Let's Talk Judicial Appointments!

We might as well, since President Obama and Senator McConnell did the same the other day:

President Obama and Senate Republican Leader Mitch McConnell had their first one-on-one meeting today, and it dealt primarily with one topic: Confirming judges.
Or, more precisely, Republican holds on Obama judicial nominees.

"Right now there are 12 federal judicial nominees that have passed the Judiciary Committee with a unanimous vote," White House spokesman Robert Gibbs said before the meeting. "There are other judges that have been through the process and approved by the Judiciary Committee."

The meeting concerned "a direct discussion about moving those judges," Gibbs said.

The president is "rightly frustrated" at a pace that is "unrivaled and unmatched in its slowness," Gibbs said, and he added that some recess appointments may be in the offing.

Hmm, that's not good.

According to ACS' nifty website judicialnominations.org, there are now 100 vacancies out of 867 seats on the federal bench.

So that's roughly 10 percent of the judicial branch, with nominees cooling their heels for indefinite periods while they await an uncertain fate in the Senate.

My guess is this will have some deleterious institutional effects on the federal justice system, but what do I know?

This is SFL, hoping I'm wrong (again).

Magistrate Judge Brown Addresses Futility of "Notices of Unavailability"

Judge Brown Notice of Unavailability

Hi kids, SFL here.

Regular readers of my blog know I have a special fondness for this case.

In an order entered yesterday, Magistrate Judge Brown addresses the rather pointless of practice of filing "notices of unavailability," a personal pet peeve of mine:

The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.

He's right.

This is a dated practice of dubious utility.  If you have a conflict with an actual (as opposed to a possible or  hypothetical future) Court deadline, ask the Court to move it.  If you don't want the opposing party to schedule something while you're on vacation, pick up the phone and ask them about it.

D.O.M. called

“You haven’t posted anything.”
That was D.O.M. again, calling from wherever.
“Yup.”
“What about that case where Judge Altonaga got affirmed for asserting jurisdiction over the pre-WWII Germans?”
“Yeah, I saw that.”
“So, why not write something up, Professor?”
D.O.M. only busts out my title when things are dark, so I said,
“Well, you gave the blog over to the people who write comments.”
“I thought you didn’t read the comments.”
“I don’t.”
Beat.
“You’re being too uptight about this.”
That was D.O.M. breaking the silence.
“Maybe.”
Beat.

1600!!!

There's a certain honour with being the blogger to post the 1600th post on David O Markus's famous Southern District Of Florida Blog. And with DOM being out of town and unawares, we decided to grab the honour before he could change his mind and revoke our blogging privileges.

For those of you discriminating enough to read our own humble blog about the Richard E Gerstein Courthouse in Miami, you know that last week we promised- at the possible expense of Mr. Markus's standing in the community and his law license- to post a joke that started off this way: " A rabbi, a priest, President Obama and (insert your favourite federal judge here) walk into Tobacco road...."

But before we get to the punch line, there's this to consider:

Rumpole's person of the day:

Meet Former Jet Blue Flight Attendant Steven Slater. On a flight on Monday inbound to JFK from Pittsburgh, Mr. Slater had a confrontation with an unruly female passenger. (Side note- those gals from the Steel City can be quite a handful when they've had a few Iron City beers in them). Upon landing at JFK, Mr. Slater had all he could take. When the plane stopped taxing, Mr. Sater activated the emergency exit, deployed the emergency slide, grabbed a beer from the beverage cart, and slid off the plane and into instant fame. Mr. Slater got into his car and drove home to Queens where a few hours later a few members of New York's Finest showed up to arrest him on a slate of charges. For those of you who exclusively practice in Federal Court, The NY Times coverage is here.

For those of you who occasionally venture over to State Court, the NY Post coverage is here. (Headline was "Wing-Nut pleads not guilty.")

Punchline: They all walk up to the bar and order a round of beers. And the bartender looks up and sees who has walked in and says: 'what is this, some kind of joke?' "

Sorry folks, this is what happens when DOM goes on vacation.

See You in Court.

HR.

PS-if you want to know something useful about current federal legal developments, read South Florida Lawyer's post just below this one. We craftily waited until he posted number 1599 so we could grab 1600.

11th Circuit Limits "Safety-Valve" Sentencing Relief.

Hi kids, SFL here, killing time while David O undoubtedly does something glamorous and exciting I am sure.

I'm glad I don't do any criminal, because if I did I'd have to use the term "safety-valve" as part of my work.

Instead I'm stuck with delightful words and phrases such as "Celotex," "Iqbal," "Venetian Salami" and "mending the hold."

But for those of you who derive some kind of legal meaning from a safety valve, you may consider this new 11th Circuit opinion of value, which disagrees with several other circuits on this question:

The question we must resolve today is this one: can a district court grant safety-valve relief when reducing a defendant’s sentence pursuant to section 3582(c)(2)? The answer is “no,” because the safety-valve is inapplicable to sentence-modification proceedings.

Best I can tell, the 11th reasons that a Section 3582(c)(2) proceeding is not a "sentencing or resentencing" proceeding, but is instead a "modification of a term of imprisonment."
 
But then later there's a footnote in which the 11th acknowledges "they are in some sense a sentencing proceeding."

So I'm glad crim law makes as much sense as civil litigation?

Big news from the road

Judge Paul Huck has informed President Obama that he will be taking senior status. That makes three current openings; Judge Hurley (to be filled by Kathy Williams); Judge Gold; and now Judge Huck.

Judge Huck has been a wonderful district judge and is regarded as the hardest working judge in the District. I have lots more to say when I can get to a computer instead of this phone. In the meantime, congrats to Judge Huck.

Good luck to...

... Brian Stekloff, who after making a good name for himself at the PD's office, is off to Paul Weiss in DC.

They needed someone to try cases, and they found the right guy.

Straw buyers walk

Four of em... Before Judge D after an 11 day trial. Defendants repped by Phil Horowitz, Alan Kaufman, Brian Tannebaum, and John Wylie. Congrats.

Get ready for the guest bloggers

Taking a little break from the blog for a week. Starting tomorrow, you'll have SFL, Rumpole, and Rick Bascuas entertaining you. Enjoy.

Magistrate feels “like a schoolmarm scolding little boys."

The whole opinion is definitely worth a read. Here's a snippet:

• My practice is to preliminarily review every motion called an “emergency” the day it
  is filed. However, other cases, motions filed, scheduled hearings and settlement conferences do not afford me the luxury of dropping everything to hear a party’s perceived “emergency” especially when it involves a case that has already taken an inordinate amount of the court’s time (to the detriment of other litigants who need decisions in their matters) to resolve yet another in a series of routine discovery disputes. Thus, as the motion has worked its way up the tall stack of other matters on my desk, there are no longer any depositions to take.
• I am not the Maytag repairman of federal judges desperately hoping for something to do.
• Counsel for Plaintiff could not resist replying. Mr Kossack’s reply adds up the number of Mr. Cannon’s improper objections during Mr. McCurdy’s deposition and compares them to the number of improper objections Mr. Cannon accuses him of making. Not wanting to miss an opportunity to engage equally unseemly “tit-for-tat,” Mr Kossack pads his reply with gratuitous comments which include a reference to counsels’ respective choice of beverages during depositions.
• To ensure that reading the 185 pages of these exchanges was not a complete waste of time, I assigned this motion to a law student extern to prepare a legal memorandum to further his education. In a short period of time he was able to prepare a well-written, concise memo which identified a large number of state and federal cases throughout the country articulating the standards for making deposition objections and identifying improper conduct for which lawyers have been admonished or sanctioned. He correctly concluded that both lawyers engaged in misconduct which violated Rule 30(c)(2).
• The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times.
• Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.

Being on a plane...

... with 8 rows is not fun. Tampa for the day. Back tonight.

Tuesday News and Notes

1. Moving sucks.

2. The FBI is taking the absurd position that Wikipidea shouldn't use its emblem.

3. Law.com covers the Irey case.

4. Roberts v. Kagan, per Dahlia Lithwick.

5. More on Kagan -- she is only 6th SCOTUS law clerk to become Justice.

6. Miranda is losing its teeth.

7. Obama is having a tough time getting judges confirmed. Another article on it here.

8. Conrad Black writes on his time in a federal prison. The whole thing is worth a read:

In the Coleman Low Security compound, there are 1,800 residents and it is a little universe terminally addicted to gossip about the custodial system and especially the goings-on of the group confined there. By this time there were large numbers of journalists and photographers clustered at the gate of the Coleman complex and ongoing television coverage watched with some bemusement by my fellow residents in the television rooms of the residential units.
A steady stream of well-wishers from all factions of the compound came to say goodbye, as I put my books and papers and a few clothes items into cardboard boxes. (The only article of clothing that I took that was not among the few things I had bought myself was the nondescript brown shirt bequeathed to me when he left by the don of one of the famous New York gang families).
The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.
Most goodbyes were brief and jovial, some were emotional, and a few were quite heart-rending. Many of the 150 students that my very able fellow tutors and I had helped to graduate from high school, came by, some of them now enrolled in university by cyber-correspondence.

New digs

Personal post: I've moved office space to right across the street from the Federal Courthouse in Miami (the address is 40 N.W. Third Street, Courthouse Center, Penthouse 1, Miami, Florida 33128). And I've added two great lawyers -- Margot Moss and Mona Markus-- to join Robin Kaplan and me. 

Margot (pictured right) was a partner at Fowler White and before that was an assistant public defender for 10 years.  Mona (left)graduated Harvard Law School a year after I did. She was a partner at Stearns Weaver, where she has worked for 11 years.

I am very excited about the move and the growth of the Firm, which will now be called Markus & Markus (instead of David Oscar Markus PLLC). I have some work to do on the website...

I will be sharing space with a bunch of other lawyers, including Marc Seitles, Richard Klugh, Hector Flores, William Barzee, and Ivlis Mantilla. 

Trustees behaving badly

It hasn't been a good run for receivers and trustees in the Southern District of Florida lately.  John Pacenti covers the latest abuse of trust here:

A longtime court-appointed trustee and receiver entrusted with $1 million earmarked for the victims of ex-lawyer Scott Rothstein’s mammoth fraud is refusing to return the money and is the subject of a federal investigation, sources told the Daily Business Review.


The money was donated by the law firm chairman in his heyday as a Broward County power broker to Holy Cross Hospital in Fort Lauderdale. As part of the recovery effort for fraud victims, federal authorities and bankruptcy attorneys for the defunct Rothstein Rosenfeldt Adler demanded the money back, along with millions of dollars in other charitable and political donations made by Rothstein and his law firm.

The hospital returned the money in November shortly after Rothstein’s $1.2 billion fraud collapsed. A source said the money was wired by the hospital directly to an account controlled by Marika Tolz, who was working under a contract with the U.S. Marshals Service.

The federal law enforcement agency, which is responsible for assets seized in criminal cases, hired her to safeguard the Holy Cross money until it could be disbursed and to oversee real estate seized from Rothstein after reports that one of his properties was burglarized and another was infested with mold.

The U.S. trustee’s office discovered the $1 million discrepancy in May and asked Tolz to resign from its rotating panel of trustees assigned to bankruptcy cases. The Daily Business Review reported in May that Tolz had resigned from her cases after discrepancies were discovered, but investigators and the the U.S. trustee’s office have remained tight-lipped about the case.

"Miami also has a great NBA basketball team, right?"

That was the chief of the multidistrict panel, U.S. District Judge John G. Heyburn II of Kentucky, after Ervin Gonzalez was pushing for the oil litigation to be here in Miami.  From Curt Anderson's report:

More than 100 lawyers crowded into a sixth-floor courtroom in Boise's downtown courtroom, jockeying amongst themselves for the limited speaking slots in a hearing that lasted about 1 1/2 hours. Although some 2,000 miles from the Gulf, Boise was the scheduled stop for the roving seven-judge panel.

Most lawyers only got to talk for a few minutes, and there were a few moments of levity.

After Miami attorney Ervin Gonzalez extolled the virtues of South Florida and its chief federal judge, Federico Moreno, Heyburn cracked that Miami also has "a great NBA basketball team, right?" -- a reference to the Miami Heat's recent signings of stars LeBron James, Dwyane Wade and Chris Bosh.

Assuming the cases are centralized as expected, the judge or judges chosen to hear them will have to decide key issues such as whether they are dismissed or allowed to continue, and whether to certify one or more class actions for people and businesses in similar situations. If the cases are not dismissed and unless there is an early settlement, a handful are usually chosen to go to trial first as "bellwhethers" that can determine the ultimate outcome of all lawsuits.

255 pages of en banc fun

The 11th Circuit issued United States v. Irey today, with 255 pages of opinions, which are a must read for any criminal practitioner in this Circuit. The question presented is whether a lengthy variance (from 30 years to 17) was reasonable in a horrific case involving multiple acts of child rape. The majority, written by Carnes and joined by Dubina, Black, Hull, Marcus, Wilson and Pryor, found the variance substantively unreasonable. Lots of interesting questions addressed, like how much deference is due to trial courts at sentencing.

Here are some highlights from Carnes' opinion:

The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children.


The 17 ½-year sentence, if all of it were to be served, would amount to only 4 months and a week for each of the 50 distinguishable victims that Irey raped, sodomized, or sexually tortured.


In light of 18 U.S.C. § 3624, Irey will likely serve only 15 years and 3 months of his sentence, which works out to less than four months for each of those 50 victims who can be distinguished from each other in the images that show some of Irey’s crimes. And that calculation does not include any time for Irey’s additional criminal behavior of producing and distributing the massive amount of extremely graphic child pornography. Four months per child raped, sodomized, and tortured is grossly unreasonable. In sentencing there should be no quantity discount for the sexual abuse of children.


We realize that 17 ½ years, even when reduced to 15 ¼ years to serve is, as the panel stated, “a substantial portion of a human life—and no serious person should regard it as a trifle.” … Irey, after all, sentenced the children he raped, sodomized, and sexually tortured to a lifetime of harm, and the egregious child pornography he created and distributed will, because he uploaded it to the internet, continue causing harm for far longer than 17 ½ years. Irey’s pink wall series will last longer than his own lifetime or ours, inciting and encouraging the sexual abuse of multitudes of children yet unborn.


Because of the substantial deference district courts are due in sentencing, we give their decisions about what is reasonable wide berth and almost always let them pass. There is a difference, though, between recognizing that another usually has the right of way and abandoning one’s post. We will not quit the post that we have been ordered to hold in sentencing review and the responsibility that goes with it. The Supreme Court has instructed us that “[i]n sentencing, as in other areas, district judges at times make mistakes that are substantive,” and that it is our duty “to correct such mistakes when they occur.” Rita, 551 U.S. at 354, 127. In this case the district court made a substantive mistake, a clear error in judgment, by unreasonably varying downward from the advisory guidelines sentence when no sentence less than it is sufficient to fulfill the purposes set forth in the Sentencing Reform Act. To do our duty to correct that mistake, we vacate the sentence the district court imposed and remand with instructions that the defendant is to be resentenced within the guidelines range.

Judge Tjoflat concurs that the amount of variance is unreasonable but dissents, arguing that the case should be remanded for the district judge to find what is reasonable. He argues that it is not the job of the 11th Circuit to sentence Irey:

In sum, when placed on a balance sheet, the grave institutional harm caused by the court’s approach significantly outweighs any benefit the approach might yield. Resentencing defendants on appeal diminishes the role of the district court in the eyes of the legal profession, and it diminishes the public’s confidence in the district courts as an institution for administering criminal justice. It misallocates and gobbles up judicial resources. None of this is necessary. If a sentence constitutes an abuse of discretion, we should simply say so and return the case to the district court, the appropriate forum for the main event.

The first dissent is written by Judge Edmonson, and joined by Birch Barkett and Martin:

The limit that the law places on the right use of appellate court power to interfere with the sentencing decisions of United States District Judges (who, of course, have -- under the law -- powers of their own) is, for me, what this appeal is about. The specific case before us involves a serious crime and ghastly conduct -- “horrific” in the District Judge’s words -- on the part of Defendant. And, no party
has contended that the District Judge, in imposing the sentence, made a significant procedural error. The government prosecutors (who bear the 1 burden of showing reversible error) contend that the sentence imposed in district court is too lenient and that no sentence would be lawful except the maximum sentence of imprisonment that the pertinent criminal statute will allow: 30 years.

The issue is not whether federal appellate judges ought to do their duty. They must. And the issue is not whether appellate courts can review sentences and sometimes correctly set them aside, even when the sentence was imposed without procedural errors. They can. Appellate judges do have some legitimate power to review the substance of sentences: that is, to determine whether a District Judge has imposed a sentence that is either too lenient or too harsh as a matter of law. The general question presented here is what is the limit, under the law, on the power of appellate judges in deciding such reviews.

Next up is Judge Birch, who says (I think quite rightly):

The time-worn adage in jurisprudence that hard facts often lead to bad law is certainly applicable to this case. I have little doubt that had I been the sentencing judge I might well have fashioned a different and harsher sentence for this defendant. But the decision at play here is the respective roles of the appellate court and the sentencing court. Our appellate role is properly constrained by the standard of review to which we are required to adhere. As Judge Edmondson persuasively describes the application of that standard to the record, it compels an affirmance of the sentencing court’s judgment in this case. Accordingly, I respectfully dissent and join in the dissenting opinions of Judge Edmondson and Judge Barkett.

Judge Barkett also dissents, joined by Birch and Martin:

I agree with just about everything in Judge Edmondson’s dissent. If there is any point of departure, it is the addition (or clarification, in my view), that the district judge must articulate the reasons for the sentence imposed based on the evidence in the record. Because the record may support a number of reasonable sentences, this articulation is necessary so that the appellate court can be satisfied that the district judge actually considered how all of the § 3553 factors relate to the defendant’s individual case.

Obama finally starts to push federal judge confirmations...

... at least a little bit.  According the BLT:

President Barack Obama called on the Senate today to vote on long-stalled nominees for the federal judiciary -- dipping a toe into an issue that has appeared relatively low among his priorities.


In remarks at the White House, Obama said he wants to work with Republicans to fill judicial vacancies. He did not name any individual nominees, but he appeared to reference Nashville, Tenn., labor lawyer Jane Stranch when he said nominees have been waiting as long as eight months to be confirmed.


Obama nominated Stranch in August 2009 to the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati. Although she has bipartisan support and there’s no organized, public effort to block her, she’s been waiting since November for a confirmation vote by the full Senate.


“Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans,” Obama said. “Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.”

Hopefully, Kathy can get a hearing quickly.

In other news, the NY Times is calling for change in white collar sentences and child porn sentences:

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission....


As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.


Possession of a single piece of child pornography, for example, is supposed to result in a five-to-seven-year sentence — longer with aggravating circumstances — but many judges instead are imposing probation or one year for first offenses. Many federal judges have told the sentencing commission that the child pornography guidelines are far too severe.


The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take. The rules for child pornography, for example, include extra penalties for using a computer, but everyone in that repugnant world uses a computer, rendering the rules obsolete.


The key in both areas is helping judges find ways to differentiate the worst offenders from those who have caused less damage or are less of a threat to society. White-collar sentences are now based on the size of the fraud, but that may not be the best way to measure the role of a defendant or the venality and damage involved.


As repellent as child pornography is, it does not help judges when someone found with a few photographs is held to similar standards as someone disseminating thousands of them. These are sensitive areas, but a thoughtful re-examination by the commission and Congress could bring new respect for the federal judiciary.

I agree that these issues need to be looked at closely; but the NY Times and the Justice Department are wrong that we should be seeking consistency in sentencing.  Each person and each case is different.  And accordingly, each sentence needs to be individual.  Basically, what Emerson said.

Rothstein feeder to pay $830 million

The Sun-Sentinel has more here:

The Fort Lauderdale hedge fund manager who was the largest feeder to Ponzi schemer Scott Rothstein has agreed to give up much of his wealth as part of a settlement with bankruptcy attorneys.


The settlement agreement by George Levin and his Banyon investment entities — which funneled $830 million into Rothstein's $1.4 billion investment fraud — was filed late Monday in U.S. Bankruptcy Court.


It does not spell out which assets Levin has agreed to sell and turn over to the trustee for Rothstein's now-bankrupt law firm, but Levin and his wife get to keep their $4.2 million Fort Lauderdale home and roughly $750,000 in personal possessions, according to the agreement.

In other news, Rumpole has admitted that he was wrong and "[o]f course Mr. Markus is right." 

Shocker

The front page of today's New York Times says that after John Roberts and Sam Alito were appointed, the Supreme Court shifted more to the right. I'm sure all of you are just shocked by this...

Here's the link to the lengthy piece:
http://nyti.ms/b3ypgw

I'll be in court all day Monday, so have at it in the comments.

Friday slog (UPDATED with Lew Freeman's sentence)

Some quick news items while you try to stay dry:

1.  Darth Vader attempt to rob bank. (via NY Daily News). 

2.  Lew Freeman to be sentenced today.  (via Jay Weaver)  UPDATED -- Judge Huck sentenced him to 8 years, 4 months.  (Here's the Herald article).  According to the article, the guideliens called for a much more severe sentence:

Before he surrendered, Freeman hugged his wife and two children in long, tearful embraces and shook hands with dozens of other supporters. He also took off his brown suit -- down to a long sleeve T-shirt, gym short and black loafers, knowing he would probably have to surrender to authorities immediately after his sentence.


Before he was sentenced, Freeman apologized to Judge Huck, his colleagues and his family, saying, ``I have let you down.''

Huck described Freeman, a New York native who moved to South Florida to attend the University of Miami and later its law school, as a Jekyll and Hyde character.


Huck said while his personal charitable deeds and volunteer work in the community were admirable, his theft of millions of dollars from client trust accounts and his lying to the court as a receiver were inexcusable.


Freeman was facing 12 to 15 years in prison under federal sentencing guidelines.

3.  Bonnie. (zzzzzzzzz)

4.  Rumpole picks a fight with me over whether you should ever promise to a jury that your client will take the stand. He says it's too risky.  And I agree that in most cases, you can't make that promise.  But you can't have hard and fast trial rules.  Sometimes, it's worth taking that risk in opening.  Every case is different, so I have only one rule of trial practice -- there are no hard and fast rules. 

White House nominates Kathy Williams

Finally!  Such good news for Kathy and for the District.  From the White House press release:

Today, President Obama nominated Judge Charles Bernard Day and Kathleen M. Williams to United States District Court judgeships. “These candidates have distinguished records of service, and I am confident they will continue to serve the American people with integrity and an unwavering commitment to justice, ” said President Obama.

***

Kathleen M. Williams has served as the Federal Public Defender for the Southern District of Florida since 1995. She previously served in the same District as Chief Assistant Federal Public Defender from 1990 to 1995 and as an Assistant United States Attorney from 1984 to 1988. Ms. Williams has worked in private practice as an associate in the Miami offices of Morgan, Lewis & Bockius from 1988 to 1990 and of Fowler, White, Burnett from 1982 to 1984. From 2002 until 2008, Ms. Williams was the Chairperson of the Federal Defender Advisory Group and the Defender representative to the Defender Services Committee of the Judicial Conference. Ms. Williams received her J.D. in 1982 from the University of Miami School of Law and her B.A. magna cum laude in 1978 from Duke University.

Kathy, who is taking Judge Hurley's seat (he went senior), will make an excellent judge. The next step is confirmation.  Everyone should send letters to Senator Nelson urging him to act quickly. Kathy should be easily confirmed, especially after Senator Lindsey Graham's comments about the confirmation process, which were right on the money.

Congrats to Kathy!

Wednesday news and notes

1.  Judge Lenard accepted the guilty pleas today in the stolen patient record case.  (via Miami Herald).  We previously wrote about the case here, when the parameters of the deal were questioned.

2.  Jeffrey Epstein is a free man.  And the Daily Beast covers the case here, with video from his depo in which he walks out after being asked about the shape of his penis. 

3.  And, Rony Seikaly has a new single.

4.  Rumpole says never ever promise that your client will take the stand.  He's way wrong.  There are no absolute trial rules.  Now of course Blago's lawyers messed up by promising that he would testify and then not delivering.  But that doesn't mean you should never do it. 

New blog in town

And like Rumpole and SFL, it's anonymous.  It's a fun read, even though the title sucks: Kosher Meatball Blog.

Sarah Palin and Titi monkeys

Slow news day here in the SDFLA.  So, I give you these two items:

1.  Sarah Palin makes up a word (via Gawker):



2.  Man arrested for hiding 18 monkeys in his girdle. (via CNN).

"I am not there to entertain anybody."

That was Clarence Thomas at the Utah State Bar convention.  Some highlights from two articles (here and here):

• When he first arrived on the court, members “actually listened to lawyers,” Thomas said. “We have ceased doing that. Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”
• “There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like “Family Feud” than oral argument.”
• To his Utah audience, Thomas was unexpectedly warm, funny and engaging — a different man in person, some said, than portrayed in media reports that focus on his bench demeanor.
• "Things might happen when (I'm not at the court)," he said. "You all may not remember that Eddie Murphy skit where he's on the bus and he's the only black guy on the bus and nobody talks — it's sort of like being on an elevator. As soon as Eddie Murphy leaves the bus, all the whites who are left on the bus throw off their outer garments and they're in party outfits. So things may be going on at the court (when I'm not there) — they may just be waiting and saying, 'Oh, the black guy's gone!' "
• “Deciding these cases is only easy for those who have no authority to decide them,” Thomas said. “For the rest of us, we don’t have the luxury of impugning motives, of being cynical or being political, because one vote, one mistake, can cause significant harm and change something for quite some time to the detriment of our country.”
• Thomas also said he thought it “could be a problem” to have judges selected through a political process.
• Thomas, a Roman Catholic, said his faith is a “source of strength” but that “it would violate the oath to put my faith ahead of what the law actually says, and I don’t do that.”
• One audience member asked Thomas about Chief Justice John Roberts’ reported push for more consensus decisions. “I would equate trying to get the members of the court to do what you want them to do with herding gnats in a hurricane,” Thomas said.
• "I think (the politics) about Bush v. Gore is more (a creation) of what the media said about Bush v. Gore, which I think is unfortunate," he said. "I think we have a tendency in this country to characterize institutions in ways that fit in a particular mode and fit a preconceived notion. … The interesting thing is, if you ask the members of the court, they may disagree, they may be upset, they may be passionate, but they would not say it's politics."
• "I'm convinced," he said, "that part of (this job) is that when you consider the consequences of the decisions that we make, it does weigh on you and it does show you that there's something so important that you've got to get it right. It does have an effect on you."
• "(The Supreme Court) truly is a marble palace (because) we're isolated. We're isolated from the politics, we're isolated from the city and in a lot of ways we're isolated from the country. These trips allow me to come out and see the people who really matter in our government, and that is you all."
  
  

Unnamed AUSA's mailbox burned down

Here's the Sun-Sentinel article.

The assistant U.S. attorney — whose name has not yet been released — called authorities Sunday when she saw her mailbox on fire at her home in the Caloosa equestrian neighborhood.
***
"At this point in time, we are just thinking of this as mischievous vandalism," ATF spokesman Carlos Baixauli said.

Wesley Snipes' conviction and 3-year sentence affirmed

Wesley Snipes was only convicted of three misdemeanors (and acquitted of all the felonies), yet the 11th Circuit has affirmed his 3-year sentence.  That seems harsh to me, especially because he was sentenced based on the relevant conduct for which he was acquitted.  From the reasonableness portion of the opinion:

Here, the district court carefully complied with the sentencing procedures. The judge conducted an extensive sentencing hearing and listened to Snipes’s allocution, several character witnesses, and argument about sentencing. The court correctly calculated the guideline range and, again, noted that the guidelines were advisory. The sentencing transcript reveals that the judge weighed each factor embodied in the Section 3553(a) calculus before pronouncing the sentence, which was within the recommended guideline range. The sentence was not procedurally unreasonable.


Next, we “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. at 1190 (quoting Gall, 552 U.S. at 51). “[W]e will not second guess the weight (or lack thereof) that the judge accorded to a given factor . . . [under § 3553(a)], as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.” Id. at 1191 (citation and quotation marks omitted). The party challenging a sentence has the burden of establishing that it was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).


The district court gave ample consideration to each of the relevant considerations found in 3553(a). Although the discussion about general deterrence was somewhat longer than the discussion of the other factors, its length corresponds with the emphasis the Sentencing Guidelines placed on deterrence in the criminal tax context. The introductory commentary to the Tax section of the Sentencing Guidelines explains that 

[b]ecause of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations, deterring others from violating the tax laws is a primary consideration underlying these guidelines. Recognition that the sentence for a criminal tax case will be commensurate with the gravity of the offense should act as a deterrent to would-be violators. U.S.S.G. Ch. 2 Pt. T, intro. Comment (emphasis added).

Moreover, “[w]hen the district court imposes a sentence within the advisory

Live blogging Willy Ferrer's swearing-in

Willy Ferrer's investiture today

Chief Judge Moreno swears Willy in at 3pm today at the new courthouse.  So, those of you who came to work in casual clothes today or who are planning to sneak out early, you're gonna miss it. 

Congrats to Willy.

"The facts of this case are riddled with extraordinary cruelty and evil."

You know that you aren't going to win an appeal with that as the opening line of the opinion.  And that's how Judge Marcus started off his 87-page opinion in USA v. Chuckie Taylor.   And here's the conclusion:

In sum, we affirm Emmanuel’s convictions and sentence in full. The Torture Act’s proscriptions against both torture and conspiracy to commit torture are constitutional, and may be applied to extraterritorial conduct. The district court did not plainly err in applying § 924(c) to Emmanuel’s extraterritorial conduct, nor in its conduct of this lengthy trial. Finally, Emmanuel’s advisory Sentencing Guidelines range was correctly calculated by the district court, and the sentences imposed violate neither the CAT nor the Constitution.

UPDATE -- here's the AP story.

Barefoot Bandit appears before Judge Dube

It was a really quick hearing -- according to Curt Anderson: 

The American teenager who police call the "Barefoot Bandit" made his first appearance in a U.S. court since being extradited from the Bahamas.

Colton Harris-Moore appeared briefly in federal court in Miami on Wednesday. He is charged with committing a two-year string of break-ins and plane thefts across the United States. A judge set another hearing Friday to give Harris-Moore time to hire a lawyer.

The 19-year-old convict's alleged crime spree ended Sunday when Bahamian police shot out the engines of a stolen boat and arrested him. He pleaded guilty Tuesday to entering that country illegally and was deported hours later.

He had arrived in the Bahamas last week, crash landing a plane he allegedly stole in Indiana

Barefoot Bandit headed to Miami

His real name is Colton Harris-Moore and he was caught in the Bahamas. The kis was born in 1991.  From his Wiki page:

Harris-Moore became known as the "Barefoot Bandit" or as the "Barefoot Burglar", by reportedly committing his crimes while barefoot.[3] In Fall 2009, police found footprints at an airport hangar in Bonners Ferry, Idaho; a Cessna 182 stolen from there crash-landed approximately 260 miles (418 kilometers) to the west near Granite Falls, Washington after a few unsuccessful attempts to land at the small airport there. Police in the San Juan Islands also found cartoonish, chalk-outlines of feet all over the floor of a grocery store that was broken into in February 2010.[11] In Fall 2009, a Facebook fan page was set up, drawing thousands of entries,[10] and one local Seattle man started selling T-shirts bearing his picture with the words, "Momma Tried".[9] Local people from Camano Island have also attempted to vent their frustrations through a song,[19] as well as a blog which includes the sale of merchandise and accepts donations to purchase the services of a bounty hunter.[20] In April 2010, 20th Century Fox purchased the film rights to the book Taking Flight: The Hunt for a Young Outlaw, based on a proposal by Bob Friel.[21] Harris-Moore's mother has retained celebrity lawyer O. Yale Lewis to seek control of entertainment interests related to her son. She has also hired John Henry Browne to handle her son's criminal defense.

From ABC on his arrest:


The "Barefoot Bandit" faces deportation to the United States, where a slew of federal officials wait to begin the complicated process of sorting out a lenthy list of crimes that span half the country.


Monique Gomez, Harris-Moore's attorney, told ABC News that he might leave the Bahamas as early as tonight.


Colton Harris-Moore pleaded guilty today in a Bahamian court to a relatively minor charge of illegal entry into the country, The Associated Press reported.


Instead of the extradition process many expected, he'll simply be deported though the U.S. Attorney's Office. Western District of Washington spokeswoman Emily Langlie told ABC News that authorities had not received confirmation of exactly what will happen.


Once on U.S. soil, Langlie said, Harris-Moore would appear in federal court in Miami, the closest district to where he was apprehended, on a single count of interstate transportation of stolen goods. The charge was filed in December 2009, stemming from an incident in which a plane was stolen from Bonner's Ferry, Idaho, and crashed in Granite Falls.

The judge will decide bond for Harris-Moore, basing it according to his flight risk and danger to the community.


"I think the expectation in any detention hearing is the government will argue that Colton Harris-Moore is a flight risk," Langlie said. "I think he's proven that."


Harris-Moore's highly publicized exploits came to an end Sunday when he was taken into custody by Bahamian police after a high-speed boat chase off Harbor Island. The arrest capped off more than two years on the run in which he achieved a folk hero-type following from tens of thousands of Internet fans, even as he left a growing trail of increasingly brazen crimes in his wake.

Get ready for some fun in Magistrate Court this week.  He'll have to wear the prison flip flops to Court...

Tuesday News and Notes

It's pretty quiet in the District right now.  A couple news items:

1.  Attorney General Eric Holder and Department of Health and Human Servies Secretary Kathleen Sebelius will be in the SDFLA (at the James L. Knight Center) on Friday July 16 at 9:45 to have the first in a series of day-long regional summits to discuss innovative ways to prevent fraud within the U.S. health care system.

2.  Lindsay Lohan made Professor Erik Luna famous.

3.  Mel Martinez didn't last long at DLA Piper.

4.  Gravity may not exist (according to one string theorist), but I'm not convinced by the "hair frizzles in the heat and humidity" analogy.

5.  Socratic method: good or bad?  I disagree with Bainbridge -- it works if it's done right.

What else people?

Crazy Monday...

Sorry for the slow blogging, but I've been running around all day.  A Mizzou grad posted 17 things he learned in law school (via ATL), and it's pretty funny.  So enjoy until I can get back to the blog:

1. Walk, don’t run from the police. See Illinois v. Wardlow, 528 U.S. 119 (2000).


2. A good lawyer knows the law. A great lawyer knows the judge. See DeMentas v. Estate of Tallas, 764 P.2d 628, 632 n.6 (Utah App. 1988) (quoting the “colorful, if occasionally irreverent” trial judge: “It’s hearsay, I agree, but it’s damn good hearsay, and I want to hear it.”).

3. A half-decent lawyer doesn’t belittle the judge’s hometown. See Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 784 (S.D. Tex. 1996) (denying a motion to change venue: “Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor . . . the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed.”); see also id. at 784 n.2 (“Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.”).

4. “The parties are advised to chill.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).

5. You have a First Amendment right to shake what your momma gave you. G.Q. Gentlemen’s Quarters v. City of Lake Ozark, 83 S.W.3d 98, 102-03 (Mo. App. W.D. 2002).

6. When your state supreme court disciplines you for the third time, it’s unwise to pay your fine out of your IOLTA account, especially if the check says it’s from your IOLTA account. Doing this tends to get you disciplined for the fourth time. In re Coleman, 295 S.W.3d 857, 862 (Mo. banc 2009).

7. Kanye West could probably teach family law at least as well as an adjunct. See KANYE WEST FEAT. JAMIE FOXX, Gold Digger, on LATE REGISTRATION (Roc-A-Fella 2005) (“If you ain’t no punk, holla ‘We want pre-nup! We want pre-nup!’ Yeah, it’s something that you need to have, ’cause when she leaves yo’ ass she gon’ leave with half.”).

8. Ditto for Jay-Z and criminal procedure. See JAY-Z, 99 Problems, on THE BLACK ALBUM (Roc-A-Fella 2003) (“Well my glove compartment is locked, so is the trunk in the back, and I know my rights so you gon’ need a warrant for that.”).[FN1]

9. Some cases are simple. See Denny v. Radar Industries, Inc., 184 N.W.2d 289 (Mich. App. 1970).

10. Criminal defendants tend to be idiots. See State v. Gaw, 285 S.W.3d 318, 320 (Mo. banc 2009) (After approaching Gaw’s vehicle, “Sgt. Frazier asked Gaw to give him his marijuana. Gaw reached into his pants pocket, pulled out a small baggie and handed it to the officer.” Gaw was then arrested.).

11. The bar exam is a test of minimum competency. It’s also the source of the phrase “lowering the bar.” See Miller v. Mo. Highway and Transp. Comm’n, 287 S.W.3d 671, 674 (Mo. banc 2009) (dismissing a worker’s compensation claim because, among other things, the only case supporting the plaintiff’s interpretation of the statute had been overruled by name and citation in the statute).

12. The area between Missouri and Colorado known as “kansas” [FN2] is a black hole where knowledge, hygiene, and genetic diversity go to die. I know this has little to do with law school, but I did come to appreciate this fact while getting my J.D., and I wanted to include this picture:

13. People litigate some really bizarre stuff. See Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972, 1007 (Cal. 1935) (use of water by farmers to drown gophers not allowed in area with chronic water shortage).

14. Mark Twain once said, “In the first place God made idiots. This was for practice. Then he made School Boards.” Boy was he right. See Justin D. Smith, Note, Hostile Takeover: The State of Missouri, the St. Louis School District, and the Struggle for Quality Education in the Inner-City, 74 MO. L. REV. 1143 (2009).

15. Some people don’t learn. Ever. See Glick v. Harris, 518 S.W.2d 227, 228 (Mo. App. W.D. 1974) (“We enter our judgment of dismissal of the appeals, but do not labor the reasons. Counsel for the appellants has had the benefit of our previous expressions and has felt the sanction of previous dismissals.”).

16. The Supreme Court of the United States only takes the biggest, most important questions facing our country. Like, “What is golf?” See PGA Tour, Inc. v. Martin, 532 U.S. 661, 700 (2001) (Scalia, J., dissenting).

17. Some case names were just made to be mocked. See Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556 (8th Cir. 2008).

I’m sure there are other nuggets of knowledge I’ve missed, but this is most of it. And it beats the hell out of watching that Contracts video instead.

—————————————

[FN1] This is actually how I memorized compartment searches for the exam.

[FN2] For those of you who are not die-hard Mizzou fans, know that the ‘k’ in ‘kansas’ is not capitalized because ‘kansas’ is not a proper noun. And if we had our way, it probably wouldn’t be a noun at all. See wikipedia.org/Lawrence_Massacre.

Judge Gold to take senior status in January

I remember when Judge Gold was sworn in -- I was clerking for Judge Davis at the time.  All of the clerks were invited to the ceremony, which back then was held in the old courtyard and catered by Christy's.  Judge Gold made a point of introducing himself to all of the clerks; he was very nice. 

He quickly became known as one of the best, most respected judges in this District.  Luckily, he intends "to continue to render substantial judicial service as a senior judge." Gold also wished Obama "well in these challenging times."

What I appreciate about him is that he holds lawyers to the highest standards.  He believes that the profession is a noble one.  I also appreciate that he writes a number of opinions, probably the most in this District.  From orders on motions to suppress to sentencing orders, Judge Gold often writes -- which is rare in criminal cases in this District.  Accordingly, the parties who appear before him -- win or lose -- know that he has given a great deal of consideration to their issues. 

From the DBR:  Gold, who sits in Miami, was nominated by President Clinton in 1997 when U.S. District Judge Jose Gonzalez Jr. went on senior status. A graduate of Duke University law school, Gold served as a Miami-Dade prosecutor from 1971 to 1975 before going into private practice. He served as a Miami-Dade circuit judge from 1993 to 1997 before his nomination to the federal bench. *** The question is how long will it take to replace Gold. The Obama administration’s nominations have lagged in the U.S. Senate. U.S. District Judge Daniel T.K. Hurley in West Palm Beach took senior status in February 2009. Federal Defender Kathleen Williams was reported as the front-runner to replace him last December, and she is still awaiting confirmation.

Federal Sentencing Guidelines under attack by...

... Lindsay Lohan. 

She tweeted the following:

It is clearly stated in Article 5 of the U.N. Universal Declaration of Human Rights that...., "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." this was taken from an article by Erik Luna.. "November 1 marked the 15th anniversary of the U.S. Sentencing Guidelines. But there were no celebrations, parades, or other festivities in honor of this punishment scheme created by Congress and the U.S. Sentencing Commission... Instead, the day passed like most others during the last 15 years: Scores of federal defendants sentenced under a constitutionally perverted system that saps moral judgment through its mechanical rules."

Speaking of Federal Sentencing Guidelines -- Judge Cohn sentenced former Miramar Commissioner Fitzroy Salesman today to 51 months' imprisonment.  (Here's the Sun-Sentinel article).  The government had asked for 8-10 years.  In Judge Cohn's last big sentencing -- Scott Rothstein -- he went over the government's recommendation...  This time, he explained, Salesman's sentence should be in line with the other politicians caught in the scheme -- former School Board member Beverly Gallagher and former County Commissioner Josephus Eggelletion.  Sounds right. 

Pure Gold -- Uncle Luke's column in the New Times

In case you've missed it, Luther Campbell -- an original Miamian -- has been writing a column for the Miami New Times.  His last two are worth mentioning: 1.  "Elena Kagan helped 2 Live Crew and blacks so confirm her already" and 2. "Al Gore can get freaky now that Tipper's gone".

From the former, which references a case from the SDFLA:

In 1989, Broward County Sheriff Nick Navarro banned the sale of our album, As Nasty as They Wanna Be, and a federal judge backed him. We appealed. The next year, Kagan, who was working at a Washington, D.C. law firm, wrote a brief that argued the album "does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response." In other words, my homegirl Kagan was saying people could not be aroused by the lyrics "'cause my dick's on bone" or "me so horny, me fuck you long time." She realized these words did not meet the standard of appealing to prurient interests. She did a great job fighting on 2 Live Crew's behalf, which lets you know that Kagan is not easily swayed by public opinion or by politicians with their own hidden agendas.

SDFLA Blog Turns 5

It's been 5 years since we started the blog.  I actually forgot this year to do our annual birthday post.  The blog was started on July 4 weekend in 2005.  Here's the initial post where I asked that a Floridian get appointed to the Supreme Court.  Once that happens, I can retire the blog... 

We've had over 1 million page views since then and over 640,000 unique visits.  As a birthday present, I'm trying to update the blog's appearance.  Bear with me for the next few days as I play around with the settings.  Thanks to you all for all the tips, visits, etc.  It's been a fun first five years.

Has the SDFLA become the new rocket docket?

The Eastern District of Virginia traditionally has been referred to as the "rocket docket" because of the speed in which it disposes of cases. There is even a EDVA blog called The Rocket Docket. Other districts -- like the Eastern District of Texas and the Northern District of California -- have also been saddled with that moniker.

Criminal cases in these districts generally get tried within 70 days, absent extraordinary circumstances. And even then, the parties are lucky to get one short continuance.

This is not a good thing for criminal defendants, especially those charged with complicated document cases in which the government has been investigating for years. It puts them in a position of going to trial (where the deck is already quite stacked against them) without as much preparation as needed.

Unfortunately, our District is quickly moving toward "rocket docket" status, if we haven't achieved it already. We haven't gotten to the point where motions to continue are flat out denied, but recently, many judges in this District have started granting only very short continuances and saying that's it. Cases involving millions of documents are being forced to trial within a few months after indictment. One judge recently commented that a criminal defense attorney need not go through all of the documents because the client knows which ones are relevant.

There are still judges (I count 4 or 5) who will give the parties the time they need to prepare. But many others have hopped onto the idea that the way to go is to deny continuance requests.

I'm not really sure why the District has shifted so dramatically in recent years. I guess it forces more pleas and less trials. We have too few trials already, so this can't be a good thing for the justice system. Even though I think the policy generally hurts criminal defendants, I don't think prosecutors enjoy the rocket docket either.

What are your thoughts? Do we have a rocket docket here in South Florida? Is that a good thing?

Back to work...

...on a soggy Tuesday.

Hope everyone had a nice weekend. Some quick hits to start your week:

1. Rumpole is talking about the new drivers license cases.

2. SFL doesn't like the Herald's Kindle edition. But he does like the Kindle, as do I. I use it more for books than newspapers. My wife has the Ipad and as I'll take the Kindle for reading a book any day.

3. The Supreme Court is hearing lots of ineffective assistance of counsel claims. Martha Coyle has an interesting piece on the "revolution" that has started on these cases.

4. Teachers are protected from bottle rocket injuries to students.

5. Tony Mauro is discussing all the summary dispositions at the High Court this Term.

6. And for those keeping score (on a nice chart), David Frederick argued the most cases before the Supremes this Term.

I will check back soon with more.

Happy 4th

Thursday news and notes

1. Elena Kagan had another good day yesterday answering questions. Here's one funny exchange, where Senator Specter one-ups her:



2. The Herald reports here that the government actually sent an apology to Sergio Masvidal, who was represented by Joe DeMaria. He's the banker that the government and American Express agreed to blackball. It's a remarkable letter, which admits that the secret side-deal isn't DOJ policy:

Government apology to Sergio Masvidal

“Like all Jews, I was probably at a Chinese restaurant.”

That was Elena Kagan yesterday at her confirmation hearings when asked where she was on Christmas day when a would-be terrorist was trying to blow up a plane over Detroit. (For more great quotes, see AboveTheLaw here).

Today is day 3. It's tough to watch the Senators drone on, but Kagan is doing a nice job. She's witty and professorial. It's interesting to compare her to Roberts, Alito, and Sotomayor. Kagan is certainly Roberts' equal, although they have very different styles. Roberts came across as the quintessential appellate judge, while Kagan is the professor. Both get A's for their performances. Alito and Sotomayor also had similar performances but again much different styles.

The hearings seem to try and get candidates to explain how they will judge or what they think judging entails. Of course, the nominees try not to answer these questions. But you get a sense of the person by how they answer the questions. Kagan (like Roberts) comes across as bright, witty, and engaging -- and certainly qualified.

Skilling/Black ripple effects

The 11th Circuit gets to reconsider the cases of former Alabama Governor Don Siegelman and ex-HealthSouth CEO Richard Scrushy. They were convicted of bribery and honest services fraud, which are now subject to attack because of the Skilling decision.

Monday morning (JPS edition)

1. Today is John Paul Stevens' last day on the Court. He has been a Justice for 35 years -- third longest ever on the Court. He took over for Justice Douglas -- interestingly, the longest serving Justice ever. At 90, he's also the second oldest serving Justice, behind Justice Oliver Wendell Holmes. He'll retire to his home in Ft. Lauderdale.

2. The Court issued its last 4 opinions today, including Bilski! Lots of interesting stuff that I'll post about soon.

3. As Stevens steps down, Elena Kagan starts her confirmation hearings. Noah Feldman discusses the current state of the Court and the lack of progressives in this weekend's NY Times magazine.

4. Justice Ginsburg's husband, Martin, passed away yesterday. AboveTheLaw has a nice story about him.

5. In other news, the CJA lawyers had their seminar this weekend; Lew Freeman's sentencing was continued until July 23; and no more CocoDorm.

CJA Lawyers getaway

The District's Criminal Justice Act lawyers had their annual seminar in Naples. Chief Judge Moreno, Judge Cooke, and Judge O'Sullivan attended.

So did the U.S. Attorney, Willy Ferrer, and his second-in-command Ben Greenberg. Big shout out to Ferrer and Greenberg for coming -- they were the first USAO dynamic duo to ever accept an invite in the 13 years of doing this seminar. And they said all the right things.

1. Variances. Since Booker was decided, prosecutors still have mechanistically asked for guideline sentences. This was the mandate from the top -- the guidelines were always reasonable even though the Supreme Court made clear that this was not the case. In fact, the 11th Circuit has said again and again that there is no presumption that a guideline sentence was reasonable. No matter, prosecutors went in and always asked for a guideline sentence. Our district judges started complaining, and Ferrer and Greenberg said that their prosecutors will not simply ask for a guideline sentence in every case as that is unhelpful to the court.

2. Indictments and Plea Agreements. There have been a series of memos (from Thornburgh to Ashroft to Gonzalez) requiring that prosecutors charge defendants with the most serious charge they could bring (including 851 enhancements, etc) and requiring prosecutors to offer plea plea agreements only to the most serious charge in an indictment. The new Holder memo has changed all of that, and Ferrer & Greenberg said that they will make sure that the Holder memo gets implemented in their office ASAP. Although no specifics were really offered as the Holder memo is relatively new, they are studying how to make sure that there is "horizontal equity" (their term) and fairness.

3. Discovery. There are new memos on discovery obligations (including Brady/Giglio) as well. Ferrer & Greenberg said that all prosecutors are undergoing training to learn about these memos and their discovery obligations in general. Although many line prosecutors are still telling the defense bar that they are only required to disclose what is required under Rule 16, Ferrer & Greenberg assured the CJA lawyers that this was going to change under their watch.

So, there you have it -- they said all the right things. Now we'll see what happens. After they left, most of the lawyers were grumbling that they hadn't seen any change so far. No prosecutors were asking for variances and no one had seen any open file discovery. But Ferrer made clear that he's only been there a month and that it would take some time to get all of these changes in place and the prosecutors trained on these changes. It was a great sign that they accepted the invitation to come speak to the group.