11th Circuit update

Thanks very much to JANE MOSCOWITZ for this guest post:

Richard Strafer and Howard Srebnick had a big win in the Eleventh Circuit this week in United States v. Kaley. Judges Marcus, Wilson and Tjoflat reversed and remanded the district court's decision not to permit the Defendants to challenge the pretrial restraint of assets they wanted to use to hire their counsel of choice, Howard Srebnick and Susan Van Dusen. Judge Marcus wrote that the Court was bound by United States v. Bissell, 866 F.2d 1343 (11th Cir. 1989), which held that a defendant is only entitled to such a hearing if he meets the Barker v. Wingo balancing test. Here, clearly believing that there should have been an evidentiary hearing, the Court determined that the trial court had failed correctly to balance the Defendants’ assertion of their right to a hearing and the prejudice to them of its denial. Judge Marcus especially noted the prejudice to the Defendants of being deprived of their counsel of choice, calling that a “powerful” form and “substantial source” of prejudice. The Court sent the case back for a correct evaluation of the factors to determine whether a hearing should be held.

Judge Tjoflat concurred in a separate opinion in which he held that Bissell should not apply because its use of Barker v. Wingo was “non-binding dicta.” Judge Tjoflat did not find the return of the indictment or the submission of an ex parte affidavit sufficient to determine whether the restrain was proper. He wrote that under the standard procedural due process test of Mathews v. Eldridge, an evidentiary hearing should be held ( a proposition with which Judge Marcus agreed) and should be held pretrial. The resolution of whether assets that are to be used for the payment of counsel of choice may continue to be restrained cannot wait for determination at the trial. He noted that, if the matter is carried along till trial, the “prosecutorial incentives increase the likelihood of an erroneous deprivation in the absence of a prompt hearing. A prosecutor has everything to gain by restraining assets that ultimately may not be forfeited. By doing so, he can stack the deck in the government’s favor by crippling the defendant’s ability to afford high-quality counsel. If the prosecutor can delay judicial oversight of the restraint until trial, he also has nothing to lose, as he does not have to dedicate any extra resources to defending his decision.”

Friday's notes

School's back Monday. To get you in the mood, here's a clip from Back to School:



The DBR reports that the mold lawsuit filed by Ted Klein's family has been dismissed by Judge Story. Apparently, you can only get $1,000 under the Federal Employees Compensation Act when death results from on-duty injuries of a federal employee. Readers, can this law be constitutional? That seems insane to me.

The UBS case keeps going and going and going. This time a banker and a lawyer have been indicted. Via Curt Anderson:

A banker and a lawyer from Switzerland were indicted Thursday on fraud charges for allegedly helping rich Americans evade taxes by hiding assets in Swiss banks, including UBS AG and a smaller Zurich-based institution.

Among the allegations in court documents against banker Hansruedi Schumacher, 51, and 42-year-old attorney Matthias Rickenbach is that they told a New York businessman they paid an unnamed Swiss government official a $45,000 bribe for information on whether the businessman's account would be revealed to U.S. investigators.

Schumacher and Rickenbach each face a single charge of conspiring to defraud the U.S., which carries a potential five-year prison sentence. Prosecutors said both men remain in Switzerland, and it wasn't immediately clear if they had U.S. lawyers to represent them.

The indictment comes one day after the Swiss and U.S. governments unveiled an agreement in which UBS will divulge names of some 4,450 wealthy Americans suspected of dodging taxes through secret bank accounts. Many of those people, and the bankers and attorneys who advised them, could also face criminal charges.

And from the last post, we're debating Plaxico Burress' two year sentence in the comments. Go post your thoughts.

Quick Poll

I had a lengthy debate with some friends today about whether Plaxico Burress' sentence was the right result or not. (If you aren't familiar with the case, here's some background).

Settle a score for us and vote:

How do you feel about Plaxico Burress' two year sentence?
	Just right
	Too short
	Too long
pollcode.com free polls

Why Professor Dershowitz Rocks

The challenge. This time to Scalia on his dissent, blogged about a couple of days ago by one of our favorite readers:

I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings. He has done so, for example, with the great Rabbi Adin Steinsaltz, and with others as well. He also has debated me at the Harvard Law School. Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.
I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses—if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church—then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

Dersh is one of the best debaters around as is Scalia. I would pay an awful lot to see this matchup. Hat Tip: ATL.

UPDATE -- I just emailed with Dersh and asked him whether he had ever debated a Supreme Court Justice before and he said yes -- he debated Scalia in his class a few years back (he mentions that debate in the article linked to above). I also asked him what he thought his most famous debate was and he said probably his debate with Rabbi Meir David Kahane:



SECOND UPDATE -- A friendly reader points out that it is "interesting that the dissent which sparked the SCOTUS ruling was issued by a former Catholic nun (Judge Barkett)."

Order in Paris Hilton case

Judge Moreno ruled in Paris Hilton's favor on Monday (background here) -- she does not have to pay $8.3 million even though her film “Pledge This!’’ bombed. From Judge Moreno's order: “The court finds compelling evidence in the record that ‘Pledge This!’ lost money because the film’s inexperienced producers hastily cobbled together a wholly inadequate marketing plan.’’

But Judge Moreno's best case forever isn't over. He wants further briefing (and potentially a further hearing) on the issue of whether she has to repay any part of her $1 million compensation. Yay, more Paris Hilton in federal court.