In addition to the appointment of Tony Gonzalez (see post below), a few other items have come in today:
1. Congrats to Katie Phang, a wonderful lawyer in Miami, who now has her own show on MSNBC.
2. Jurors say that the push notifications they saw on their phones during deliberations about Judge Rakoff dismissing the Sarah Palin case did not affect their deliberations. This is where I would put the wide eye emoji if blogger let me do so.
3. The 11th Circuit en banc acted as a backup for prosecutors again in this 7-5 decision, saying that even if the government made a decision not to raise the good faith exception on appeal in a 4th amendment case, the court could still affirm on those grounds. Judges Newsom and Jordan pen a terrific dissent explaining that we have an adversarial system and that the court is supposed to adjudicate actual disputes. That's, of course, the normal rule... except when it involves the government as a litigant. Then the 11th Circuit must revert back to its two most important rules: Rule #1 -- never rule against the government. Rule #2 -- when in doubt, see Rule #1.
4 comments:
So because the en banc court reviews the district court's decision and judgment, not that of the panel (which, upon granting en banc review, is vacated), what is to stop a panel member in a case down the road from issue-spotting for the government, penning a concurring or dissenting opinion as the case may be highlighting and fully briefing the issue the government neglected to raise (or chose not to raise) before the panel, and then requesting an en banc rehearing poll in hopes of giving the government a second bite at the briefing apple, as though the prior briefing did not exist (because vacating the panel opinion magically vacates the briefing underlying it?). Nice mulligan opportunity, that.
Luck and Lagoa for the government.
Tjoflat typically loves to screw litigants by finding waiver, even when a party actually briefs an issue (but it just wasn't enough briefing). Now he gives the government a pass.
And check out this line from Pryor
"This appeal concerns when the Judicial Branch should intervene on behalf of a criminal to exclude indisputably reliable evi dence."
Well if you frame the issue that way . . .
tough truth is that judges don't see much difference between defendants and their lawyers
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