Thursday, March 29, 2007
A Bit of Brooklyn in the Supreme Court
Thursday, March 29, 2007; A17
Deference, with maybe just a touch of obsequiousness, is the rule for lawyers taking their cases before the nine justices of the Supreme Court.
So when Harvard law professor Arthur R. Miller yesterday mixed it up a little with the court's ever-ready pugilist Antonin Scalia, some of those in the packed courtroom later talked about it as one of those did-you-hear-that moments at the court.
Miller, whose white hair and dark, bushy eyebrows are familiar from his legal commentaries on ABC and his debate-style shows on PBS, is representing investors who want to sue Tellabs, alleging securities fraud. [Story, Page D3.]
Congress has set a high bar for such lawsuits: Plaintiffs must show not just credible allegations but a "strong inference" that the company acted with wrongful intent.
The justices wondered whether you could assign a percentage to such a "strong inference," a 33 percent chance plaintiffs could convince a jury the allegations were true, a more than 50 percent chance?
"I think it's 66 2/3 ," Scalia said, pulling another number out of the air.
"Is that because you never met a plaintiff you really liked?" Miller asked the conservative Scalia.
The room erupted in laughter. Scalia smiled. A little.
Miller backpedaled. A little. "I took a liberty there with the justice," Miller said.
But it was not over.
Scalia's chance came later, when Chief Justice John G. Roberts Jr. prepared to pounce on one of Miller's arguments. Miller stopped him first.
"Don't take me literally on that," Miller said. "For heaven's sakes, I'm from Brooklyn. I'm very colloquial. I'm very sorry about that.''
"Let me write that down," Scalia said with a satisfied smile. "We should not take you literally. All right."
Roberts was set to rule. "Okay, you two are even now."
-- Robert Barnes
Monday, March 26, 2007
The [11th Circuit] court panel found the pandering provision of the PROTECT Act of 2003 was overbroad and impermissibly vague, saying that it criminalizes the speech of someone who touts material as child pornography when in fact it is clean or nonexistent.In the appeals court's view, the pandering provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures attached of grandchildren in pajamas. One sender might be a proud grandparent while another might be a convicted child molester who hopes to trade for more graphic photos with like-minded recipients, the appeals court said. In asking the court to take the case, the Bush administration said the appeals court read the law's language more broadly than is warranted.
Judge Middlebrooks initially found the law was constitutional. Judges Barkett, Wilson and Reavley were the 11th Circuit panel that reversed (in an opinion by Judge Reavley,who was visiting from the Fifth Circuit), finding the Protect Act vague and overbroad. Rick Diaz and Lou Guerra represented Mr. Williams, who is now headed to Washington...
Federal prosecutors in Miami were caught off guard by criticism from Senate Majority Leader Harry Reid in Washington who suggested they were going soft on convicted former lobbyist Jack Abramoff.
U.S. Attorney Alex Acosta was flying to Colombia on Thursday when Reid, a Democrat from Nevada, criticized a proposed sentence reduction for the former Greenberg Traurig lobbyist at the center of one of the biggest corruption scandals in Washington. “Is he a Bushie?” Reid asked about Acosta. Tensions have been mounting between Democratic leaders in Congress and the White House over a scandal over the firings of eight U.S. attorneys allegedly for political reasons. Sources close to the Abramoff case bristled at Reid’s criticism, saying a recent court filing to secure a reduction for Abramoff was routine and that the disgraced former lobbyist was central to bringing down several high profile officials.
Reid is wrong to criticize Acosta. If Reid doesn't like the Sentencing Guidelines and the way that Rule 35 works, then let's change it. But right now, when someone provides substantial assistance, he gets a reduction in his sentence -- for better or for worse.
Sunday, March 25, 2007
1. "Green Beret now under arrest claims life of secret intrigue." (Miami Herald)
2. "Defense lawyers for Kenneth Wilk will not be permitted to tell jurors that the sheriff's deputy he killed had steroids in his system at the time of the shooting, a federal judge in Fort Lauderdale ruled Friday." (Sun-Sentinel)
3. "A Fort Lauderdale jury ruling in a federal discrimination case lashed out at Broward Community College on Thursday in a scathing letter citing evidence of religious bias in the college's theology department." (Sun-Sentinel)
4. "A federal judge refused Friday to dismiss the terrorism support charges against alleged al-Qaida operative Jose Padilla, rejecting defense claims that his 3 1/2 years in custody as an enemy combatant violated his constitutional right to a speedy trial." (AP)
Thursday, March 22, 2007
Any bets on how much time Judge Huck will hack off the sentence? I'll put the over/under at one third, the standard reduction in the Southern District of Florida....
Wednesday, March 21, 2007
Tuesday, March 20, 2007
What a relief.
Added: For the record, I think David Scott Markus is a good guy and a good lawyer, and I am sorry the name confusion has brought unwarranted attention to this opinion.
Monday, March 19, 2007
Actually, maybe I should say, Only in America -- the Supreme Court heard argument today in the "Bong Hits for Jesus" case.
Friday, March 16, 2007
Jay Weaver discussed more discovery in Padilla here: " reputed al Qaeda member told U.S. authorities that the terror network scrutinized Jose Padilla as a recruit for Islamic extremism in 2000-01, according to a new document filed in federal court in Miami." And you can view the document discussed.
And to complete our federal court reporter trio, Vanessa Blum discusses the Hollywood cop hearing yesterday, in which Judge Seltzer granted the parties' request for extra time to resolve the matter before arraignment.
Thursday, March 15, 2007
UPDATE -- the problem has been fixed.
"The insurers, including giants like Indianapolis-based American United Life Insurance, said in their lawsuits they should be able to cancel all policies that were sold by policyholders to Mutual Benefits because several of the policyholders lied on their appliactions. They cited four people who had lied about their HIV-positive status."
Judge Moreno said nope and was affirmed by the 11th.
Wednesday, March 14, 2007
The coffee I was sipping went all over my desk!
Judge Barkett, writing for the 11th Circuit, in a published decision explained how criminal defense lawyer "David Markus" was ineffective.
The thing is, it's not me -- it's the other criminal defense lawyer in town named David Markus. He's David Scott Markus. I'm David Oscar Markus. The court didn't use any middle initial. So now what do I do? Any suggestions?
UPDATE -- the problem has been fixed.
Vanessa Blum wrote yesterday that one of the Hollywood cops may be close to pleading. Mel Black represents Sgt. Jeffry Courtney. Black "filed a motion asking a federal magistrate to postpone a Thursday hearing in Fort Lauderdale where the officers were expected to enter pleas so he could have more time to negotiate with prosecutors."
UPDATE -- Judge Seltzer denied the motion, according to this Herald article.
Here's Rumpole's take on the Judge Highsmith story in italics and my response in bold:
Everyone's favourite federal blogger- David O Markus- whose blog can be viewed by clicking on the link on this page- got himself and his blog into a spot of hot water the other day, by publishing the well researched rumor that Federal Judge Highsmith was retiring.I'm glad I'm Rumpole's "favourite federal blogger" and that he links to us. But is it really a "rumor" when the Judge himself announced it open court?
Julie Kay from the Daily Business Review jumped on the bandwagon and wrote an article and before you can say "contempt" Chief Judge Zloch was issuing denials. Actually, everyone apparently had a good laugh about the whole episode,
and the mere fact Mr. Markus was seen sweeping the floor of Judge Zloch's courtroom the other day had nothing to do with Mr. Markus's ill advised venture into the land of rumor and innuendo. Leave that stuff to us we say.
Judge Zloch's floors weren't dirty at all, so it wasn't a big deal... Fine Rumpole, you are the gossip king (queen?) so we'll leave this stuff to you in the future.
As Muhammad Ali used to say- "Your hands can't hit what your eyes can't see" and last we checked there was no known address for US Marshalls to appear at to take us into custody. Mr. Markus writes a great blog. But we think he is better off writing about the legislative histories of Federal Statutes and cheering on Judge Cooke in the Padilla case. In either event, it was nice to see that Rumpole isn't the only Florida legal blogger who needs counsel every now and then.
If we actually did need counsel, we'd hire Rumpole. What's the hourly rate these days?
Tuesday, March 13, 2007
We had the pleasure of meeting the blog's author, David Lat, during his stay in Miami. He's a very engaging guy. It's no wonder his blogs have been so popular.
Monday, March 12, 2007
Today, Julie Kay in the Daily Business Review says we're wrong. "Rumors began that U.S. District Court Senior Judge Shelby Highsmith was retiring after it was reported on a legal blog run by Miami criminal defense lawyer David O. Markus. . . . But last Thursday, District Judge William Zloch said in an interview he spoke to Highsmith and the judge is only retiring from criminal cases -- as of March. . . . 'Rumors of his demise are greatly exaggerated,' Zloch said with a laugh. 'I just spoke to him and he is not going anywhere. As a senior judge he has the option of taking a lighter load.'"
Interesting. A couple points though --
First, I did not start the rumors. I was told by a number of people that Judge Highsmith himself announced his retirement in open court. Second, I got confirmation from people who would know. I note that Ms. Kay did not speak with Judge Highsmith himself (to be fair, neither did I).... Third, don't you think that the article should have mentioned the blog by name!?
In any event, I hope Julie Kay is right and that Judge Highsmith is not retiring.
Thursday, March 08, 2007
Tuesday, March 06, 2007
A federal jury has found 'Scooter' Libby guilty on 4 out of 5 counts of lying to a federal grand jury and obstruction of justice. He was found not guilty of one count of making false statements to FBI agents investigating the leak of former CIA agent Valerie Plame's identity. Libby's sentencing is scheduled for June 5, 2007.
You can read the following items at these links:
Prosecutor Patrick Fitzgerald http://pview.findlaw.com/view/3543117_1?channel=LP
Defense Attorney Ted Wells, Jr. http://pview.findlaw.com/view/3279455_1?channel=LP
Trial Transcripts http://rd.findlaw.com/scripts/nl.pl?url=11712672000_nl
Monday, March 05, 2007
Sunday, March 04, 2007
Judge Highsmith was admitted to the bar in 1958. He graduated from the University of Missouri-Kansas City School of Law, after attending Georgia Military College and the University of Kansas. The Judge was the senior partner of Highsmith, Strauss, Glatzer & Deutsch, P.A., from 1975 - 1991 and before that served as a Circuit Judge in Dade County from 1970 - 1975. He served in the United States Army as Captain from 1949 - 1955. He was appointed to the federal bench in 1991 by Bush I, and he's been a Senior Judge since 2002.
We've always liked that Judge Highsmith looked at each particular person before him and tried to judge that person, as opposed to doing simple math to determine a guideline sentence. He also knew how to try a case, coming from a busy trial practice. Best wishes in retirement.
Friday, March 02, 2007
A U.S. Marshals Service official misspent $4.3 million meant for courthouse security and witness protection to pay for fitness centers and firing ranges at federal buildings, a Justice Department investigation found.
The Office of Management and Budget repeatedly told David Barnes not to use construction money on exercise and training facilities, citing agency policy and appropriations laws that restricted the money for improved prisoner security, the report said.
Barnes, who oversees courthouse space for the agency, concealed the spending from his superiors and directed $2.6 million in construction money for fitness centers and firing ranges at 20 federal courthouses from 2000 to 2005, according to a copy of the 41-page report obtained by USA TODAY.
The agency has not acted on the report, which it received last April.
Barnes also used nearly $900,000 budgeted for witness protection to build a firing range in the Miami federal courthouse, and he used nearly $400,000 in construction money to hire fitness center staff and clerical workers at the Marshals Service headquarters, where Barnes works, the investigation found. Some workers were friends or relatives of Barnes and his subordinates and were unqualified for the jobs, the report said.
Barnes' lawyer, Charles Printz, said his client had the authority to spend construction money on firing ranges and fitness centers. Printz said the investigation was spurred by disgruntled employees and he expected his client to be cleared.
Here's the breakdown of bad spending from one of USA Today's cool charts. Miami's in first place!!
REPORT: MONEY MISSPENT
According to a Justice Department report, $3,028,847 was misspent from fiscal year 2000 to fiscal year 2005 on building and renovating fitness rooms and firing ranges in 20 federal courthouses. (*) The locations and the amount:
Grand Rapids, Mich.
Sioux City, Iowa
* - In addition, more than $800,000 was spent maintaining and staffing some of these and other facilities.
Source: U.S. Department of Justice's Office of Inspector General
Thursday, March 01, 2007
Prosecutors said Mr. Padilla always seemed fine to his jailers, but it was his jailers who did things like standing on his bare feet with boots so they could shackle him. The brig psychologist testified that he had spoken to Mr. Padilla only twice, once when he was first detained, and two years later — through a slit in his cell door.
When a psychologist testified for the defense that Mr. Padilla was “an anxiety-ridden, broken individual,” the prosecution said her tests were invalid — because the jailers had kept Mr. Padilla handcuffed throughout.
We will probably never know if Mr. Padilla was a would-be terrorist. So far, this trial has been a reminder of how Mr. Bush’s policy on prisoners has compromised the judicial process. And it has confirmed the world’s suspicions of the United States’ stooping to the very behavior it once stood against.
Obviously there has been a ton of press on Judge Marcia Cooke's ruling yesterday saying Jose Padilla is competent. I'm not going to link to all of that here.
I'd bet that Padilla is actually happy that his lawyers lost the competency motion. I'm sure he did not want to go to a BOP mental hospital so that he could be made competent. To me, that sounds like torture -- just on a smaller scale. And I'm sure there were mixed feelings by the government about the ruling.
The Judge is still going to hear the motion to dismiss for outrageous government conduct. That is where things will get interesting.