Sunday, May 30, 2010

Sun-Sentinel profiles Judge Jimmy Cohn

Paula McMahon does a very nice job here, describing him as "a true Southern gentleman" and "tough but fair." He's being profiled because he's got three huge sentencings coming up -- Scott Rothstein, Beverly Gallagher, and Fitzroy Salesman. Judge Cohn did what more judges should do and agreed to be interviewed for the article...

Some highlights from McMahon's article:
  • Cohn, 61, is a lifelong Democrat nominated to the federal judiciary in 2003 by Republican President George W. Bush and confirmed 96-0 by a Republican-dominated Senate during a bitterly partisan era. His confirmation hearing was described by the Sun Sentinel as "a striking display of harmony in a contentious arena" but Cohn said that, as a Democrat selected by a Republican president, he was unlikely to face opposition.
  • Growing up in Tuskegee, Ala., during the civil rights struggles of the 1950s and 60s, the Cohns owned a store and were one of two Jewish families in town. There was no synagogue so Cohn, his parents and his two sisters drove 40 miles west to the Reform temple in Montgomery for religious classes. "The worst part of it was I missed the first half of the NFL game," Cohn said wryly.
  • "You want to assimilate, you don't want to be different, no kid wants to be different," Cohn said. "On the other hand, you want to maintain your Jewish heritage and traditions."For Cohn, playing sports was the best way to fit in. He was a quarterback on the Tuskegee High School football team, an all-star second baseman in baseball, ran track and played basketball.
  • After passing his bar exams in Alabama and Florida, his sister and parents, who retired to South Florida, persuaded him to interview here. After a brief stint as a Broward public defender, then State Attorney Philip Shaler offered him a $1,000 raise — to $13,000 — to be a prosecutor. Cohn prosecuted cases from 1975 to 1978, working with two men who are still his friends, current State Attorney Mike Satz and defense attorney Richard Garfield.
  • Jurors trusted his sincerity and people at the county courthouse still talk about how he won a "not guilty by reason of insanity" jury verdict on a first-degree murder case — a difficult feat under Florida's restrictive law. The defendant, Robert Lee Endicott shot and killed a young woman in Fort Lauderdale in 1979. Endicott is still involuntarily committed 30 years later.
  • He awakes at 5 a.m., doesn't use an alarm clock and has never overslept in his life. He's at the gym by 5:30 a.m. and goes to bed by 9 or 9:30 p.m. "unless there's a ball game."

There's a whole lot more, including how Judge Cohn overcame a stutter in the ninth grade, the adoption of his son, how he tried 144 cases one year as a state judge (second place only to Judge Dimitrouleas), watching Seinfeld reruns, loving Alabama, and other gems.

The article is definitely worth a read.

Friday, May 28, 2010

Judge Davis' memorial service

It was a real tribute. So many friends, colleagues, judges, family turned out to pay their respects. Judge Graham spoke beautifully about Judge Davis, as did Ned Davis (the judge's son). We all shared stories about him over drinks, as he would have liked.
Chief Judge Moreno was in Europe and sent this email regarding Judge Davis:
He was a great man and a good friend. I tried cases before him and found him to be the perfect example of a judge I should emulate but whose qualities of patience,fairness and moderation I could never attain. The 10 years we were colleagues were an incredible experience that made him my best friend on the court. When I became Chief we continued our friendship lunching at Abbracci often where I welcomed his sage advice. What a great human being. I consider this loss like losing a second father within 2 months, as I lost my dad in March. I have been in Europe for the last two weeks and do not return until after the funeral. Please explain my absence at the Biltmore to Pat Davis as well as those others (past law clerks,AUSAs, FPDs, private lawyers) personally or even through your blog.Have fun on Thursday and toast to him as that is what Ned would want all of us to do. FAM

Thursday, May 27, 2010

Judge Altonaga remembers Judge Davis

There are so many great comments about Judge Davis that were posted, but I thought I'd share with everyone on the front page, this letter from Judge Altonaga:

May 27, 2010

Dear David:

On Monday, May 24, 2010, you shared the story of U.S. District Judge Edward B. Davis, following his passing as a result of complications from open-heart surgery. I write you this letter in the event you would like to share some of my thoughts in the Southern District of Florida Blog.
I had the extraordinary good fortune of being hired by Judge Davis to be his February term law clerk, or "even" clerk as we were known, and worked for him in 1987. Since then, he has been my mentor, advisor, and kindest of friends. Words cannot describe the goodness and compassion of the man or his depth and integrity. Among the counsel and advice he would give his young law clerks or young lawyers as he would call us, was not to be "mean." I don’t believe Judge Davis had a mean bone in his body. Over the last 24 years I have never seen him angry at or impatient with anyone.

Judge Davis was always thoughtful and generous. I remember one time when he offered then-U.S. District Judge Stanley Marcus to share his office and chambers when the Dyer Courthouse was closed for asbestos removal. We shared chambers for several months with Judge Marcus and his law clerks, and while space was tight, the mood was always light and welcoming. On another occasion, when the late Senior Judge Joe Eaton had need of a law clerk for a particular assignment, Judge Davis asked me if I would mind being on loan to Judge Eaton to help him with that assignment, and proceeded to share me with Judge Eaton.

I clerked for Judge Davis during the days when memory typewriters and word processors were all the tools we had and files were brimming over with paper. The Judge would be in the courtroom every day with trials and all manner of hearings. It was his custom to bring in lawyers after the trials and talk to them privately, giving them encouragement and advice on trial practice. In the late afternoons, the chambers was filled with the sound of his laughter and that of the late Judge Eugene Spellman, for they were good friends and at the end of the day Judge Spellman would come to the Judge’s office where stories were shared and a moment of relaxation seized. When the Judge hired us, he would make clear the work day started at 8:00 a.m. and we were to stay with him until he left, which was usually after 7:00 p.m. He worked very hard, and while we all did as well, it was without undue pressure. Certainly I never felt any pressure from him; he always gave assurances that it would all work out.

Whenever I had occasion to travel with the Judge to Key West for trials, he and his wife Pat would include me in their dinners at the end of the work days. In keeping with the Judge’s casual and informal manner, the Courtroom Deputy, Michael Beck, and I would join the Judge and his wife in their hotel room, and from there we would all go together to share a meal.
I, along with countless of his law clerks, have had the extraordinary good fortune of having been offered the opportunity to share Judge Davis. We each became a part of the Judge’s family, so much so, that when after one reunion he sent me a copy of a group picture and signed it, "To Cecilia, my favorite law clerk and judge," I believed it. I came to discover later that he signed copies of the picture in the same way for each of his law clerks, letting each know he or she was his "favorite!" That picture, and another of the two of us in his chambers so many years ago, rests beside my computer where I am reminded daily of the "gentle giant" who has had such an impact on my life.

Judge Davis was my source of inspiration and I credit him with my desire to become a judge. He administered my oath as judge on three separate occasions, the last of which was as a federal district judge. When I joined the Southern District of Florida in 2003, I was humbled to occupy his former office and courtroom.

Judge Davis was the face of kindness, fairness and compassion in our court. May God bless and keep him.


Cecilia M. Altonaga

Monday, May 24, 2010

RIP Judge Edward B. Davis (w/ updates)

UPDATE -- A public remembrance will be held from 5 p.m.-7 p.m. on Thursday in the Biltmore Hotel's Grenada Ballroom, 1200 Anastasia Ave., Coral Gables. In lieu of flowers, the family suggests memorial donations to La Amistad Foundation, Inc., 8400 La Amistad Cove, Fern Park, FL 32730. The foundation supports a community for mentally ill adults. Burial will be private.

UPDATE 2 -- Full Herald obit here.

Update 3 -- DBR article here.

Update 4 -- If you haven't read the comments, you should. There are some great stories about Judge Davis. Also, the Herald published a beautiful (and much longer) story here than the one that was online yesterday about Judge Davis.

Update 5 -- For those of you who were going to Jeff Sloman's going away party tomorrow night, it was changed to 7pm so that it wouldn't conflict with Judge Davis' memorial.

It is with great sadness that I report that Judge Edward B. Davis passed away today. I will post funeral arrangements as soon as I hear about them.

He was -- for a long long time -- the heart and soul of this District. He was old-school in every way.

My clerkship with the Chief was the best job I've ever had. Judge Davis really thought of the District as a small family, and I thank him for bringing me into it. He was the prototypical federal judge and really as good a person there could be. If you were thinking of how to make the perfect judge, Edward Davis would be the starting point. Lawyers practicing before him loved him even when they lost because they knew they were getting a fair shake and knew that they would get treated with respect. He's one of the last of the old guard of the District...

He led such a full life -- from his family to athletics to his career as a lawyer and then as a judge and then back to practicing. He knew how to balance all the different things we are always struggling to juggle. He also knew how to eat well, drink well, and laugh well.

Judges, practitioners, and friends, please post your stories and memories about Judge Davis in the comments. I will probably leave this up for the rest of the week.

I have so many great stories and memories; I'll share a couple of them here that are coming to mind:

-- During one trial, a prosecutor complained that he worked all weekend updating transcripts and he couldn't get in touch with the defense attorney, who the prosecutor said, was at a Heat game. Judge Davis replied: "I was at that game too."

-- When he introduced us law clerks to other lawyers or judges in town, he would always say, "This is my lawyer."

-- I will always remember Friday afternoon scotch with him where we talked about the week -- trials, hearings, orders we were working on, and what was going on next week. He had this calm to him that rubbed off on all of us.

-- Heat tickets in his shirt pocket.

-- Telling us not to worry about moving cases quickly or the case-load stats or getting reversed by the 11th Circuit. He always said to take your time to make sure it was done right. He never really understood why a lifetime appointee cared about whether he or she was first in the case-load summary statistics.

-- Chambers with Mary and Michael.

-- Asking why he couldn't figure out email and telling us not to be smart when we told him that he needed to plug his computer in (really!) before email would work.

-- Writing "to my favorite law clerk" to each one of his clerks on the clerk reunion photos that were handed out.

-- Ned.

-- Gentleman.

-- Fair.

-- Just.

-- A man's man.

Rest in peace Judge.

Monday morning Lost edition

Is everyone still deciphering last night's 2 1/2 hour Lost finale? I really liked it, and give it a solid B+. One of the great shows in the history of TV was the Lost Season I finale when they took Walt (there's the scene below). The show never really lived up to that moment, but it was still very good after that. I enjoyed how Jack had to fix the island and then how it was Hurley's turn to nurture/protect it. Plus, the purgatory twist in the Sideways world was cool. All in all, a good way to end the show.

Back to business -- John Pacenti is all over social networking and lawyering this morning. He references the 11th Circuit opinion we wrote about here. And yours truly is quoted. Here's a piece:

Social media issues have been litigated on claims of defamation, copyright infringement or violation of free speech, and platforms such as MySpace, Twitter, Facebook, Foursquare and others have become a vital investigative tool for some attorneys. “There is a lot of stuff out there that is totally irrelevant, but every now and then there is a gem, and it’s well worth mining for,” said Richard Sharpstein with Jorden Burt in Miami. “Most lawyers feel it’s an important source of information.” Bob Jarvis, a law professor at the Nova Southeastern University’s Shepard Broad Law Center, said social-networking sites are fair game for any prosecutor or defense attorney. “It’s really no different than a 19th century diary. It’s a person’s thoughts expressed prior to the time of litigation,” Jarvis said.

Thursday, May 20, 2010

Miss me yet?

The Rekers scandal has reached the New York Times. The article raises the question of whether the lawyers who relied on Rekers' testimony as an expert witness have an ethical obligation to inform the court of what happened.

Do Rekers' lawyers have an obligation to inform the court of his scandal?
No free polls

Okay, we are in a poll taking mood. Here's two more while we are at it:

Will Willy Ferrer and his new management staff change the way things are done at the U.S. Attorney's office?
Yes, there will be a great deal of change
Yes, but only minor changes
Nothing significant will change
There will be no change free polls

And we'd like to see what you think about Rumpole's discussion of Graham:

Who got the better of the Graham argument re life for juveniles
Justice Kennedy's majority opinion was correct and its reasoning was persuasive
Justice Kennedy's opinion was correct but his reasoning was flawed
Justice Thomas' dissent was right and its reasoning was persuasive
Justice Thomas' reasoning was more persuasive but his conclusion was wrong free polls

Tuesday, May 18, 2010

Ch-ch-ch Changes

Lots of change going on over at the U.S. Attorney's office. Multiple sources have told me that:

Ben Greenberg is now the 1st Assistant U.S. Attorney
Ed Stamm is Chief of Criminal
Ed Nucci has the new position of "Managing Assistant U.S. Attorney for the Northern Offices"
Marcus Christian is the "Executive Assistant U.S. Attorney" in charge of hiring and recruiting
George Karavestos is the Chief of Narcotics
Joan Silverstein is the Chief of Economic and Environmental crimes
Bob Senior is the Chief of Public Integrity

Congrats to all.

"Put simply, Epstein believes he is above the law."

That was the statement by Peter Prieto and Steve Marks after they filed a civil complaint against Jeffrey Epstein for violating his agreement to pay the victims of his sexual offenses. The case landed before Judge Gold. Here's the AP story by Curt Anderson:

Billionaire sex offender Jeffrey Epstein is violating an agreement with federal prosecutors by refusing to pay more than $2 million in legal fees to attorneys representing a dozen of his victims, according to a new federal lawsuit.
Epstein, a New Yorker who owns a Palm Beach mansion, a Paris apartment, a 70-acre Caribbean island and a 7,500-acre New Mexico ranch, could ultimately face federal prosecution stemming from his alleged assaults on mostly teenage girls if he continues to refuse to pay the fees, the victims' attorneys said Tuesday.


Under the deal Epstein signed with prosecutors in 2007, he would avoid federal charges and potentially lengthy prison sentences as long as he abided by several conditions — including paying fees for lawyers representing victims.
His failure to pay, according to the lawsuit, is a "material breach" of that agreement that could open the door to federal criminal prosecution, according the lawsuit filed in Miami federal court late Monday. An attorney for Epstein did not immediately respond to an e-mail seeking comment and the Miami U.S. attorney's office — which signed the agreement with Epstein — declined comment.
Epstein, a 57-year-old investor, pleaded guilty in Palm Beach County in 2008 to two state prostitution counts and was designated a sex offender. He was sentenced to 18 months in jail following by a year of house arrest, which he is currently serving at his $6.8 million Palm Beach residence.

I guess today is civil day at the blog...

Judge Cooke to get a piece of the Scott Rothstein case

Well, SFL hasn't used Scribd in a while, so I figured I get in on the fun. Here's a complaint filed by David Mandel against Scott Rothstein and TD Bank for civil RICO that landed before Judge Cooke:

Coquina Complaint

Coquina, an investment partnership based in Texas, alleges that TD Bank was complicit with Rothstein in the Ponzi scheme. According to the complaint, Coquina’s representatives met directly with Rothstein and Regional Vice-President Frank Spinosa at TD Bank’s corporate offices in Fort Lauderdale. At that meeting, Spinosa allegedly vouched for both Rothstein and the safety of the Coquina’s investments.

Also of interest, last week Spinosa’s counsel informed the parties in the RRA bankruptcy proceeding that his client intends to invoke his Fifth Amendment rights against self-incrimination and will refuse to answer deposition questions.

This is the case that keeps on giving...

In other news, Rumpole is railing on Justice Scalia because he dissented in the Graham case yesterday. What Rumpole doesn't tell you is that Scalia also dissented in United States v. Comstock, in which the Supreme Court said that federal law allows a district court to order the civil commitment of a mentally ill federal prisoner beyond the date he would otherwise be released. Scalia said that Congress didn't have authority to pass such a law under the necessary and proper clause. He's not perfect, but Scalia is the best friend a criminal defendant has in the Supremes.

Monday, May 17, 2010

Heroes vs. Villians

Update-- I guess this is Justice Kennedy day. Today he wrote for the Supreme Court that a life sentence for a juvenile was unconstitutional where the defendant did not commit murder. He cited evolving standards of decency and also world standards. It's a fascinating read, especially in light of his comments on Friday regarding empathy and sentencing. More to follow.

Justice Kennedy doesn't like to pick sides or call himself the swing voter. On Friday, I posted John Pacenti's coverage of Kennedy's speech to the Palm Beach County Bar Association. His quote about being the swing voter is traveling around the blogosphere: "It has to me the imagery of these wild spatial gyrations. I don't swing around the cases. They swing around me. My jurisprudence is quite consistent."
In addition to Pacenti, the Palm Beach Post covered the talk here and the Palm Beach Daily News here:

"The Constitution doesn’t just belong to a bunch of judges and lawyers — it’s yours,” he told the students. “The principles of the Constitution and of freedom must be taught ... That’s how our heritage is handed down from one generation to the next.”
Kennedy told the group about a friend of his who had been an appellate judge for six months, when he listened to an argument from an attorney about how the trial judge had erred. The attorney closed his argument by saying the trial judge was new and had only been on the bench for three months.
“My friend leaned over and said, ‘It may interest you to know I’ve only been on this bench for six months,’” Kennedy said. “And without missing a beat, the lawyer said, ‘It’s surprising, your honor, how much a judge can learn in 90 days.’”
While speaking before a group of attorneys and judges, Kennedy was asked how he reads the enormous amount of briefs.
Kennedy told them he sometimes takes difficult cases home to read as he listens to opera music.
“I sometimes have one-opera cases and sometimes two-opera cases,” he said. “An attorney in the room raised his hand and said, ‘I have a rule like that when I write those briefs. I have a one-six-pack brief and a two-six-pack brief.’”

Friday, May 14, 2010

Justice Kennedy speaks to PB Bar Association

John Pacenti has the details here. The whole thing is definitely worth a read, but here is a part:

Under Chief Justice John G. Roberts, Kennedy voted with the majority 92 percent of the time in the 2008-2009 term. On the 23 decisions decided by 5-4 votes, Kennedy was in the majority in all but five. “I don’t swing around the cases. They swing around me,” he said. “My jurisprudence is quite consistent.”

In one of his many jokes during the speech, Kennedy was asked what makes an “activist court.” He replied, “An activist court is a court that makes a decision you don’t like.”

But Kennedy also was serious. He said it’s important to teach the young about the Constitution and its importance because the law in other countries is considered a threat, not a blessing for society.

When asked if empathy has a place in judicial rulings at the highest levels, Kennedy said absolutely. He said prison sentences in the United States are eight times longer than in other Western countries for the same crimes.

“If lack of empathy means you close your eyes to the law’s decree, that’s just silly,” Kennedy said. “Capital defendants in a single windowless 12-by-8 cell for 20 years waiting for their sentence. You are not supposed to know this when you are a judge?” He said mandatory minimum laws passed by state legislatures are cost foolish and have created a failing penal system. In conclusion, Kennedy said he expects the dynamic to change among justices when Kagan, if confirmed, joins the court. “It’s a new table. It’s a new court,” he said.

It's Friday!

Took a quick trip to the Middle District yesterday. I think I can fly to Tampa, drive to the Pinelas county jail, see my client, drive back to the airport, and fly back to Miami quicker than I can walk across the street to FDC and see a client there.

I know this is off-topic, but this is too good to pass up -- from the Miami Herald: "Principal tells parent to 'eat s--- and die'." Whoops! The dreaded e-mail mistake where you hit reply instead of forward.

If you haven't had enough Kagan coverage, here's what Tom Goldstein says are 3 overlooked issues:

First, as Nina Totenberg first reported, Kagan signed this letter in 2005 strongly protesting Lindsay Graham’s amendment to limit the Guantanamo Bay detainees’ access to federal courts. This is far more direct evidence of Kagan’s views on executive powers in foreign affairs than the isolated statement in her confirmation hearings that has been invoked as supposedly showing her support for Bush-era policies. The letter should assuage liberal opponents, but raises the question whether Graham and other moderate Republicans may vote against her.

Second, as the New York Times reported, Miguel Estrada unambiguously endorsed Kagan’s confirmation. Estrada is a hero of conservatives, given his treatment when he was nominated by President Bush to the D.C. Circuit. The endorsement gives Democrats and the White House ammunition to argue that Republicans are simply playing politics.

Third, as Jim Oliphant reported, Kagan signed a memo while working in the White House stating that President should sign an assault weapons ban. And as Greg Stohr of Bloomberg has reported, while clerking for Thurgood Marshall, Kagan wrote that she was “not sympathetic” to the claim that the District of Columbia’s handgun ban violates the Second Amendment; that is the claim the Supreme Court accepted in the Heller case. Both statements by Kagan reflected the position of her employers – the White House and Justice Marshall – and her brief statement as a law clerk about the Second Amendment claim (literally a single short sentence) represented the view of every court of appeals. But those statements will almost certainly be enough to cause the NRA, with its considerable influence, to formally oppose the nomination.

Wednesday, May 12, 2010

Old debate pops up again

Jay Weaver is reporting that Judge Lenard didn't accept the plea deals in a health-care fraud case in which patient files were sold to personal injury lawyers. Judge Lenard is concerned that the punishment agreed to does not fit the crime:

Ruben E. Rodriguez, the ringleader, would face up to 12 years in prison. His wife, Maria Victoria Suarez, 52, would face up to five years.
``These charges are much too serious -- much too serious for our community,'' Lenard said. ``Violations of the law in the healthcare industry have become too much the norm [in Miami-Dade]. There are real victims here.''
Rodriguez, 62, who attended the hearing in a wheelchair because of poor health, has pleaded guilty to two conspiracy offenses and aggravated identity theft.
He admitted he stole Jackson records of patients' names, addresses, telephone numbers and medical diagnoses and sold them to several attorneys in exchange for kickbacks. He also admitted stealing records from an ambulance company dating back to 1995.
In exchange for the confidential information, lawyers paid Rodriguez hundreds of thousands of dollars after settling injury claims on the patients' behalfs, prosecutors say. One unidentified personal-injury attorney wrote 27 checks totaling $85,250 to a shell company incorporated by Rodriguez between 2006 and 2009.
On Tuesday, Lenard said she could not decide whether to accept Rodriguez's guilty plea until she reviewed sentencing guidelines for his offenses to make sure the penalties were tough enough.

We've discussed before the issue of whether judges should be able to reject plea deals -- the last time it came up was in the Robles case:

Query -- does a federal judge have the power to reject this sort of deal? Because this is a charge bargain deal, can't the government just dismiss the other counts on its own, leaving only the ten year maximum count? I think the real question is whether the government will have the heart to do this after Judge Gold has said he will not approve the deal. If in our adversarial system of justice the prosecution believes that a deal is fair, should a judge step in?

From another post on the subject:

The Louis Robles case has pitted prosecutors against the judiciary. The government and the defense had worked out a deal for Robles -- 10 years in prison plus restitution -- and that deal had the blessing of the receiver and almost all of the victims.Judge Gold, however, won't accept the deal, saying it's too lenient. The government recently filed a 16 page motion for reconsideration explaining why the plea made sense. Judge Gold denied that motion, which now leaves the government with two choices. It can try a case that neither party wants to try. Or it can dismiss the counts that carry more than a 10 year maximum, leaving Judge Gold with no choice but to sentence Robles to 10 years, even after a trial.Oftentimes, defense lawyers complain that sentencing is driven by prosecutors and that it should be left to judges to sentence, not executive officers. In this case, prosecutorial discretion is important in capping the sentence.Any thoughts on what the U.S. Attorney's office should do? Should they defer to the judge or stand up for their position?

What do you all think of this issue?

Tuesday, May 11, 2010

Joe Cool conviction affirmed...

... in a short non-published opinion, without oral argument. It seems to me that an appellate court should at least have oral argument after a trial that results in a life sentence. I mean, it's just a half an hour to hear argument. Just saying.

In other 11th Circuit news, the court found that a district court errs by admitting a defendant's MySpace page. But, of course, it was harmless, and the defendant's conviction and sentence (of 2005 months) was affirmed. From the opinion:

The MySpace evidence is not evidence of identity: that is, evidence that Phaknikone robbed
banks like a gangster. The subscriber report proved nothing more than
Phaknikone’s nickname, the only name by which Lavivong had already testified he
knew Phaknikone. The profile photographs accompanying the subscriber report
and the photograph of Phaknikone and his ex-wife at a social event offer nothing to
support a modus operandi about the bank robberies. The photograph of a tattooed
Phaknikone, his face completely visible, in a car, holding a handgun sideways in
his right hand, and with a child as a passenger, proves only that Phaknikone, on an
earlier occasion, possessed a handgun in the presence of a child. Although the
photograph may portray a “gangster-type personality,” the photograph does not
evidence the modus operandi of a bank robber who commits his crimes with a
signature trait. The MySpace evidence is not evidence of a modus operandi and is

inadmissible to prove identity.

Because the MySpace evidence fails the first requirement of the Miller test,
we need not address its second and third requirements. The MySpace evidence is
classic evidence of bad character, which was offered by the government to prove
only “action in conformity therewith.” Fed. R. Evid. 404(b). The government
wanted the jury to infer that, because Phaknikone is willing to publish these kinds
of photographs online, under an incendiary alias, he is a gangster who is likely to
rob banks. The district court abused its discretion by admitting the MySpace

I have always wondered what would happen if a district court read this opinion and then said -- well, I know it's error, but it's harmless so I will admit it.

The comments were active yesterday in the debate about the probation office. Good stuff.

Monday, May 10, 2010

It's Elena Kagan

That's the (leaked) word from last night and this morning. Tom Goldstein called it months ago and his coverage over at ScotusBlog is unbelievable. Here's Tom's summary of his recent posts, but there's a whole lot more over there:

1. On February 23, I wrote explaining that Justice Stevens would retire, Justice Ginsburg would not, and the President would nominate Elena Kagan to fill the Stevens seat. Most of the post is devoted to discussing why the President would choose her over other candidates.
2. After Stevens’ retirement, on April 27, I returned to the selection,
explaining that I continued to believe that the President would select Kagan, albeit for reasons that had less to do with electoral politics than was true in February.
3. On Saturday, we published a
very extensive piece on Kagan, discussing both her professional history and claims made for and against her, as well as the breakdown of likely votes in the confirmation process.
4. Earlier this evening, before the announcement leaked, I
discussed at length both the likely confirmation process and the substance of the ten principal issues that will be debated by her defenders and opponents.

Item #3 is a 10,000 word essay about Kagan. If you have some time today, it's worth skimming.

In other news, the DBR (John Pacenti) covers the debate about whether PSIs are really needed after Booker. Professor Rick Bascuas said this: "Today's federal probation officers see themselves primarily as law-enforcement agents rather than agents of mercy." Rick has written extensively on the issue here.

Friday, May 07, 2010

This can't be true, can it?

According to the JAABlog, a Broward judge said: "If the jury comes back not guilty, I'm going to slit my throat" in a DUI case: "Luckily for the Judge's throat, they did come back guilty, after which the defense attorney successfully disqualified Ireland from further proceedings. Now it's up to another judge to read the trial, and sort out a bunch of messy issues. Not to be outdone, another county judge was recently overheard commenting how people of Mexican descent 'love beer.' Only in Broward, baby!" This can't be true, can it?

Tons of great coverage of the Supreme Court while we wait for Obama to pick Stevens' successor.

On why Stevens wears a bow-tie: "The truth is that I can't tie a four-in-hand." The rest of the Washington Post article is great.

SG Kagan had to deal with a dicey political question while at Harvard. Here's Professor Mnookin on how she decided not to fight the feds even though she believed the government was wrong: "Elena is very good at reading the lay of the land, at having a sense of who is where on what issue and what the art of the possible might be, who can be influenced, who cannot. In that sense of being political, she is extremely gifted. She’s very purposeful."

Kagan is also watching the honest services cases very closely. For the criminal practitioners out there, let's make no mistake -- if Kagan is selected, she will not be even close to as liberal as Justice Stevens on criminal justice issues.

Speaking of honest services cases, NACDL and the Heritage Foundation just issued a report explaining how Congress is continuing to criminalize too many acts and is doing so without including a mens rea element. The entire report "How Congress is Eroding the Criminal Intent Requirement in Federal Law" can be read here.

Wednesday, May 05, 2010

Pictures Pictures Pictures

I know you all are upset with me -- I missed Star Wars day yesterday (May the 4th be with you). So, I won't miss Cinco de Mayo today...

Another day, another attack on JAABlog and Bill Gelin, this time from a lawyer upset with a picture he posted. Here's the basic question -- do the Florida Bar Rules apply to lawyer-run blogs? And if so, did Gelin violate any rules by posting the picture? Bob Norman (and now SFL and Rumpole) have weighed in. I'm sure you can guess my opinion -- Gelin has nothing to worry about on this one. (Yesterday, I had picture day at the blog. True, they weren't like the one posted at JAABlog, but one of them included a state rep looking at naughty pictures. Do the Florida Bar Rules prohibit me from posting that picture? No way.)

Okay, back to the news of the blog. Tony Mauro wrote an article about minority clerks. Our own Judge Martinez is quoted:

Judge Jose Martinez of the U.S. District Court for the Southern District of Florida said that, in recent years, he has seen "way more [minority] applicants for clerkships — and they're getting better."
Recruiting minorities for clerkships has long been a challenge, Martinez said, because of missed educational opportunities and also because good candidates often have massive law school tuition debt to pay off. "We're competing for the top-notch minority lawyers with the big firms," Martinez said. "We have to show them it is a long-range benefit to be a clerk — it's a hell of a stepping-stone."
One helpful tool for doing that, Martinez said, has been the American Bar Association's 10-year-old Judicial Clerkship Program, which has provided hundreds of minority law students with internships that expose them to clerkship possibilities on both federal and state courts. The students see that "this is a viable thing for them to do," Martinez said.
But Judge Reggie Walton of the U.S. District Court for the District of Columbia said he has seen no recent increase in minority applicants for clerkships. "I don't receive the numbers I would like," he said. "They have so many other opportunities to make a lot more money than you can make as a law clerk."
Walton, who generally looks for applicants with a couple of years of law firm experience, said it is nearly impossible to hire minorities away from high-paying firms when he can only pay clerks less than $80,000 a year and when the firms are making "a big push to keep them on board." A recent clerk, Walton said, took a $100,000 pay cut from a major Washington firm to clerk for him.
Walton, himself an African-American, added that, with females outnumbering males among black law students, "the most difficult demographic to attract is the African-American male. The disparity is stark."

Monday, May 03, 2010

Monday morning...

Feels like summer is here, no?

SFL already has posted on the FBA BABC. It was a good event. Tons of people showed up, and most of the judges were there. Big shout out to Adam Rabin and Brian Spector for their hard work. From the criminal bar perspective, I thought it was interesting to see the prosecutors and criminal defense lawyers engaging each other on a variety of topics, including sentencing, discovery, cooperating witnesses, and so on. I got a lot out of it. To the left is one such discussion taking place. Good stuff...
Today is Willy Ferrer's first day on the job. Should be interesting to see how things shake out...