Federal Bar Gala

It was a nice evening last night at the Biltmore. Brett Barfield was sworn in for a second term, and Bernie Pastor is President-Elect. Judges Williams and Scola were toasted. And Judge Hoeveler received the Ned Davis Award, which was presented in a moving speech by Judge Gold. It was a huge turnout, and Brett has really done a fantastic job with the organization. It's an exciting time in the District...

Congrats to Bob Scola!

He was confirmed today as our newest federal judge. Well done!

Eddie Dominguez leaving DBR

He's done amazing things with that paper, and it's too bad he is leaving. While most newspaper readership is declining, the DBR has been flourishing under Eddie's leadership. He's made the paper relevant and interesting, and he's been able to keep good, talented reporters. Not easy in this environment.

He's headed to City National Bank as Senior VP in charge of Communications, Marketing, and Community Relations, and I wish him well. Now he can take me, and his other sources, out to lunch...

His going away party is this Friday at Bin 18 if you want to see him off.

Everything is a crime these days

The Supreme Court decided to hear a case involving the Stolen Valor Act; i.e., whether it is a crime to lie about prior military service:

The court said Monday it will rule on the constitutionality of a law that makes it a federal crime for people to claim falsely, either in writing or aloud, that they have been awarded the Medal of Honor, a Silver Star, Purple Heart or any other military medal.

The Stolen Valor Act, which passed Congress with overwhelming support in 2006, apparently has been used only a few dozen times, but the underlying issue of false claims of military heroism has struck a chord in an era in which American soldiers are fighting two wars.

At the same time, the justices have issued a series of rulings in recent terms in favor of free expression, striking down California's violent video restrictions and a federal law involving cruelty to animals. It also upheld the right of protesters to picket military funerals with provocative, even offensive, messages.

The federal appeals court in California struck down the military medals law on free speech grounds, and appeals courts in Colorado, Georgia and Missouri are considering similar cases.

The Obama administration is arguing that the law "serves a crucial purpose in safeguarding the military honors system." The administration also says the law is reasonable because it only applies to instances in which the speaker intends to portray himself as a medal recipient. Previous high court rulings also have limited First Amendment protection for false statements, the government said.

This was the case that Judge Kozinski said went too far because everyone lies:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for
career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy
is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social
intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

While the U.S. Supreme Court is hearing that case, the Florida Supreme Court is going to decide whether loud music is a crime or not:

The Florida Supreme Court will soon rule on whether regulating car stereo volume is a violation of drivers' First Amendment rights, possibly eliminating local noise ordinances in one fell swoop.

The court announced Monday that it will hear arguments in State vs. Catalano in February, a case that began when police in St. Petersburg ticketed a corporate lawyer for exceeding the noise limit by blasting a little Justin Timberlake at 7:34 a.m. on his way to work.

Richard T. Catalano fought the $73.50 ticket, and he's fought it all the way to highest levels of state law.

Really Mr. Catalano? Blasting Justice Timberlake?!

In other news, Cain is polling ahead of Obama...

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.

Judge Jordan’s nomination delayed and will join dozens awaiting Senate Floor votes

GUEST POST BY GLENN SUGAMELI

David Oscar Markus lives in a rational world. Thus, he reasonably believed that the U.S. Senate Judiciary Committee would vote today on the nomination of S.D. Fla. District Judge Adalberto José Jordán to be a United States Circuit Judge for the Eleventh Circuit.

After all, Judge Jordan is strongly supported by his Florida home-state U.S. Senators, The Palm Beach Post Editorial Board urged a truce to avoid any delay of his confirmation, his hearing was uneventful, he was on today’s Committee’s agenda, and Chairman Pat Leahy’s statement explained that:

“Federal judicial vacancies across the country remain above 90. This is the longest extended period of high vacancies in the last 35 years. More than one of every 10 Federal judgeships remains vacant. Today the Committee has the opportunity to make progress and vote on 10 of President Obama's judicial nominees to fill vacancies in California, Missouri, Montana, Nebraska, New York, Washington, West Virginia and Utah, as well as on the 11th Circuit and the Federal Circuit.”

Judiciary Committee Republican senators, however, nearly always exercise their right to delay votes on every judicial nominee until the next week’s Executive Business Meeting the first time they are listed. Today, they delayed Judge Jordan and four others until Oct. 13.

Moe importantly, the fact that Judge Jordan is moving through Committee does NOT mean that he will get a Floor vote anytime soon. True, he has (bipartisan) home state senator support and should be approved without opposition in Committee. But that is also true of nearly all of the many other stalled nominees.

Anonymous and unexplained objections from GOP senators have created an unprecedented backlog of consensus judicial nominees who could and should be approved very quickly. As Senate Judiciary Chairman Pat Leahy explained in July, "we will still have 25 nominees sitting on the calendar who could be disposed of within an hour, yet they are blocked week after week after week.”

Even the most consensus district court nominees are only confirmed after inexcusable and unexplained delays. For example, the New Orleans Times-Picayune’s Oct. 5 Editorial described how

“Nannette Jolivette-Brown will be the first African-American woman to serve on the federal bench in Louisiana, following a unanimous vote by the U.S. Senate Monday confirming her nomination. . . . She had the backing of both Sen. [Mary] Landrieu and Sen. David Vitter, who was a law school classmate at Tulane University. Both urged the Senate Judiciary Committee and the full Senate to confirm her quickly at her confirmation hearing in May.”

There were 27 Committee approved judicial nominees awaiting Floor votes before the Senate belatedly confirmed Jolivette-Brown and five others unanimously. When the Committee approves Judge Jordan and the other delayed nominees next week, there will once again be 27 awaiting Floor votes.

A sweeping nonpartisan push to fill federal judgeships extends from Supreme Court Chief Justice Roberts and Justice Anthony M. Kennedy, to the American Bar Association and Federal Bar Association, to countless editorials boards and commentators from across the nation.

Justice delayed is justice denied, as more than 200 million Americans live in areas where the U.S. Courts have declared vacant judgeships to be judicial emergencies.

-Glenn Sugameli, Staff Attorney, Judging the Environment, Defenders of Wildlife

Juror charged with soliciting bribe from defendant

This complaint is worth a read. From the government's press release:

According to the complaint filed in federal court today, Campagna was a sworn trial juror in the federal criminal case of United States v. Arturo Marrero, pending in the United States District Court for the Southern District of Florida, Case No. 10-60244-CR-COOKE. Campagna allegedly approached the father of the defendant outside the U.S. Courthouse in Miami, Florida and stated that he had information about the case. Campagna gave the father a piece of paper with a telephone number on it, but did not identify himself by name or explain that he was a juror.

The complaint further alleges that later that afternoon, the defendant’s brother called Campagna and arranged to meet with him in Miami Beach to discuss the case. At that meeting, Campagna revealed to the brother that he was a juror in the case and that some of his fellow jurors were inclined to convict. Campagna offered to persuade other jurors to vote not guilty in exchange for a payment of between $50,000 and $100,000. The brother expressed skepticism at Campagna’s claims, and added that money was tight, that he would think about Campagna’s offer, and that he would get back to him the next day.

On October 5, 2011, the brother began to cooperate with the FBI and made a recorded telephone call to Campagna to follow up on his discussions of the day before. The brother asked whether Campagna was still willing to help influence the outcome of the case, and Campagna answered yes. The brother then proposed a meeting at the same time and place to discuss money and other details. Campagna agreed. The brother stated that he had been able to get some money together but wanted to negotiate a final price.

Later that day, the brother participated in a recorded meeting with Campagna near the same Miami Beach location. Campagna reiterated that he could influence the jury and prevent a guilty verdict. The brother and Campagna then began to negotiate over price, and eventually settled on $20,000, which is the amount the brother said that he had brought with him. Campagna followed the brother to his vehicle to obtain the cash payment. The brother then handed Campagna what appeared to be a bundle of cash in a brown paper bag. At that point, Campagna was arrested.

Marrero's lawyers are Dore Louis, Marcia Silvers, and Joe Rosenbaum. Does Marrero get reprosecuted after this or do the feds say thank you and move on?

RIP Steve Jobs

I remember my first computer -- an Apple IIe. I was the happiest kid in Kendall when we got it. There was no internet then, but I started a BBS called The Shire with a dial-up modem and two floppy disc drives. I'll never forget how cool I thought it was to be able to get baseball box scores from Compuserve right after the game ended. The lines would stream across the screen, one by one. I've never been able to throw that computer away. Much to my wife's chagrin, it still sits in our garage...

Here's Jobs' commencement speech from Stanford in 2005. It's worth watching for some inspiration:

Judge Jordan's nomination to be heard by Judiciary Committee on Thursday

Thankfully, his nomination is moving quickly. After the vote this Thursday, it will go to the full Senate.

En banc day

The 11th Circuit has decided to hear the Fair Sentencing Act cases (Rojas and Hudson) en banc. The Federal Public Defender's office represents both defendants. The two en banc orders are here and here.

Rojas was the case that was on the 11th Circuit webpage and then off and then on again. Should be interesting...

In other news:

-- Justice Stevens has a new book out, Five Chiefs, that looks really interesting.

-- Kenneth Starr says open up the Supreme Court to cameras. He's 100% right. Why not:

The benefits of increased access and transparency are many. Democracy’s first principles strongly support the people’s right to know how their government works. This would seem to be underscored by this court’s stubborn insistence on freedom of communication in a democratic society. Recall that earlier this year, the court held that the First Amendment protected the right of protesters to hector a military family during a funeral service for their son, who was killed in Iraq. And the court decided that the same societal interest in free speech outweighed California’s interest in protecting minors from extremely violent video games. These are but two of many examples in which the current court has made plain its view that, in extreme cases, the force of First Amendment rights shall outweigh all else.

Year after year, the court issues decisions that profoundly affect the nation. Think of civics classes. The retired Justice Sandra Day O’Connor is one of many who have lately lamented the apparent collapse of civic literacy in public schools. Think of older Americans affected by President Obama’s health care program. Think of women or other groups affected by important class-action cases, like the Wal-Mart discrimination case last term. These citizens should have a chance to hear what the justices think about important questions that touch their lives.

The issue of cameras in the courtroom is one of precious few on which conservative Republicans, like Senator John Cornyn of Texas, and liberal Democrats, like Representative Henry A. Waxman of California, agree.

First Monday in October

Law nerds like you and me love this day. And it looks to be a great Term. There are lots of stories covering this Term's cases, but I like Adam Liptak's article here. Seems like a bunch of interesting criminal law cases:

The court will decide whether the police need a warrant to use advanced technology to track suspects, whether jails may strip-search people arrested for even the most minor offenses, whether defendants have a right to competent lawyers to help them decide whether to plead guilty, when eyewitness evidence may be used at trial, and what should happen when prosecutors withhold evidence.

***

In United States v. Jones, No. 10-1259, the justices will consider whether the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time. Some appeals court judges have said that such surveillance put them in mind of George Orwell’s novel “1984.” Prosecutors say that electronic enhancement of the ability of the police to stake out and track suspects raises no constitutional concerns.

A second Fourth Amendment case, Florence v. Board of Freeholders, No. 10-945, asks whether people arrested and held for minor offenses may be routinely strip-searched.

The court will also consider, in Maples v. Thomas, No. 10-63, whether a mix-up in the mailroom of a big New York law firm should mean that a death row inmate in Alabama must lose an opportunity to appeal a decision against him.

In a pair of cases to be argued on Oct. 31 — Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444 — the justices will consider whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel. A great majority of prosecutions are resolved with guilty pleas, and more vigorous judicial supervision of how the pleas are reached would have a broad practical impact.

The court will also consider the use of eyewitness evidence, in Perry v. New Hampshire, No. 10-8974. Such evidence, as the New Jersey Supreme Court found in a major decision in August, is often unreliable and has been the cause of many wrongful convictions. The justices will consider whether trial courts must be particularly wary of allowing such evidence to be presented when it has been tainted by suggestive circumstances not created by the authorities.

And the justices will return to a subject that sharply divided them in last term’s Connick v. Thompson case, which threw out a $14 million jury award to a former death row inmate who was cleared after prosecutorial withholding of evidence in New Orleans came to light. The new case, Smith v. Cain, No. 10-8145, also comes from New Orleans and concerns similar claims of prosecutorial misconduct.

And the First Amendment:

The court will continue its intense engagement with the First Amendment. But where earlier cases involved quirky issues like dog fights, funeral protests and the Seven Aphorisms of a fringe church called Summum, the marquee First Amendment cases this term involve issues of sweep and consequence.

In one, the court will rule on whether the government may ban swearing and nudity on broadcast television. In another, the justices will decide for the first time whether there is a “ministerial exception” to employment laws that allows religious institutions to discriminate in ways others employers cannot.

And that little health care case might come along too:

The health care case is not the only juggernaut looming on the horizon. In the next term or two, the court may well address same-sex marriage, affirmative action and illegal immigration. For now, the justices are focused on criminal cases, especially ones concerning the Fourth Amendment’s protections against unreasonable searches and the Sixth Amendment’s guarantee of a fair trial.

See you Monday

Here's what's up:

1. Did Bill Buckner appearing on Curb cause the Sox to lose?

2. I love when pro-se litigants win.

3. Fellow nerds unite!

4. Is this guy for real, arguing that mandatory guidelines are good? I would challenge him to a debate, but he'd never accept.

5. Roy Black examines the Conrad Murray openings.

Rosh Hashanah news and notes

1. Former ICE chief Anthony V. Mangione made his initial appearance today in federal court on this indictment (where he drew Judge Marra). His defense lawyer is David Howard. (The Herald has more here.)

2. Speaking of Judge Marra, he has ruled that the feds should have notified the victims (via PBP):

A federal judge has paved the way for victims to continue their fight to invalidate a secret deal, which saved billionaire sex offender Jeffrey Epstein from facing serious federal charges and significant prison time.

Monday’s 14-page ruling by U.S. District Judge Kenneth Marra rejects the U.S. Attorney’s Office argument that it was under no obligation to notify victims prior to striking a non-prosecution agreement with Epstein simply because there were no federal charges filed against him.

Marra ordered that discovery in the case proceed, which means that the victims — and the public — may get access to previously secret correspondence between Epstein’s attorneys and the government.

Attorneys Paul Cassell and Brad Edwards have been fighting on behalf of Jane Does No. 1 and No. 2 to have the federal non-prosecution agreement overturned, because, they say, it was done without notice or consent of the victims, which violates the federal Crime Victims’ Rights Act.

In his ruling, Marra agrees that the language in the act provides for victims’ rights to include pre-charge proceedings.

“The government’s interpretation ignores the additional language throughout the statute that clearly contemplates pre-charge protections,” Marra wrote in his ruling.

Marra also rejects the government’s argument that “pre-charge CRVA rights could impair prosecutorial discretion and decision-making.”

Cassell, a former federal judge, called the ruling “a home run" for all victims.

3. Here's an interesting opinion on the plain view doctrine and screen savers, via Orin Kerr:

The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?
***
The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

"Head of ICE in South Florida arrested on child porn charges"

That's the headline from the Sun-Sentinel.

The feds have been investigating for quite some time.

Initial Florida Bar vote finds 2255 waivers unethical

Last week, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement. Staff from the Florida Bar will now draft an advisory opinion for the committee's consideration, and the committee will consider it at its next meeting (sometime next year). The government will oppose the proposed ethics opinion.

But why? Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up.

Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?

So, SDFLA readers, what do you think? Should the government be asking for 2255 (and other waivers) or is Judge Roettger (and the Florida Bar) right that these waivers are unethical.

The trial tax

Despite this NY Times article about declining trials, this district still tries cases -- Judge Ungaro has closing arguments in a criminal antitrust case this morning; Judge Seitz is in the middle of a lengthy mortgage fraud case; Judge Cooke is starting a trial this morning. That said, the NY Times examines whether the "trial tax" is too high, forcing too many people to plead. The article focuses on state cases in Florida, but here's a snippet on the feds:

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.

***

Some federal prosecutors worried that their power would be weakened by a 2005 Supreme Court ruling that made sentencing guidelines advisory only. But academics say the ruling had much less effect than what some predicted as many judges still largely follow the guidelines, and the ruling did not affect other laws that have given prosecutors more power.

Friday's speed of light edition

1. Are there particles really moving faster than the speed of light? If so, this is the biggest news of our lifetime.

If not, there is still legal news:

2. Is this an effective letter to a sentencing judge by C. Coke?

3. The 11th Circuit says Florida deep-sea explorers must return 17 tons of silver coins from a sunken ship to Spain.

4. Former U.S. Attorney in DC calls federal sentencing "draconian."

5. Watch out for the falling satellite this weekend.

6. FIU posted the highest bar passage rate.

7. Yesterday, the Hispanic Bar honored Judge Jose Gonzalez at the federal courthouse. I heard that Judge Gonzalez gave a beautiful speech.

One judge to another during oral argument: "Shut up."

Remember the tiff between Judges Sparks and Jones over the Kindergarten email sent to lawyers. Well, Judge Jones is in the news again over judicial demeanor and ethics. Above The Law has the whole story and it's a doozy. This time, Judge Jones goes at it with Judge Dennis during an oral argument (here's the recording). Here's the transcript, prepared by ABT:

MR. TURNER: I think the amount of drugs in that truck supports the intent to distribute. And the jury….

JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….

CHIEF JUDGE JONES: Judge Dennis….

JUDGE DENNIS: … just on the basis of the amount of drugs …

CHIEF JUDGE JONES: Judge Dennis!

JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

RANDOM FEMALE JUDGE WHO IS NOT EDITH JONES (timidly): I would like to ask a question about the necessity for a Sears instruction….

Yikes.

Summary

Lots of news the last few days...

-- New Federal Judges being vetted (Thornton & Rosenbaum)
-- Huge sentences for Medicare fraudsters
-- Judge Jordan's confirmation hearing was today
-- Hung jury after a long mortgage fraud trial (happy for Michael Walsh after how the case began for him)
-- Padilla case decided 2-1

Here's a little more:

-- Pacenti reports on a case in which Nevin Shapiro testified but the defense was not made aware of the pending investigation against him;

-- The NY Times covers the question of whether jurors should be required to sign a pledge under penalties of perjury that they won't search the internet about the case while sitting as jurors, while the NY Post asks whether a prosecutor can work as a dominatrix.

-- I know the feds like to keep lawyers at the podium, but this may be a bit too far -- a judge has given authority to marshals to in their discretion SHOCK a lawyer representing himself if he strays from the podium. An anklet has been installed that will administer the shock. Seriously.

Mistrial in 4 month long mortgage fraud trial

This was trial #2 in the cop mortgage fraud trial, where trial #1 resulted in 4 of the 6 defendants being acquitted. For the second group of defendants, the jury hung, and I'm told it was 10-2 for acquittal. I feel for Judge Cohn, the defendants, their lawyers, and the prosecutors. This was an excruciatingly long trial. Is the government going to retry these defendants? As I've said before, I don't think retrials in cases like these are appropriate:

I'm not sure why a prosecutor should be able to retry a case after he couldn't convince a jury to convict. Isn't that reasonable doubt? To force someone to defend against two federal trials is impossible in every way -- financially and emotionally. The government had its shot in what was a controversial prosecution. Now time to go after a real criminal.

11th Circuit decides Padilla case 2-1

Here is the opinion .

Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings. In total, there are 120 pages of opinions. This case seems destined for Supreme Court review.

More to follow...

BREAKING -- Rumors regarding district judge openings UPDATE -- Rumors confirmed!

Well, this wouldn't be printed if it were a newspaper or a legitimate publication, but because this is a blog, and I trust my sources, I am going to post the rumor that is being whispered about around town. Again, this isn't confirmed, but if it's being discussed at La Loggia, it can be discussed here too.

As we all know, 4 names were sent up by the JNC to fill Judge Gold's seat. Apparently, the White House is vetting two of those names, John Thornton and Robin Rosenbaum -- one to fill Judge Gold's seat and one to fill Judge Jordan's seat (see below; his confirmation hearing is next week).

If the rumor is true, congrats to Judges Thornton and Rosenbaum!

If anyone out there can confirm or refute this rumor, please email me and it will remain anonymous. Thanks.

UPDATED -- It's confirmed. Congratulations to Judge Thornton and Judge Rosenbaum! Here's hoping that the President and Senate move quickly.

Judge Jordan's confirmation hearing next week

It's set for Tuesday, September 20. That was quick -- Well done to the adminsitration for moving this nomination forward. After his hearing, then he will get written questions from the committee and then there will be a vote. Looks like Judge Jordan may be on the 11th by sometime in November.

Now we need to get Bob Scola confirmed. He is #19 on the list of district judges waiting confirmation, so if they do a few per week, we are looking at October for Judge Scola.

Things are starting to move, which is nice.

Big shout out to Dore Louis for his posting over the past two days. Good stuff.

Great Ruling on Strange Issue

By guest blogger, Dore Louis

Judge Cooke has just issued an Order in an interesting matter.

In July of this year, Governor Scott signed into law Fla. Stat. § 790.338, which contained a few odd provisions. Basically, the statute provided a basis to impose sanctions upon a doctor or health care provider who asks a patient about gun ownership or otherwise discriminates against a patient because of gun ownership.

"According to the State’s legislative findings, the State passed the law in reaction to an incident in Ocala, Florida, where a physician advised the mother of a minor patient that she had thirty days to find a new pediatrician after the mother refused to answer questions about firearms in her home."

Governor Scott is our Tea Party Governor. Big free market ideas...'let the market sort it out, government shouldn't be telling us what to do, etc.'; so it seems odd to me that he would sign into law a regulation that mandates a physician treat a patient who that physician does not want to treat because he/she owns a gun. Free market theory would instruct that if there are enough gun owners in the marketplace, the physician will either change his/her ways or go out of business.

Turns out the reason the pediatrician was doing what he/she did, was because the American Academy of Pediatrics counsels physicians to give guidance on gun safety. We don't want kids like this walking around, no matter how cute they are.



But why should politics make sense? Thankfully, Judge Cooke is able, through her thoughtful order, to make sense of subjects I was not particularly good at in Law School - First Amendment and Preliminary Injunction Law. What are those standards?

"At issue in this litigation is a law directed at maintaining patients’ privacy rights regarding firearm ownership within the context of the doctor-patient relationship. In effect, however, the law curtails practitioners’ ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients, under certain circumstances. The Firearm Owners’ Privacy Act thus implicates practitioners’ First Amendment rights of free speech. The Act also implicates patients’ freedom to receive information about firearm safety, which the First Amendment protects."

...

"The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State’s insistence that the right to “keep arms” is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights. The right to keep arms refers to the right to “retain,” “to have in custody,” and “to hold” weapons, including firearms."

...

"I will not speak to the wisdom of the legislation now before me. Questions of a law’s constitutionality do not create “a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). The First Amendment, however, “was not designed to facilitate legislation,” whether wise or not. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 503 (2007) (Scalia, J., concurring). Based on the foregoing, I find that Plaintiffs have a substantial likelihood of succeeding on the merits of their constitutional challenge."

...

"Each of the factors for a preliminary injunction weighs in Plaintiffs’ favor. For that reason, the Plaintiffs’ Motion for Preliminary Injunction (ECF No. 16) is GRANTED. The State is preliminarily enjoined from enforcing § 790.338(1), (2), (5), and (6). The State is also preliminarily enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further preliminarily enjoined from enforcing § 456.072(1)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken."

I am a bit saddened that there were no Yosemite Sam references. Here is the Order.

Wollschlaeger Order

Federalist Society Panel

By Guest Blogger, Dore Louis

Last night the Federalist Society hosted an event at the Banker's Club entitled "War Zone or Crime Scene: Walking the Tightrope of Justice Ten Years After September 11th."

The panel included every person who held the position of US Attorney since 9/11 - Guy Lewis, Marcos Jimenez, Alex Acosta, Jeff Sloman, Wilfredo Ferrer, and acting Federal Public Defender Michael Caruso, who proved a bit elusive to the camera. Neal Sonnet moderated.


The night included everything one might expect a Federalist Society event to have: a well-stocked bar and plenty of time to mingle; a book co-authored by John Yoo, gifted to the panel members; a regional CIA recruiter mingling with the guests (no joke); Marshals to protect the dignitaries; and, the obligatory "Osama"...oops..."I sometimes say "Obama"" joke by a panelist.

All in all, it looked as if it was going to be a 'hanging jury' for Michael. As anybody who knows Michael would expect, Michael shined.

The discussion was very interesting and quite non-partisan. Essentially, it was a walk trough the history of the US Attorney's Office in the Southern District of Florida, from 9/11 onwards. Michael did a great job adding color to the other side of the equation - bringing home the impact that ramped up prosecutions for offenses such as routine immigration violations or the effects prolonged isolated confinement have on people.

Guy Lewis led off. He talked about how he and other members of the office sat watching the terrorist attacks unfold on 9/11 and the eerie "radio silence" that prevailed from DOJ during the attacks. 16 of the 19 hijackers had either lived in the Southern District or otherwise had connections here, and they were simply not on the radar. The day after 9/11 GL convened a meeting of federal and local law enforcement and began to redirect the priority of the office from prosecution of offenses such as violent crime, cyber crime and money laundering to the prosecution and prevention of terrorism.

Marcos Jimenez took over after GL left to D.C., and one of his first impressions was how much the office changed from when he had been a AUSA. MJ really gave the audience a good feel for how much pressure a US Attorney feels while in the office, including the fear that his efforts would not be enough to prevent an attack from happening. MJ specifically mentioned port security and the nightmare scenario that something would happen on a cruse ship, and bunch of people would get killed and he would have "egg on his face."

Other than Michael (who I admit to being partisan to and who will always have my vote), Dean Alex Acosta was the most impressive speaker of the night. I did not realize what an intellectual the guy is. AA gave a terrific overview of military tribunals in the United States, going back to Nazi spies in the beginning of WWII. Whether you agree or disagree with the policies the government pursued post-9/11, it is very apparent that AA had thoroughly thought through the legal basis for the actions taken, and would be able to provide justification for each and every one. Frankly, if AA presents like this always, I fully expect to be calling him Judge in the future - if that is what he is after.

Jeff Sloman, who had been involved in terrorism prosecutions and investigations before 9/11, spoke to a concern that was raised by MJ. Radicalized people who are willing to die for a cause. Such concerns led to cases such as the Liberty City 7 case, that were targeted at neutralizing threats before they became capable of carrying out a terrorist act.

Willy Ferrer was obviously more constrained in what he could say because he is the current US Attorney - he was able to provide statistics and a broad overview of efforts that are ongoing to prevent terrorist acts. But what WF said that struck me most, was the mention of his law school class mate - Geoffrey Cloud, who went to work in the World Trade Center on 9/11 and was killed in the attacks.

I am certain that people like WF, who lost friends during 9/11 will not forget the destruction of that day. Whether you agree or disagree with the policies that our government pursues, folks like those who hold the office of US Attorney in the Southern District of Florida are tasked with keeping us all safe. I want them to remember that day, and I want that memory to drive them to do the best job they can.

Whether ultra left or ultra right, we all hate terrorism and want our government to keep us safe. That is the point that Michael was really able to drive home - yes, we need to be kept safe, but at the same time, we need to protect our Constitutional liberties and hold true to the values that have made us this great Nation.

How far can law enforcement can go to protect us? God forbid something terrible happens again - law enforcement did not go far enough. In the name of terrorism prevention, continue prosecuting immigrants who try to sneak into America with the sole intention of working hard and earning a living - too far.

It is a very difficult question to address, and the reason that we should all encourage participation in more events like the Federalist Society panel discussion. That organization and its leadership deserve a lot of credit for gathering the panelists together to attempt to confront the issues.

The threat is real, it is deadly, and we do not want the people protecting us to forget it.

- Bette and Peter Cloud, the parents of terrorist attack victim Geoffrey Cloud of Sudbury, speak about their son to people gathered for a 9/11 remembrance at the September 11th Memorial Garden at Heritage Park in Sudbury Sunday.

Kindergarten cop

District Judge Sam Sparks recently got the attention of blogs and email lists with his "Kindergarten Order."

Edith Jones, the Chief Judge of the 5th Circuit, wasn't happy with the order and sent Judge Sparks this email:

Dear Sam, It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent. Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel. No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense. Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write. Sincerely, Edith Jones.

Ouch. According to the Texas Lawyer, Jones wasn't happy her email got out:

Jones declines comment on the substance of the e-mail but says she was “saddened” that it had been released to others, including Texas Lawyer. “It’s an internal matter,” Jones says. “And I’m saddened that somebody breached the intended limited scope of the intended distribution.”

What do you all think of Sparks' initial order and Jones' email? I guess all of this could segue into the discussion of the new Florida Bar rule on civility, but I'm tired after watching the Dolphins last night so I can't think of a witty way to do it.

Federal Courthouse in WPB evacuated this morning (UPDATED -- Courthouse reopened)

From the PBP:

A federal courthouse in Florida has been evacuated while authorities investigate a suspicious vehicle parked nearby.

West Palm Beach police spokesman Chase Scott says a police dog alerted to the possibility of explosives inside the rental van after 8 a.m. Monday. It was being checked because of unspecified derogatory comments written on the outside of the van.

A post office and a state health department building were also evacuated.

A police bomb squad and Homeland Security Department officials were among those responding to the situation.

Authorities have been on heightened alert nationwide for potential terrorist activity coinciding with the 10th anniversary of the Sept. 11 attacks.

UPDATE -- OK, back to work. The courthouse has been reopened. Here's the coverage:

West Palm Beach Police have determined that a "suspicious van" parked across from the federal courthouse downtown is not a threat and begun the process of clearing the scene, according to police spokesman Chase Scott.

He said hundreds of workers are being let back into the federal courthouse, Florida Health Department, U.S. Post Office and other surrounding buildings.

It's still unclear why a police bomb-sniffing dog alerted on the rental box-style moving van this morning, Scott said. It could have been some previous cargo in the unattended vehicle, which had been parked "for at least a day."

But the van's side panel attracted attention with the block-lettered message: "Google Edgar Bushey. Frank Baker PBSO lied and did no investigation" - a message that Scott characterized as "anti-law enforcement."

"Given the date, the location, the fact that it was a rental vehicle, has (anti-law enforcement) graffiti all over it," Scott added, "We were taking an abundance of precautions."

The van is being impounded and is now the subject of a West Palm Beach police investigation, he said. It is unclear who owns the van. A Google search of the name, "Edgar Bushey," takes one to a website and seemingly official documents regarding a 1995 sexual assault investigation.

Is Big Brother spelled GPS?

That's the question Adam Liptak asks in his weekend NY Times piece on the upcoming Supreme Court case:

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.

There's also some interesting stuff in the DBR today, like Brian's op-ed (which I can't comment on since I'm still litigating the case), and Pacenti's article about the local jails.

News and Notes

1. Lots of people (91 in total and 45 in Miami!) charged with Medicare Fraud today.

2. Psychics get bond. But they knew that already.

3. Check out this footnote at the end of the opinion in United States v. Smith, which held that an appellate waiver was enforceable: After this opinion was written, the government filed a motion to withdraw its previously filed brief, which had argued that the appeal waiver applies, to vacate the sentence, and to remand for resentencing under the decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The motion admits that the sentencing appeal waiver does apply but states that the government has now “determined that it is appropriate under the circumstances to forego reliance upon the appeal waiver provision in this case.” OK, now what?

UPDATE -- I missed the continuation of the footnote on the next page:

The primary circumstance cited in the government’s motion is that Attorney General Eric Holder has changed the Department of Justice’s policy on whether the Fair Sentencing Act applies to cases in which the defendant was sentenced after enactment of that legislation. There has not, however, been any change in the law concerning sentence appeal waivers, and it is on the basis of the waiver that we are deciding this case. Sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants. See United States v. Bascomb, 451 F.3d 1292, 1296–97 (11th Cir. 2006) (interests of the government and defendants); cf. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627 (1977) (recognizing
that plea bargains benefit all concerned, including the judiciary). And once an appeal arrives in this Court it is our responsibility to see that it is decided correctly under the law. For these reasons, the government’s motion is denied.

Wow.

Wesley Snipes loses bid for new trial in the 11th Circuit

Here's the unpublished opinion affirming the denial of his motion for new trial.

From the AP:

The 11th U.S. Circuit Court of Appeals rejected the appeal by Snipes, who was convicted in 2008 on three misdemeanor counts of willful failure to file income tax returns.

His defense lawyers contended they received emails from former jurors reporting misconduct among other members of the panel. One of the former jurors said in the email that three other jurors acknowledged they had determined Snipes was guilty before the trial began.

A federal court rejected the request for a new trial and noted that there were reasons to question the veracity of the allegations made in the emails. The 11th Circuit upheld the ruling on Tuesday, finding that there wasn't "strong, substantial and incontrovertible evidence" that would warrant a new trial.

Miami Herald profiles Judge Jordan

Jay Weaver does a nice job here. From the article:

As an undergraduate at UM, Jordan was a walk-on with the Hurricanes baseball team. He would joke to friends that he played “left bench.”

Relatives, friends and peers always described “Bert” Jordan as “scary smart,” a whiz kid.

He excelled as a political science major before finishing second in his UM law-school class. He earned a spot on the Law Review. One of his articles was on the use in legal filings of sports metaphors, entitled “Imagery, Humor and Judicial Opinion,’’ which “simply celebrates the prankster and poet in all of us.”

In 1987, Jordan applied to all nine U.S. Supreme Court justices for a clerkship. O’Connor granted him an interview. She picked him and three others from a field of 10.

But before he went to Washington, Jordan spent a year working for 11th Circuit Judge Thomas Clark in Atlanta.

Back then, he told The Miami Herald that he was following an “unwritten rule” that says clerking for a federal judge is a prerequisite for a Supreme Court clerkship. Quipped Jordan: It applies to “anyone who’s not at Harvard or Yale.”

And the Palm Beach Post rightfully calls for Obama to get this done quickly:

There is no need for such delay over Judge Jordan, an American success story. He came to the U.S. from Cuba as a 6-year-old with his parents. After receiving his bachelor's and law degrees with honors from the University of Miami, he clerked for former Supreme Court Justice Sandra Day O'Connor, worked in private practice and served as a federal prosecutor before becoming a judge at only 38.

Normally, when senators from both states agree on a judicial nominee, he or she is confirmed without controversy. Sen. Marco Rubio, a Republican, would be the one to raise any opposition. According to his press aide, though, Sen. Rubio "has heard nothing but positive things about Judge Jordan, and he looks forward to presenting his nomination before the Judiciary Committee for its consideration." The Senate confirmed Judge Jordan 93-1 in 1999. The result now should be about the same.

Friday notes

Sorry for the slow blogging this week. A couple quick hits before the nice long weekend:

1. No kindergarten party for lawyers after all. (WSJ)

2. What's going to happen with Clemens? We'll find out soon. (Boston.com)

3. Pleading and buyer's remorse (NYT)

4. Fascinating comments by jurors in the MS-13 gang case (Law.com)

5. DC Circuit divided on 3 evidence cases (BLT)

That's all I got today. Hope you have a nice weekend.

Awesomeness

The Daily Show - The Forecloser
Get More: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

New magistrate short list in WPB

The cut has been made and there are 10 finalists for two spots. It's very hush-hush though, and I only have a partial list. Come on tipsters, give me more. Here's what I have so far:

Carolyn Bell (AUSA)
Dave Brannon (AFPD)
Kim Dunn-Abel (AUSA)
Bill Matthewman
Jeremy Slusher
Bob Waters (AUSA)
Wendy Zoberman

There are a bunch of magistrate positions that are open in the District, so the Chief entered an intersting order precluding applicants from lobbying District Judges. Good move.

Fantasy Football anyone?

Having won last year, I'm retiring. But Miguel de la O needs a title and the league needs one more team before tomorrow night. First come, first serve. Here's the info for joining

League ID#: 552661
League Name: SDFLA Fantasy Football
Password: markusquit
Custom League URL: http://football.fantasysports.yahoo.com/league/sdfla

Draft Type: Live Standard Draft
Draft Time: Wed Aug 31 10:30pm EDT

Judge Jordan's application

Judge Jordan's nomination is, by all accounts, moving quickly towards confirmation. Here is his Senate questionnaire (which is unbelievably onerous and long):

Judge Jordan's CA11 Questionnaire

If you aren't interested in that sort of thing, here is the trailer for the new Hunger Games movie coming out in the spring. Go Katniss!

Get More: 2011 VMA, Music

Have a nice weekend

Nothing really going on today in Miami, so I apologize for the slow blogging...

Anyway, here are some pictures I snapped on the way to lunch today in downtown:

Cool feeder band picture from tipster

11th Circuit considers Liberty City Seven

Jay Weaver has the details about this interesting issue:

The judge’s removal of a woman from the federal jury in one of the nation’s most controversial terrorism trials dominated oral arguments Tuesday, in the appeal of five Miami men convicted of conspiring to aid al-Qaida.

The unidentified woman, known only as Juror No. 4, was dismissed by U.S. District Judge Joan Lenard after deliberating for nearly three days in late April 2009 because the other 11 jurors said she refused to discuss the fate of the remaining defendants in a group originally dubbed the “Liberty City Seven.’’

The ruling led to the juror’s replacement by an alternate juror, a man, and the eventual conviction of the five defendants on material-support conspiracy charges. One other defendant was acquitted.

The removal of Juror No. 4 from the 12-person panel carried great consequences.

Had she been allowed to hold out as the minority juror, prompting a third mistrial in the controversial case, the five defendants could have walked out of the courtroom free, because the U.S. attorney’s office had already said it wouldn’t try them a fourth time.

Defense lawyers said Tuesday that Lenard made a major error about Juror No. 4 that should compel the 11th U.S. Circuit Court of Appeals to throw out the convictions and order a new trial. A decision could take months.

Juror No. 4 “goes in there and makes up her mind,” said attorney Ana Jhones, who represented the ringleader in the Liberty City group. “Does that mean she’s not deliberating? There is evidence that Juror No. 4 was, in fact, deliberating.”

She also said the woman was intimidated by the foreman in the jury room.

But a prosecutor with the U.S. attorney’s office disagreed.

Assistant U.S. Attorney Jonathan Colan said Juror No. 4 indicated to a courtroom deputy even before the start of deliberations that she didn’t want to discuss the evidence. She just wanted to express her opinion.

“Every other juror [questioned by the judge] gave consistent testimony that she turned her back and wouldn’t follow the law,” Colan said.

The convictions of the five men followed two earlier mistrials, which had resulted in the acquittal of one other defendant.

I'm back

I go to court for a few days, and the good professor decides to blog about "tense present." Rick, don't you realize that the readers of this blog prefer motions discussing phallic imagery? This is what they want. BTW, I'm wondering how our district judges would react to such a motion.

Slow blogging today

Your friendly neighborhood blogger is in court today, so I won't have much on the web until much later. Until then, your moment of zen:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Moment of Zen - Anderson Cooper Cracks Up
www.thedailyshow.com
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Defense Verdicts of the Week

The USAO is very good at issuing press releases when there is an arrest or a conviction. Not so much when there is an acquittal. And there were some acquittals and a hung jury this week:

1. Sabrina Puglisi and Margot Moss got a not guilty before Judge Jordan in a drug case in which their client testified.*

2. AFPDs Aimee Ferrer and Jan Smith won before Judge Seitz in a gun case.

3. AFPD Miguel Caridad and David Joffe hung a jury before Judge Cooke. Apparently, Joffe's client originally pled guilty but was permitted to withdraw the plea and now is going for round 2.

*Full disclosure -- I share space with Sabrina and Margot is my law partner.

Judge makes mistake and goes after criminal defense lawyer

This story really amazes me:

At issue: Anthony pleaded guilty to 13 charges in a check fraud case in January 2010. Judge Stan Strickland sentenced her to time-served in jail, and a year of probation after her jail release.

But last month, when Anthony was acquitted of murder and released from the Orange County Jail, she wasn't put on probation. The Department of Corrections said Anthony served that probation in jail while she was awaiting the murder trial.

Soon after her release, Strickland amended his original order clarifying his intentions, which were clear in video and transcripts from the January 2010 sentencing.

Anthony's defense team objected, and Perry heard arguments from attorneys earlier this month.

Perry asked the defense team if they knew Anthony was serving her probation while she was in jail. One of Anthony's attorneys admitted that they did, but didn't think it was their burden to notify the court.

Perry eventually issued an order stating Anthony does have to report to probation.

In that order, Perry took up the issue with the attorneys too, saying that, "the failure to abide by that order and the failure to notify the court of a known scrivener's error in the order may be a violation of an attorney's duty of candor."

"No attorney should conduct himself or herself in a way that impedes an order of the court. ... Our system of justice should never be in the position of rewarding someone who willfully hides the ball."

This investigation reminds me of the old F. Lee Bailey quote after he was charged with mail fraud: In England, a criminal defense lawyer is apt to be knighted, in America, he is apt to be indicted.

This is especially true where the criminal defense lawyer is representing an unpopular defendant like Casey. The Florida Bar should quickly clear Jose Baez.

Judge Milton Hirsch finds Florida drug law unconstitutional

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida's drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

"[F]or there is nothing either good or bad, but thinking makes it so."

--William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2


I. Introduction

The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding '893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."

***

V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Like the court in Shelton, I find that Florida Statute § 893.13 is facially violative of the Due Process Clause of the 14th Amendment to the United States Constitution; and, accordingly, that any prosecution brought pursuant to that statute is subject to dismissal.

In the comments the other day, there was a discussion about whether Shelton was binding. Judge Hirsch has a lot to say about that, including this conclusion:

In the absence of such particularization I am obliged as a Florida trial court to presume that Florida appellate courts relied upon a Florida-law-based guarantee of due process, whether constitutional or common-law. No Florida case has decided the issue presently before me: whether '893.13 is unconstitutional by operation of the 14th Amendment to the federal Constitution. The Shelton court reached the same conclusion: A[N]o Florida appellate [court] ... has addressed the constitutionality of ['893.13] under the federal Constitution,@ Shelton, 2011 WL 3236040, at *12; and the Florida cases that appear to give passing consideration to the issue of the constitutionality or not of the statute Acontain no analysis of or citation to the tripartite constitutional analysis@ required by Staples and other U.S. Supreme Court authorities, and employed in Shelton. Id. See also supra note 3. Accordingly, I am bound to follow Shelton=s holding that '893.13 violates the 14th Amendment=s due process guarantee.

Hirsch Order