a “natural born citizen” would be someone born on American soil. For Tribe, according to this definition, Cruz does not qualify. He compared Cruz to Alexander Hamilton, a founding father who was born in St. Croix, Virgin Islands, but qualified as a U.S. citizen at the time of the adoption of the Constitution, and former presidential candidate John McCain, who was born in the Panama Canal Zone when it was under U.S. control.
“Unlike Cruz, McCain was born in U.S. territory,” said Tribe. “And unlike Cruz, McCain was born to two U.S. citizens, parents who had been deployed to the Panama Canal Zone by the military to serve the country.”
But for Jack Balkin ’81, a constitutional law professor at Yale University, Cruz is a “natural born citizen” because under U.S. immigration law in 1970, he automatically became an American because his mother was one. The law grants birthright citizenship to a child born overseas if one parent is a U.S. citizen.

I think question 1 might get more commenters' blood boiling...

Monday morning update

So like the rest of you, I watched the Super Bowl and the commercials.  zzzzzzzzzzzzz

What a snoozer.  Seemed more like a Thursday night Raven/Titan game than the Super Bowl.

Politics this weekend was far more entertaining.

Of course, you had SNL with Larry David/Bernie Sanders:


But the better comedy was at the GOP debate:



In terms of the actual debate, I thought Marco got crushed in this exchange:

Docs v. Glocks going en banc

Here's the order.

The third opinion was back in December.

Jordan and Pryor agree...

...that sleeping during a murder trial is not ineffective.  After a strenuous debate earlier in the week (Jordan v. Pryor), we get this per curiam unpublished doozy (Julie Carnes also joined):

We issued a certificate of appealability to address Williams’s argument that “he was denied his Sixth Amendment right to counsel when his counsel allegedly dozed or slept during a part of [his] trial.” Because it was not an unreasonable application of clearly established federal law for the state trial court to conclude that Williams was not prejudiced by counsel “[falling] asleep a couple of times” while the state replayed a recording of an interview that was cumulative to earlier testimony from the interviewee, we affirm.

Despite Rumpole's objections, the opinion starts with a description of the crime:

When Austin Joseph Paine intercepted burglars in his home, they shot and killed him. Chad Michael Leon afterward overdosed on morphine and checked himself into a hospital, where he implicated himself, Williams, and Randy Carter Jr. in Paine’s murder. Leon later showed officers where in the ocean he had discarded a revolver and a semiautomatic firearm used by Williams and Carter.

 Here's the analysis:

In the absence of controlling precedent, fairminded jurists could disagree about whether a defendant is entitled to a presumption of prejudice because defense counsel, who was otherwise actively engaged in the trial, “fell asleep a couple of times” while the jury listened to a recorded interview that was cumulative to testimony earlier provided by the interviewee.

Wow.  All I have to say is: zzzzzzzzzzzzzzzzzzzzzzz

It's a very old Supreme Court

Four Justice are older than 75.  This op-ed wonders whether that's a problem.  It certainly will be a big deal for the next President.  From the conclusion:

The problem of an aging judiciary extends beyond the Supreme Court to the hundreds of elderly federal judges across the country. The average age of these jurists is now over 70, with many in their 80s and 90s. The 94 U.S. district courts and 13 courts of appeals decide more than 98% of all cases with federal jurisdiction, so the continued mental acuity of these jurists should be a concern for all of us who use interstate commerce or expect due process.
If there's a silver lining, no pun intended, it's that some of these jurisdictions have implemented programs to promote sharpness in judges as they age. The 9th Circuit Court of Appeals, for instance, offers a battery of mental health assessments, hosts discussions with neurological experts and has created a hotline where staff may report signs of cognitive decline in their colleagues. Such measures are necessary because it's hard for friends and family members, let alone the individual in question, to know if a tendency to, say, forget one's keys is innocuous, or portentous.
Unfortunately, the 9th Circuit program and a handful of others across the country exist in isolation, as there is no judiciary-wide strategy to cope with cognitive decline. That should change. Chief Justice Roberts should use his authority as head of the federal judiciary to require his high court colleagues and others to undergo regular mental health checkups.
Further, he could recommend a judicial retirement age of 70 or 75, as is done in the rest of the Western world. He and future nominees to the bench could even pledge to serve for no more than 18 years, as has been suggested by constitutional scholars and interest groups on the left and right as a reasonable limit on judicial tenure.
Our court system and the law benefit from the wisdom of judges with many years of experience. But the federal judiciary, especially given congressional dysfunction, is simply too important to leave in the hands of old fogeys.

Our district has gotten a lot younger recently.  What judge would you rather appear before -- old or young?

Jordan v. Pryor

It's a pretty interesting debate, both in terms of style and substance, in this habeas case between Judges Jordan and Pryor.  Jordan ends up in the majority with a the vote of a visiting judge.  This angers Judge Pryor even though it usually happens in the reverse.  He starts his dissent this way:

Ace Patterson—a child rapist, kidnapper, and burglar—won the habeas lottery today. The majority gives him a second chance to collaterally attack his convictions in federal court, seventeen years after his trial and nine years after he filed his first federal petition for a writ of habeas corpus. Most state prisoners are not so lucky, as the Antiterrorism and Effective Death Penalty Act prohibits the filing of a “second or successive” petition for a writ of habeas corpus. 28 U.S.C. § 2244(b). But Patterson is luckier still. In a sleight of hand, the majority rules that a 2009 order sparing him from chemical castration—an unopposed order that benefited Patterson—somehow hit the reset button on his ability to obtain federal habeas relief, even though the 2009 order is not “the judgment authorizing [Patterson’s] confinement” and is irrelevant for purposes of the bar on second or successive petitions. *** The clear text of the statute makes “the judgment of a State court” that holds the prisoner “in custody” the judgment that matters for our collateral review. 28 U.S.C. § 2254(b)(1). And for good reason. Patterson, after all, does not object to anything in the 2009 order that spared him from chemical castration or allege that the removal of chemical castration somehow violated his federal constitutional rights. He instead seeks to collaterally attack the judgment of convictions  entered against him in 1998—a judgment he has already collaterally attacked once in federal court and four times in state court. And the majority lets him do it. Because that ruling is wrong in every way, I dissent.

Even though it's easy to disagree with his decision, you gotta give it to Judge Pryor -- he is a gifted writer.  Here's some more, this time from the conclusion:

When it comes to federal habeas petitions, the more is not the merrier. Relaxing the bar on second or successive petitions will “prejudice the occasional meritorious application” for a writ of habeas corpus by “bur[ying] [it] in a flood of worthless ones.” McCleskey, 499 U.S. at 492, 111 S. Ct. at 1469 (quoting Brown v. Allen, 344 U.S. 443, 537, 73 S. Ct. 397, 425 (1953) (Jackson, J., concurring in the result)). Despite the best efforts of Congress to prevent that “flood,” the majority is praying for rain. This case is not hard. And nobody should be fooled by the majority’s atextual decision. After seventeen years of repeated and often frivolous attempts to overturn his convictions, Patterson is being given another go-round based on an order issued in 2009 that both the State of Florida and the guardian ad litem thought was meaningless. That order does not authorize his confinement, and he does not allege that it violates his constitutional rights. Nor should he: the 2009 order gave him all of the relief that he requested. Today’s decision is gimmickry that will require the State of Florida to defend a child rapist’s convictions for the umpteenth time and will threaten a twenty-six-year-old woman to relive the horror of his monstrous crimes.

I dissent.

Judge Jordan goes for the even-tempered approach, expressing his disappointment in the anger from Judge Pryor's opinion, calling him out by name over and over again:

We respect the passionate dissenting views of our colleague, Judge William Pryor. Yet we suspect that Judge Pryor’s real disagreement is with Magwood and our prior decision in Insignares.

***

Finally, to the extent that Judge Pryor is suggesting that we are in some way trying to undermine AEDPA, such an accusation is as disappointing as it is wrong. As the Seventh Circuit recently noted, see Kramer v. United States, 797 F.3d 493, 502 (7th Cir. 2015), reasonable jurists can disagree about what constitutes a new judgment under Magwood. We have tried to faithfully apply AEDPA and Magwood in light of binding circuit precedent, and that binding circuit precedent is Insignares. We believe we have  accomplished that task, Judge Pryor’s protests notwithstanding.

And the visiting judge, District Judge Haikala, calls out Judge Pryor on his appeal to emotions.  Her concurrence begins like this:

Judge Pryor and Judge Jordan have prepared thorough opinions in this case. I have studied both opinions. I agree with Judge Pryor that this case is not hard. I agree with Judge Jordan’s analysis of the issue presented to the Court. Like Judge Jordan, I conclude that the rationale of Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273 (11th Cir. 2014), requires reversal. I write separately to address a few points in Judge Pryor’s opinion. In his opinion, Judge Pryor describes Mr. Patterson’s reprehensible criminal behavior. Minority Op. at 2-3. There is no doubt that the conduct that gave rise to Mr. Patterson’s conviction and sentence is heinous, but that conduct has no bearing
upon the legal standard that governs the issue before the Court. As the United States Supreme Court wrote in Chessman v. Teets: “On many occasions this Court has found it necessary to say that the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution.” 354 U.S. 156, 165 (1957). 

"will do anything to stay at the trough"

That was one of Donald Trump's recent tweets about Jeb!.  The New York Times has compiled this entertaining list of all of his "insult" tweets.  Enjoy.

Meantime, in Broward, there was sex [allegedly] in the jail between a lawyer and a client.  The Sun-Sentinel has the details.

And today's moment of zen comes from the Pac-10 where Michael Phelps distracted a college basketball player shooting a free throw...  watch the video here.