Monday Morning

Nothing much happening this Monday morning, except rain and Siri. Here's some quick news and then your moment of Monday zen:

1. Justice Kagan speaks in Tampa and explains that the Justices don't email:

She also revealed that the justices "ignore 25 years of technology" in communicating with each other.

"The justices do not e-mail each other," she said. "The clerks e-mail each other, but the justices do not." Instead, the justices send each other memos, hand-delivered by clerks. Kagan said she prefers the old-fashioned way of communicating.

2. Drug charges were fabricated in NY. This is a crazy story:

Anderson, testifying under a cooperation agreement with prosecutors, was busted for planting cocaine, a practice known as "flaking," on four men in a Queens bar in 2008 to help out fellow cop Henry Tavarez, whose buy-and-bust activity had been low.

"Tavarez was ... was worried about getting sent back [to patrol] and, you know, the supervisors getting on his case," he recounted at the corruption trial of Brooklyn South narcotics Detective Jason Arbeeny.

"I had decided to give him [Tavarez] the drugs to help him out so that he could say he had a buy," Anderson testified last week in Brooklyn Supreme Court.

He made clear he wasn't about to pass off the two legit arrests he had made in the bar to Tavarez.

"As a detective, you still have a number to reach while you are in the narcotics division," he said.

3. Still waiting to hear who made the cut from the Magistrate interviews last week. Please email me if you know and I will keep your name confidential.

And now your moment of zen:

Judge Jordan voice vote with no opposition

Congrats to Judge Jordan who took the next step today in getting to the 11th Circuit. The judiciary committee's voice vote was unanimous today on Judge Jordan. Senator Sessions even congratulated President Obama on nominating Judge Jordan, who said he had met with him and was impressed with his "12 good years as a district judge" and his prior experience. Cool!

HT: Glenn Sugameli

Feds decide not to retry lawyer and police officer in mortgage fraud case

It's the right decision. After two really long mortgage trials before Judge Cohn, the government needs to cut its losses. From the Sun-Sentinel:

Federal prosecutors said Wednesday they are dropping all criminal charges against a Fort Lauderdale lawyer and a former police officer arrested last year in a mortgage fraud investigation.

The decision to dismiss the cases against attorney Steven Stoll and former Plantation Police Officer Dennis Guaracino comes a month after a Fort Lauderdale federal jury deadlocked on the charges against them.

The two men and Joseph Guaracino, who is Dennise Guaracino's brother, spent more than five months on trial defending themselves against allegations resulting from "Operation Copout" — an inquiry into a group of police officers involved in suspicious real estate transactions.

The U.S. Attorney's Office will continue pursuing its case against Joseph Guaracino, whose first trial also ended in a hung jury, federal prosecutors told U.S. District Judge James I. Cohn.

Not a good day for Joseph Guaracino though... I wonder why the different decision. Anyone have the scoop here?

And I know I'm being annoying on the press release issue, but shouldn't the feds issue a release about its decision to drop the case against the other two. If you google their names, the arrest press release still comes up... If the USAO can do a release on every illegal lobstering arrest (there seems to be a bunch of those on the website), then certainly they can do one here, no?

Telling a story

Roy Black has had quite a bit of great stuff on his blog recently about opening statements and telling a story. He explains why lawyers need to start strong and be dramatic. And of course, he is right on.

I was watching the Republican debate last night and it was evident why Herman Cain is gaining steam with his 999 plan -- it's dramatic, it's easy to understand and it resonates with people. Lawyers could learn a lot from watching Cain in these debates.

Check out this video (embedded below) from the debate at the 54 minute mark where Cain takes on Romney and Romney's 59 point plan (in 160 pages) while describing his own plan as simple and efficient. Romney has a good strong beginning with his answer, but you can see why Cain is doing well and is a good cross-examiner. At the end of Romney's answer, Cain says: So the answer to my question is no, it's not simple.

Bachman tries to go after Cain's plan by saying to flip 999 upside down (which makes it the number of the devil!) and Huntsman tries to say it's the price of pizza. Not so effective... Someone needs to come up with some easy to understand talking points about why 999 doesn't work. If not, Cain is going to keep gaining momentum -- not because the plan will necessarily work. But because he is telling a better story than the rest.

Columbus day reading

Here's some fun reading for those of you at work, like me:

1. The first of the Cuban 5 is out. Now what do we do with him? (Via Curt Anderson)

2. The Glass Ceiling doesn't apply to my law firm. (Via NY Times)

3. Judge Denny Chin talks about the difficult time he had sentencing defendants. (Via NY Times)

4. Justices Scalia and Breyer talk to Congress. (Via NPR) Here's an interesting exchange:

Scalia said he tries to figure out how the framers themselves understood the rights they outlined, and then carry those forward to today. Anything beyond that, he said, would be drafting new rights into the Constitution.

"I don't trust myself to be a good interpreter of what modern American values are. I have very little contact with the American people, I'm sorry to say. You do, and the members of the House probably even more," Scalia said. "So if you want to keep the Constitution up to date with current American values, you ought to decide what it means, and you can kiss us goodbye."

Then Breyer actually helped Scalia make an argument, explaining Scalia's worry that Breyer will end up substituting what he thinks is right for what the Constitution actually says.

"What I say is, yes, you are right about that — and all I can do is be on my guard, write my opinions, try to look to objective circumstances," Breyer said, "and I see the opposite danger — the opposite danger is called rigidity. The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century — work in the way those framers would have wanted them to work had they been able to understand our society."

Then, in a moment of remarkable collegiality, the liberal justice prompted Scalia to make an argument Breyer knew would trump what he had just said. He reminded Scalia about a familiar joke.

Two old friends are camping, Scalia said. When a great, big grizzly bear comes after them, the slower, pudgier friend says they will never outrun the bear. The friend running in front says, "I don't have to outrun that bear. I just have to outrun you."

"It's the same thing with originalism — I just have to show it's better than his [idea]," Scalia said.

It was clear the two justices had debated this hundreds of times. Wednesday's argument just happened to take place before a group of powerful senators. Because of that, the session became a kind of master class in the philosophy of law — and the art of "comity."

5. Scalia also says that the drug laws have hurt the judiciary (Via The Atlantic):

Supreme Court Justice Antonin Scalia isn't a supporter of legalizing drugs. But he does believe that passing federal laws against them has done harm to the U.S. government. "It was a great mistake to put routine drug offenses into the federal courts," he told the Senate Judiciary Committee Wednesday. The Wall Street Journal went on to report Scalia's belief that the laws forced Congress to enlarge the federal court system, and diminished "the elite quality of the federal judiciary."

6. The Sun-Sentinel got the Mangione search warrants.