FECA matter

The government has moved to dismiss the wrongful death lawsuit filed by Ted Klein's family.

Julie Kay has the details here:

A wrongful death case brought by the children of a federal magistrate judge in Miami who they say died due to moldy conditions at a federal courthouse should be dismissed for lack of jurisdiction, the government is arguing. In a motion to dismiss filed on Nov. 28, attorneys for the Justice Department argued that the only remedy open to Andrew and Jennifer Klein, children of former Magistrate Judge Ted Klein, is the Federal Employees' Compensation Act. "The FECA was enacted to provide benefits to federal employees injured or killed in the course of performing their duties," states the motion. "It serves as the sole remedy against the United States for any on-the-job injury or death. Liah Catanese, an attorney for the Kleins at Alan Goldfarb P.A. in Miami, declined comment, saying their response would be laid out soon in a court document.

Any FECA experts out there? Is the government correct?

Could the CEO of Coca-Cola win dismissal of a suit that contends he personally put mice in soda bottles?

That's the hypo that Justice Breyer presented at a recent oral argument. From the ABA Journal, which has been providing great coverage lately:

The issue before the court is whether Javaid Iqbal’s suit against former Attorney General John Ashcroft and FBI director Robert Mueller is specific enough to withstand a motion for summary judgment, the New York Times reports. Igbal contends that after Sept. 11 he was put in jail where he was beaten and subjected to extreme temperatures and constant light. He pleaded guilty to identity fraud and was deported to Pakistan, but was cleared of any involvement in terrorism, according to the Washington Post.
Iqbal claims Ashcroft and Mueller formulated policies that singled him out because of his nationality and religion. Most of the justices who spoke appeared sympathetic to the government’s argument in favor of dismissal, report the Los Angeles Times and Legal Times. Only Justices Ruth Bader Ginsburg and David H. Souter spoke in favor of allowing the suit.
One of those appearing to side with the government was Justice Stephen G. Breyer, who advanced the mouse-in-a-bottle hypothetical. Breyer explained the hypo this way, according to a separate Legal Times story:
"Jones sues the president of Coca-Cola. His claim is the president personally put a mouse in the bottle. Now, he has no reason for thinking that. Then his lawyer says: 'OK, I'm now going to take seven depositions of the president of Coca-Cola.' The president of Coca-Cola says: 'You know, I don't have time for this; there is no basis. ... I don't want to go and spend the time to answer questions.' "
Breyer asked if the Federal Rules of Civil Procedure would allow dismissal. Solicitor General Gregory Garre said the suit could be tossed under Rule 8. He noted the Supreme Court 2007 decision in Bell Atlantic v. Twombly, which interpreted the rule as requiring plaintiffs to “show a plausible entitlement to relief."

Federal judges to get COLA if...

...the auto industry is bailed out. Thanks to a helpful comment, I see from the WSJ law blog that:

So this $14 billion bailout bill currently making its way through the halls of Congress stands mostly to benefit the U.S. auto industry. But it also, oddly, stands to benefit federal district judges.
Here’s why: The bill attaches an annual cost-of-living adjustment — or COLA — for federal judges, which, when implemented, will bring them in line with members of Congress, who get a $5,000 boost at the start of the year. District judges and members of Congress make $169,300. Here’s the AP story. Click here, here and here for other LB posts on the topic of judicial pay, which has been raging for years.
Senate Majority Leader Harry Reid, D-Nev., insisted that the judicial pay raise go into the bill. The Senate passed the judicial pay measure as a separate bill in November, but the House never acted. As a result, Reid has taken the unusual step of linking the obscure but important judicial pay issue to the unpopular auto bailout.
There is concern among many policymakers that judges are not paid enough relative to the importance of their offices, and in six of the past 13 years, judges have been denied their pay raise as lawmakers opted not to take their own COLA.

I will be candid with you. I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

While the Third DCA is bashing a juvenile judge, check out this bashing by Justice Souter of a lawyer who was arguing on Tuesday in the High Court. Ouch... You never really want to hear that your argument is "utterly irrational." From Adam Liptak's NYTimes article:

There were flashes of incredulity and anger from justices at the Supreme Court on Tuesday as they considered whether Tennessee prosecutors had committed misconduct in obtaining and defending a death sentence against a man who murdered a Memphis couple in 1980.
Gary B. Cone admitted to the murders, and the only defense he offered at his trial was that he had been in an amphetamine psychosis. Prosecutors worked hard to discredit the defense, calling it “baloney.” Years later, though, it turned out that prosecutors had withheld evidence from Mr. Cone’s lawyers that would have supported his claim.
Jennifer L. Smith, a lawyer in the state attorney general’s office, was vigorous in her defense of the prosecutors’ conduct. She said that they had no legal or ethical obligation to provide the information to the defense and that it would not have mattered anyway.
Justice David H. Souter, who served as the attorney general of New Hampshire early in his career, did not like those answers. “I will be candid with you,” he told Ms. Smith. “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
After Mr. Cone’s lawyers finally obtained the withheld evidence more than a decade after his conviction, prosecutors gave the courts a series of wildly inconsistent reasons for why Mr. Cone’s conviction and death sentence should not be re-examined in light of the new information. The issue had already been decided, they said. Or it had been presented too late. Or it had never been presented at all.
On this point, Ms. Smith was willing to acknowledge that prosecutors had made missteps. “We have confessed that there was an error by the state,” she said. But she seemed to place some of the blame on Mr. Cone, saying his lawyers had filed unwieldy and confusing papers.
"He buried all his good arguments,” Ms. Smith said of Mr. Cone.

Oh... It was the defense lawyer's fault for burying all those good arguments! Breyer wasn't buying it.

Justice Stephen G. Breyer said Mr. Cone’s briefs had been clear enough.
“Don’t you think,” Justice Breyer asked Ms. Smith, that Mr. Cone was “saying in his briefs: ‘I’ve been getting the runaround. First, they tell me it’s one thing; then they tell me another’?”

If we really want to solve the Brady problem, discovery rules in federal criminal cases need to be fixed. To see the absurdity of the federal criminal discovery, one need only compare it to federal civil discovery. The best prosecutors are the ones who say, I'll give you everything -- I have an open file policy. Those prosecutors typically have the strongest cases and get the most pleas from defendants. When non-lawyers hear that you find out the witnesses and exhibits on the first day of a federal criminal trial, they can't believe it. Their jaws drop when they hear that you get the prior statements of witnesses when the witness actually takes the stand. More and more, judges are forcing prosecutors to turn over some material earlier, which is helpful. But there should be more liberal rules about witness statements being disclosed (including summaries of those statements by agents), and witness and exhibit lists being disclosed.

Find me guilty

Sharhazad Mir Gholikhan is back in trial before Judge Cohn. You remember her -- she's the one who is accused of exporting night vision goggles to Iran. Bill Barzee represented her at her first trial where the jury could not reach a verdict. This time she is representing herself! Yesterday she conducted voir dire and did her opening in her prison khakis. When asked why she wouldn't wear civilian clothes, she responded that she had nothing to hide from the jury....

Here's the trailer from the movie Find Me Guilty, about a mobster who represented himself in the longest trial in U.S. history.