It's Friday!

Took a quick trip to the Middle District yesterday. I think I can fly to Tampa, drive to the Pinelas county jail, see my client, drive back to the airport, and fly back to Miami quicker than I can walk across the street to FDC and see a client there.

I know this is off-topic, but this is too good to pass up -- from the Miami Herald: "Principal tells parent to 'eat s--- and die'." Whoops! The dreaded e-mail mistake where you hit reply instead of forward.

If you haven't had enough Kagan coverage, here's what Tom Goldstein says are 3 overlooked issues:

First, as Nina Totenberg first reported, Kagan signed this letter in 2005 strongly protesting Lindsay Graham’s amendment to limit the Guantanamo Bay detainees’ access to federal courts. This is far more direct evidence of Kagan’s views on executive powers in foreign affairs than the isolated statement in her confirmation hearings that has been invoked as supposedly showing her support for Bush-era policies. The letter should assuage liberal opponents, but raises the question whether Graham and other moderate Republicans may vote against her.

Second, as the New York Times reported, Miguel Estrada unambiguously endorsed Kagan’s confirmation. Estrada is a hero of conservatives, given his treatment when he was nominated by President Bush to the D.C. Circuit. The endorsement gives Democrats and the White House ammunition to argue that Republicans are simply playing politics.

Third, as Jim Oliphant reported, Kagan signed a memo while working in the White House stating that President should sign an assault weapons ban. And as Greg Stohr of Bloomberg has reported, while clerking for Thurgood Marshall, Kagan wrote that she was “not sympathetic” to the claim that the District of Columbia’s handgun ban violates the Second Amendment; that is the claim the Supreme Court accepted in the Heller case. Both statements by Kagan reflected the position of her employers – the White House and Justice Marshall – and her brief statement as a law clerk about the Second Amendment claim (literally a single short sentence) represented the view of every court of appeals. But those statements will almost certainly be enough to cause the NRA, with its considerable influence, to formally oppose the nomination.

Old debate pops up again

Jay Weaver is reporting that Judge Lenard didn't accept the plea deals in a health-care fraud case in which patient files were sold to personal injury lawyers. Judge Lenard is concerned that the punishment agreed to does not fit the crime:

Ruben E. Rodriguez, the ringleader, would face up to 12 years in prison. His wife, Maria Victoria Suarez, 52, would face up to five years.
``These charges are much too serious -- much too serious for our community,'' Lenard said. ``Violations of the law in the healthcare industry have become too much the norm [in Miami-Dade]. There are real victims here.''
Rodriguez, 62, who attended the hearing in a wheelchair because of poor health, has pleaded guilty to two conspiracy offenses and aggravated identity theft.
He admitted he stole Jackson records of patients' names, addresses, telephone numbers and medical diagnoses and sold them to several attorneys in exchange for kickbacks. He also admitted stealing records from an ambulance company dating back to 1995.
In exchange for the confidential information, lawyers paid Rodriguez hundreds of thousands of dollars after settling injury claims on the patients' behalfs, prosecutors say. One unidentified personal-injury attorney wrote 27 checks totaling $85,250 to a shell company incorporated by Rodriguez between 2006 and 2009.
On Tuesday, Lenard said she could not decide whether to accept Rodriguez's guilty plea until she reviewed sentencing guidelines for his offenses to make sure the penalties were tough enough.

We've discussed before the issue of whether judges should be able to reject plea deals -- the last time it came up was in the Robles case:

Query -- does a federal judge have the power to reject this sort of deal? Because this is a charge bargain deal, can't the government just dismiss the other counts on its own, leaving only the ten year maximum count? I think the real question is whether the government will have the heart to do this after Judge Gold has said he will not approve the deal. If in our adversarial system of justice the prosecution believes that a deal is fair, should a judge step in?

From another post on the subject:

The Louis Robles case has pitted prosecutors against the judiciary. The government and the defense had worked out a deal for Robles -- 10 years in prison plus restitution -- and that deal had the blessing of the receiver and almost all of the victims.Judge Gold, however, won't accept the deal, saying it's too lenient. The government recently filed a 16 page motion for reconsideration explaining why the plea made sense. Judge Gold denied that motion, which now leaves the government with two choices. It can try a case that neither party wants to try. Or it can dismiss the counts that carry more than a 10 year maximum, leaving Judge Gold with no choice but to sentence Robles to 10 years, even after a trial.Oftentimes, defense lawyers complain that sentencing is driven by prosecutors and that it should be left to judges to sentence, not executive officers. In this case, prosecutorial discretion is important in capping the sentence.Any thoughts on what the U.S. Attorney's office should do? Should they defer to the judge or stand up for their position?

What do you all think of this issue?

Joe Cool conviction affirmed...

... in a short non-published opinion, without oral argument. It seems to me that an appellate court should at least have oral argument after a trial that results in a life sentence. I mean, it's just a half an hour to hear argument. Just saying.

In other 11th Circuit news, the court found that a district court errs by admitting a defendant's MySpace page. But, of course, it was harmless, and the defendant's conviction and sentence (of 2005 months) was affirmed. From the opinion:

The MySpace evidence is not evidence of identity: that is, evidence that Phaknikone robbed
banks like a gangster. The subscriber report proved nothing more than
Phaknikone’s nickname, the only name by which Lavivong had already testified he
knew Phaknikone. The profile photographs accompanying the subscriber report
and the photograph of Phaknikone and his ex-wife at a social event offer nothing to
support a modus operandi about the bank robberies. The photograph of a tattooed
Phaknikone, his face completely visible, in a car, holding a handgun sideways in
his right hand, and with a child as a passenger, proves only that Phaknikone, on an
earlier occasion, possessed a handgun in the presence of a child. Although the
photograph may portray a “gangster-type personality,” the photograph does not
evidence the modus operandi of a bank robber who commits his crimes with a
signature trait. The MySpace evidence is not evidence of a modus operandi and is
inadmissible to prove identity.

Because the MySpace evidence fails the first requirement of the Miller test,
we need not address its second and third requirements. The MySpace evidence is
classic evidence of bad character, which was offered by the government to prove
only “action in conformity therewith.” Fed. R. Evid. 404(b). The government
wanted the jury to infer that, because Phaknikone is willing to publish these kinds
of photographs online, under an incendiary alias, he is a gangster who is likely to
rob banks. The district court abused its discretion by admitting the MySpace
evidence.

I have always wondered what would happen if a district court read this opinion and then said -- well, I know it's error, but it's harmless so I will admit it.

The comments were active yesterday in the debate about the probation office. Good stuff.

It's Elena Kagan

That's the (leaked) word from last night and this morning. Tom Goldstein called it months ago and his coverage over at ScotusBlog is unbelievable. Here's Tom's summary of his recent posts, but there's a whole lot more over there:

1. On February 23, I wrote explaining that Justice Stevens would retire, Justice Ginsburg would not, and the President would nominate Elena Kagan to fill the Stevens seat. Most of the post is devoted to discussing why the President would choose her over other candidates.
2. After Stevens’ retirement, on April 27, I returned to the selection, explaining that I continued to believe that the President would select Kagan, albeit for reasons that had less to do with electoral politics than was true in February.
3. On Saturday, we published a very extensive piece on Kagan, discussing both her professional history and claims made for and against her, as well as the breakdown of likely votes in the confirmation process.
4. Earlier this evening, before the announcement leaked, I discussed at length both the likely confirmation process and the substance of the ten principal issues that will be debated by her defenders and opponents.

Item #3 is a 10,000 word essay about Kagan. If you have some time today, it's worth skimming.

In other news, the DBR (John Pacenti) covers the debate about whether PSIs are really needed after Booker. Professor Rick Bascuas said this: "Today's federal probation officers see themselves primarily as law-enforcement agents rather than agents of mercy." Rick has written extensively on the issue here.

This can't be true, can it?

According to the JAABlog, a Broward judge said: "If the jury comes back not guilty, I'm going to slit my throat" in a DUI case: "Luckily for the Judge's throat, they did come back guilty, after which the defense attorney successfully disqualified Ireland from further proceedings. Now it's up to another judge to read the trial, and sort out a bunch of messy issues. Not to be outdone, another county judge was recently overheard commenting how people of Mexican descent 'love beer.' Only in Broward, baby!" This can't be true, can it?

Tons of great coverage of the Supreme Court while we wait for Obama to pick Stevens' successor.

On why Stevens wears a bow-tie: "The truth is that I can't tie a four-in-hand." The rest of the Washington Post article is great.

SG Kagan had to deal with a dicey political question while at Harvard. Here's Professor Mnookin on how she decided not to fight the feds even though she believed the government was wrong: "Elena is very good at reading the lay of the land, at having a sense of who is where on what issue and what the art of the possible might be, who can be influenced, who cannot. In that sense of being political, she is extremely gifted. She’s very purposeful."

Kagan is also watching the honest services cases very closely. For the criminal practitioners out there, let's make no mistake -- if Kagan is selected, she will not be even close to as liberal as Justice Stevens on criminal justice issues.

Speaking of honest services cases, NACDL and the Heritage Foundation just issued a report explaining how Congress is continuing to criminalize too many acts and is doing so without including a mens rea element. The entire report "How Congress is Eroding the Criminal Intent Requirement in Federal Law" can be read here.

Pictures Pictures Pictures

I know you all are upset with me -- I missed Star Wars day yesterday (May the 4th be with you). So, I won't miss Cinco de Mayo today...

Another day, another attack on JAABlog and Bill Gelin, this time from a lawyer upset with a picture he posted. Here's the basic question -- do the Florida Bar Rules apply to lawyer-run blogs? And if so, did Gelin violate any rules by posting the picture? Bob Norman (and now SFL and Rumpole) have weighed in. I'm sure you can guess my opinion -- Gelin has nothing to worry about on this one. (Yesterday, I had picture day at the blog. True, they weren't like the one posted at JAABlog, but one of them included a state rep looking at naughty pictures. Do the Florida Bar Rules prohibit me from posting that picture? No way.)

Okay, back to the news of the blog. Tony Mauro wrote an article about minority clerks. Our own Judge Martinez is quoted:

Judge Jose Martinez of the U.S. District Court for the Southern District of Florida said that, in recent years, he has seen "way more [minority] applicants for clerkships — and they're getting better."
Recruiting minorities for clerkships has long been a challenge, Martinez said, because of missed educational opportunities and also because good candidates often have massive law school tuition debt to pay off. "We're competing for the top-notch minority lawyers with the big firms," Martinez said. "We have to show them it is a long-range benefit to be a clerk — it's a hell of a stepping-stone."
One helpful tool for doing that, Martinez said, has been the American Bar Association's 10-year-old Judicial Clerkship Program, which has provided hundreds of minority law students with internships that expose them to clerkship possibilities on both federal and state courts. The students see that "this is a viable thing for them to do," Martinez said.
But Judge Reggie Walton of the U.S. District Court for the District of Columbia said he has seen no recent increase in minority applicants for clerkships. "I don't receive the numbers I would like," he said. "They have so many other opportunities to make a lot more money than you can make as a law clerk."
Walton, who generally looks for applicants with a couple of years of law firm experience, said it is nearly impossible to hire minorities away from high-paying firms when he can only pay clerks less than $80,000 a year and when the firms are making "a big push to keep them on board." A recent clerk, Walton said, took a $100,000 pay cut from a major Washington firm to clerk for him.
Walton, himself an African-American, added that, with females outnumbering males among black law students, "the most difficult demographic to attract is the African-American male. The disparity is stark."

Picture day

Three pictures of the day:

1. State Senator likes porn:

2. Phillies fan tasered:

3. Supreme Court doors are closed:

and one item without a picture -- apparently the 11th Circuit is investigating a judge.

Monday morning...

Feels like summer is here, no?

SFL already has posted on the FBA BABC. It was a good event. Tons of people showed up, and most of the judges were there. Big shout out to Adam Rabin and Brian Spector for their hard work. From the criminal bar perspective, I thought it was interesting to see the prosecutors and criminal defense lawyers engaging each other on a variety of topics, including sentencing, discovery, cooperating witnesses, and so on. I got a lot out of it. To the left is one such discussion taking place. Good stuff...

Today is Willy Ferrer's first day on the job. Should be interesting to see how things shake out...