Judge Scola says no to unsafe courthouse

Thanks to a great tipster, I am able to report that Judge Scola said in a recent scheduling order that he will not be holding trials or hearings in the flooded courthouse.

From the order: "Until the unacceptable, unsafe, and unaddressed flooding and water-intrusion issues affecting the Fort Lauderdale courtroom assigned to this Judge are remedied, no trials or hearings will be held in Ft. Lauderdale.  Trials of Fort-Lauderdale-Division cases will be held in the Wilkie D. Ferguson, Jr. Federal Courthouse in Miami, Florida."

Trial lawyers will love the use of the trilogy.

Fun writing today in the 11th Circuit

It's Judge Pryor vs. Judge Jordan in this bank robbery case (USA v. Lonnie Whatley), and Judge Pryor starts off this way:

When asked why he robbed banks, legend has it that famed American bank robber Willie Sutton replied, “Because that’s where the money is.” Bryan Burrough, Books: The Robber’s Last Ride, Wall St. J., Sept. 29, 2012, at C6. Lonnie Whatley may have taken this advice to heart when he robbed four banks in the greater Atlanta area during 2003 to 2006 and attempted to rob another in 2007. In this appeal of his convictions for the robberies, Whatley asks us to resolve four
issues: (1) whether the admission of 14 in-court identifications of Whatley by bank employees violated his right to due process; (2) whether the district court abused its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery as evidence of a modus operandi; (3) whether the district court abused its discretion when it declined to grant Whatley a new trial after the parties discovered that the jurors had considered extrinsic evidence during their deliberations; and (4) whether the district court erred when it applied a four-level sentencing enhancement for abduction of the bank employees because Whatley ordered the bank employees to move around to different areas within the banks. 

We conclude that, based on the recent decision of the Supreme Court in Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716 (2012), which requires no preliminary examination for an identification not arranged by law enforcement officers, the admission of the in-court identifications of Whatley did not violate his right to due process. We also conclude that the district court did not abuse its discretion when it admitted evidence of Whatley’s conviction for the attempted bank robbery and that the district court did not abuse its discretion when it denied Whatley a new trial. But we also conclude that the district court erred when it applied the enhancement for abduction. We affirm Whatley’s convictions, vacate his sentence, and remand for resentencing with instructions to apply the two-level enhancement for physical restraint of the employees instead of the four-level enhancement for abduction.

Judge Jordan concurs in part and dissents in part, and has some great quotes and references in his opinion:

Procrastination is not generally seen as a good character trait, but in constitutional adjudication it can often be a virtue. In my opinion, we need not and should not decide the effect of Perry here because Mr. Whatley cannot prevail on his due process claim even under our pre-Perry precedent.
***
Nor does the evidence on Count 1 allow the government to discharge its burden. It is true, as the majority writes, that three bank employees identified Mr. Whatley as the perpetrator of the June 2003 robbery at trial. But these in-court identifications cannot be considered in a vacuum. To begin with, the identifications were made in 2010, seven years after the bank robbery in question, and it does not take a Nobel laureate in medicine to understand that “[t]ime’s the thief of memory.” STEPHEN KING, THE GUNSLINGER 161 (Signet rev. & exp. ed. 2003).

Maryland v. King decided 5-4, allowing DNA swabs on arrest

The Court, per Kennedy, says it's like fingerprinting and photographing.

Justice Scalia authors the dissent, joined by Kagan, Ginsburg, and Sotomayor.

The opinion is here.

The issue presented to the Court was: "Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes."

More to follow.

 In the meantime, check out SCOTOSBlog

UPDATE -- the intro of Scalia's dissent:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi nating evidence. That prohibition is categorical and with out exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work. 

And from the conclusion:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; 

then again, so would the taking of DNA samples from anyone who flies on an airplane 

(surely the Transportation Security Administration needs to know the “identity” of the flying public), 

applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic 

panopticon is wise. But I doubt that the proud men who wrote the charter of our

liberties would have been so eager to open their mouths for royal inspection.

Update to yesterday's post on flooding in the Broward Federal Courthouse

Acting Chief Judge Donald Graham sent the letter below on Wednesday to the GSA regarding the flooding.  You can read the whole back and forth, but GSA's position is absurd -- that the flooding will be fixed by February 2014.

Graham Letter Re Courthouse

You can see the videos from the courthouse here.

It's time for a new federal courthouse in Broward...

...because it's raining INTO the current courthouse.  Literally:

SHOCKING!

This is more than absurd; it's unsafe.