Debate with Rumpole about using archaic legalese in motions

COMES NOW Defendant Cross-Plaintiff David Markus (hereinafter referred to as “Defendant” or “Cross-Plaintiff” or “Mr. Markus”), by and through undersigned counsel, who hereby files this motion for summary judgment (the “motion” or “MSJ” or “summary judgment” ) pursuant to Federal Rules of Civil Procedure (hereinafter “the Rules”) and states as follows. 

Oy vey.  Did that introduction help in any way to persuade you of anything? Of course not. But Rumpole laps up the legalese in this post over at his blog, which is usually wonderful, but is very wrong on this point.

We no longer write motions on a typewriter with carbon paper.  We don’t rent videos from Blockbuster.  We don’t take film to a camera store to be developed.  We don’t use curled up paper in a fax machine.  Or even a fax machine at all.  

Likewise, we don’t need words like COMES NOW, hereby, herein, aforementioned, inter alia, heretofore, know all men by these premises, and so on. If the goal of legal writing is to persuade, we should do away with archaic legalese.  Plain and easy to understand English is the way to go.  Phrases like COMES NOW do not add anything to a motion.  They are not persuasive.  They are meaningless. 

Bryan Garner, the legal writing authority, says the term COMES NOW should be banned and asks whether lawyers who use such terms “think that the phrase made them sound more thunderous and authoritative?” Justice Scalia started this plain English trend at the Supreme Court.  And it has taken root with the best legal writers across the courts.  From Robin Rosenbaum and William Pryor in the Eleventh Circuit to Alex Kozinski, former Chief Judge of the Ninth Circuit.  

Rumpole wants to stick to tradition, but this is a tradition that needs to be abandoned.  Lawyers also used to wear wigs to court.  Saying things like: I’ve received the your blog argument and “ hereby acknowledge same” doesn’t sound lawyerly.  It sounds like you’re a wanna-be lawyer.

Rumpole, PLEASE GOVERN YOURSELF ACCORDINGLY.  

Okay, don’t use that one either!

More on Kozinski (UPDATED -- KOZINSKI RETIRES)

UPDATE: Judge Kozinski has decided to retire, effective immediately.



ORIGINAL POST: The Washington Post had another front page article this weekend, detailing another round of Judge Kozinski allegations.  It’s not pretty.  Above the Law explains:

And that’s really been the nugget at the core of any defense of Kozinski. He was “only” joking, or that he should get a pass or a mere slap on the wrist because his behavior didn’t cross the line into the physical. But in the new WaPo article more women are coming forward with allegations that seem to cross that line and are deeply unsettling.

Take the story of Christine O.C. Miller, who is now a retired U.S. Court of Federal Claims judge. She says that in 1986 she attended a professional event with Kozinski and shared a car ride home at the end of the evening. During that ride Miller alleges Kozinski asked her to stop at a hotel and have sex. When she rejected his advance, she alleges things turned physical:

“I told him, no, I wasn’t interested and didn’t want to be involved in anything like that,” she said. Kozinski, she said, persisted.

“He said if you won’t sleep with me, I want to touch you, and then he reached over, and — this was the most antiseptic — he grabbed each of my breasts and squeezed them,” Miller said. She said she stared straight ahead, and he soon dropped her off at her home.

So now what? The Second Circuit is investigating. He’s hired Susan Estrich at Quinn Emanuel. Will he step down before the Second Circuit concludes its investigation or will he dig in?

#MeToo movement hits Judiciary

The #MeToo movement has made its way to the judiciary... Judge Alex Kozinski stands accused.  The Washington Post covers the story here:

A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.

Heidi Bond, who clerked for Kozinski from 2006 to 2007, said the porn was not related to any case. One set of images she remembered was of college-age students at a party where “some people were inexplicably naked while everyone else was clothed.” Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman.

Bond is one of six women — all former clerks or more junior staffers known as externs in the 9th Circuit — who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.

In a statement, Kozinski said: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”

Kozinski provided the statement after The Post called and emailed a spokesman with a detailed list of the allegations this story would include. After the story posted online, the judge told the Los Angeles Times, “I don’t remember ever showing pornographic material to my clerks” and, “If this is all they are able to dredge up after 35 years, I am not too worried.”

Unlike the politicians wrapped up in similar controversy, Kozinski has life-time tenure. It will be interesting to see how this plays out.

How many innocent people are in federal prison?

Ninth Circuit Judge Alex Kozinski told 60 Minutes that about 1% or over 20,000 innocent people are in federal prison.  "That's a lot of people!" The number is almost definitely higher and yet many federal judges aren't doing as much as Kozinski to check the executive.  And boy do we need a strong judiciary right now with AG Sessions.

We should have our U.S. Attorney nominee this week.  It will be interesting to see if that person is willing to stand up to Trump/Sessions or whether they will go back to the old ways where there is limited discovery, no exhibit lists, etc. etc.

It appears that in the Ft. Lauderdale shooting case that the prosecution is handing over all of the evidence.  From Paula McMahon:

 Prosecutors handling the case against a man accused of fatally shooting five people and wounding six others at Fort Lauderdale’s international airport are still turning over massive amounts of evidence to the defense, they said in court on Friday.
In the coming weeks, they plan to hand over electronic evidence from computers and phones used by Esteban Santiago before the Jan. 6 mass shooting.
Both sides said they are still interviewing numerous potential witnesses who may have information about the shooting and Santiago’s state of mind.
The defense team, from the Federal Public Defender’s office, said Santiago, 27, is continuing to take medication for schizophrenia and schizoaffective disorder. They said his condition appears to have stabilized and he remains legally competent to stand trial.

It also appears that Haitian coup leader Guy Philippe will plead guilty today.

"Worse than Death"

That's the name of this article about solitary confinement by Judge Alex Kozinski.  The intro:

For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay?1 What about a firing squad?2 How about life sentences for pirates3 or drug possessors4 or people who pass rubber checks?5 But we hear remarkably little about what may be the most severe punishment of all: solitary confinement. Lurking in the shadows of the conversation about inhumane punishments are some 100,000 souls who spend 23 hours a day alone in a cell the size of a parking space. In a world where making a rap video can earn you three years in the box,6 we should all be asking more questions about how prisoners get into solitary confinement, what “life” is like once they get there, and how they can get out.

The Liman Program’s Time-In-Cell Report begins this important conversation. The Report’s shuddersome findings confirm what I have long suspected: Solitary confinement is just as bad as the death penalty, if not worse.

There is a growing consensus that criminal justice reform is desperately needed.7 The difficult question is how best to allocate the scarce resources of lawyers, activists, and academics. I argue here that society should shift some resources and attention away from the death penalty and towards the problem of solitary confinement. If such a shift is not made, death penalty abolitionists may succeed in their campaign only to discover that they have won a Pyrrhic victory. Sending hardened criminals from death row to solitary confinement is no triumph. It merely swaps one type of death for another.

Meanwhile, the Washington Post has a piece about innocent people pleading guilty:

The presumption of innocence helps to combat prejudice and prejudging in the U.S. criminal justice system. But because plea bargains have supplanted trials in our criminal justice system, that presumption does not apply to most cases in the United States.
Prejudice against the accused is quite common. Consider your own experience: If you see that a police car has pulled a driver over to the side of a highway, what do you make of the situation? Most people probably think to themselves, “Hmm, that driver was probably caught speeding.” Similarly, if you heard that one of your neighbors had been arrested, you would likely say to yourself, “I wonder what crime he committed.” It is a common reaction to presume that the authorities had a good reason to detain or arrest someone.
To protect the innocent, however, the law demands that incriminating evidence be presented in court. The Constitution says every person accused of a crime has the right to an impartial jury trial. If the jury is persuaded that a person is guilty, then that person can lose his liberty and be punished. That is a sensible procedure for a just system, and it is why Americans have taken pride in our Bill of Rights.
Unfortunately, the system that is described by our school teachers and that Americans see on television and in the movies is now defunct. Jury trials are now rare events in the United States. In fact, about 95 percent of the cases moving through the system will not go to trial. The overwhelming majority of cases will be resolved by plea bargains.

 While the drumbeat of criminal justice reform is getting louder, many in the GOP are opposing commonsense measures.  

Are criminal trials fair?

Judge Kozinski says no way in this really interesting read from the Georgetown Annual Review of Criminal Procedure.  His main points, as summarized by Business Insider:

1. Eyewitnesses are highly reliable

Eyewitnesses are highly unreliable, especially when the witness and perpetrator are of different races, or when witnesses are asked to recall a situation in which they were under the stress of violent crime or catastrophe, Kozinski writes. Mistaken eyewitness testimony was a factor in one-third of all wrongful conviction cases, according to his article.
Jed Rakoff, another well-known federal judge, made the same point in a Washington Post op-ed this year.

2. Fingerprint evidence is foolproof

Kozinski says prints left in the field are often smudged and incomplete — making them difficult to identify. He adds that when tested by more rigorous scientific methods, fingerprint examiners have a significant error rate.
The National Academies of Sciences has also said the work of fingerprint examiners can be flawed. 

3. Other types of forensic evidence are scientifically proven and therefore infallible

Aside from DNA evidence, Kozinski says what is true about fingerprint evidence is doubly true about bloodstain-pattern identification, foot- and tire-print identification, and ballistics.
"Some fields of forensic expertise are built on nothing but guesswork and false common sense," Kozinski writes. 
Recently, the Justice Department exposed major problems with microscopic hair testing in criminal cases. 

4. DNA evidence is infallible

Kozinski says the integrity of DNA evidence is often compromised during the collection, preservation, and testing process, and that DNA examiners are not always competent and honest.
As Mother Jones noted in April, "Real-life crime labs are a total mess."

5. Human memories are reliable

Kozinski, citing a study by cognitive psychologist Elizabeth Loftus, believes the mind not only distorts and embellishes memories, but that external factors affect how memories are recalled and described. 
In an interview with Slate, Loftus acknowledged that we're all capable of fabricating memories. 
"We all have memories that are malleable and susceptible to being contaminated or supplemented in some way," Loftus told Slate. 

6. Confessions are infallible because innocent people never confess

Kozinski has found that innocent people confess surprisingly often, due to a variety of factors including interrogation tactics, Stockholm syndrome, emotional or financial exhaustion, family considerations, and general feeble-mindedness. 
As The New Yorker has reported, police can also produce false confessions by using a certain interrogation technique. 

7. Juries follow instructions

Kozinski claims courts know very little of what juries do when they decide cases. Courts have no way of knowing whether juries follow instructions or even whether they understand them, according to Kozinski. 
"We have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases," Kozinski writes.

8. Prosecutors play fair

Kozinski believes prosecutors often fail to turn over evidence that could be favorable to the defense, known as exculpatory evidence. In a case called Brady v. Maryland, the Supreme Court ruled that prosecutors have to turn over that evidence. But Kozinski claims there's an "epidemic" of Brady violations in America. 

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt

In reality, Kozinski writes, the defendant is often at a disadvantage because prosecutors have the chance to argue their case before the defense during a trial.
That's troubling because of psychological evidence showing that "whoever makes the first assertion about something has a large advantage over everyone who denies it later," according to Kozinski.

10. Police are objective in their investigations

Kozinski says police have the opportunity to alter or remove evidence, influence witnesses, extract confessions, and more or less lead an investigation in such a way that they can stack the deck against somebody they believe should be convicted.
"There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence," Kozinski writes. 

11. Guilty pleas are conclusive proof of guilt

Kozinski has found that when a defendant believes an outcome is highly uncertain or stacked against them, they might cave and enter a guilty plea to a lesser charge so that they can still salvage a part of their life.
Judge Jed Rakoff has also lamented the fact that 97% of federal criminal defendants plead guilty if their cases aren't dismissed. 

12. Long sentences deter crime

America has 716 prisoners for every 100,000 people — the most of any country in the world, Kozinski notes. America also has much longer sentences than other countries for comparable crimes. Kozinski points out that a burglary charge in the US warrants an average of 16 months in prison, compared with five months in Canada and seven months in England.
"As with much else in the law, the connection between punishment and deterrence remains mysterious," Kozinski writes. "We make our decisions based on faith."

Meantime, there are a bunch of criminal trials starting this summer, which are expected to last over a month.  One just started before Judge Martinez, so if you are looking for something for your interns to do... send them over to watch a federal trial!

“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.”

That's Judge Kozinski in this article calling for criminal justice reform:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.
If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate. *** The U.S. Justice Department seems ready enough to pursue charges of civil rights violations in cases where police have engaged in physical violence, but far more reluctant to pursue misbehaving prosecutors.

And from the East Coast, you have Judge Gertner saying her sentences during 17 years on the bench were unfair and immoral:

Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories––to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”
No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.

And yet, nothing seems to be happening with reform....  Same old, same old.

But, we may have a new Broward courthouse:

Florida's most conservative and liberal members of Congress joined forces Tuesday in calling for more federal spending — for projects in the state.
Led by U.S. Reps. Lois Frankel, a Democrat who represents Broward and Palm Beach counties, and Jeff Miller, a Republican who represents part of the Florida Panhandle, half the state's congressional delegation wrote the administrator of the agency in charge of federal buildings that Fort Lauderdale and Pensacola need new federal courthouses.

The letter to the General Services Administration, signed by 13 of the state's 27 representatives, declared an "urgent need" for new buildings, citing "substandard conditions" that "hinder the efficient administration of justice."

Federal judges, and the lawyers who appear before them, have been complaining for years about the courthouse at Broward Boulevard and Northeast Third Avenue in Fort Lauderdale. The development community in Fort Lauderdale has urged a new courthouse as has Mayor Jack Seiler, a lawyer. Cost of a new Fort Lauderdale courthouse has been estimated at $250 million.

I'm gonna miss Jon Stewart:

Another area where our criminal justice system is failing

This time it's prisons.  The N.Y. Times Magazine took a close look at our prison system and it isn't pretty. The first article is about our SuperMax.  It's really really bad:

Inmates at the ADX spend approximately 23 hours of each day in solitary confinement. Jones had never been so isolated before. Other prisoners on his cellblock screamed and banged on their doors for hours. Jones said the staff psychiatrist stopped his prescription for Seroquel, a drug taken for bipolar disorder, telling him, “We don’t give out feel-good drugs here.” Jones experienced severe mood swings. To cope, he would work out in his cell until he was too tired to move. Sometimes he cut himself. In response, guards fastened his arms and legs to his bed with a medieval quartet of restraints, a process known as four-pointing.

 The second is about Norway's prison system and its attempt to rehabilitate:

To anyone familiar with the American correctional system, Halden seems alien. Its modern, cheerful and well-­appointed facilities, the relative freedom of movement it offers, its quiet and peaceful atmosphere — these qualities are so out of sync with the forms of imprisonment found in the United States that you could be forgiven for doubting whether Halden is a prison at all. It is, of course, but it is also something more: the physical expression of an entire national philosophy about the relative merits of punishment and forgiveness.

The treatment of inmates at Halden is wholly focused on helping to prepare them for a life after they get out. Not only is there no death penalty in Norway, there are no life sentences. The maximum term for any crime is 21 years — even for Anders Behring Breivik, who is responsible for probably the deadliest recorded rampage in the world, in which he killed 77 people and injured hundreds more in 2011 by detonating a bomb at a government building in Oslo and then opening fire at a nearby summer camp. “Better out than in” is an unofficial motto of the Norwegian Correctional Service, which makes a reintegration guarantee to all released inmates. It works with other government agencies to secure a home, a job and access to a supportive social network for each inmate before release; Norway’s social safety net also provides health care, education and a pension to all citizens. With one of the highest per capita gross domestic products of any country in the world, thanks to the profits from oil production in the North Sea, Norway is in a good position to provide all of this, and spending on the Halden prison runs to more than $93,000 per inmate per year, compared with just $31,000 for prisoners in the United States, according to the Vera Institute of Justice, a nonprofit research and advocacy organization.

 That might sound expensive. But if the United States incarcerated its citizens at the same low rate as the Norwegians do (75 per 100,000 residents, versus roughly 700), it could spend that much per inmate and still save more than $45 billion a year. At a time when the American correctional system is under scrutiny — over the harshness of its sentences, its overreliance on solitary confinement, its racial disparities — citizens might ask themselves what all that money is getting them, besides 2.2 million incarcerated people and the hardships that fall on the families they leave behind. The extravagant brutality of the American approach to prisons is not working, and so it might just be worth looking for lessons at the opposite extreme, here in a sea of blabaerskog, or blueberry forest.

 Our system clearly isn't working.  Both Republicans and Democrats agree on this.  Think about that for a second -- both sides, who can't agree on anything, agree our criminal justice system is not working: from overcriminalization, to our prisons, to our sentencing guidelines, to Brady issues, and on and on.  People want change.

But our judges are awfully quiet on these topics.  Sure, the Supreme Court talks the talk about overcriminalization (Yeager), and the occasional judge (see, e.g., Judge Gleeson and Judge Kozinski) actually does something about the executive going too far.  But by and large, the judiciary hasn't stepped up as a check against the executive branch on criminal justice issues, and unfortunately, that's why we find ourselves where we do. 

Come on, Southern District of Florida Judges! Giving a 3 or 6 month variance here and there isn't going to change the system.  It's time to act and make a difference.  Where the government overcharges, dismiss an indictment.  Where the sentencing guidelines are absurd for first time non-violent offenders, give a reasonable sentence that doesn't include jail.  Where our executive branch -- including BOP -- goes too far, step up!  Avengers Assemble!

"He’d have had a fairer shake in a tribunal run by marsupials."

Ouch.  That was Judge Kozinski dissenting in Alvarez v. Tracy:

When we take the judicial oath of office, we swear to
“administer justice without respect to persons, and do equal
right to the poor and to the rich . . . .” 28 U.S.C. § 453. I
understand this to mean that we must not merely be impartial,
but must appear to be impartial to a disinterested observer.
Today we do not live up to this solemn responsibility.
Relying on a ground not raised by either party here or in the
district court, we refuse to consider petitioner’s serious and,
in my opinion, meritorious claims. This is only the latest
indignity inflicted on a criminal defendant who, despite
having a seventh-grade education, was forced to defend
himself at trial; although having the right to a jury, was never
told that he had to ask for one; and who was therefore
convicted and sentenced to eight years in prison in a bench
trial where neither the prosecution nor the judge lifted a
finger to bring the accusing witness into court. He’d have
had a fairer shake in a tribunal run by marsupials.
I am troubled by the disparate way we treat the parties.
Alvarez and the Community both failed to raise legal issues
at the proper time and in the proper manner. Alvarez failed
to raise his jury trial and confrontation claims by way of a
direct appeal within the tribal court; the Community failed to
raise an exhaustion defense in district court. The Community
committed an additional default by also failing to raise this
issue on appeal—something we’ve repeatedly held is an
independently sufficient basis for declining to address it.

I also like this passage:

I have read the opinion many times and disagree with
pretty much everything in it, including the numerals and
punctuation. I explain why in the pages that follow, but first
I pose a more basic question: How can a court committed to
justice, as our court surely is, reach a result in which the
litigant who can afford a lawyer is forgiven its multiple
defaults while the poor, uneducated, un-counseled petitioner
has his feet held to the fire? I attribute no ill will or improper
motive to my excellent colleagues. They are fair, honorable
and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See,
e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123
(9th Cir. 2010) (Kozinski, C.J., dissenting from denial of
rehearing en banc). I can find no justification for showing
such solicitude for the overdog while giving the underdog the
back of the hand.

Barry Bonds' conviction in trouble?

That's what all of the court observers are saying after yesterday's en banc argument (watch here*).  Here's one example, by Pamela MacLean:

The government may have struck out with the majority of an 11-judge panel of the 9^th U.S. Circuit Court of Appeals Thursday in former Giants slugger Barry Bonds’ challenge to his obstruction of justice conviction in an investigation of steroids use.
“I find your reading of the statute absolutely alarming,” Judge William Fletcher to the government’s lawyer Mary Jean Chan.  And it got worse from there.
A three judge panel of the appeals court upheld Bonds conviction for obstruction of justice in September 2013 for his evasive testimony to a grand jury investigating illegal distribution of steroids by the Bay Area Laboratory Cooperative (BALCO.)
The three-judge appeals panel held that his answers were “evasive, misleading and capable of influencing the grand jury to minimize” the role of Bonds’ trainer, Greg Anderson, suspected of distributing performance enhancing drugs.
Bonds’ attorney Dennis Riordan opened by saying any decision will garner public attention because of Bonds’ celebrity and controversial status.  But that’s not what’s important, what is important, he said, “This is the first time the government has asked to convict  a defendant for comments to a grand jury that were non-responsive, to convict for obstruction of justice because he wandered off topic.”
While Riordan faced tough questioning, most of the fire was reserved for the government.
Fletcher asked what happens in civil litigation if lawyers respond to interrogatories and they give truthful but evasive answers.  “Are they guilty of a crime?” he asked.
“Yes,” responded Chan.
“Well that is a common practice in civil litigation and you may have criminalized half the bar.  “Half the bar may be in serious trouble,” he said.
Chief Judge Alex Kozinski accused the government of engaging in some evasive conduct in the superseding indictment by not making clear the Bonds statements that were allegedly evasive.
Bonds’ rambling answers to the grand jury  about being a “celebrity child” in response to a question whether he received any steroids from  Anderson could be the basis of a conviction, the panel held.  The panel found that even truthful answers could be the basis of conviction if they were so evasive.
Bonds was sentenced in 2011 to spend 30 days in his Beverly Hills mansion and perform 250 hours of community service for his conviction to use of dodgy answers to federal questions.  Jurors could not agree on a perjury charge against Bonds.
Judge Susan Graber said, “Speaking for myself, I don’t see how there is sufficient evidence [of obstruction] when the question was asked and answered repeatedly.”
Kozinski asked, “Can you cure a misleading answer?”
“Not if the intent was to mislead at the time,” Chan said.
“But wasn’t it cured in this case?” asked JudgeJacqueline Nguyen?

*How cool (and informative) is it that you can watch the argument right after it happens.  When will the 11th do this?


Meantime, last night the Broward Federal Bar Association had its big gala.  Lots of federal judges turned out, including federal judge hopefuls. 

Are you a Belieber?

You should be in the CJA panel.  A bunch of favorable verdicts last week for them... A NG across the board for Al Levin in a felon in possession case.  A hung jury for Rick DoCobo, and a NG on the 7-year 924(c)s for Marty Feigenbaum.  

--UM Law Review is putting on a pretty cool program called Leading from Below on February 14-15. The two-day Symposium will examine the discretion and role of the Federal District Court Judge. The keynote speaker is the Honorable Jack B. Weinstein. One of our own, Judge Kathleen Williams, will also be speaking. And the price is right -- it's free and you'll get 9 CLE credits. Click here for more information and to register.

--If you were trying to file something or log onto PACER on Friday, it was a no go.  But it wasn't a cyber-attack as initially reported.  From the WSJ:

A shutdown of numerous federal court websites on Friday, initially attributed to a cyberattack, was actually the result of technical problems, the Federal Bureau of Investigation said.

The service disruption prevented some attorneys from filing documents electronically and others from reading court records.

At first, a spokeswoman for the federal court system said the shutdowns were the result of a denial of service attack—a kind of blunt force assault that overwhelms a website's ability to handle regular users by inundating the site with meaningless traffic. She said the incident "affected an unknown number of courts around the country," as well as the systems for reading and filing court documents.

Later Friday night, however, an FBI spokeswoman said the service interruption was because of technical problems in the federal court computer system and not a cyber attack.

--Finally, Judge Kozinski is the best.  He said this in an opinion concurring in part last week: "As best the record showed, Enmund was a schmo hired to drive the getaway car for a robbery gone wrong" 

Great New York Times articles this weekend

The first is Adam Liptak's look at how two different jurisdictions are trying new approaches to make sure Gideon's promise is upheld:

Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.

The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.

The county calls it “client choice.” Another name: Gideon vouchers.

In Washington, Judge Robert S. Lasnik drew on Supreme Court decisions involving school busing and prison overcrowding to impose a federal monitor on two Washington cities that had, he found, failed to provide meaningful representation to poor criminal defendants.

Judge Lasnik, of the Federal District Court in Seattle, found that the cities of Mount Vernon and Burlington had effectively instituted a “meet and plead” system in which lawyers handling 500 cases at a time would “often meet their clients for the first time in the courtroom, sometimes with a plea offer already in hand.”

“The system is broken to such an extent,” he wrote, “that confidential attorney-client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.”

The second is an editorial about how bad prosecutorial misconduct has become and urging something to be done about it:

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”       

***

 Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence “so long as it’s possible the defendant would’ve been convicted anyway,” as the judge wrote. This creates a “serious moral hazard,” he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.       

Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.

The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving “the public’s trust in our justice system,” and the foundation of the rule of law.

I have been calling for open file reform for a long time and have never heard a good response about why we shouldn't have open files from the government.  If any current prosecutor would like to debate this issue, I will set it up with one of the local organizations.

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

That's Ninth Circuit Chief Judge Kozinski dissenting from the denial of en banc review in U.S. v. Olsen.  He isn't happy with the panel:

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

Or the prosecutor:

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

Ho hum. 

At Judge Kopf's blog, he recommends having prosecutors turn over everything to the defense to make sure these complaints can't be lodged.  I've never heard a good response to this proposal.

Some other notes:

• Albert Lichy, Judge Huck's former law clerk, wrote an op-ed in the DBR, titled: DOJ's Shift in Corporate Prosecutions: Too Big to Ignore.  The conclusion:

A retreat of any degree from federal prosecutors' reliance on DPAs to resolve corporate criminal investigations would be utterly misguided. The risk of another Arthur Andersen-style collapse is much too high to justify any added measure of deterrence a criminal conviction offers. While many are quick to criticize the Justice Department for maintaining a de facto policy that some institutions are too big to jail or take to trial, few have offered a convincing argument for why the perceived benefit of a conviction outweighs its potential costs. Corporate defendants, unlike their individual counterparts, can't go to jail—however big or small. They don't suffer the same reputational harm as a branded criminal. Nor do they lose any fundamental constitutional rights. A conviction is purely symbolic. But in pursuing this symbolic gesture, prosecutors are needlessly creating the risk of emitting a systemic shock through the financial system—one that's too big to ignore.
The cautionary note Attorney General Eric Holder sounded in 2002 in arguing against the indictment of WorldCom is as appropriate today as it was then: "to ensure that even more innocent Americans are not harmed, prosecutors must not give in to the pressures of the day and feel compelled to indict more corporations simply because they can."

• Alyson Palmer is doing a great job covering the 11th Circuit appointment process.  Here are recent articles here and here covering how the Judge Rosenbaum may be confirmed quickly and who is being interviewed for the open Alabama seat (Judge Dubina).

One last thing -- Thanks again to everyone for their kind words and emails over the past week.  I really appreciate it.

Thursday News & Notes

1.  Judge Lenard denied Juan Caro's bid for a new trial, rejecting his request for a hearing to find out when the government knew about Nevin Shapiro's bad acts.  From the Herald:

Lenard rejected a new bid by defense attorney Arturo Hernandez to hold an evidentiary hearing to explore whether a Justice Department lawyer who teamed up with a Miami prosecutor in the La Bamba trial knew about the FBI’s investigation of Shapiro in New Jersey months before he took the stand.
Hernandez filed documents such as government emails in hopes of challenging the Miami prosecution team’s timeline.
The Miami prosecutors first informed Hernandez of the Shapiro criminal probe when Shapiro was charged in April 2010.
Hernandez argued that had he been told about the Shapiro probe, he would have asked him about his investment scam on the witness stand. Hernandez said he was “disappointed” with the judge’s ruling.

2.  The Justice Department found lots of bad Miami police shootings.  From the NY Times:

Federal officials have found that the Miami Police Department engaged in a pattern of excessive force that led to a high number of shootings by officers, among them episodes that resulted in the deaths of seven young black men over an eight-month period in 2011.
The findings, released on Tuesday, came after a two-year investigation by the Justice Department’s civil rights division, and they identified “troubling” practices, including delays in completing investigations of officer-involved shootings, questionable police tactics and a lack of adequate supervision. From 2008 to 2011, officers intentionally fired their weapons at people 33 times, the investigation found.       

In a summary addressed to Tomas P. Regalado, Miami’s mayor, and Manuel Orosa, the police chief, the Justice Department noted that its own investigation would have been completed sooner if not for the Police Department’s “frequent inability to produce necessary documents in a timely fashion.”

 Here's the letter to the Mayor.

3.  Young guns can see who the best closer is at this upcoming competition.  My advice -- don't start with a knock knock joke.

4.  Judge Kozinski is so good.  Footnote 1 from a 1992 opinion of his that was recently emailed to me:

We do not (except in the caption) follow the appellant's counsel's interesting practice of writing the names of the people involved in CAPITAL LETTERS. Neither do we follow the appellee's counsel's practice of writing appellant's name in BOLD-FACED CAPITAL LETTERS. Nor do we intend to write all numbers both as text and numerals, as in "eleven (11) loose teeth, two (2) of which were shattered[;] [m]oreover, her jaw was broken in three (3) places." Appellee's Brief at 7. Finally, we will also not "set off important text" by putting it on "separate lines" and enclosing it in "quotation marks."
See id. at 10. While we realize counsel had only our welfare in mind in engaging in these creative practices, we assure them that we would have paid no less attention to their briefs had they been more conventionally written.

Wednesday News & Notes

1.  Although Dore Louis withdrew his request for NSA records and although the judge denied his motion based on that withdrawal, the feds filed another classified pleading to "clarify" what it said in the earlier classified filing.  Of course that clarification is redacted, so we have no idea what needed to be explained.

2.  The Federal JNC has been reconstituted.  Finally. Now can we get William Thomas confirmed? Here are the Southern District's members:
 UPDATED -- THIS LIST BELOW IS INCORRECT.  The correct list is here.

SOUTHERN DISTRICT CONFERENCE
John M. Fitzgibbons, Statewide Chair
Kendall B. Coffey, Conference Chair
Georgina A. Angones
Reginald J. Clyne
Vivian de las Cuevas-Diaz
Albert E. Dotson, Jr.
Philip Freidin
John H. Genovese
Carey Goodman
Evelyn Langlieb Greer
Cynthia Johnson-Stacks
Manuel Kadre
Eduardo R. Lacasa
Ira Leesfield
Dexter W. Lehtinen
Charles H. Lichtman
Richard J. Lydecker
Thomas F. Panza
David C. Prather
Dennis Alan Richard
Jon A. Sale
Stephen N. Zack

3.  Tom Almon received the Eugene Spellman Criminal Justice Act Award.*  I'm really happy to post about Tom Almon, who has been a CJA lawyer for a long time and has really provided a wonderful service to indigent defense.  Here's a picture:

Chief Judge Federico Moreno, me, Tom Almon, Judge Bob Scola (picture by Cathy Wade)

I never met Judge Spellman, but he was very close with Judge Davis who told lots of great stories about him.  Here's the NY Times obituary for Judge Spellman:

Judge Eugene P. Spellman, an 11-year veteran of Federal District Court who was known for innovative sentences and supporting social causes, died of cancer today at Mercy Hospital. He was 60 years old.
Judge Spellman was absent from the bench only a week before his death.
He crafted a novel sentence that withstood a challenge in the tax-evasion case of the industrialist Victor Posner, a millionaire who was ordered to give $3 million to the homeless and to serve meals in a shelter.
In other cases, the judge decried "underhanded tactics" used by Federal immigration officials against Haitian immigrants and released on bond a prisoner with AIDS after ruling that the Bureau of Prisons did not offer the prisoner adequate medical treatment.
In a case involving religious freedom, Judge Spellman ruled that public health and needs outweighed the tenets of the Afro-Cuban Santeria religion and upheld ordinances banning animal sacrifices in the Miami suburb of Hialeah.
He presided over the 1985 trial of Hernan Botero, a Colombian financier who was convicted of laundering $57 million in drug money, as well as drug cases involving former Government ministers of the Turks and Caicos Islands in the Caribbean and a former agent for the Federal Bureau of Investigation.

I pulled up an old administrative order when Judge King was Chief, appointing Judge Spellman to the CJA committee.  Lots of heavy hitters also on the committee...

*I also received the award this year.  I have a policy about not posting about me or my cases, but I wanted to post about Tom.  Also, Judge Scola ordered me to put this up.  It is a real honor for me to have received this award.


4.  The 9th Circuit really gives meaning to Rule 16 and Brady.  Check out the latest, from Judge Kozinski, here. Another conservative judge is frustrated with how our criminal justice system is operating.  But when is the last time you saw an 11th Circuit opinion like this?

We vacate the conviction and remand for an evidentiary
hearing into whether the prosecution’s failure to disclose the
certificate in discovery or at any point before the proofs had
closed was willful. If it was willful, the district court shall
impose appropriate sanctions. The district court shall, in any
event, dismiss the illegal reentry count of the indictment on
account of the STA violation, with or without prejudice,
depending on its weighing of the relevant factors. See
18 U.S.C. § 3162(a)(2); United States v. Lewis, 349 F.3d
1116, 1121–22 (9th Cir. 2003).
We are perturbed by the district court’s handling of the
reopening issue. The court persisted in giving a reason for
allowing the government to reopen that was contradicted by
the record, despite defense counsel’s repeated attempts to
point out the error. The court also ignored defendant’s twiceraised
Rule 16 objection and made a questionable ruling
regarding defendant’s Speedy Trial Act claim.
“Whether or not [the district judge] would reasonably be
expected to put out of his mind” his previous rulings, and
“without ourselves reaching any determination as to his
ability to proceed impartially, to preserve the appearance of
justice, . . . we conclude reassignment is appropriate,” and we
so order. See Ellis v. U.S. Dist. Court (In re Ellis), 356 F.3d
1198, 1211 (9th Cir. 2004) (en banc).

5.  Everyone is focused on the blockbuster cases before the Supreme Court.  But how about the debate about Clue:

[Jusice Kagan] resorted to the game Clue—or the plot line of the musical version of Clue, to be exact—to illustrate her point. Kagan wrote: "(Think: Professor Plum, in the ballroom, with the candlestick?; Colonel Mustard, in the conservatory, with the rope, on a snowy day, to cover up his affair with Mrs. Peacock?)"
It was an example of the vivid writing, aimed at making complex concepts understandable that Kagan has adopted in her first years on the high court.
But Alito, the sole dissenting justice, was apparently not impressed. Making the point that different ways of committing a crime do not make them different crimes, Alito wrote a footnote responding to Kagan’s reference.
“The board game Clue, to which the Court refers… does not provide sound legal guidance. In that game, it matters whether Colonel Mustard bashed in the victim’s head with a candlestick, wrench, or lead pipe. But in real life, the colonel would almost certainly not escape conviction simply because the jury was unable to agree on the particular type of blunt instrument that he used to commit the murder.”

A nice comeback by Alito, but why is he making faces at Justices Ginsburg and Sotomayor:

The most remarkable thing about the Supreme Court’s opinions announced Monday was not what the justices wrote or said. It was what Samuel Alito did.

The associate justice, a George W. Bush appointee, read two opinions, both 5-4 decisions that split the court along its usual right-left divide. But Alito didn’t stop there. When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.
Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

His treatment of the 80-year-old Ginsburg, 17 years his elder and with 13 years more seniority, was a curious display of judicial temperament or, more accurately, judicial intemperance. Typically, justices state their differences in words — and Alito, as it happens, had just spoken several hundred of his own from the bench. But he frequently supplements words with middle-school gestures.

Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.

Another time, Sotomayor, reading a little-watched case about water rights, joked that “every student in the audience is going to look up the word ‘preemption’ today.” Alito rolled his eyes and shook his head.

Interesting opinions from the 11th Circuit

1.  Judge Pryor doesn't like dissentals, which I know all too well.  His latest concurral is in Michael Morgan's case.  He starts this way:

I write to respond to the dissents filed by three of my colleagues about the
denial of a rehearing en banc. I continue to adhere to the view expressed by Judges Henry Friendly and Raymond Randolph that dissents from the denial of rehearing en banc, particularly where one did not participate in the decision, are “of dubious policy,” United States v. Shaygan, 676 F.3d 1237, 1238 (11th Cir. 2012) (Pryor, J., respecting the denial of rehearing en banc) (quoting United States v. N.Y., New Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir. 1960) (Friendly, J., concurring in the denial of reh’g en banc, joined by Lumbard, C.J.), and that “denials of rehearing en banc are best followed by silence,” id. (alteration omitted) (quoting Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J.)). But my colleagues do not share that view, and their dissents should not go unanswered. Lest anyone doubt the correctness of our decision in this matter, I must respond to five misunderstandings in the dissents that follow. 

I disagree with Judge Pryor and think Judge Kozinski has it right:

“Cases arguably warranting en banc review are those in which the stakes are unusually high or the law is especially unclear.”⁶⁴ It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals.As Judge Clark put it in the case that started out this essay, “I do believe the court gains standing by encouraging free and thorough canvassing of these issues without the deadening influence of constraining restrictions.”⁶⁵Dissentals are here to stay. Get over it.

2.  The Court of Appeals also addressed some forfeiture issues in the Rothstein matter.  Judge Tjoflat starts off this interesting issue like this:

A number of criminal statutes within the Federal Code mandate that a
defendant, when convicted, forfeit to the United States as part of his sentence the lucre he acquired as a result of his criminal activity. In this case, the defendant, a lawyer, deposited the lucre in his law firm’s bank accounts, where it was commingled with the firm’s receipts from legitimate clients. The question this appeal presents is whether the money in the bank accounts at the time the defendant was charged is subject to forfeiture. We hold that it is not.

3.   OK, this isn't the 11th Circuit, but you gotta love how this Second Circuit opinion starts out:

In addition to the awesome cover art, Judge Chin has a cool intro:

In 1972, the Marvel Comics Group published a comic book featuring the "Ghost Rider" -- a motorcycle-riding superhero with supernatural powers and a flaming skull for a head. The issue -- which sold for twenty cents -- told the story of Johnny Blaze, a motorcycle stunt rider who promised his soul to the devil to save his adoptive father from cancer.
 

Wow---prosecutorial misconduct leads to reversal of death penalty conviction

The Ninth Circuit reversed a death row conviction due to prosecutorial misconduct.  The opinion, by Judge Kozinski, is here.  The Trial Insider blog summarizes the case this way:

Kozinski wrote, “This is a disturbing case. There’s no physical evidence linking Debra Milke to the crime, and she has maintained her innocence since the day she was arrested.”
The only evidence linking her to the murder of her son by two men she asked to take him to see Santa Claus in 1990 was the word of Detective Armando Saldate, Jr., “a police officer with a long history of misconduct that includes lying under oath as well as accepting sexual favors in exchange for leniency and lying about it.”
Young Christopher had asked his mother to let him see Santa Claus at the mall and she agreed to let him go with her roommate James Styers. Styers picked up a friend, Roger Scott, and instead of the mall, drove the boy to a ravine outside town where they shot him in the head. They drove to the mall and reported Christopher missing. The motive was allegedly a plot by Styers and Scott to collect social security benefits and insurance as a result of the boy’s death, according to the court.
Police began to suspect the two men almost immediately. Saldate was one of the officers questioning the two men. Scott led the officers to Christopher’s body. Scott purportedly said at some point that Milke was involved, but neither man would testify against her and the statement was excluded as hearsay at her trial.
But Saldate seized on the statement and went to question Milke. She was taken to a small room at Pinal County jail where Saldate abruptly told the 25-year-old woman her son was dead. He said he didn’t “buy” her sobbing because she had no tears, according to the opinion.
He continued to question her, without tape recording the conversation as instructed. Saldate claims Milke opened up to him within 30 minutes, waived her Miranda rights, and confessed to a murder conspiracy with the two men.
She has consistently denied involvement in the murder and said she had asked for a lawyer but was ignored. Saldate even testified he destroyed his interview notes after writing his official report. In the end, the jury believed Saldate and convicted Milke. What jurors didn’t know was Saldate’s “long history of lying under oath and other misconduct,” Kozinski said. “The state knew about this misconduct but didn’t disclose it,” despite the requirements of long-standing legal precedents. (Brady v. Maryland and Giglio v. U.S.)

And here's Thomson Reuters:

The detective testified that Milke told him she had contemplated having an abortion while pregnant with Christopher and had complained to Styers about her son. The detective said she confessed to conspiring to the murder, although she protested her innocence and denied the claim.
In its ruling, the court said the state failed to disclose Saldate's substantial misconduct record, which included four court cases where judges tossed out confessions or indictments because he lied under oath.
The court said that, without the detective's testimony, the prosecution had no case against her, as there was no physical evidence linking her to the crime and neither of her supposed co-conspirators - Styers and Scott - would testify against her.
"The panel held that the state remained unconstitutionally silent instead of disclosing information about Det. Saldate's history of misconduct and accompanying court orders and disciplinary action," the ruling said.
"Some of the misconduct wasn't disclosed until the case came to federal court and, even today, some evidence relevant to Saldate's credibility hasn't been produced, perhaps because it's been destroyed."
The appeals court ordered the state to provide Milke's counsel with the detective's personnel records. The district court was then ordered to release Milke, who is one of three women listed on Arizona's death row, unless the state should decide to retry her.

Two words best describe the majority opinion: “wrong” and “dangerous.” UPDATED with hilarious Kozinski video

That's how Chief Judge Kozinski starts his dissent in United States v. I.E.V.  You gotta love his writing style:

My colleagues ignore these intractable realities and focus
instead on irrelevancies. They mention twice (so they must
think it’s pretty important) that the dog didn’t alert to
weapons. Maj. Op. 10, 16-17 n.6. But the dog did alert to
possible illegal activities that are often accompanied by
firearms. The majority also mentions twice (ditto) that the
dog alerted to possible drugs or humans, as if this matters.
Id. at 10, 18 n.6. It doesn’t: If the dog alerts to something
that might be drugs or humans, that something could be
drugs.
The majority mentions three times (ditto!) that I.E.V. and
his brother were teenagers, as if that matters. Maj. Op. 8, 10,
16. Teenagers are perfectly capable of carrying drugs and
killing people with guns. Teen kills cop, then self, Chicago
Tribune (June 20, 2007), available at
http://articles.chicagotribune.com/2007-06-20/news/07062
00859_1_kills-teen-cop.
The majority mentions four times (DITTO!!!) that San
Ramon didn’t testify, Maj. Op. 3, 5, 19, 20, and argues that
we may not “assum[e] that [he] ‘might legitimately have been
looking for’ a weapon,” id. at 20 (quoting Miles, 247 F.3d at
1015). ...
***

From the conclusion:

It’s easy enough, sitting safely in our chambers, protected
by U.S. Marshals with guns and dogs, surrounded by concrete
barriers and security cameras, to say that officers in the field
had no cause to fear for their safety. But if we’d been there
when I.E.V. and his brother pulled up in their car, heard the
police dog alert and seen one of the suspects fidget like he
was reaching for a weapon, I’d have dived for cover into the
nearest ditch, and my guess is I wouldn’t have been the first
one there.

Update:  One of the funniest videos I've seen (h/t AP):



2.  John Pacenti covers the upcoming trial before Judge Scola involving the issue of depos in Pakistan.  They don't have the Federal Public Defender's resources (because their client has been dismissed out of the case), so preparing has been tough:

In interviews with the Daily Business Review, the attorneys for the father-and-son imams talked about the undertaking and gave a preview of what they plan to argue in front of a jury next month.
It's a defense that will partly center on free speech, a government informant who infiltrated the clerics' mosques and whether the defendants knew money sent to Pakistan was earmarked for the Taliban.
"This is like putting on a wedding for a thousand people with a staff of two," said Joseph Rosenbaum, the Miami attorney for Izhar Khan. "This is a tremendous undertaking."
"Surprisingly, it seems no one has had to do live encrypted video depositions from Pakistan to Miami before. Go figure," said Khurrum Wahid, a partner at Wahid Vizcaino in Pompano Beach. He represents the father.

Judge Alex Kozinski speaks... (UPDATED)

... at UM Law in the Robert B. Cole Lecture Series.  And it was very entertaining.

Using a huge screen powerpoint presentation (see the picture below with the screen shot from Cheers), Kozinski spoke about IP law, persuasive lawyering, and when it's best not to file suit.  Examples included: the old Nintendo system and Mario Bros 3; Johnny Mathis's song When Sunny Gets Blue v. Rick Dees' song When Sunny Sniffs Glue; Barbie v. Bratz; the I'm a Barbie Girl song; Vanna White; Platoon; Cheers; Gay Olympic games; New Kids on the Block; and the Streisand effect... just to name a few.

Here are a few pictures from the extremely engaging talk, including yours truly with the good judge and Professor Ricardo Bascuas. 

And just in case you wanted to see the I'm A Barbie Girl video:




UPDATE -- Judge Kozinski issued this en banc opinion yesterday (while he was in Miami) concerning the computer fraud and abuse act, holding that the act did not criminalize violating a computer use policy:

Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Some- times we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.

Stolen Valor Act debated in High Court today

Hope everyone had a nice long weekend....

Today the Supreme Court is debating a fascinating case about how far the federal criminal code can be expanded.  The Stolen Valor Act makes to falsely claim to have been awarded military honors and decorations.  But are such lies covered by the First Amendment?  From the Washington Post:

The case has generated huge interest and divided First Amendment advocates, including the media, and veterans groups, who see the act as a necessary weapon to discourage what appears to a boomlet of self-aggrandizers.
According to a brief filed by the Veterans of Foreign Wars and two dozen veterans groups: “Pretenders have included a U.S. Attorney, member of Congress, ambassador, judge, Pulitzer Prize-winning historian and bestselling author, manager of a Major League Baseball team, Navy captain, police chief, top executive at a world-famous research laboratory, director of state veterans programs, university administrator, pastor, candidate for countywide office, mayor, physician, and more than one police officer.”
“This case is about theft, not lying in general,” wrote D.C. lawyer Michael T. Morley in the brief. “Alvarez, and others like him, have misappropriated for their own benefit an unearned share of the two centuries’ worth of goodwill and prestige associated with American military awards.”
But the U.S. Court of Appeals for the 9th Circuit in San Francisco agreed with Alvarez that the law did not meet the high standard courts must apply to attempts to restrict speech.
“Saints may always tell the truth, but for mortals living means lying,” Chief Judge Alex Kozinski wrote in response to the government’s request that the decision be reconsidered.
“Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship” and set up the government as “truth police” with the power to punish.
Other judges have seen it differently. The U.S. Court of Appeals for the 10th Circuit, in a separate Stolen Valor case, upheld the law’s constitutionality.
“As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech,” U.S. Circuit Judge Timothy M. Tymkovich wrote for another divided panel.

 Gotta love Kozinski....

Tony Mauro has a nice summary of what to look out for in today's argument here.  I will post the argument when it goes online.  Should be interesting.