ABT covers Lil Wayne's depo here, but I couldn't resist showing you this clip:
Okay, okay, here's more. I love the last line -- "I was just talking to myself."
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Thursday, September 27, 2012
Wednesday, September 26, 2012
Supreme Court back in session
It's not the first Monday of October yet, but the Supreme Court had its first conference after the summer and granted cert in six cases, including two pro se petitions written in long hand. From the AP:
According to SCOTUSBlog, the other cases are:
Well-heeled clients pay tens of thousands of dollars to hit the legal jackpot - Supreme Court review of their appeals. But on Tuesday, the court decided to hear cases filed by two people who couldn't afford or didn't bother to hire an attorney.How many people are going to be calling these two to take their cases pro bono? Problem is that Levin doesn't have a phone and Millbrook is in a maximum security prison. So it's not going to be so easy to sign these guys up...
One was written in pencil and submitted by an inmate at a federal prison in Pennsylvania. The other was filed by a man with no telephone living on Guam.
***
Kim Lee Millbrook, a prisoner at the federal prison in Lewisburg, Pa., sued the government after accusing prison guards at the Special Management Unit of sexually assaulting him in May 2010. Prison officials said Millbrook's claim was unsubstantiated.
The lower courts threw out Millbrook's lawsuit, but justices said they would use his appeal - carefully written in longhand - to decide the narrow issue of when the government can be sued for claims of abuses by federal prison guards. Millbrook wrote on a form that can be printed off the Supreme Court website that he was proceeding without a lawyer because he couldn't afford to pay one. He is not scheduled to be released from prison until 2033.
Steven Alan Levin, the petitioner on Guam in the other case granted by the Supreme Court, did not say whether he couldn't afford a lawyer or just wanted to proceed on his own. Levin did not file as a pauper; he paid the $300 fee required to file a petition.
Levin sued over a Navy surgeon's performance of unsuccessful cataract surgery on him. He was operated on in March 2003 at the United States Naval Hospital in Guam. Levin said he withdrew his consent for the surgery before the operation began but doctors proceeded anyway. Levin suffered complications, which require ongoing treatment.
Levin sued the U.S. government for medical malpractice and battery. The courts threw out the medical malpractice complaint and kept the battery charge. But the 9th U.S. Circuit Court of Appeals said the government is also immune from being sued for battery. The high court will now decide whether the government can be sued for improper actions committed by military medical personnel while on the job.
According to SCOTUSBlog, the other cases are:
Gabelli — calculation of the five-year limitation on the SEC’s power to impose a penalty for securities fraud.In news closer to home, Judge Zloch sentenced a man who was on the lam for 20 years to 21.5 years (20 of which are on the original case). From the Sun-Sentinel:
McNeely – police authority to take a blood sample from a driver who allegedly was drunk, when the officer has no warrant but wants to act quickly because of the chemical fact that alcohol in the blood dissipates over time.
Maracich — lawyer’s legal right to obtain personal information from driver’s license records, when the attorneys plan to use it in lawsuits and federal law supposedly insulates such information from disclosure.
Delia — state power to recover funds spent on providing medical care to the poor or disabled under the federal Medicaid law, when the patient has received funds from another source.
Most convicted criminals go to prison, then get a chance to prove they can be rehabilitated: Martin James Malone says he did it the other way around.
Malone was a fugitive from justice for 22 years after fleeing from South Florida just before the criminal case against him went to a jury in Miami in 1990.
He sat through much of his trial but by the time the verdict was delivered, he had fled to Ecuador with his pregnant wife. In his absence, the jury found him guilty of conspiring to import cocaine but acquitted him of a second charge that he actually imported the drug.
During the next 22 years, he said he created several successful businesses and employed some 80 people in the beautiful coastal town of Montanita where he lived. He built houses, renovated old properties, donated computers to local schools and was even taught how to be a "medicine man" by the indigenous people. Dozens of people wrote to the judge and the newspaper to praise his good works.
Malone, 51, was starting to slow down – less working, more surfing – when Ecuadorean police surrounded his vehicle in February of this year and extradited him to the U.S. on the old warrant.
"My past is an island I've sailed away from long ago. Nevertheless it's still with me ... we cannot outrun our past no matter how hard we try," Malone wrote to a Sun Sentinel reporter earlier this year.
Monday, September 24, 2012
Monday morning
I wish I had some exciting stuff to post this Monday morning. But it's fairly quiet after the soggy weekend.
1. Brian Tannebaum covers the politicizing of the judiciary here:
Yesterday the Republican Party of Florida voted unanimously to oppose the retention of three Florida Supreme Court Justices. For those (most people) not paying attention, there is a movement afoot to remove Justices Pariente, Quince, and Lewis because they are viewed as too liberal.
From The Miami Herald:
“The announcement that the Republican Party is engaged in this effort would shock those wonderful Republican statesmen who helped create the merit selection and merit retention processes,” said Talbot “Sandy” D’Alemberte, former president of the American Bar Association who, as a former legislator, helped to craft the law in the early 1970s."
This effort strikes at the heart of the "independence of the judiciary" talk that lawyers are engaging in at every Bar luncheon, conference, and in letters to the editor of bar publications. The jist of it is that judges should not be removed solely based on their rulings. If they commit misconduct or otherwise are not fit to serve, OK, but to campaign against the retention of judges merely because you disagree with their interpretation of the law, is to say that judges should not decide matters on the law but on the will of the public (most of whom believe that the problem with the death penalty is that it's not imposed enough and that the problem with prisons is that they are not full.)
2. BLT covers the ongoing fight over judicial nominees:
Majority Leader Harry Reid (D-Nev.) pushed for the votes on every district judge nominee awaiting action on the Senate floor, 14 of whom were non-controversial and approved from the Senate Judiciary Committee by voice vote.
"No matter how we try to juggle the numbers, we still have 12 emergencies," Reid said on the floor. "I hope my friends on the other side would at least look at some of those emergencies and see if we could get some help for those beleaguered judges out there and the court personnel."
3. Justice Kagan's clerks write the first drafts of opinions (via WSJ):
In a discussion Thursday at the University of Richmond School of Law, Justice Elena Kagan described clerks as having essential duties, such as helping choose the cases the court will consider each year, as well as talking them over with her to get a wide range of views, the Associated Press reported. Her opinions, she added, come from a first draft written by a clerk.
“I know the clerks improve my work,” Justice Kagan said, but added, “They are by no means junior varsity judges.”
The court receives about 8,000 to 9,000 petitions each year, according to Justice Kagan, and clerks help get the number down to about 75 which will be considered.
1. Brian Tannebaum covers the politicizing of the judiciary here:
Yesterday the Republican Party of Florida voted unanimously to oppose the retention of three Florida Supreme Court Justices. For those (most people) not paying attention, there is a movement afoot to remove Justices Pariente, Quince, and Lewis because they are viewed as too liberal.
From The Miami Herald:
“The announcement that the Republican Party is engaged in this effort would shock those wonderful Republican statesmen who helped create the merit selection and merit retention processes,” said Talbot “Sandy” D’Alemberte, former president of the American Bar Association who, as a former legislator, helped to craft the law in the early 1970s."
This effort strikes at the heart of the "independence of the judiciary" talk that lawyers are engaging in at every Bar luncheon, conference, and in letters to the editor of bar publications. The jist of it is that judges should not be removed solely based on their rulings. If they commit misconduct or otherwise are not fit to serve, OK, but to campaign against the retention of judges merely because you disagree with their interpretation of the law, is to say that judges should not decide matters on the law but on the will of the public (most of whom believe that the problem with the death penalty is that it's not imposed enough and that the problem with prisons is that they are not full.)
2. BLT covers the ongoing fight over judicial nominees:
Judicial nominees are still stuck in the Senate, and both political parties are again blaming the other.
Republicans blocked an attempt by Democrats Thursday afternoon to have confirmation votes on 17 non-controversial nominees for U.S. district courts across the nation, including 12 who would fill seats in districts considered to be "judicial emergencies."
Senate Minority Leader Mitch McConnell (R-Ky.) raised the objection to the votes, which means Democrats would have to go through a time-consuming cloture process to force a vote on each nominee. McConnell said the Senate already has met historic norms for confirming judges in this presidential year.
"Not only is President Obama being treated fairly in absolute
terms, but the Senate is also treating him fairly relative to the number
of nominees he has submitted," McConnell said on the Senate floor. "I
am happy to work with the majority leader, but we cannot allow the
majority to jam us here at the end of this session."Republicans blocked an attempt by Democrats Thursday afternoon to have confirmation votes on 17 non-controversial nominees for U.S. district courts across the nation, including 12 who would fill seats in districts considered to be "judicial emergencies."
Senate Minority Leader Mitch McConnell (R-Ky.) raised the objection to the votes, which means Democrats would have to go through a time-consuming cloture process to force a vote on each nominee. McConnell said the Senate already has met historic norms for confirming judges in this presidential year.
Majority Leader Harry Reid (D-Nev.) pushed for the votes on every district judge nominee awaiting action on the Senate floor, 14 of whom were non-controversial and approved from the Senate Judiciary Committee by voice vote.
"No matter how we try to juggle the numbers, we still have 12 emergencies," Reid said on the floor. "I hope my friends on the other side would at least look at some of those emergencies and see if we could get some help for those beleaguered judges out there and the court personnel."
3. Justice Kagan's clerks write the first drafts of opinions (via WSJ):
In a discussion Thursday at the University of Richmond School of Law, Justice Elena Kagan described clerks as having essential duties, such as helping choose the cases the court will consider each year, as well as talking them over with her to get a wide range of views, the Associated Press reported. Her opinions, she added, come from a first draft written by a clerk.
“I know the clerks improve my work,” Justice Kagan said, but added, “They are by no means junior varsity judges.”
The court receives about 8,000 to 9,000 petitions each year, according to Justice Kagan, and clerks help get the number down to about 75 which will be considered.
Friday, September 21, 2012
Getting the last word
Seems like both sides wants the last word in the Scalia vs. Posner cage match. Last we checked, Scalia called Posner a liar. Posner responds, and it's covered here:
Now Posner has fired back in a two-page response that he provided to Reuters. "Responding to a Supreme Court Justice who calls one a liar requires special care in expression," Posner said in an accompanying email.
In the response, Posner said he was neither lying nor mistaken in his critique.
"Even if I accepted Scalia's narrow definition of 'legislative history' and applied it to his opinion in Heller, I would not be telling a 'lie,'" Posner wrote in his response. District of Columbia v. Heller is the Supreme Court decision striking down the Washington handgun ban.
In the interview with Reuters on Monday, Scalia said "legislative history" refers to history of the enactment of a bill in the legislature and covers floor speeches and prior committee drafts, not "the history of the times."
Scalia also called legislative history "garbage" and "the last remaining fiction of the common law," noting that lobbyists can get such history inserted into the legislative record to change the meaning of the text that is adopted.
In his response on Thursday, Posner defended his use of the term, writing that Scalia was using legislative history in the gun rights case when he turned to a "variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment."
Scalia may define "legislative history" narrowly, Posner wrote, but his co-author, Bryan Garner, does not. Posner quoted a definition from Black's Law Dictionary, of which Garner is the editor, that describes "legislative history" as: "The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates."
"Background and events leading to the enactment" of the Second Amendment are the focus of Scalia's opinion in the gun rights case, Posner argued.
He also cited pages from the opinion that discuss the Second Amendment's drafting history, which he called "legislative history in its narrowest sense."
Now Posner has fired back in a two-page response that he provided to Reuters. "Responding to a Supreme Court Justice who calls one a liar requires special care in expression," Posner said in an accompanying email.
In the response, Posner said he was neither lying nor mistaken in his critique.
"Even if I accepted Scalia's narrow definition of 'legislative history' and applied it to his opinion in Heller, I would not be telling a 'lie,'" Posner wrote in his response. District of Columbia v. Heller is the Supreme Court decision striking down the Washington handgun ban.
In the interview with Reuters on Monday, Scalia said "legislative history" refers to history of the enactment of a bill in the legislature and covers floor speeches and prior committee drafts, not "the history of the times."
Scalia also called legislative history "garbage" and "the last remaining fiction of the common law," noting that lobbyists can get such history inserted into the legislative record to change the meaning of the text that is adopted.
In his response on Thursday, Posner defended his use of the term, writing that Scalia was using legislative history in the gun rights case when he turned to a "variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment."
Scalia may define "legislative history" narrowly, Posner wrote, but his co-author, Bryan Garner, does not. Posner quoted a definition from Black's Law Dictionary, of which Garner is the editor, that describes "legislative history" as: "The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates."
"Background and events leading to the enactment" of the Second Amendment are the focus of Scalia's opinion in the gun rights case, Posner argued.
He also cited pages from the opinion that discuss the Second Amendment's drafting history, which he called "legislative history in its narrowest sense."
Thursday, September 20, 2012
Death Penalty appropriate where jury is buying gag gifts for judge and bailiff?
Yesterday, the 11th Circuit said no problem. First the facts:
Juror MH admitted to giving
the Judge white chocolate in the shape of a penis. She testified that she
called her husband to request that her friend—who owned a confectionary
shop—make chocolate turtles for the jury. ... The friend, in
addition to the turtles, included the white chocolate penis as a gag gift to
lighten things up. ... Juror MH recalls that Bailiff LP told her that the Judge
wanted to see it.
On the last day of the trial,
Juror MH testified that she took the chocolate, which was in a box and inside a
bag, to the jury room. Juror MH gave the gift to the Judge in the jury room,
and the Judge slid the gift into her sleeve. ...
***
Bailiff LP received an
inappropriate gift of white chocolate in the shape of female breasts from the
jurors. ... After Bailiff LP returned
from caring for her sick mother, the court clerk gave her a box containing
white chocolate breasts monogrammed “[Bailiff’s first name]’s hooters.” Bailiff
LP does not know who gave her the gift. She thinks that the gift may been
prompted by a discussion at dinner between two of the younger male jurors. The
two jurors were discussing how their grandmothers had ample chests and that
when their grandmothers hugged them they felt they would be suffocated. Bailiff
LP then joined the conversation by lamenting the fact that she would be
remembered by her grandchildren for her ample chest. ...
The holding:
The
record establishes that the unfortunate giving of these tasteless gifts was nonetheless
inconsequential to the verdicts, and otherwise played no part in the judge’s or
jury’s consideration of the case. The two gifts were given independent of each
other, given at the conclusion of the trial, and none of the jurors testified
that the gifts were based on anything that occurred during trial. Furthermore,
at most only a few of the jurors were involved in giving the tasteless gifts.
None of the jurors testified that the gifts bore any relation to their decision
to find Wellons guilty of murder and rape, and they testified that the gifts
did not affect their decision to impose the death penalty.
***
We do not condone the
acceptance of gifts, de minimus though they may be, by judges or bailiffs
during any trial—criminal or civil. Nor do we condone the giving of gifts by
the jury to the presiding judge or bailiff during any trial. Trial judges are
expected to properly handle these situations, sternly admonish or discipline
those involved, and disclose such occurrences to each party so that timely
objections can be considered and made. The Judge here neglected to take such
steps. Only because we have no doubt that the gifts did not factor into the
judge or jury’s ultimate consideration of the case are we able to affirm the denial
of habeas relief.
We also acknowledge that the
ill-advised actions of a few thoughtless jurors could create the perception
that this jury was too busy joking around rather than deciding Wellons’s fate.
But these were two isolated incidents in the span of a multi-week trial and we
cannot say, on the basis of this record, that the verdicts were tainted.
We put a heavy burden on the
twelve men and women of a jury when we take them away from their jobs, families
and lives, summon them to the courthouse, sequester them, and ask them to
decide whether a person charged with a capital crime should be put to death.
Although they were intended to bring a moment of levity to a serious and somber
occasion, the gifts were tasteless and inappropriate. But we are unable to
conclude that this conduct amounts to juror or judicial misconduct of
sufficient constitutional magnitude to warrant habeas corpus relief.
Well, what do you all think?
Subscribe to:
Posts (Atom)