1. If a criminal defense lawyer did this, we'd be locked up. For Justice Thomas, it's just a mistake.
2. President Barack Obama has selected White House Deputy Counsel Donald Verrilli Jr. to serve as Solicitor General. From BLT:
If confirmed by the Senate, Verrilli would fill the position now held by acting Solicitor General Neal Katyal, who stepped into the job when Solicitor General Elena Kagan was nominated to the Supreme Court.
Verrilli was the former co-chair of the Supreme Court and Appellate practice group in the Washington office of Jenner & Block from 2000 until he joined the Obama Department of Justice in 2009 as an associate deputy attorney general. While at the Justice Department, Verrilli focused on domestic and national security policy issues.
Verrilli is a veteran Supreme Court advocate. He has argued 12 cases before the justices and participated in more than 100. His cases have ranged from the intricacies of intellectual property, such as his defense of music industry copyrights in 2005, to the complexities of the death penalty, such as his pro bono work in Wiggins v. Smith.
Besides his work in the Supreme Court, Verrilli also has participated in about 90 cases in federal and state appellate courts, arguing more than 30 appeals. While at Jenner, he was a member of the firm’s governing policy committee and chair of its diversity committee.
A former clerk to Justice William Brennan Jr., Verrilli is a graduate of Columbia Law School.
The solicitor general is the only position in government which, by law, must be filled by someone “learned in the law.”
3. Which Supreme Court Justices will attend the State of the Union tonight? Remember the controversy last year with Obama and Alito getting into it... ATL has the odds of who will show up here.
4. SFL has some (good) advice for Yoss. And Rumpole is right on with his rant about the closing of I95 yesterday. Perhaps all the traffic delayed him in getting me my check... I'm still waiting for the $50 he owes me from last year's bet.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Tuesday, January 25, 2011
Monday, January 24, 2011
Monday morning hits
1. Who wouldn't pick Justice Kagan for jury duty? (via Washington Post)
2. 9th Circuit judge Stephen Reinhardt was reversed twice last week on the same day. Ouch. (via WSJ)
3. SFL writes the obit for the Miami City Club.
4. "I am not a terrorist." That was Mike Tein's client at the Playstation sentencing last week. Judge Gold sentenced the three defendants to 6 months of home confinement. (via Miami Herald). Disclosure -- I (along with Silvia Pinera-Vasquez) represented one of the defendants in the case.
2. 9th Circuit judge Stephen Reinhardt was reversed twice last week on the same day. Ouch. (via WSJ)
3. SFL writes the obit for the Miami City Club.
4. "I am not a terrorist." That was Mike Tein's client at the Playstation sentencing last week. Judge Gold sentenced the three defendants to 6 months of home confinement. (via Miami Herald). Disclosure -- I (along with Silvia Pinera-Vasquez) represented one of the defendants in the case.
Thursday, January 20, 2011
Justice Scalia complains of an “Alfred Hitchcock line of…jurisprudence.”
A unanimous Supreme Court (per Alito) in NASA v. Nelson upheld the government's right to conduct background checks on employees. Justice Scalia (along with Justice Thomas) concurred, saying that the Court again refused to answer the main questions presented by the case and that the minimalist strategy of the Court is bad for lower courts and others trying to figure out what the case means. From the NY Times:
Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, issued a caustic concurrence. He said he “of course” agreed with the result in the case, saying the plaintiffs’ objections to the background checks were ridiculous.
“The contention that a right deeply rooted in our history and tradition bars the government from ensuring that the Hubble telescope is not used by recovering drug addicts” is, he said, “farcical.”
But Justice Scalia aimed his harshest criticism at the six justices who signed the majority opinion, returning to a theme he pressed last year — that the court is violating its duty and harming its reputation in issuing vague decisions.
“Whatever the virtues of judicial minimalism,” he wrote, “it cannot justify judicial incoherence.”
The majority opinion, he continued, “provides no guidance whatsoever for lower courts” and “will dramatically increase the number of lawsuits claiming violations of the right to informational privacy.” Though the court ruled against the plaintiffs, he said, the majority opinion amounts to “a generous gift to the plaintiffs’ bar.”
Justice Scalia said he would have taken a simpler approach in the case, NASA v. Nelson, No. 09-530.
“I would simply hold that there is no constitutional right to ‘informational privacy,’ ” Justice Scalia wrote.
“Like many other desirable things not included in the Constitution,” he wrote, “ ‘informational privacy’ seems liked a good idea.” But he said it should be enacted through legislation rather than imposed by judges through constitutional interpretation.
While we are on the subject of fun writing, Judge Carnes is at it again, this time in Carolyn Zisser v. The Florida Bar. The intro:
This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.”* The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that
field. The easier it is to be certified, the less that certification means. The goal of the Florida Bar’s certification process is to recognize in various fields of specialization exceptional attorneys, meaning those who stand out from others in all of the ways that make an attorney outstanding. To ensure that certification achieves its purpose, the Bar has established a body of rules and procedures, including a confidential peer review process, so that an attorney
certified in an area of practice truly is “somebody” in that field. Without such rules and procedures, the process, the decisions it produces, and the resulting recognition would not amount to much.
*W. S. Gilbert, The Savoy Operas 543 (Wordsworth Editions 1994) (1889) (spelling altered).
Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, issued a caustic concurrence. He said he “of course” agreed with the result in the case, saying the plaintiffs’ objections to the background checks were ridiculous.
“The contention that a right deeply rooted in our history and tradition bars the government from ensuring that the Hubble telescope is not used by recovering drug addicts” is, he said, “farcical.”
But Justice Scalia aimed his harshest criticism at the six justices who signed the majority opinion, returning to a theme he pressed last year — that the court is violating its duty and harming its reputation in issuing vague decisions.
“Whatever the virtues of judicial minimalism,” he wrote, “it cannot justify judicial incoherence.”
The majority opinion, he continued, “provides no guidance whatsoever for lower courts” and “will dramatically increase the number of lawsuits claiming violations of the right to informational privacy.” Though the court ruled against the plaintiffs, he said, the majority opinion amounts to “a generous gift to the plaintiffs’ bar.”
Justice Scalia said he would have taken a simpler approach in the case, NASA v. Nelson, No. 09-530.
“I would simply hold that there is no constitutional right to ‘informational privacy,’ ” Justice Scalia wrote.
“Like many other desirable things not included in the Constitution,” he wrote, “ ‘informational privacy’ seems liked a good idea.” But he said it should be enacted through legislation rather than imposed by judges through constitutional interpretation.
While we are on the subject of fun writing, Judge Carnes is at it again, this time in Carolyn Zisser v. The Florida Bar. The intro:
This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.”* The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that
field. The easier it is to be certified, the less that certification means. The goal of the Florida Bar’s certification process is to recognize in various fields of specialization exceptional attorneys, meaning those who stand out from others in all of the ways that make an attorney outstanding. To ensure that certification achieves its purpose, the Bar has established a body of rules and procedures, including a confidential peer review process, so that an attorney
certified in an area of practice truly is “somebody” in that field. Without such rules and procedures, the process, the decisions it produces, and the resulting recognition would not amount to much.
*W. S. Gilbert, The Savoy Operas 543 (Wordsworth Editions 1994) (1889) (spelling altered).
Wednesday, January 19, 2011
In defense of old judges
The blawgosphere is all aflutter about this Slate article criticizing life tenure for federal judges because some really old judges are making mistakes. As if young judges don't. (See the cover of the DBR today about a young Broward state judge who is defending himself before the JQC because he "made a mistake.")
The WSJ summarizes some statistics from the article:
About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older;
Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago;
The number of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years.
The increase, explains the Slate piece, is largely attributed to a few factors. Life tenure for federal judges is written into the Constitution; people are living much longer lives than they did in 1789; and the job of a federal judge has over the years actually gotten less taxing in many ways.
So what? I miss the old (school) judges from our District -- Davis, Roettger, Spellman, Atkins, Highsmith, etc. Each of them (and others that I'm forgetting -- I must be getting old) had a real sense of justice and brought that to each case. The stories in the Slate piece are horrific, but if there are particular judges who are having issues, then that should be addressed on an individual basis. I don't like the idea of having mandatory retirement for judges. I think they have that in the state system, and it forces good judges off of the bench.
Interestingly, our bench in the Southern District of Florida is now a very young bench. We have no active district judges in their 70s, 80s or 90s. Our Chief judge is in his 50s. Our "older" judges have taken senior status. But even they are young. For example, Judge Huck turned 70 last year, but he seems much much younger and is on top of his game. It would be awful if we forced good judges to retire because they hit a certain age.
The WSJ summarizes some statistics from the article:
About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older;
Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago;
The number of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years.
The increase, explains the Slate piece, is largely attributed to a few factors. Life tenure for federal judges is written into the Constitution; people are living much longer lives than they did in 1789; and the job of a federal judge has over the years actually gotten less taxing in many ways.
So what? I miss the old (school) judges from our District -- Davis, Roettger, Spellman, Atkins, Highsmith, etc. Each of them (and others that I'm forgetting -- I must be getting old) had a real sense of justice and brought that to each case. The stories in the Slate piece are horrific, but if there are particular judges who are having issues, then that should be addressed on an individual basis. I don't like the idea of having mandatory retirement for judges. I think they have that in the state system, and it forces good judges off of the bench.
Interestingly, our bench in the Southern District of Florida is now a very young bench. We have no active district judges in their 70s, 80s or 90s. Our Chief judge is in his 50s. Our "older" judges have taken senior status. But even they are young. For example, Judge Huck turned 70 last year, but he seems much much younger and is on top of his game. It would be awful if we forced good judges to retire because they hit a certain age.
Monday, January 17, 2011
Justice Breyer: "And in my experience, too, people did sometimes stick things in my underwear."
Whether their jokes are humorous or not, Supreme Court Justices often get [Laughter]. Not so much when the lawyers try to make a funny. The WaPo has the story here. An excerpt:
Still, nothing is more perishable than what passes for humor at the court. You really have to have been there. To wit, from the transcripts:
JUSTICE BREYER: So you're saying that if the government has the most amazing, let's - I'm trying to think of something more amazing than what I just thought of."
[Laughter.]
Those notations of "[Laughter]" have now formed the basis of two studies of the court. In 2005, Boston University law professor Jay Wexler counted the number of times "[Laughter]" was noted in the court's transcripts, attributed the funny to whichever justice's comments preceded it, and declared Scalia the court's funniest justice.
***
It is from an inexplicable tangle of words from Breyer in a 2009 oral argument about the strip search of a teenage girl, in which the justice was attempting to show that perhaps it was not unusual for children at school to be seen in their underwear.
Justice Breyer: In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear -
[Laughter.]
Justice Breyer: Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know.
Here's a diagram of who gets the most laughs.
I hope everyone is enjoying MLK day. Marlon Hill has an excellent op-ed in the Miami Herald that is worth a read.
Still, nothing is more perishable than what passes for humor at the court. You really have to have been there. To wit, from the transcripts:
JUSTICE BREYER: So you're saying that if the government has the most amazing, let's - I'm trying to think of something more amazing than what I just thought of."
[Laughter.]
Those notations of "[Laughter]" have now formed the basis of two studies of the court. In 2005, Boston University law professor Jay Wexler counted the number of times "[Laughter]" was noted in the court's transcripts, attributed the funny to whichever justice's comments preceded it, and declared Scalia the court's funniest justice.
***
It is from an inexplicable tangle of words from Breyer in a 2009 oral argument about the strip search of a teenage girl, in which the justice was attempting to show that perhaps it was not unusual for children at school to be seen in their underwear.
Justice Breyer: In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear -
[Laughter.]
Justice Breyer: Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know.
Here's a diagram of who gets the most laughs.
I hope everyone is enjoying MLK day. Marlon Hill has an excellent op-ed in the Miami Herald that is worth a read.
Friday, January 14, 2011
“Fighting for the rights of men is not a very popular thing to do in America these days.”
Oh boy (no pun intended). Check out ‘Babe’-Loving NY Lawyer Suspects Female Justices Helped Nix His Ladies Night Appeal. I'm not really sure how to describe it.
Other news items:
--As great as President Obama's speech was, did he make the prosecution's job in seeking the death penalty harder?
--The 9th Circuit has this memorial up for Judge Roll. We need to get our courthouses onto the site. If you happen to snap a picture, http://abovethelaw.com/2011/01/a-request-from-chief-judge-alex-kozinski/#more-53068
--Most legal bloggers are obsessed with legal writing, both good and bad. And I've blogged quite a bit about Judge Carnes. Love him or not, he's a very entertaining writer. Here's the intro from the latest installment:
It has long been said that “the price of freedom is eternal vigilance,”* and maybe as a matter of political philosophy it is. When it comes to pretrial release from custody, however, some are willing to pay for freedom with cold hard cash, and the amount of freedom that one on supervised release has increases as the vigilance of his supervising officer decreases. In this case a drug dealer indicted on state charges who was released pending trial bought himself more freedom by bribing the officer whose duty it was to supervise his release. That officer was convicted under a statute that makes this Court’s jurisdiction over the crime dependent on whether the drug dealer’s freedom, or increments of it, involved “any thing of value of $5,000 or more.” See 18 U.S.C. § 666(a)(1)(B).
How should we value freedom and increments of it in monetary terms? There is lyrical authority for the proposition that, “Freedom’s just another word for nothin’ left to lose / And nothin’ ain’t worth nothin’, but it’s free.” [Kris Kristofferson, “Me and Bobby McGee” (Sony BMG 1971).] Rejecting that view in this case, we adopt instead a non-lyrical, free-market approach that pegs the value of freedom and other intangible benefits to the price settled upon by the bribe-giver and the bribe-taker. Under that approach the value in bribes paid by a defendant on pretrial release to his supervising corrections officer in exchange for greater freedom while on release and freedom from jail does satisfy § 666(a)(1)(B)’s monetary requirement.
*The original source of the quotation is not entirely clear. Those words, or ones like them, have been attributed to Thomas Jefferson and others, but a better documented source is John Philpot Curran, an Irish lawyer and politician. In a speech given on July 10, 1790, concerning the disputed election for the mayor of Dublin, Curran said: “The condition upon which God hath given liberty to man is eternal vigilance. . . .” John Philpot Curran, “On the Right of Election of Lord Mayor of the City of Dublin,” speech before the Privy Council, July 10, 1790, in Irish Eloquence: The Speeches of the Celebrated Irish Orators Philips, Curran and
Grattan 15 (Philadelphia, Desilver, Thomas & Co. 1836); see also Wendell Phillips, speech in Boston, Massachusetts, January 28, 1852 in Speeches Before the Massachusetts Anti-Slavery Society, 13 (Boston, Robert F. Wallcut 1852) (“Eternal vigilance is the price of liberty.”).
--Sam Randall, a former Judge Jordan clerk and current AFPD, has filed a very interesting motion to dismiss a gun charge, alleging that the U.S. Attorney's office is selectively prosecuting African-Americans:
The demographic breakdown of federal felon-in-possession prosecutions in Miami
reveals an alarming racial disparity. Since the start of 2009, the Miami Division of the Federal Public Defender’s Office has handled 77 cases in which the defendant was charged with violating 18 U.S.C.§ 922(g)(1). 91% of those defendants were black (70 out of 77). By contrast, in the last year, the Public Defender’s Office for Miami-Dade County has handled 5,692 cases in which the defendant was charged with violating Fla. Stat. § 790.23(1), which similarly proscribes possession of a firearm by a convicted felon. 77% of those defendants were black (4410 out of 5692; see Exhibit A). Moreover, according to the Department of Justice Bureau of Justice Statistics, in 2006 (the most recent year for which data is available), just 49% of felony defendants in Miami-Dade County were black (see Exhibit B, at page 36).
Here's the entire motion:
Dismiss for Racial Bias
Other news items:
--As great as President Obama's speech was, did he make the prosecution's job in seeking the death penalty harder?
--The 9th Circuit has this memorial up for Judge Roll. We need to get our courthouses onto the site. If you happen to snap a picture, http://abovethelaw.com/2011/01/a-request-from-chief-judge-alex-kozinski/#more-53068
--Most legal bloggers are obsessed with legal writing, both good and bad. And I've blogged quite a bit about Judge Carnes. Love him or not, he's a very entertaining writer. Here's the intro from the latest installment:
It has long been said that “the price of freedom is eternal vigilance,”* and maybe as a matter of political philosophy it is. When it comes to pretrial release from custody, however, some are willing to pay for freedom with cold hard cash, and the amount of freedom that one on supervised release has increases as the vigilance of his supervising officer decreases. In this case a drug dealer indicted on state charges who was released pending trial bought himself more freedom by bribing the officer whose duty it was to supervise his release. That officer was convicted under a statute that makes this Court’s jurisdiction over the crime dependent on whether the drug dealer’s freedom, or increments of it, involved “any thing of value of $5,000 or more.” See 18 U.S.C. § 666(a)(1)(B).
How should we value freedom and increments of it in monetary terms? There is lyrical authority for the proposition that, “Freedom’s just another word for nothin’ left to lose / And nothin’ ain’t worth nothin’, but it’s free.” [Kris Kristofferson, “Me and Bobby McGee” (Sony BMG 1971).] Rejecting that view in this case, we adopt instead a non-lyrical, free-market approach that pegs the value of freedom and other intangible benefits to the price settled upon by the bribe-giver and the bribe-taker. Under that approach the value in bribes paid by a defendant on pretrial release to his supervising corrections officer in exchange for greater freedom while on release and freedom from jail does satisfy § 666(a)(1)(B)’s monetary requirement.
*The original source of the quotation is not entirely clear. Those words, or ones like them, have been attributed to Thomas Jefferson and others, but a better documented source is John Philpot Curran, an Irish lawyer and politician. In a speech given on July 10, 1790, concerning the disputed election for the mayor of Dublin, Curran said: “The condition upon which God hath given liberty to man is eternal vigilance. . . .” John Philpot Curran, “On the Right of Election of Lord Mayor of the City of Dublin,” speech before the Privy Council, July 10, 1790, in Irish Eloquence: The Speeches of the Celebrated Irish Orators Philips, Curran and
Grattan 15 (Philadelphia, Desilver, Thomas & Co. 1836); see also Wendell Phillips, speech in Boston, Massachusetts, January 28, 1852 in Speeches Before the Massachusetts Anti-Slavery Society, 13 (Boston, Robert F. Wallcut 1852) (“Eternal vigilance is the price of liberty.”).
--Sam Randall, a former Judge Jordan clerk and current AFPD, has filed a very interesting motion to dismiss a gun charge, alleging that the U.S. Attorney's office is selectively prosecuting African-Americans:
The demographic breakdown of federal felon-in-possession prosecutions in Miami
reveals an alarming racial disparity. Since the start of 2009, the Miami Division of the Federal Public Defender’s Office has handled 77 cases in which the defendant was charged with violating 18 U.S.C.§ 922(g)(1). 91% of those defendants were black (70 out of 77). By contrast, in the last year, the Public Defender’s Office for Miami-Dade County has handled 5,692 cases in which the defendant was charged with violating Fla. Stat. § 790.23(1), which similarly proscribes possession of a firearm by a convicted felon. 77% of those defendants were black (4410 out of 5692; see Exhibit A). Moreover, according to the Department of Justice Bureau of Justice Statistics, in 2006 (the most recent year for which data is available), just 49% of felony defendants in Miami-Dade County were black (see Exhibit B, at page 36).
Here's the entire motion:
Dismiss for Racial Bias
Thursday, January 13, 2011
Cheers to Judge Peter Palermo
I'm convinced that Judge Palermo has sipped from the Fountain of Youth. This month he completes his 40th year (!!) with the Court. He was sworn in January of 1971 and was the first magistrate judge appointed. He really is an inspiration. Check out the article below from his swearing in and a picture (below) from his swearing in..
Beware the bloggers
Bob Norman has this piece up today about a Broward County Commission who is afraid of bloggers. It's easy to poke fun at some of the dramatic comments she makes.
But, I actually think Norman makes light of what is a more serious issue -- anonymous commenting on blogs. Rumpole and I have discussed it and dealt with it in our own ways, but it's not an easy problem. The anonymity of commenting makes for (unnecessarily) hurtful speech, and oftentimes takes over the blog itself. I haven't found a good solution for this yet. Currently, I moderate comments, but it makes it difficult for a good dialogue to occur in the comments...
But, I actually think Norman makes light of what is a more serious issue -- anonymous commenting on blogs. Rumpole and I have discussed it and dealt with it in our own ways, but it's not an easy problem. The anonymity of commenting makes for (unnecessarily) hurtful speech, and oftentimes takes over the blog itself. I haven't found a good solution for this yet. Currently, I moderate comments, but it makes it difficult for a good dialogue to occur in the comments...
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