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

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

R.I.P. Yogi

He was an original. How many originals are left?







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

In the meantime, Trump or Colbert?



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

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

Tuesday News & Notes

1. Is Justice Alito the best or worst Justice on the Court? The best... Just ask him. Here's what he said about the 4th Amendment:

Alito moved onto privacy and the 4th Amendment. “Another change in the past decade has been constitutional protection for privacy. During the past ten years, the Court has applied the 4th amendment’s prohibition against unreasonable search and seizure to modern technology. I think this is going to be a very big issue moving forward. The 4th amendment was adopted with traditional property law in mind. What was once new technology (wiretap and eavesdropping), it was difficult to apply old property based standards to the new technology. The Court adopted a new test, and looked to reasonable expectation of privacy on the part of the individuals. That standard worked for a while, but with the development of new technology, it has become very difficult
The first case was “United States v. Jones, which involved placing a GPS tracking device on someone’s car. How do you apply the 4th amendment standard to that situation? What government has done is to take the precedents developed during the pre-digital error and apply them mechanically to the new issues. It has not worked in the Jones case. The Court decided the case on a ground I did not agree with. The Court looked back to common law trespass law–there was a trespass for law enforcement to place electronic device on a car. The placement of the device did not harm–that missed what was really the important issue. That missed the important issue which was the surveillance of the device on the car.
The “second case was Riley v. California–whether police can search the contents of cell phone. In the pre-digital era, police could search the person of someone who is arrested, and if that person has stack of letters, that could be searched. But what do you with a smartphone at the time of arrest. We held that content could not be taken without a warrant or probable cause.”
Alito closed with a call for Congress to address these issues, not the Court. “These are just some of the issues that may come up. The problem is that in making determinations we are put in a position of determining what is a reasonable expectation of privacy. We are very ill-positioned to make these determinations. We are older than the average person. This may come up as a surprise–We are not up on all the latest technology. If privacy is to be protected in the future, that balances the interests of law enforcement and the interest of privacy, legislatures should take the lead. They are in a better position that the courts.”

2. The Detroit Free Press says that the Presidential candidates should have a real debate about the Court. The conclusion:

And in fact, the same impulses that have driven his contempt for discrimination against gays shape his opposition to race-conscious policies like affirmative action. Kennedy doesn’t care whether the government is treating people different in the name of expanding their liberty or confining it; his point is that the government ought not be in the business of treating people differently.

Roberts, too, is a conservative rock, even when he’s voting in favor of preserving the Affordable Care Act. In both rulings, he was exercising deference to Congress’ lawmaking abilities, and the court’s responsibility to carve wide berth — and avoid nitpicking defeatism — in interpreting what the popularly elected branches want or intend to do.

Sounds pretty conservative to me. I doubt Roberts, or Kennedy for that matter, is rushing off to join even the most conservative wings of the Democratic party.

I know the Republican candidates were poking at Roberts only by way of jabbing at Obama; this is primary season, and they know there are votes to be mined in the opposition to just about anything the current president has done.

And I know that, in office, the brash calculations of a debate-stage performance almost always give way to more considered, thoughtful decision-making. Especially when it comes to the high court.

3. Joseph Zada is trying to get an appellate bond from Judge Marra, via the PB Post.

4. The 11th Circuit has rejected a vagueness challenge to the career offender guidelines based on Johnson, via SL&P.

Good luck to those checking on the Florida Bar results

They are in this morning. Good luck to everyone. (And congrats to our own Lauren Doyle for passing!)

The DBR has this local story about a fight between a blogger who used a copyrighted photograph and claimed fair use. Score one for the blogger:

A federal appellate court has ended one of many battles in a widespread landlord-tenant war by upholding the ex-tenant's right to use and blog about an unflattering photo of the ex-landlord, a minority owner of the Miami Heat.

The ruling Thursday by the U.S. Court of Appeals for the Eleventh Circuit upholds a trial court decision for Irina Chevaldina, a former tenant of the California Club Mall in Miami. Ex-landlord Raanan Katz, a billionaire commercial real estate developer, owns the mall and about two dozen others through his company RK Associates.

11th Circuit says Judge Fuller beat his wife and lied about it

Here's the letter to Congress. The AP covered the story:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge— had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.

In a letter to the House Judiciary Committee, the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary.

"This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner.