Thursday, June 28, 2012

The Health Care Ruling is a Big win for....

...the Supreme Court. 

The Chief Justice, by joining the left and upholding the law, saved the Supreme Court from being looked at as only a political body.  If it would have struck down the ACA on political 5-4 voting lines, it would have been Bush v. Gore all over again (which was the Rehnquist Court, not the Roberts Court), and the Court would have been delegitimized.  But now, even though Republicans and Democrats will fight over this in the upcoming elections, the Court will be seen as more neutral than in the past.

"It's our Super Bowl."

That's how Tom Goldstein describes today on the live blog over at SCOTUSBlog, which is worth headed to right now. 

I'm actually very excited to see what the Court does on the lying about a military honor case...

I'll hopefully post something this afternoon with some discussion about the cases today.

UPDATE -- the reason you should have been at SCOTUSBlog instead of CNN is that CNN reported "Individual Mandate Struck Down" for about 6 minutes before realizing its mistake.  So bad.  Goldstein, Howe & Company got it right from the get go.  Bloggers are better than MSM....

UPDATE 2 -- Here's the lengthy healthcare opinion.

P.S. Valor Act struck down...

Tuesday, June 26, 2012

Judge Robin Rosenbaum confirmed!

92-3 by the Senate. Well done and congratulations!

Update-- to answer the questions in the comments, per Glenn Sugameli, the only No votes (GOP Sens. Lee [UT], DeMint [SC] and Paul [KY]) were from those who have been continuing to vote NO on all judicial nominees in protest of three President Obama Executive branch nominees

11th Circuit decides whether the "act of masturbating while sitting beside another person ... satisf[ies] the 'with another person' requirement of the statute."

It does not.  The Federal Public Defender's office deserves a hand for this win.

The facts of USA v. Randolph Scott:

In a one-count information, the government charged Scott with “knowingly
attempt[ing] to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person . . . .” Scott pleaded not
guilty and the parties consented to a bench trial before a magistrate judge. At trial,
the government called Lauren Wyscaver as its only witness. She testified that she
was sitting in a chair in the waiting room of Miami Veterans Affairs Hospital
when Scott approached her and asked if he could sit in the chair next to her. She
agreed, and the two began talking about their respective military service, why they
were at the hospital, and the weather. There were four or five other people in the
waiting room, which had approximately 20 chairs.

According to Wyscaver, within the first few minutes of their conversation,
Scott “tried to touch [her] ankle, but [she] pulled away.” Wyscaver became
uncomfortable and started to ignore Scott, but he continued talking to her. Scott

told Wyscaver that he thought she was pretty and offered to pay her to give him
her phone number. Wyscaver testified that Scott then, as “nonchalantly as you can
do it,” reached down into his pants and started masturbating. “Once he did that,”
she said, “I sat up and I walked into the nurse’s triage room because I was
frightened.” Wyscaver eventually reported Scott’s conduct to a security guard.
Based on that evidence, the magistrate judge concluded that Scott had
attempted to “masturbat[e] or fondl[e] himself with another person who is”
Wyscaver. For that reason, the magistrate judge ruled that Scott had violated the
Assimilative Crimes Act by attempting to commit an “unnatural and lascivious act
with another person” in violation of Fla. Stat. Ann. § 800.02. The magistrate
judge sentenced Scott to 68 days in prison, followed by one year of probation.
The district court affirmed his conviction and sentence, and Scott now appeals
only his conviction.

So what did the court decide:

The government argues that Scott was masturbating “with” Wyscaver
because “he was sexually attracted to her” and because he stared at her while
masturbating. But the “with another person” element of section 800.02 is not
satisfied simply because a defendant is sexually aroused or erotically inspired by
another person. If mere arousal or inspiration were enough, Conforti would have
come out the other way. Nor does the fact that a defendant stares at another

person while committing an act mean that the defendant committed that act with
another person.
Even viewing the evidence in the light most favorable to the verdict, there is
insufficient evidence to support the conclusion that Scott “knowingly attempt[ed]
to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person,” which is what the
information alleged. A reasonable factfinder could not have found that Scott was
masturbating “with another person” within the meaning of section 800.02.

Well, there you go -- staring at another person doesn't mean you committed an act with that person.

Putting aside all of the funny one-liners, can someone please explain to me why the feds brought this case in the first place, which is unlike the ICE chief, Anthony V. Mangione who is apparently set to plead guilty.


Monday, June 25, 2012

Where will you be this morning?

At the Heat Parade?

Or at ScotusBlog live blogging the Supreme Court opinions as they come out?

Should be a very exciting Monday morning.

If you are bored waiting for either, here's a good piece about Scalia's dissents.  Some highlights:

Morrison v. Olson (1988): The Court voted to uphold the Independent Counsel Act; Scalia was the only dissenter.
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

PGA Tour, Inc. v. Martin (2001): A lawsuit brought by the disabled golfer Casey Martin, who wanted to be allowed to ride in a golf cart between shots, something that the P.G.A. prohibited at the time. The Court ruled in Martin’s favor.
If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

And here's a picture of the police in front of the federal courthouse this morning:

 I feel much safer!

Friday, June 22, 2012

Robin Rosenbaum's vote set for Tuesday

At 11:00am on Tuesday, June 26, the Senate will proceed to the consideration of Executive Calendar #652, the nomination of Robin Rosenbaum, of Florida, to be United States District Judge for the Southern District of Florida.  There will be 30 minutes for debate prior to a vote on confirmation of the nomination. Senators should expect the vote to begin at approximately noon on Tuesday.


Hat Tip -- Glenn Sugameli.

Thursday, June 21, 2012

Crack, Fines, & the Supreme Court

No health care opinions, but two criminal law opinions today, both favoring the defense.  From ScotusBlog:

We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases.  The opinion is by Breyer.  The Seventh Circuit is vacated and remanded.  The vote is 5-4.  Justice Scalia dissents, joined by the Chief and Alito and Thomas.
The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes.  Dorsey and Hill have the more traditional line-up that we have come to expect in 5-4 cases.
The full opinion is at this link.

Re Fines and Apprendi:
Justice Sotomayor has opinion. The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3. Justice Breyer dissents, joined by Kennedy and Alito.
The full opinion is available at this link.

Wednesday, June 20, 2012

Don't drink the Thallium

From the 11th yesterday in Trepal v. Florida, a death penalty case:

In 1991, a Florida jury convicted Trepal, a sophisticated chemist and Mensa member, of murdering his neighbor Peggy Carr and attempting to murder six other members of Carr's family. Trepal poisoned the victims by adding the toxic element thallium to bottles of Coca-Cola in the Carrs' home.

Trepal’s trial lasted a month, with more than 70 witnesses together providing overwhelming evidence of Trepal’s guilt. For example, several independent witnesses chronicled Trepal’s long-running conflicts with and animosity toward the Carr family. Evidence established Trepal’s extensive
knowledge of chemistry, as well as his possession of chemistry laboratory equipment, a number of toxic chemicals, and a homemade journal on poisons and poison detection in human organs. Finally, multiple experts uniformly testified that (1) the victims were poisoned by thallium, (2) thallium was found in both the empty and unopened Coca-Cola bottles in the victims’ home, and (3) thallium was found in a brown bottle in Trepal’s garage. Thallium is a heavy metallic element that is both rare and toxic to humans. When dissolved, it is odorless and tasteless. A lethal dose of thallium is approximately 14 milligrams per kilogram of body weight, which for an average person is around 1 gram of thallium.

The appeal involves fascinating Giglio claims regarding the FBI chemist, but in the end, the court finds them harmless.  Harmless error regarding a lying chemist in a death penalty case seems like a hard (thallium?) pill to swallow.

Monday, June 18, 2012

Roger Clemens acquitted

Congrats to Rusty Hardin and his team for this great result.  I wonder if the Feds are starting to get the message that these sorts of cases (Clemens, John Edwards, etc) are a waste.  The federal government used to bring the biggest and most serious cases and leave the rest to the discretion of the States.  Now, it seems, the feds bring anything they can bring -- big or small, important or not.  If Republicans are as serious about small government as they claim to be, then I would think they should push to reduce the machinery of the federal criminal justice system. 


For all the credit Lebron is getting this post-season, he's not getting enough.  He's put the Heat on his shoulders in the playoffs.  Wade has been average.  Bosh has been hurt and hasn't been 100% since he's been back.  Miller can't hit the side of a barn.  The only role player doing anything is Battier.  Lebron has really been unstoppable. 

My personal email account (Hotmail) got hit with a virus this weekend.  What a pain.  How does that happen anyway?  I'm trying to figure out how to stop it in the future, but the advice on the net (change your password often and check your computer for viruses) doesn't seem like it will prevent the hack.

We're nearing the end of the SCOTUS Term.  Here are the remaining cases to be decided, which obviously includes the health care cases.  I'm betting that Michael Caruso gets cert in the Padilla case.  We'll see...

Rajat Gupta was convicted pretty quickly.  The over-under line on his sentence is ten years.  Any bettors?

For those who are bored and looking for some summer reading, check out this NY Times article about a guy who crossed Niagra on a wire.  If you are looking for a good beach book, try Ender's Game, which I just finished and recommend. 

Thursday, June 14, 2012

Wednesday, June 13, 2012

"When in doubt, affirm."

That's what Judge Moreno told Judge Jordan at his investiture yesterday, to much applause and laughter. Justice O'Connor spoke, as did Judge Dubina and U.S. Attorney Willie Ferrer.

Meantime, big news in the District. The U.S. Attorney's office has dismissed its case against Irfan Kahn, a case originally assigned to Judge Jordan but transferred to Judge Scola. Kahn was represnted by Federal Public Defender Michael Caruso and AFPD Sowmya Bharathi. Here is the press release from last year from the U.S. Attorney's office, which discussed taking down the Pakistani Taliban. There was much fanfare, including news reports around the world (and on this blog). Here's the NY Times article from last year detailing the arrest.

I wonder what press there will be about the dismissal.

Tuesday, June 12, 2012

Adalberto Jordan to be invested

It's today at 3:30 at the Wilkie Ferguson Jr. Courthouse and it's going to be packed.  I hear there are at least 3 overflow courtrooms set up.  How big will his Supreme Court investiture be?

Some other good news to report -- Wilkie Ferguson's son, Wilkie Ferguson III, is pictured below holding the Tony Award for best revival of a musical for 'Porgy and Bess,' which he currently appears in on Broadway. Very cool.

Monday, June 11, 2012

Ho hum Monday

School's out, camp started, and the Heat made the Finals (take that Rumpole!).

Other than that, the SDFLA is pretty quiet.

-- Clarence Thomas is now taking the position that oral argument should be done away with altogether (via Charlotte Observer):

Earlier, Sentelle and Thomas discussed the law before a luncheon audience at the Charlotte City Club. Somebody asked Thomas what he’d change about the process.
Do away with oral arguments, he said.
Thomas hasn’t spoken during the high court’s oral arguments for more than six years.

Read more here:

-- Paul Clement guards his oral argument prep time "jealously."

-- The WSJ blog reports that Rajat Gupta will not testify even though his lawyers said in open court on Friday that it was "highly likely."  Anything wrong with making the prosecutors work over the weekend to prepare the cross even though Gupta probably knew before the weekend that it was highly likely that he was going to take the stand?

Friday, June 08, 2012

Alicia Otazo-Reyes...

... will have her investiture today at 3pm in the new courthouse on the 13th Floor. 

Congrats to Judge Otazo-Reyes!

Does anyone miss, like I do, the investitures in the courtyard of the Dyer building with Christy's catering?

Thursday, June 07, 2012

Trust us!

That's the message from Deputy AG James Cole's testimony before the Senate Judiciary Committee yesterday, in which he speaks out against Sen. Murkowski's (R-Ala) bill to require more disclosure under the federal criminal discovery rules.  Here are his comments.

In addition to the "trust us" argument (who needs changes to the rules when the internal guidelines say disclose!), the DOJ resorts to the unfortunate fear argument.  People will DIE if the discovery rules are changed.  The argument gets absurd:

Legislation requiring earlier and broader disclosures would likely lead to an increase in such tragedies.   It would also create a perverse incentive for defendants to wait to plead guilty until close to trial in order to see whether they can successfully remove identified witnesses from testifying against them.
 Really?  This is why prosecutors shouldn't be required to disclose Brady and Giglio well in advance of trial -- because defendants are going to wait to see if the witnesses are killed?

I've spoken out before about the need for discovery reform. But I never thought we'd see this sort of argument.  I hope that the Senate sees through it.

Wednesday, June 06, 2012

Judge Altonaga orders new trial for e-discovery violations

For a long time, it was impossible getting critical discovery from the government.  Now many prosecutors are taking the opposite approach -- overload the defense lawyer with mountains of discovery without identifying what is relevant or important.  This happened in a recent trial before Judge Altonaga, where the prosecutor disclosed unusable electronic discovery to the defense (led by a wonderful lawyer, Sabrina Puglisi, who was appointed). 

When the defense disclosed what it would be arguing at trial, the government used a computer expert to extract "Skype chats" that couldn't be seen by simply opening folders or searching on the computer.  They had to be extracted by an expert.  After the defendant testified, the government disclosed a 214 page log of the chats to the defense and called its expert in rebuttal.  The defendant was convicted.

Judge Altonaga ordered a new trial (here's the order):
The Government never advised the defense of the existence of the information obtained by Agent Etter. It simply never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed. It did not turn over the communications until the morning of its expert’s testimony, near the end of the trial. As the Defendant explains in his Reply [ECF No. 207], "[production of something in a manner which is unintelligible is really not production." (Id. 3). This is not like the cases cited by the Government in its Response [ECF No. 204] or Surreply [ECF No. 210], where courts have consistently refused to require the Government to identify exculpatory or inculpatory evidence within a larger mass of disclosed evidence. This case brings to the fore the challenges presented when electronically stored information is produced in discovery.

Commenting on the implications of criminal ESI production, the court in United States v. Briggs recently observed that while the Federal Rules of Civil Procedure need not be adopted as the standard for production of criminal ESI, the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii) should apply and the Government be required to produce ESI in a reasonably usable form. See No. 10CR184S, 2011 WL 4017886, at *8 (W.D.N.Y. Sept. 8, 2011). If, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial.

The Court witnessed the damaging impact the Skype communications had on Stirling’s credibility. His testimony was largely discredited without opportunity for rehabilitation or for the selection of a reasonable defense and trial strategy by counsel. Consequently, the interest of justice requires that he be afforded a new trial where he and his counsel can make an intelligent decision regarding whether and how he should testify.
This is an important ruling by a judge who understands the difficulties that are presented by e-discovery in federal criminal cases.  A number of cases around the country have started saying, like Judge Altonaga, that e-discovery in criminal cases must be produced in a reasonably usable form.  Not only did the government not do that in this case, but then it didn't even confront the defendant with the material and waited until rebuttal to use it. 

Big congrats to Sabrina Puglisi for the big win and bringing this issue up in this District.

Meantime, Rumpole has all of the coverage of Bill Matthewman's big win in a state murder case yesterday.  What a sweet way to head into his new life as a magistrate.  He gets to end his trial practice with a huge NG.  Well done.

Monday, June 04, 2012

"Their conduct was outrageous, disgusting, abhorrent. [I] would go so far as to describe it as being the most outrageous in … 25 years on the bench."

That was Judge Turnoff in the contempt hearing of two lawyers whose conduct has gone from bad to worse.  The Sun-Sentinel has the details here.  From the end of the article, explaining Paul Petruzzi's efforts to get his client's money back:
While it looked as if Turnoff might lock up Mayas because of his actions, the judge stopped short of that on Friday. Instead, he ordered Mayas to report daily to pre-trial release officers, surrender his passport — and hire a lawyer who is qualified to represent him in federal court.

The judge gave both sides 10 days to file legal arguments about the contempt issue, and indicated he expects to see Mayas and Roy together in his courtroom very soon so he can hear the full story.

Outside court, Petruzzi said he suspects “pigs will fly” before his client gets any money from Roy or Mayas or they pay Petruzzi's $7,500 — and rising — bill, as ordered by the judge.

“But I'm not going to stop until we do [get the money], because it's wrong,” Petruzzi said. “Neither of these guys ought to be practicing law anywhere.”

Meantime, the Ninth Circuit is trading jabs in a mining case of all things.  From the WSJ blog quoting from the dissent:
“No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.
“Unfortunately,” he added, “I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role.”
Last week was a good one for Mike Tein.  He was cleared by the Bar and his client in a lengthy medicare fraud case was found not guilty of two counts and hung on another.  The Miami Herald covers the case in which the DOJ prosecutor, Jennifer Saulino, obtained guilty verdicts for the other defendants:
The 12-person Miami jury convicted psychiatrists Mark Willner of Weston and Alberto Ayala of Coral Gables, the medical directors for American Therapeutic Corp., for their roles in a $205 million scheme to fleece the taxpayer-funded program for the elderly and disabled. The jurors found them not guilty on other healthcare fraud offenses.
In addition, the jury convicted Vanja Abreu, Ph.D, program director for American Therapeutic in Miami-Dade, of the same healthcare-fraud conspiracy offense, and two other defendants, Hilario Morris and Curtis Gates, of paying kickbacks to residential home operators in exchange for providing patients.
However, the jurors, who deliberated for five days after a nearly two-month trial, could not reach conspiracy verdicts against Lydia Ward, Ph.D., program director for American Therapeutic in Broward, Nichole Eckert, a Fort Lauderdale therapist, or Morris and Gates. Justice Department lawyers said they plan to retry those defendants on the deadlocked counts.

Read more here:
  One final note -- the NY Times has this op-ed about federal judges writing their own opinions:

THERE is a crisis in the federal appellate judiciary. No, I’m not referring to the high number of judicial vacancies or overloaded case dockets — though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I’m talking about the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work.
With so much news and controversy about what federal appellate judges say in their opinions, it would be natural for a layperson to assume that such opinions actually come from judges’ own pens (or keyboards). But ever since the beginning of the law-clerk age, which dates back at least 70 years, most judges have been content to cast their vote in a case and then merely outline the shape of their argument — while leaving it to their clerks to do the hard work of shaping the language, researching the relevant precedents and so on. Almost all federal appellate judges today follow this procedure. 
There is also the matter of intellectual integrity. Put simply, it cannot be accepted as legitimate that judges can put their names on opinions that they did not write. It’s not quite plagiarism, but it puts me in mind of the product known in the academic world as “managed books”: a professor will use research assistants to not only research a project but also write a first draft — but nonetheless the professor claims the work as his own. The managed books approach has been condemned as an affront to intellectual integrity. There is no principled reason the judicial counterpart should not be similarly condemned. I am reminded of Henry J. Friendly, the great judge of the Second Circuit, who explained that he wrote his own opinions because “they pay me to do that.”
Younger members of the judiciary need to take a hard look at themselves and ask how what they are doing stacks up against the known examples of judging at its highest level — not just Judge Posner and his contemporaries who write, but also gifted writers among judges of earlier eras like Learned Hand and Oliver Wendell Holmes Jr. The next generation will need to accept the opportunities and challenges of appellate judging and dare to do all the work that befits a judge.
 I think the piece way overstates the "crisis" about this issue...  But what do you all think?