Happy Thanksgiving! (UPDATED)

UPDATE -- Judges Carnes and Hill won't be sharing a turkey this holiday.  Check out Judge Hill's dissenting opinion in Rozier v. United States.  A snippet:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.

***

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.” On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution. As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

  Clearly justice is not the intended beneficiary of these procedural safeguards. On the contrary, the safeguards are designed to protect finality. If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional. In any event, I cannot join in this elevation of form over substance; of finality over fairness. Due process is the defining virtue of our system of criminal justice. But we should ask ourselves why. Is it because it achieves finality? Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant. The goal is a correct result – not simply the provision of process. To be sure, we do not guarantee a correct result. But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.
This is especially true where the petitioner is in federal custody, not state custody. We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism. Neither of these considerations is due the erroneously sentenced federal prisoner. It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law. I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin. At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).

Tuesday News & Notes

1.  The Court's Holiday Schedule is here.

2.  Former NFL player Louis Gachelin sentenced to two plus years.  (Via Sun-Sentinel).

3.  Lewis/Tein has some good news covered by the DBR and SFL.  UPDATED -- And Rumpole!

4. Alan Dershowitz interviews Jeffrey Toobin.  Really interesting.

5.  Former state prosecutor in Maine cuts his electronic monitor.  Apparently, that's very rare.

6.  The Washington Times updates the judicial nominees and the waiting time.

Judge Seitz taking Senior Status

Rumors have been swirling that Judge Seitz would be taking senior status this month, and it appears that she did so as of November 16, 2012, which is 14 years to the day she was appointed by President Clinton).  So another opening for President Obama, who is quickly reshaping our District Court. 

In other news, the B-Girls trial is still being heard and the testimony of former weatherman John Bolaris was out of a bad movie.  From Jay Weaver:

More than two years after his “nightmare on South Beach,” former TV weatherman John Bolaris remains a little foggy about his close encounter with a couple of Latvian “Bar Girls” who swindled him for $43,000 in bogus booze charges billed to his AMEX card.
On Friday, Bolaris testified in Miami federal court that he didn’t have sex with them, though the thought crossed his mind after meeting the duo at the Delano Hotel in late March 2010. Bolaris, 55, was asked whether the B-girls suggested they go to his room at the Fontainebleau Hotel for a “threesome.”
“No, sir,” Bolaris told defense attorney Roderick Vereen. “In my right state of mind, I would not do that.” Vereen shot back: “What about in your intoxicated state of mind?” ***The following night, Bolaris said he went to dinner at the Delano Hotel, eating sushi and drinking a few glasses of his favorite wine, pinot grigio. He then sat down in the hotel’s Rose Bar for a few more glasses of wine. Nearby, a pair of B-girls were acting like tourists as they took pictures of each other. They struck up a conversation with him.
Bolaris described them as “very cutesy, like the girls next door ... the kind of girls you’d like to marry.” He paid for a round of wine, and later invited them to the Delano’s poolside bar, where he slipped a $50 bill to the bouncer to let them in. He bought another round of wine.
One of the B-girls started rubbing his shoulders from behind, while the other approached from the front to offer him a shot of liquor.
“Come on, do the shot,” she teased. Bolaris said, “No, no.”
But eventually he gave in and downed one.
During his testimony, federal prosecutor Richard Gregorie asked Bolaris if at that point he had the impression they were “hookers.” He emphatically said, “No.”
Gregorie further asked if he went to the Delano looking to have sex. He said he went there for sushi, “not for sex.”

Is this guy serious?  He believed that two girls just came up to him and started rubbing his shoulders at the Delano pool.  And remind me again why this is in federal court.   Lots of other details on the net from the 302 reports and other sources. 

Read more here: http://www.miamiherald.com/2012/11/16/3100889/ex-philadelphia-weatherman-testifies.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/11/16/3100889/ex-philadelphia-weatherman-testifies.html#storylink=cpy

Sorry for the slow blogging

I'll be back on Monday. Enjoy the weekend.

Judge William Thomas officially nominated to District Court

This is great news and fast. Let's hope that this is how it's going to be in the President's second term. Here is President Obama's press release:

President Obama Nominates Seven to the United States District Courts

WASHINGTON, DC - Today, President Obama nominated Valerie E. Caproni, Kenneth John Gonzales, Raymond P. Moore, Judge Beverly Reid O’Connell, Judge William L. Thomas, Judge Analisa Torres and Derrick Kahala Watson for District Court judgeships.

"These individuals have demonstrated the talent, expertise, and fair-mindedness Americans expect and deserve from their judicial system," said President Obama.  "They also represent my continued commitment to ensure that the judiciary resembles the nation it serves.  I am grateful for their willingness to serve and confident that they will apply the law with the utmost impartiality and integrity.  Too many of our courtrooms stand empty.  I hope the Senate will promptly consider all of my nominees and ensure justice for everyday Americans.”

 ***

Judge William L. Thomas:  Nominee for the United States District Court for the Southern District of Florida
Judge William L. Thomas has served as a Circuit Judge in Florida’s Eleventh Judicial Circuit since 2005, where he has presided over both civil and criminal matters.  For seven years, from 1997 to 2005, he served as an Assistant Federal Public Defender in the Southern District of Florida, where he represented indigent clients in federal criminal cases.  Judge Thomas began his legal career as an Assistant Public Defender at the Miami-Dade County Public Defender’s Office in 1994.  He received his J.D. in 1994 from the Temple University School of Law and his B.A. in 1991 from Washington and Jefferson College in Washington, Pennsylvania.

***

HT: Glenn Sugameli

Anthony Mangione sentenced...

... to 70 months.

You remember him -- the former ICE chief who was caught with child porn on his computer. He then wiped the computer clean with techniques he learned from his time in ICE.

 The sentence was more than the minimum mandatory 60 month sentence he requested and less than the 87 months requested by prosecutors. Fair sentence?

Sonia Sotomayor on Sesame Street

Enjoy:

Big win for AFPD Tracy Dreispul

Appellate guru Tracy Dresipul has done it again, this time in United States v. Bellaizac-Hurtado.

Judge Pryor starts off his opinion this way, which summarizes the issue and the holding nicely:

This appeal presents a novel issue about the scope of congressional power to
proscribe conduct abroad: whether the Maritime Drug Law Enforcement Act, 46
U.S.C. §§ 70503(a), 70506, exceeds the power of Congress to “define and
punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10, as
applied to the drug-trafficking activities of Yimmi Bellaizac-Hurtado, Pedro Felipe
Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado in
the territorial waters of Panama. Because we conclude that drug trafficking is not
an “Offence[] against the Law of Nations” and that Congress cannot
constitutionally proscribe the defendants’ conduct under the Offences Clause, we
vacate their convictions.

Florida Election Lawyers all dressed up and no where to go

President Obama easily wins, but Florida still not called.  Right now it's Obama up about 45,000 votes or 0.53 percentage points, out of a total of 8.27 million votes, with about 99 percent of the votes counted.  This time though it won't matter how Florida ultimately goes...  I wonder how all of the election lawyers who were geared up just for this scenario are feeling right now. 

So what does Obama's victory mean for the Southern District of Florida.  Some quick thoughts:

1.  Will Thomas will likely be your next federal judge, but it probably won't happen till the beginning of the year.

2.  President Obama will continue to shape this District with intellectual, moderate judges (like Williams, Scola, & Rosenbaum).  Same for the 11th Circuit (like Martin & Jordan).  There are a bunch of district openings coming up, so we will see if Obama does any better with getting judges confirmed quickly in his second term. 

3.  Willy Ferrer will stay on as U.S. Attorney.  It will be interesting to see whether he stays for the entire 4 years.

Any other thoughts?

Field trip to Pakistan

Judge Scola granted the defense motion to take depos in Pakistan, according to Jay Weaver:

In a rare legal move, attorneys for two South Florida Muslim clerics accused of aiding terrorists will be allowed to travel to Pakistan during a Miami trial to question witnesses considered crucial to their defense.
A federal judge has granted permission to attorneys for two former imams of local mosques, father and son Hafiz Khan and Izhar Khan, to travel to Islamabad in February to depose five witnesses during a live video teleconference call with prosecutors remaining in Miami.
Federal prosecutors had opposed the depositions under any circumstances, noting the difficulty of cross-examining the Pakistani witnesses, three of whom were indicted along with the Khans on charges of conspiring to support the Taliban. But the judge disagreed, citing basic fairness.
“All things being equal, the court would prefer that both government and defense attorneys be able to travel to the deposition room in Islamabad,” U.S. District Judge Robert Scola wrote in his 10-page ruling issued Friday.
“But that cannot occur. Government attorneys cannot safely travel to Islamabad to participate in the depositions,” he wrote. “Using [video-teleconferencing] works around this safety problem to preserve evidence critical to defendants combating the charges they face, while still allowing prosecutors to cross-examine [the witnesses].” Scola established logistical requirements for the Feb. 4 depositions, which will take place after the Khans’ trial gets underway in January.
Among them: Two video cameras for the witnesses and deposition room in an Islamabad hotel, and one for the Miami federal courtroom. A Pakistani official must be present in Islamabad to verify the identity of the witnesses. Interpreters must be in Islamabad to translate, and a court reporter must be in Miami to transcribe the depositions live.

Read more here: http://www.miamiherald.com/2012/11/05/3083483/judge-miami-defense-lawyers-can.html#storylink=misearch#storylink=cpy

Hot girls getting guys drunk on South Beach is now a federal crime?

Jay Weaver covers the B-Girls trial here.  The intro tells a story about a dude spending lots of money after getting wasted:

During the height of the tourist season two years ago, a Philadelphia TV weatherman flew down to Miami Beach for a little fun in the sun.
At the Delano Hotel, John Bolaris was approached by a couple of the Beach’s finest “bar girls.” The sexy duo said they were visiting from Estonia. They ordered rounds of shots, wine and champagne while pecking him on the cheek.
Then they lured the liquored-up Bolaris to a Russian-style nightclub called Caviar Bar on Washington Avenue. Over the next two nights, he signed American Express charge slips for more than $43,000, picking up the tab for extravagantly overpriced Dom Perignon, Beluga caviar and other items, including $2,480 for a modernistic painting of a woman that had been hanging in the bar.
Bolaris’ tale of woe and regret and others like it are coming out in Miami federal court during the trial of five business associates accused of being the puppet masters behind South Beach’s “B-girl” scene, as it is known.
Among the witnesses: B-girl Marina Turcina, who said Bolaris was so smashed he was vomiting on the way back to the Fontainebleau, where he’d been staying.
“He smelled really bad,’’ she said.

 Since when are tales of woe and regret criminal? I haven't been in Court and haven't followed the evidence, but I have heard that there are stories of girls drugging the customers without their knowledge.  Clearly if this happened, it's criminal.  But even if that happened, is it a federal offense? Why isn't this a classic state court crime?

dsf
Read more here: http://www.miamiherald.com/2012/11/03/3081324/russian-mafioso-put-bar-girls.html#storylink=cpy

BREAKING-- PATRICK HUNT NAMED NEW MAGISTRATE

This is great news.

I tried one of my first cases with Pat Hunt and he is a smart, fantastic lawyer.  He'll be a great magistrate.  CONGRATS!

Separate Sovereign Spat

This one should be interesting.  The feds aren't happy with the way Bal Harbour is spending its forfeiture loot.  From the Herald:

The U.S. Justice Department shut down Bal Harbour’s celebrated federal forfeiture program and ordered the police to return more than $4 million, slapping the agency with crushing sanctions for tapping into drug money to pay for first-class flights, luxury car rentals, and payments to informants across the country


After years of seizing millions from criminals, Bal Harbour’s vice squad is now banned from the federal program that allowed the village police for years to seize cars, boats, and cash — and to keep a cut of the proceeds.

In a scathing letter to Police Chief Thomas Hunker, federal agents are demanding the prompt surrender of the millions reeled in last year by a team that operates from a police trailer just blocks from the opulent Bal Harbour Shops.

For years, the small coastal town known for speed traps became one of the most successful in Florida, with plainclothes cops jetting across the nation toting bags stuffed with cash from investigations that had no connection to Bal Harbour — and making few arrests.

The findings, released on Tuesday, were also sent to Mayor Jean Rosenfield, who could not be reached for a comment.

The action by the DOJ’s criminal division comes after a lengthy investigation that began last year with an audit and escalated into a deep probe that turned up a host of problems, including questionable expenses, hundreds of thousands paid to snitches, and missing records.

With all that money, the po-po could've bought this $3 million Matisse ("Odalisque in Red Pants") for their lobby:

 

Actually the pair that stole it (Antonio Marcuello Guzman and Maria Martha Elisa Ornelas Lazo)
pleaded guilty yesterday, and sentencing is scheduled for January 22.  How much do you get for trying to sell a stolen painting worth millions?  More or less than Gupta's 2 years?

"Canine cocaine connoisseurs” would “roam the streets at random, alerting the officers to people carrying cocaine.”

That was William Brennan in a dissent written, fittingly enough, in 1984. Tomorrow, the Supreme Court takes up the dog sniff question again, this time dealing with the home.  Adam Liptak has more:

Alan Diaz/Associated Press

The Florida Supreme Court threw out the evidence in a case involving Franky, a retired narcotics detector dog.

Aldo, a German shepherd, and Franky, a chocolate Labrador retriever, are exceptions. The Supreme Court plans to hear their cases on Wednesday.

The basic question in both cases, said Orin S. Kerr, a leading expert on the Fourth Amendment right against unreasonable search, is this: “What do you think of a dog’s nose?”

It is surely a marvel. But is it also, as the Supreme Court has suggested in previous cases, essentially infallible?

The great thing about dogs trained to sniff out drugs and other contraband, the court has said, is that they cannot invade human privacy because their noses reveal, as Justice John Paul Stevens put it in 2005, “no information other than the location of a substance that no individual has any right to possess.”

As the prosecutors in Franky’s case wrote, “anything else that the dog smells remains private.”

But there is reason to doubt that dogs are, as a brief for two groups of criminal defense lawyers put it, “binary contraband detectors.”

Justice David H. Souter, in a dissent from the 2005 decision, cited a study showing “that dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time.”

“The infallible dog,” he wrote, “is a creature of legal fiction.”

Federal Government closes, except for Supreme Court (UPDATED)

Everyone else in Washington, DC and NY today is closed, except for the Supreme Court (and Howard Stern).  The Court granted cert in four new cases.  Per SCOTUSblog:

The Supreme Court, fully at work while most of the rest of official Washington takes a weather day off, agreed on Monday to hear four new cases, including a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately.  That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan.  The new case on that question is Trevino v. Thaler (11-10870).
The other granted cases involve a test of whether a convicted individual’s claim of innocence of the crime will be treated as an excuse for failing to pursue a federal habeas challenge on time (McQuiggin v. Perkins, 12-126),  clarification of how the Internal Revenue Service calculates the foreign tax credit (PPL Corporation v. Commissioner, 12-43), and whether misconduct by a trustee in bankruptcy has an effect on the debts to be discharged (Bullock v. BankChampaign, 11-1518).

UPDATE-- the Supreme Court will be closed tomorrow (Tuesday).

Mike Scarcella covers how a Romney administration would change DOJ.  A very interesting piece:


Former U.S. attorneys general William Barr and Michael Mukasey are among top ex-DOJ lawyers advising the Romney campaign on law enforcement issues. The team also includes former Criminal Division assistant attorney general Alice Fisher, the head of the Washington office of Latham & Watkins, and George Terwilliger III, a former acting attorney general under President George H.W. Bush, who recently announced that he'll be leaving White & Case to join the D.C. office of Morgan, Lewis & Bockius on November 1.
Business interest groups have pressed DOJ in recent months to provide a better road map for companies to comply with the Foreign Corrupt Practices Act, a powerful anti-bribery tool that has been a boon for Holder's department. Addressing the FCPA and white-collar investigations, Terwilliger last week published a paper through the U.S. Chamber of Commerce's Institute for Legal Reform insisting that DOJ give companies a clearer sense of the foundation when charges are not brought. In short: Corporations want better-defined boundaries, he said.
Some critics see stepped-up FCPA actions as a hindrance to American competitiveness abroad. Not Lanny Breuer, the DOJ Criminal Division leader. In a speech last week in London, Breuer argued the department's FCPA work has helped "level the playing field for U.S. and foreign ­companies, and motivates corporations to create genuine cultures of compliance."
Compliance expert Alexandra Wrage, president of TRACE International and a former chair of the American Bar Association's anti-corruption committee, said any attorney general under Romney would have a difficult time trying to scale back FCPA enforcement considering how much money companies have pumped into compliance in recent years. "The floodgates are open now," Wrage said.
In the False Claims Act arena, Elizabeth Papez, a Winston & Strawn litigation partner in Washington, said DOJ's "unprecedented enforcement agenda and record whistleblower awards" have created a backlog of cases for the department to investigate — whether Holder is leading the agency or another attorney general. Since 2009, according to DOJ, the department has recovered more than $11 billion under the FCA.
"The cost and uncertainty associated with prolonged investigations and delays in government intervention decisions can be a drain on the department and businesses that everyone should want to minimize," Papez said in an email. (Papez, a member of Romney's legal advisory team, said she was not speaking for the candidate.)

Closer to home, Rumpole covers Judge Milton Hirsch's ruling on fingerprints, which prohibits the State's expert from saying that the prints are "a match."  The order is an excellent read.  From Dave Ovalle's article:

In his order on the Borrego case, Hirsch analyzes the origin of fingerprint science, from Shakespeare’s The Second Part of King Henry to Mark Twain’s Life on the Mississippi to the British pioneering of fingerprint evidence in 19th-century colonial India.

In his order, he says that “no one can articulate a principle of anatomy, biology, physiology, pursuant to which two persons cannot have the same fingerprint.”
Attorney Tamara Lave, a University of Miami professor of criminal procedure, said that she believes Hirsch is right. The reason: experts such as those at the National Academy of Sciences — which authored a 2009 study on forensic evidence — say language describing an “absolute” fingerprint match is “unjustified.”
“What is unique is the joy in which he wrote his opinion. Most judges don’t go through the trouble of quoting Shakespeare and great works of American Literature,” Lave said.

Read more here: http://www.miamiherald.com/2012/10/28/3071658_p2/miami-dade-judge-rules-fingerprint.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/10/28/3071658/miami-dade-judge-rules-fingerprint.html#storylink=cpy

Michael Caruso to be sworn in today (UPDATED w pictures)

A big congrats to our new Federal Defender Michael Caruso.  Pictures from the event to follow.

Here are some pictures:

West Palm Beach courthouse closed tomorrow due to Hurricane Sandy

Gupta gets 24 month sentence

I had set the line at 36 months.  Professor Berman nailed it though predicting 24 months. 

Judge Rakoff is a model judge, giving an example of how there should not be a trial tax and explaining that the loss guidelines made no sense.  From law.com:

Rakoff rejected a guidelines range of 78 to 97 months as an irrational result because it was driven by the amount of money involved in Rajaratnam's trades and it was Rajaratnam, not Gupta, who made money on both bad and good news coming from within the secret confines of Goldman Sachs' boardroom. The judge said two years was enough to send a message of deterrence to would-be insider traders.
Rakoff ordered the sentence, set to begin on Jan. 8, after taking into account Gupta's charitable giving through organizations such as the Global Fund to Fight AIDS, Tuberculosis and Malaria. Rakoff said Gupta had extended a "big heart and a helping hand" to millions.

John Errol Ferguson's execution stayed

He was set to be executed last night at 6pm, but the 11th Circuit stayed the execution at 8pm (?!!?) and the Supreme Court upheld the stay.  It's been a roller coaster though for the last few days.  From the AP:

Following a slew of conflicting court rulings, a federal appeals court has blocked the scheduled execution of a mass killer convicted of eight killings that jolted South Florida in the 1970s. The U.S. Supreme Court upheld the stay.
The 11th U.S. Circuit Court of Appeals' decision Tuesday came during a flurry of legal decisions over claims that 64-year-old John Errol Ferguson suffers from mental illness so severe he cannot be executed. Ferguson, a paranoid schizophrenic with delusions he's the "prince of God," had faced a planned lethal injection at 6 p.m. Tuesday in Florida's death chamber.
The Supreme Court rejected an earlier Ferguson emergency appeal Tuesday – as did the 11th Circuit – but the high court would not agree to the state of Florida's request to overturn the later ruling. The appeals court set a schedule for motions that will likely delay the execution at least until the first week of November, if not longer.
Florida Attorney General Pam Bondi's office argued in court papers that the late ruling "makes a mockery of the state's compelling interest in finality" in Ferguson's case. He has been on death row for 34 years.

Judge Carnes, Florida's death penalty, and Shakespeare

Remember that case in which Judge Martinez found Florida's death penalty unconstitutional under Ring?

The 11th Circuit, per Judge Carnes and joined by Judges Marcus and Pryor, decided today that the death penalty was fine and dandy even though it's pretty clear that Judge Martinez is right and that the Florida death penalty can't survive Ring.

But, the 11th says that we have to wait for the Supreme Court to explicitly say so. Judge Carnes starts off this way:

Confident that he knew what the future would bring, one of Shakespeare’s
characters boasted that “[t]here are many events in the womb of time which will be
delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13. On the
subject of lower courts predicting that the Supreme Court is going to overrule one
of its own decisions, however, Judge Hand cautioned against “embrac[ing] the
exhilarating opportunity of anticipating a doctrine which may be in the womb of
time, but whose birth is distant.” Spector Motor Serv. v. Walsh, 139 F.2d 809,
823 (2d Cir. 1943) (Hand, J., dissenting). The Supreme Court has made Hand’s
warning a clear command by repeatedly instructing lower courts that when one of
its earlier decisions with direct application to a case appears to rest on reasons
rejected in a more recent line of decisions, we must follow the directly applicable
decision and leave to the high Court the prerogative of overruling its own
decisions. As will become apparent, those instructions are dispositive of the
State’s appeal from the grant of habeas corpus relief in this case.

Well, this case is off to the Supreme Court and my money is on Judge Martinez getting vindicated.

Judge Bandstra to JAMS

The DBR covers Judge Bandstra's departure to JAMS.  Good luck to him!  There are some good stories about him in the article:

Bandstra’s legal experience includes three years with Katten Muchin in Chicago followed by three more as an assistant U.S. attorney trying 30 cases under Stanley Marcus. He also spent three years at Fowler White Burnett handling medical malpractice for firm shareholder and co-founder Henry Burnett.

“Henry’s my mentor and the person I respect most,” Bandstra said.

He said his experience as a magistrate can help sparring sides see their legal situation more realistically.

“One of the things I’ve enjoyed most as a judge is the settlement of cases where I’ve had some input,” Bandstra said.

After South Florida’s district judges chose Bandstra as a magistrate in 1989, U.S. District Judge Eugene Spellman telephoned to welcome him with two interesting details.

“First of all, you weren’t my first choice,” Bandstra recalled him saying. “That took me back a little bit.

“The other thing was, ‘You should know you got the judges’ vote on the first ballot, which has never happened.’ ”



The debate last night was a good way to show how important facial expressions are during trial.  In the first debate, Obama lost not so much for what he said, but mostly because he kept looking down, writing, and shaking his head.

 Last night, Romney got trounced in part because he had this weird grin on his face all night which didn't seem appropriate.

 Plus, there was this:

Monday news & notes

1. Who wants to go to Pakistan? Apparently the defense does in what was dubbed the "Pakistani Taliban" case when it was filed lots of publicity but which seems much different now.

Jay Weaver covers the government's opposition here:  

Two South Florida Muslim clerics — a father and son separated by more than 50 years in age — are struggling to persuade a Miami federal judge to allow their lawyers to travel to Pakistan to question alleged Taliban sympathizers who might help their defense against terrorism charges. Lawyers for Hafiz Khan and Izhar Khan, former imams of mosques in Miami and Margate, have already lost their first bid to travel with federal prosecutors to the U.S. Embassy in Islamabad to take depositions from five witnesses who do not want to come to Miami to testify at the upcoming trial. Among the potential witnesses are two other Khan family members and another suspected Taliban supporter who were accused in the same case of conspiring to aid the Taliban with money and guns. 

Last week, U.S. District Judge Robert Scola rejected the defense’s initial deposition plan — which was strongly opposed by federal prosecutors — as “unsafe and impractical.” But Scola left open the possibility for the defense’s alternative: allowing the Khans’ lawyers to question the witnesses at a hotel such as the Marriott in Islamabad in a live, videotaped deposition with the prosecutors participating from Miami. “If there is a way for you to take their deposition, I’m going to let you do it,” Scola said, setting the stage for a final hearing Oct. 29. The clock is ticking, however, because the “material-support” trial that initially drew national headlines is scheduled for early January. Bottom line, the defense said: No deposition, no fair trial.


 2. How much time should Rajat Gupta get? He went to trial and was convicted. The government is asking for 97-121 months and the defense is asking for probation.

 The trial penalty has become so absurd in our system. Gupta, I'm sure, was offered very little or no jail time if he had pleaded guilty.

 Does he really deserve 10 years because he went to trial? My prediction is that Judge Jed Rakoff sentences him to 36 months.

Here's the Bloomberg article on the case. If you are interested in the sentencing memos, you can check them out here.

Judge Jordan can't wait to see Lincoln

From his opinion yesterday: 

Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief Case: 11-13117 Date Filed: 10/18/2012 Page: 1 of 29 rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary. 

The issue we address is whether this firing violated Ms. Underwood’s First Amendment rights. In light of our precedent, we conclude, as did the district court, that it did not.

In other news, do you think that a prosecutor should be able to use a booking photo in closing argument with the words GUILTY GUILTY GUILTY superimposed on top?  The Washington State Supreme Court said no in a 5-4 opinion. Via The News Tribune:


The Washington State Supreme Court has overturned four felony convictions of a Pierce County man, saying a deputy prosecutor violated the defendant’s right to a fair trial by superimposing the words, “guilty, guilty, guilty,” over the man’s photo during a PowerPoint presentation in closing arguments.
The state’s high court, on a 5-4 vote, sent Edward Michael Glasmann’s case back to Superior Court for a new trial.
“The prosecutor’s misconduct was flagrant, ill intentioned and we cannot conclude with any confidence that it did not have an effect on the outcome of the trial,” Chief Justice Barbara Madsen wrote for the majority in an opinion released Thursday.
Prosecutor Mark Lindquist said he thought the majority made a bad call.
“The majority opinion is correct in recognizing that prosecutors are quasi-judicial figures,” he said. “We have a duty to seek justice and be fully professional. The opinion takes a strange turn, though, in finding reversible misconduct because a former deputy prosecutor superimposed the word ‘guilty’ on a PowerPoint slide with a booking photo.
“This was unnecessarily melodramatic, but did not affect the outcome.”

Read more here: http://www.thenewstribune.com/2012/10/18/2337016/pierce-man-gets-a-new-trial-over.html#storylink=cpy

Debates

This is pretty funny from Family Guy:

BREAKING -- MAGISTRATE SHORT LIST

The Magistrate Committee has cut the list to five names and now it's up to the judges to pick your next Ft. Lauderdale magistrate.  Here's the list:

Bruce Brown
Patrick Hunt
Corey Steinberg
Alicia Valle
Garth Yearick

Three AUSAs, one AFPD, and one private practitioner.  Good luck to the five.
(And thanks to my tipsters.)

Shameful

Bloomberg has a story today about our country's incarceration rates.  It's jaw-dropping.  We jail more people than any other country... by a lot.  Out of every 100,000 citizens, we jail 730.  To give some perspective, Cuba and Russia are right around 500.  England is about 150.  And how about prisons:

“The model is, if you build it they will come,” said Daniel D’Amico, a professor of economics at Loyola University New Orleans. “Because we have all these prisons and all of these other resources funneled into our criminal justice system, we have this ability to enforce things that would otherwise be unenforceable.”
“That includes the drug war, but it’s also including everything from the Martha Stewart types to immigration policies,” D’Amico said. “The scope of things that are now criminal in corporate law is exponentially higher than it was merely twenty years ago.”
The U.S. also leads the world in the number of prisons in operation at 4,575, more than four times the number of second- place Russia at 1,029. U.S. states spent $52 billion to construct and operate those prisons in 2011, more than quadruple the $12 billion spent in 1987, according to data from the Pew Center on the States. 

Just insane.  We have over 2.2 million people in prison.  That's about the size of Houston.  I hope there is a question about this at the debate tonight.

"The result is that we will end up with a bench populated only by former state court judges and lawyers from government or academia."

That's David Mandel in this article by John Pacenti about the Federal JNC and the process of picking federal judges.  He makes a point.  None of the the last three judges appointed (or the current one being vetted) come from private practice.  Do you think this is a problem?

Is it a problem that private practitioners are not applying to the federal bench?
	Yes, we need judges from all different areas
	Yes, we need judges who remember what it's like to run a practice
	Yes, government lawyers and state judges get "Robe-itis" too easily
	No, government lawyers and state judges are dedicated public servants and are extremely qualified
	No, if private practitioners want to apply, there is nothing stopping them
pollcode.com free polls

Here's the intro from the article:

What do Supreme Court Chief Justice John Roberts, Chief U.S. District Judge Federico Moreno and former U.S. Attorney Roberto Martinez have in common? They were all political footballs when their nominations were caught between the administrations of President George H.W. Bush and President Bill Clinton. The nominations of Roberts to U.S. Court of Appeals for the D.C. Circuit and Moreno to the Eleventh Circuit expired, and Martinez found himself out of a job at the U.S. attorney’s office in Miami. The lapsed nominations were far from career killers. Roberts is now, of course, the head of the U.S. Supreme Court, Moreno runs federal courts in the Southern District of Florida, and Martinez went into private practice where he has built a reputation as one of the most respected legal minds in South Florida. But becoming a federal judge, U.S. attorney or federal marshal can be tricky and political. And it all starts with the Federal Judicial Nominating Commission. Martinez was joined by fellow former U.S. Attorney Kendall Coffey and Tew Cardenas partner Thomas Schultz, a former JNC chairman, for a panel discussion titled “Narrowing the Field” on the commission at a meeting of the South Florida chapter of the Federal Bar Association. They said politics plays a big role in the nominating process but not at the commission level. Martinez, Schultz and Coffey have held leadership positions on the commission at one time or another. Coffey currently chairs the 21-member Southern District Conference. The panel’s consensus was that Florida led the way nationally in trying to take politics out of the task of narrowing the field of applicants for Florida’s senators to consider. Each conference recommends up to four applicants to the senators, who make a recommendation to the White House.