Dread Pirate Roberts arrested...

...Inconceivable!  Here's the very interesting "Silk Road" complaint.

The question is whether anyone will be around to prosecute him or hear the case if this shutdown continues.  For now, the courts are humming along, but in about 7 days, there is a question as to what will happen.  For example, at least one of our judges is in a lengthy trial.  What happens when the funding for the jurors, defenders, etc runs out in a week and a half?  Mistrial?

Meanwhile, the Supreme Court is back in business, and the Court granted cert in a bunch of cases, including one on anonymous tips:

The U.S. Supreme Court granted review of a Northern California drug-transportation case Tuesday to decide whether police can stop a car based solely on an anonymous tip of reckless driving.
Under constitutional standards for searches and seizures, officers can detain a driver if they have reasonable suspicion of wrongdoing, and can rely on an identified witness' description of illegal activity that endangers the public. But courts around the nation have disagreed on whether police can pull someone over because an anonymous source reported that the motorist was driving dangerously.
The high court agreed to hold a hearing and decide the issue in the term that ends in June.
The case dates from August 2008, when a Highway Patrol dispatcher got a call from someone who had been run off the road by a pickup truck on Highway 1 north of Fort Bragg. The caller provided the license number, and shortly afterward two CHP officers spotted and stopped the pickup.
The officers smelled marijuana when they approached, and found four bags of the drug in the truck bed, according to a state appeals court. After unsuccessfully challenging the search, the driver and passenger, brothers Lorenzo and Jose Navarette, pleaded guilty to transporting marijuana and were sentenced to 90 days in jail.
The First District Court of Appeal in San Francisco upheld their convictions in October 2012, citing a 2006 California Supreme Court ruling that allowed police to rely on an anonymous tip without actually seeing the motorist driving recklessly.
"The report that the (Navarettes') vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle's illegal activity," the appellate panel said in a 3-0 ruling.

 You won't get to see any of these arguments on TV, which is just ridiculous.  Here's Justice Alito's recent argument as to why oral argument should not be televised:

In the course of his wide-ranging conversation with Levi, Alito explained his opposition — one shared by his Supreme Court colleagues — to having oral arguments televised. He recalled the arguments made by U.S. Solicitor General Donald Verrilli Jr. in support of the Patient Protection and Affordable Care Act during the last term of the Court.
Calling Verrilli a very good and skillful advocate, Alito noted that the solicitor general frequently argues before the Court and made three arguments on “Obamacare” in a week.
“To prepare for one argument is exhausting. To do three is Herculean,” said Alito. “So the solicitor general got up to argue during one of these arguments — it was not the first — and he had a bad 30 seconds. He was having trouble swallowing — he sipped [water] the wrong way. The argument was not televised, however contrary to our normal practice, we released the audio of this that afternoon. So that afternoon, C-SPAN broadcast the audio, along with still photos of the participants.
“Well, he recovered, he got his voice back, and he made a very good argument. It was one that I happened not to agree with, but he did a very good job of arguing the position the government had taken, as you would expect. Within hours of that, a television ad had been produced saying that ‘There’s no good argument that can be made in support of the constitutionality of the Affordable Care Act and here’s the illustration — we have the solicitor general of the United States, and he’s at a loss for words in trying to support this position.’
“This is an illustration of the way oral arguments can be used if they are televised,” said Alito.

Or if they aren't.

Judge Cooke dismisses federal case against Lewis & Tein

 

Guy Lewis and Mike Tein got a complete victory yesterday before Judge Cooke in the federal case filed by the Miccosukee Tribe against them and others.  Judge Cooke dismissed the case with prejudice -- a complete victory for them and their lawyer Paul Calli. 

Here's the order, which starts like this:

“No one fights dirtier or more brutally than blood; only family knows its own weaknesses, the exact placement of the heart.” Whitney Otto, How to Make an American Quilt (1991). Whitney Otto’s quote seems a particularly apt description of the emotionally and politically charged litigation, occurring in multiple judicial venues, between the named parties, whom include the following.

There's even a Gandhi quote in the conclusion:

I am quite certain that this Omnibus Order will affect minimally the incessant litigation and sour relations between the parties. I simply implore the parties to heed that “an eye for an eye will only make the whole world blind.” - Mahatma Gandhi

The meat of the order is good reading as well:

Despite every effort of the Miccosukee Tribe to bring this battle to the doorstep of the federal courthouse, the door cannot open to allow an intra-tribal dispute of this nature. Even if it could, the Miccosukee Tribe's claims would nevertheless be denied entry because in short the Miccosukee Tribe simply does not state a federal cause of action.

BREAKING -- Robin Rosenbaum being vetted for 11th Circuit

Congratulations to Judge Rosenbaum, who is being vetted for Judge Barkett's seat on the 11th Circuit. Judge Barkett was honored Friday night at a huge (and lovely) event, and the buzz at the party was about Judge Rosenbaum moving up to the appellate bench.

She's smart and has a good temperament, so she has moved up very fast.   A former Judge Marcus clerk (that's him swearing her in below) and former federal prosecutor, she became a magistrate in 2007, and then a district judge in June 2012. 

Dramatic guilty verdict in psychic trial

Paula McMahon has covered this trial wall to wall.  It's never easy after a guilty verdict:

Though Marks' relatives were initially calm and cried softly as the verdict was read, several of them became very upset after jurors left the courtroom and the family realized their matriarch was not going to be allowed to remain free on bond.
"Please let me hug my mom," Marks' eldest son, Ricky Marks, asked U.S. Marshals and courthouse security officers.
Other family members begged to be allowed to give their phone numbers to "Pinky" — Marks' family nickname — so she could call them from jail.
One grandson jeered at the lead investigator on the case, retired Fort Lauderdale Detective Charlie Stack, asking him, "How are you feeling now, Charlie? You did a good job?"
But Marks' two sons Ricky and Michael Marks tried to calm their family and apologized to Stack.
Daughter Rosie Marks began hyperventilating and collapsed to the floor in the hallway outside the courtroom. She and her two brothers, their spouses, one of Marks' granddaughters and Marks' sister have all pleaded guilty to related charges and are free while awaiting sentencing later this year.
Other members of the extended family shouted and one threw a Bible in the courtroom, yelling "I hate this Bible … I don't want this Bible anymore."
There was more security than usual in the courtroom but the agents and officers handled the disruption diplomatically, urging everyone to remain calm and trying to alleviate the family's concerns.

Psychic's trial now in jury's hands

Paula McMahon has been covering this fun (it's all relative) trial.  Here's the latest article with excerpts from the closing arguments:

Jurors heard from both the prosecution and defense that, in the Romani or Gypsy culture, mothers have a long tradition of teaching their daughters to develop psychic and other skills to help them become fortune tellers.
And while the prosecution said the mixing of family money in Marks' bank account and checks from one family member's client being sent to Marks were evidence of money-laundering to conceal the source of "dirty" money, the defense quoted an expert who said Gypsy families share money among the extended family more commonly than other cultures in the U.S.

More from the prosecution:

Prosecutors urged jurors on Wednesday to find "psychic" Rose Marks guilty of orchestrating a massive con — regardless of how outlandish the allegations sound and whether jurors think the victims were gullible.
"Don't blame the victims, and don't let them blame the victims," Assistant U.S. Attorney Larry Bardfeld said of Marks' defense in closing arguments in the month-long trial.
The victims were "not stupid," but were preyed upon by uncaring scammers who exploited vulnerable people in times of crisis — when they were bereaved and grieving, ill or looking for true love, he said.

And more from the defense:

While prosecutors cast everything in a negative light, Schwartz suggested they could not prove that Marks took money from clients under false pretenses, never intending to return it. He pointed out that she paid back large sums of money to several clients, but said she was unable to make payments after she was arrested and barred from working as a psychic at least until the criminal case is over.
"She doesn't have to prove she intended to pay it back, they [prosecutors] have to prove she didn't intend to pay it back," Schwartz said.

I thought this jury instruction looked interesting:

Jurors were also told that courts have ruled that fortune telling is free speech that is constitutionally protected by the First Amendment.

"Link Rot" at the Supreme Court, and a Will Thomas update

Adam Liptak has this great piece about links in Supreme Court cases not working anymore:

Supreme Court opinions have come down with a bad case of link rot. According to a new study, 49 percent of the hyperlinks in Supreme Court decisions no longer work.

This can sometimes be amusing. A link in a 2011 Supreme Court opinion about violent video games by Justice Samuel A. Alito Jr. now leads to a mischievous error message.

“Aren’t you glad you didn’t cite to this Web page?” it asks. “If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the Internet age.” 

It gets worse:

Even links to the Supreme Court’s own Web site have stopped working. One is to a video of what Justice Antonin Scalia called “the scariest chase I ever saw since ‘The French Connection.'”

The chase ended when a police car rammed the vehicle of a fleeing suspect, leaving him paralyzed. The driver sued, saying the police had used excessive force, and in 2007 the Supreme Court ruled against him.

The court posted the video. “I suggest that the interested reader take advantage of the link in the court’s opinion, and watch it,” Justice Stephen G. Breyer wrote in a concurrence.

Good luck: the link does not work. “The fact that the Supreme Court itself has links to its own Web site that no longer function shows the depth of the link rot problem,” Ms. Liebler and Ms. Liebert wrote, noting that the video could still be found with a little hunting around.

There were scores of links in the term that ended in June. For proof that many dog owners use six-foot leashes, for instance, Justice Alito included a link to About.com.

(Should justices conduct independent Internet research of the sort that might appear in a high school research paper? In an article last year in The Virginia Law Review, Allison Orr Larsen, a professor at William & Mary Law School, called the trend worrisome. Judge Richard A. Posner of the federal appeals court in Chicago defended the practice in a new book, “Reflections on Judging,” saying that “the Web is an incredible compendium of data and a potentially invaluable resource for lawyers and judges.”)

Links in Supreme Court opinions are less likely to work as they get older. But even some recent links are broken. A decision from February, for instance, included a citation to statistics from the Ohio court system; the link leads to a dead end.

Even working links may be problematic, as many Web sites are routinely altered. In April 2008, for instance, the court issued an important decision in a case concerning the lethal chemicals used to execute inmates, linking to a draft article. The link now delivers the reader to an article that indicates it was last revised in August 2008.

Meantime, Sen. Rubio is under more fire for his recent decision to block Judge Thomas. The NY Times is covering the story, and Fred Grimm has this excellent editorial in the Herald.  Here's the conclusion, which rebuts Rubio's argument about the sentence in the leaving the scene of the accident case:

But Assistant State Attorney Jane Anderson, who prosecuted the Traverso case in 2012, wrote Rubio that despite the widespread contention that this was a DUI case, the prosecution “had no proof that the defendant had driven under the influence or recklessly. Legally it was an accident.”
The judge, she noted, actually refused a defense motion for downward departure from the sentencing guidelines. He added a year’s sentence to the 11 months Traverso had already served in the county jail — a 23-month sentence, not, as Rubio’s office intimated, 364 days. Anderson wrote, “While the sentence was ultimately disappointing to the state and the victim’s family, Judge Thomas legally sentenced the defendant after hearing all parties and conducting the sentencing hearing with compassion and careful judgment.”
Rubio has a similar letter correcting popular misconceptions about the Traverso case from Nushin Sayfie, chief administrative judge for the criminal court.
Rubio received other letters praising Thomas from bleeding-heart organizations like the Miami-Dade and Broward Police Benevolent Associations, not to mention the League of Prosecutors. Ovalle, who knows everything about that courthouse, insisted that Thomas is regarded as one of the hardest-working, most competent judges in the Miami-Dade criminal court division.
But all this is to pretend that Rubio had some reason other than crass Tea Party politics for sabotaging Judge Thomas’ reputation and aborting the confirmation process.
So the Thomas nomination won’t get a hearing, much less a vote.
Because, you know, he just lacks the right “judicial temperament.”

There is now an online petition circulating for Judge Thomas that you can sign here.

UPDATE -- if you want to read any of the letters referenced in the Grimm article, you can access them at Glenn Sugameli's website.

Marco Rubio should give Will Thomas a "blue slip"

The DBR has the news on the refusal to issue a blue slip and SFL has a nice post explaining why that refusal is wrong.

The thing is -- we are just talking about allowing the process to go forward; to let the Senate vote on Thomas' nomination.  A nomination that Rubio initially recommended.  How can anyone be against allowing the process to proceed?

In other news, William Dimitrouleas sentenced Craig Toll to 2 years in prison, after having sentenced Osorio to 12.5 years.  Interestingly, Chris Korge testified in favor of Toll saying that he didn't know what was going on at the company.

Meantime, prosecutors in Kentucky are arguing that the 2255 waiver is not unethical.  The Kentucky Supreme Court doesn't understand their position:

The justices seemed puzzled by the stance of the federal prosecutors. Repeatedly, the jurists questioned the need for the waiver and whether an attorney can be aware of their mistakes at the time a plea agreement is reached.
Cushing told the justices that allowing later attacks on the performance of an attorney merely prolongs cases and hurts victims and their families.
“It’s about finality,” Cushing said. “Victims of crime have gone through tremendous trauma when these things go through the courts.”
Justice Daniel Venters said there is generally no way for a defendant to know if the attorney made an error until much later.
“It’s always hindsight in terms of defendants,” Venters said.
Justice Lisabeth Hughes Abramson said all justices want to see cases closed, but they must be closed properly.
“You’re asking us to accept the lawyer who is singularly unaware of his own lack of due diligence to be the guardian of the defendant’s rights,” Abramson said.
The case comes three years after the U.S. Supreme Court overturned Kentucky’s high court in a case that hinged on an attorney’s deficient advice. In that case, truck driver Jose Padilla wasn’t told he would face deportation if he pleaded guilty to hauling marijuana in the back of his truck. The U.S. Supreme Court concluded that the lack of due diligence by Padilla’s attorney affected the plea and Padilla’s claim of ineffective assistance of counsel was valid.
Justice Will T. Scott noted that if the waivers had been in place in Padilla’s case, he would have gone to prison and been deported based on bad advice.
“In cases where it matters, it really matters,” Abramson said.

Why you gotta love Judge Ungaro

You can almost hear her engaging the Governor's lawyers (via Curt Anderson):

 Gov. Rick Scott intends to take his fight for random drug tests of tens of thousands of state employees all the way to the U.S. Supreme Court, a lawyer for the Republican governor told a federal judge Thursday.
But Charles Trippe, who was previously Scott's general counsel and is now in private practice, could not persuade U.S. District Judge Ursula Ungaro to delay further proceedings in the case while the state appeals. Ungaro said she did not want to become "a political tool" in the controversial issue — and she also said Scott has "probably about zero" chance of winning a Supreme Court case.
"I just don't think it has likelihood of success," said Ungaro, who previously declared Scott's January 2011 drug-testing executive order an unconstitutional violation of the workers' privacy rights.
The case affecting some 85,000 state employees as well as many job applicants is back before Ungaro because the 11th U.S. Circuit Court of Appeals concluded her April 2012 ruling in was too broad. The appeals court said in May of this year that some workers can legitimately be tested — such as those in law enforcement and sensitive safety jobs — and Ungaro planned to appoint a special master to come up with a proposed list of those positions.
Trippe wanted Ungaro to delay that exhaustive process so the governor can pursue the Supreme Court appeal, which would likely push the case well into election-year 2014. But Ungaro would not issue that order Thursday, even though an attorney for the American Federation of County, State and Municipal Employees did not object.
"How are you going to avoid it? Do we hope the governor will be voted out of office?" Ungaro said of the legal case. "Is this the idea, keep the ball up in the air, pray he is not re-elected?"
The judge said she would not delay the case unless Scott agreed to scrap the executive order should the Supreme Court decline to review it.
"I certainly can't say that," Trippe replied.
The executive order has been on hold pending the outcome of the lawsuit, filed by AFCSME and the American Civil Liberties Union. Also on hold is implementation of a similar state law that gives agency department heads authority to devise their own drug-testing programs, said union attorney Shalini Agarwal.
Ungaro set another hearing for Oct. 11 and urged the two sides to come up with a way forward. For example, the judge suggested the two sides work together on narrowing down which job categories might be exempt from drug testing and which could be covered by it.
"I have no desire to see the citizens of the state of Florida exposed to any more expense," she said.
Trippe, however, said the governor's office may return to the October hearing "with the same position we have today" seeking to delay the case.
"That's fine," the judge replied. "And, I may deny it."

Wednesday News & Notes

1.  The blog broke the news yesterday of the 4 nominees from the JNC for the federal bench.  Two of these nominees will be selected as our next federal judges:

Beth Bloom, Darrin Gayles, Peter Lopez, John Thornton

2.  Meantime, Judge Will Thomas' nomination is still being held up by Sen. Marco Rubio.  A rally on his behalf was held this morning at the federal courthouse.

3.  Claudio Osorio was sentenced to 12 1/2 years in prison.

4.   "Grotesque prosecutorial misconduct" leads to a new trial.  This time it's from New Orleans.  Via CNN:

Jury selection was minutes away for five ex-New Orleans police officers accused of shooting unarmed civilians after Hurricane Katrina when a commenter ripped into the defendants on a newspaper website.

"NONE of these guys should had have [sic] ever been given a badge," the commenter, identified only as "legacyusa," wrote. "We should research how they got on the police department, who trained them, who supervised them and why were they ever been promoted. You put crap in -- you get crap out!!!"

"Legacyusa" turned out to be one of the top federal prosecutors in New Orleans. His post was just one of many anonymous barbs that led a federal judge Tuesday to throw out the convictions of those ex-cops in the Danziger Bridge shootings, which left two people dead and four seriously wounded.

In a 129-page ruling, District Judge Kurt D. Engelhardt cited long list of "egregious and inflammatory" comments by at least three Justice Department officials using a variety of online identities. Those comments fueled a "21st century carnival atmosphere" that tainted the 2011 trial and will require a new one, Engelhardt wrote.

"This case started as one featuring allegations of brazen abuse of authority, violation of the law and corruption of the criminal justice system; unfortunately, though the focus has switched from the accused to the accusers, it has continued to be about those very issues," the order states. "After much reflection, the court cannot journey as far as it has in this case only to ironically accept grotesque prosecutorial misconduct in the end."

In a statement issued Tuesday afternoon, the Justice Department said, "We are disappointed with the court's ruling. We are reviewing the decision and considering our options."

  
 Seems like a strange reaction from DOJ.  Why do they defense misconduct?

5.   Locally, bond was denied this morning in a case involving Iran, uranium, African mines, and ICE.  From Curt Anderson:

A West African man was ordered jailed Thursday until trial on U.S. charges that he attempted to broker an illegal deal to ship tons of uranium ore from Sierra Leone to Iran, including a trip to the U.S. with uranium ore samples concealed in shoes inside his luggage.
Patrick Campbell, 33, faces a maximum of 20 years behind bars and up to $1 million in fines if convicted of attempting to violate the U.S. embargo against Iran. A U.S. Immigration and Customs Enforcement affidavit filed in federal court says Campbell claimed he could supply enough ore — commonly known as yellowcake — to yield 1,000 tons of purified uranium that could be used for nuclear fuel or weapons.
U.S. Magistrate Judge Barry Seltzer agreed with prosecutors at a hearing that Campbell should not be released on bail, although a trial date has not been set. Campbell is scheduled to enter a plea next week.

Breaking -- JNC cuts list to 4

Your next two federal district judges will be from this list:

Beth Bloom, Darrin Gayles, Peter Lopez, John Thornton

Congrats!!

Interesting to note that all four are sitting state judges in Circuit Court.

JNC interviews today

Good luck to all of the applicants.

After the interviews, the JNC will cut the list to four (for two open seats).  I will post those four names as soon as I have them.

Bonds strikes out

Barry Bonds' conviction was affirmed.  From the San Francisco Chronicle:

Barry Bonds obstructed justice before a federal grand jury when he tried to duck a question about steroid injections with an evasive and irrelevant answer, a federal appeals court ruled Friday in upholding the felony conviction of baseball's home run king.
A jury in San Francisco deadlocked in 2011 on three charges that Bonds committed perjury when he denied, in 2003 grand jury testimony, that he had ever knowingly used steroids or other performance-enhancing drugs.
But jurors convicted him of obstructing the panel's investigation after a prosecutor asked him whether his personal trainer had ever given him injectable drugs. Instead of a yes-or-no answer, he launched into a discourse about his "celebrity" childhood, as the son of ex-ballplayer Bobby Bonds, and his friendship with the trainer, and added, "I just don't get into other people's business."
Bonds appealed his conviction, saying he had testified truthfully. But the Ninth U.S. Circuit Court of Appeals in San Francisco said factually accurate testimony can be obstructive if it is intended to throw an investigation off course.
"When factually true statements are misleading or evasive, they can prevent the grand jury from obtaining truthful and responsive answers," said Judge Mary Schroeder in the 3-0 ruling.
Bonds' lawyers were not immediately available for comment. They could ask the full appeals court for a rehearing. His sentence of 30 days of house arrest, 250 hours of community service and $4,100 in fines and court costs has been on hold during his appeal.
Bonds issued a statement on his website Friday that read, in part: "I have instructed my attorneys to ask the court and probation officials to permit me to begin serving my full sentence and probation immediately. Meanwhile, I also intend to seek further judicial review of the important legal issues presented by the appeal that was decided today."

Here's the intro to the opinion:

 Barry Bonds was a celebrity child who grew up in
baseball locker rooms as he watched his father Bobby Bonds
and his godfather, the legendary Willie Mays, compete in the
Major Leagues. Barry Bonds was a phenomenal baseball
player in his own right. Early in his career he won MVP
awards and played in multiple All-Star games. Toward the
end of his career, playing for the San Francisco Giants, his
appearance showed strong indications of the use of steroids,
some of which could have been administered by his trainer,
Greg Anderson. Bonds’s weight and hat size increased, along
with the batting power that transformed him into one of the
most feared hitters ever to play the game. From the late-
1990s through the early-2000s, steroid use in baseball fueled
an unprecedented explosion in offense, leading some
commentators to refer to the period as the “Steroid Era.”1 In
2002, the federal government, through the Criminal
Investigation Division of the Internal Revenue Service, began
investigating the distribution of steroids and other
performance enhancing drugs (“PEDs”). The government’s
purported objective was to investigate whether the
distributors of PEDs laundered the proceeds gained by selling
those drugs.
The government’s investigation focused on the
distribution of steroids by the Bay Area Laboratory
Co-operative (“BALCO”), which was located in the San
Francisco Bay Area. The government raided BALCO and
obtained evidence suggesting that Anderson distributed
BALCO manufactured steroids to Bonds and other
professional athletes. The government convened a grand jury
in the fall of 2003 to further investigate the sale of these
drugs in order to determine whether the proceeds of the sales
were being laundered. Bonds and other professional athletes
were called to testify. Bonds testified under a grant of
immunity and denied knowingly using steroids or any other
PEDs provided by BALCO or Anderson. The government
later charged Bonds with obstructing the grand jury’s
investigation. After a jury trial, Bonds was convicted of one
count of obstruction of justice in violation of 18 U.S.C.
§ 1503. He now appeals. We affirm the conviction.

In other news, the U.S. Attorney's office in the Eastern District of North Carolina is not going to put up with prosecutorial misconduct. The whole article is worth a read, but here's the intro from the Charlotte Observer:

In May, U.S. Court of Appeals judges were so upset with federal prosecutors from North Carolina’s Eastern District for persistently hiding or mishandling criminal case evidence that a tongue-lashing, perhaps never heard before in the stately wood-paneled U.S. Fourth Circuit Court of Appeals courtroom in Richmond, Va., was delivered from the bench.
“I’ve been an appellate judge for 28 years, and I have never made these kinds of comments to a prosecutor, never,” Appeals Court Judge Barbara Keenan told the prosecutor from the U.S. Attorney’s Office in North Carolina’s 44-county region that stretches from Raleigh to the coast. “But the increasing frequency from your office of this kind of conduct is really troubling, really troubling.”
The circuit judges followed with a ruling two weeks ago in the securities fraud case of United States v. Gregory Bartko, suggesting that a prosecutor had ignored false testimony instead of correcting it during trial, among other concerns. The judges said the case further highlighted a troubling pattern of Eastern District prosecutors withholding evidence from defendants. They asked U.S. Attorney General Eric Holder to review the behavior.
That has led to a shakeup at the U.S. Attorney’s Office for the North Carolina Eastern District. Thomas Walker, the appointed U.S. Attorney since 2011, confirmed changes to the top ranks of his staff and said in an interview that he has adopted new rules for handling evidence in criminal cases.

Read more here: http://www.charlotteobserver.com/2013/09/09/4294706/top-federal-prosecutor-in-nc-eastern.html?goback=.gde_1525477_member_273178346#.UjcNJj_ZV8F#storylink=cpy

Do Bloggers irritate judges?

Senior U.S. District Judge Richard G. Kopf has this post today on that exact subject (re Howard Bashman at How Appealing) at his blog, "Hercules and the Umpire."

Meantime, it appears that Judge Kopf has irritated an appellate judge with his use of language on his blog: 

While he thought the story was inspiring, a distinguished federal appellate judge from another Circuit thought my use of a vulgarity (“suck”) in the post about Shon Hopwood offended good taste.  I am glad the judge cared enough to write, and I sincerely thank him. Although I am not keen on receiving lectures on taste and decorum, the judge’s candid criticism about my use of rough, profane or vulgar language caused me to reflect seriously on his point.
I am of two minds. On the one hand, I understand the great strength of the judge’s point. Among other consequences, jarring language such as the word the judge complained about may unnecessarily diminish respect for other judges. Moreover, judges should model civilized writing if for no other reason than they expect civilized discourse from others. Still further, bad words are simply losing their utility in our coarsening society. On the other hand, I want to demystify the work of federal trial judges. Sometimes, rough language expresses my thoughts in a way that more refined language would mask. Indeed, from where I sit, much of what I see and hear is actually profane and vulgar no matter how I might wish to sanitize it.

I really enjoy reading Kopf's blog as it is a pretty open dialogue from a sitting district judge. He also engages his readers in the comment section. If you haven't already, you should check it out.

If you are interested in Supreme Court "beauty contests," there are two good articles to read:

The first is on Above the Law about how the law firms were selected in the Obamacare cases, and the second is from the Daily Report about a case headed to the Supreme Court between Georgia and Florida where Georgia took bids for the case:

Lawyers who want to defend Georgia from Florida's impending lawsuit over water rights range from a former U.S. solicitor general who regularly charges more than $1,100 per hour to a recent law school graduate who offered to work for free. Those were two of the 29 applications the Georgia Law Department received by Tuesday's deadline. Two other applications were submitted after the deadline, and the department has not yet determined whether they will be considered. This is the first time under Georgia Attorney General Sam Olens that the Law Department has sought bids for potential special assistant attorneys general.

Finally, the 11th Circuit decided that ghostwriting for a pro se litigant isn't so bad.  I wonder which law clerk wrote that opinion.

Judge happenings

Interesting news out of Atlanta regarding negotiations over judgeships for the 11th Circuit and the district seat.  From Robin McDonald's article:

Georgia's Republican U.S. senators have cut a deal with state Democrats that, if approved by the White House, would fill six judgeships on Atlanta's federal appeals and district court benches, Georgia lawyers familiar with the nomination process have told the Daily Report.
The package deal would remove roadblocks thrown up by Senators Saxby Chambliss and Johnny Isakson that have held up the confirmation of Atlanta attorney Jill Pryor, a partner at Bondurant Mixson & Elmore, for the Eleventh U.S. Circuit Court of Appeals. Pryor was nominated in February 2012.
The deal also recommends the elevation to the Eleventh Circuit of U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia. Carnes was appointed to her current post by President George H.W. Bush in 1992.
Carnes' move would create a fourth vacancy on the district court in Atlanta, where judges who left in 2009, 2010 and this year have yet to be replaced.
The new bargain includes the nomination of Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer, for the Northern District bench. May was on a 2009 list of potential nominees that was sent to the White House by a committee appointed by members of Georgia's Democratic congressional delegation; May's law partner, James Butler, was a member of that committee. Chambliss and Isakson initially rejected May and others as nominees.
In return for their agreement not to block the nominations of Pryor and May, Chambliss and Isakson would name candidates to the other three district court vacancies. They include Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and in 2011 for the Eleventh Circuit. Their remaining two picks are two state court judges appointed by Republican Governor Nathan Deal—DeKalb County State Court Judge Eleanor Ross and Judge Michael Boggs of the Georgia Court of Appeals.

Meantime, the JNC has cut the list for district judge in the Middle District.  Now it's up to the Senators to pick from these four:  

Paul Byron, Bill Jung, Carlos Mendoza, Waddell Wallace

Trial for Joel Steinger continued

Who can blame Judge Scola... the dude was in a hospital gown.  From Curt Anderson:

 On the eve of jury selection, a federal judge agreed Monday to delay the trial of the alleged mastermind of an $800 million insurance investment fraud scheme because the man suffers from severe pain and health problems caused by a chronic back ailment.

U.S. District Judge Robert Scola granted the postponement after former Mutual Benefits Corp. chief Joel Steinger, 63, tearfully requested time for spinal surgery. Steinger, who uses a wheelchair and is on strong pain medications, appeared in court in a hospital gown. He frequently wrapped a blanket around his chest.

"You can't do this like this. I don't have the strength to go on. I can't take the pain anymore," Steinger said in a voice breaking with emotion. "You know what I'm thinking about now? Getting back to the hospital so I can get more dope."...

Steinger would have needed frequent breaks if trial had gone forward in his current condition, along with a special chair, oxygen bottle and a nurse standing by to handle his needs - all at taxpayer expense. These conditions, Scola wrote, "make his presence throughout the trial a logistical and hygienic nightmare" that surgery may avoid.

Justices out talking

 Justice Scalia spoke in Texas:

U.S. Supreme Court Justice Antonin Scalia visited Houston on Friday and offered his thoughts about Christian morality and economic systems.
The 30-minute lecture explored the question: Is capitalism or socialism more conducive to Christian virtue?

...

"The cardinal sin of capitalism is greed, but the cardinal sin of socialism is power. I'm not sure there's a clear choice between those evils," Scalia said. "While I would not argue that capitalism as an economic system is inherently more Christian than socialism … it does seem to me that capitalism is more dependent on Christianity than socialism is. For in order for capitalism to work - in order for it to produce a good and a stable society - the traditional Christian virtues are essential."
Scalia, who is Catholic, discussed how religious orders once took care of orphans and the elderly, which is now done in large part by "salaried social workers" and financed by tax dollars.
"The governmentalization of charity affects not just the donor but also the recipient. What was once asked as a favor is now demanded as an entitlement," he said. "The transformation of charity into legal entitlement has produced donors without love and recipients without gratitude. ... It's not my place or my purpose to criticize these developments, only to observe that they do not suggest the expanding role of government is good for Christianity."

Some of the Q and A:

Q: Have you ever noticed that positions of justices on a particular subject changes or becomes more liberal the longer they stay on the bench?

A: "It's demonstrably false. I've been there longer than anybody and I think I'm further from left than I was. … It is a common phenomenon."
Q: You are so persuasive and logical - why arent' you able to persuade your liberal colleagues?
A: "Most of these issues on which we disagree, it's fundamental stuff. … [People] think most of the time, we are contemplating our navels: 'should there be a right to die,' 'should there be legal abortion' - something that Joe Six-Pack knows the answer to as well as I do. … Most of the time we are doing real law: We're figuring out the meaning of the Bankruptcy Code, the Internal Revenue code. That is hard and really dull stuff."
Q: Evaluate the condition of the Catholic Church in the United States.
A: "I think it's doing OK. It's been around a long time, you know."
Q: Are you a Redskins fan?
A: "I'm not really much of a football fan. To the extent I am, I hate the Redskins. In fact, I always root for Dallas."
Q: How would you handle Syria?
A: "Naw. I shouldn't talk about that. I have strong views on it, though."
Q: What is the constitutional basis for the principal of 'stare decisis' (legal principal of judges respecting the precedent established by prior decisions) and does it play inherently to the socialist?
A: "It is impossible to run a judicial system without it. You can't reinvent the wheel with every case. … The constitution implicitly expects the courts to function in a manner that is not nuts."
Q: What is the greatest miscarriage of constitutional justice during your tenure?
A: "Oh, there are many candidates. … The most disreputable area of our law is the establishment clause. (Congress shall make no law respecting the establishment of religion.) … A violation of the establishment clause that does not affect someone's free exercise - there is no reason why you should have standing.

Meantime, Justice Ginsburg was speaking too:

Supreme Court Justice Ruth Bader Ginsburg, who recently officiated at a friend's same-sex wedding, told a Philadelphia audience Friday that growing acceptance of gay marriage reflects the "genius" of the U.S. Constitution.

Ginsburg said equality has always been central to the Constitution, even if society has only applied it to minorities - be they women, blacks or gays - over time.

"So I see the genius of our Constitution, and of our society, is how much more embracive we have become than we were at the beginning," Ginsburg said in a far-ranging discussion of her work at the National Constitution Center, steps from the nation's founding at Independence Hall.

... Ginsburg has often been on the losing side of the epic battles, but said some would have turned out differently had the first female justice, Sandra Day O'Connor, not retired in 2006.

"The year she left us, in every case where I was among the four, if she had remained, I would have been among the five. So her leaving the court made an enormous difference," Ginsburg said.

Ginsburg criticized her majority colleagues for what she called "activist" decisions that overturned laws better understood by Congress, such as the Voting Rights Act, which had been extended by a series of bipartisan presidents, most recently George W. Bush.

"That's an example of striking down legislation on a subject that the people in the political arena are better informed about than the court is," she said.

Ginsburg, 80, gave no hint she would wind down her judicial career anytime soon, noting that the fall docket includes such important issues as campaign finance limits and affirmative action. And, despite her sharp ideological differences with some colleagues, including close friend Antonin Scalia, she said their work environment remains cordial.

"One of the hallmarks of the court is collegiality," Ginsburg said. "You could not do the job that the Constitution gives to us if you didn't, to use one of Justice Scalia's favorite expressions, `Get over it.'"

Closer to home, the psychic trial is still going.  Paula McMahon is covering it with her last two articles here and here.   You can't beat the headlines:

"Psychic dictated messages from Brad Pitt and Colin Powell, witness testifies"
and
"Dead husband's frozen sperm did not sire a child, psychic's client says she was told"

The articles are fun reads.

Friday news and notes

It's a quiet Friday after the Jewish holiday, so here's a quick post to get you through the weekend:

1.  Sen. Rubio is taking heat about his refusal to issue a "blue slip" for Will Thomas and another African-American judge, Brian Davis, in the Middle District.  From the Orlando Sentinel:

One seat in particular, in the Middle District, has sat empty since December 2011 — the result of a fight between President Barack Obama and Senate Republicans over his nominee: Judge Brian Davis, a Nassau County circuit judge.
Though Davis initially had the support of U.S. Sen. Marco Rubio, the Florida Republican recanted more than a year ago, citing concerns about comments that Davis made about two black officials tied to controversy in the Clinton administration.
Davis, who is also black, implied that the two — former U.S. Surgeon General Joycelyn Elders and Dr. Henry Foster Jr., a nominee for that position — either lost the job, in Elders' case, or didn't get it, in Foster's, because of their race.
"Republicans on the Judiciary Committee have had objections to Judge Davis, and those should be taken seriously and reviewed thoroughly before moving forward," said Brooke Sammon, a Rubio spokeswoman, in a statement this week.
But the Obama administration isn't budging on Davis or its selection in November of Judge William Thomas, a Miami-Dade circuit judge, to fill a slot in the Southern District.
Rubio has withheld support for Thomas, citing — among other issues — a controversial decision by Thomas in January to sentence a hit-and-run killer to less than a year in jail. An attorney for the guilty driver, Michele Traverso, argued that a long sentence would be risky for Traverso, who has a rare genetic disorder. The light sentence angered family members of the victim, bicyclist Aaron Cohen.
A White House spokeswoman said the administration had no intention of replacing the nominations of either Davis or Thomas.
"They are both distinguished judges, combining for nearly three decades on the bench, and the nonpartisan American Bar Association has rated each of them 'well-qualified,'" said Joanna Rosholm, a White House spokeswoman.

2.  An important decision from the Second Circuit on securities law:

“We conclude as follows.  First, Section 10(b) and its implementing regulation, Rule 10b-5, do not apply to extraterritorial conduct, regardless of whether liability is sought criminally or civilly.  Accordingly, a defendant may be convicted of securities fraud under Section 10(b) and Rule 10b-5 only if he has engaged in fraud in connection with (1) a security listed on a U.S. exchange, or (2) a security purchased or sold in the United States.”

 
3.  "Small-time Miami actor, wife plead guilty to $15 million Medicare scam"  Via the Miami Herald:

Roberto F. Marrero, a bit-part TV actor in such shows as Miami Vice, pleaded guilty Thursday along with his wife and another Miami man to a $15 million Medicare fraud scheme.

4.  Bolivia official in trouble.  From Curt Anderson:

A high-ranking Bolivian National Police official was sitting in a South Florida jail Thursday on U.S. charges that he tried to extort thousands of dollars from the former owner of a Bolivian airline.
According to an FBI affidavit filed in federal court, Mario Fabricio Ormachea Aliaga, 42, flew from La Paz, Bolivia to Miami on Aug. 29 to meet with Humberto Roca, who formerly ran Bolivia's AeroSur airline.
Roca previously had fled to the U.S. to avoid Bolivian charges alleging he provided tickets to what authorities there called anti-government foreign mercenaries. The FBI affidavit said that Roca calls the charges politically motivated and is seeking asylum in the U.S.
Before the meeting with Ormachea Aliaga — whom Roca referred to as the "Colonel" — Roca contacted the FBI on the advice of a lawyer. Agents monitored and recorded their meetings, during which Ormachea Aliaga — the No. 2 official in the national police's anticorruption unit — allegedly told Roca that in exchange for $30,000 "he would drop the charges against (Roca) and charge someone else instead," according to the FBI affidavit.

Read more here: http://www.miamiherald.com/2013/09/05/3607090/top-bolivia-police-official-jailed.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/09/05/3608135/small-time-miami-actor-wife-plead.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/09/05/3608135/small-time-miami-actor-wife-plead.html#storylink=cpy

News & Notes -- Rosh Hashanah edition

The Eleventh Circuit just decided Temple B'Nai Zion vs. City of Sunny Isles Beach.  It's quite a read.  The issue presented is one of ripeness: "This appeal presents the question whether an Orthodox Jewish synagogue’s statutory and constitutional challenges to its designation as a historic landmark by a municipality are ripe for adjudication."  But check out some of these facts:

The City was not supportive of the Temple’s expansion plans, and in the period that followed Rabbi Lankry met with Mayor Edelcup on several occasions to work out the differences. The meetings went badly. At one point, Mayor Edelcup allegedly referred to the Sephardic Jewish community as a “bunch of pigs.” When Rabbi Lankry inquired as to whether he could quote the mayor as to his pejorative comment, Mayor Edelcup responded, “I don’t care what the [expletive] you do.” The animosity between the parties now proceeded at full bore: when the Temple rebuffed the City’s attempt to purchase the property on which the Temple was situated (the Temple is apparently located adjacent to city hall), Mayor Edelcup directed the City’s code enforcement officers to inspect the Temple, and between September 2007 and February 2009, the Temple received 12 separate code violation notices from City officials.
***
At a public hearing held before the full City Commission on September 2, 2010, the same witnesses who had appeared before the Preservation Board appeared again and provided essentially the same testimony. Because the hearing was public, citizens were permitted to take the lectern and offer comments during the proceeding; many took the opportunity to complain about the operation of the Temple, accusing Rabbi Lankry and the Temple of removing memorial plaques from the walls, failing to light candles for deceased congregants, denying access to former congregants, and absconding with the Temple’s Torahs. The City Commissioners—three out of five of whom were members of the Temple congregation before it became Orthodox—also offered public comments before voting on the designation. Commissioner Gerry Goodman, who had previously sat on the Temple’s board of directors, for example, questioned Rabbi Lankry at length about why the Temple seemed to be closed to the public on certain days. Commissioner Goodman had purchased a memorial plaque for a loved one at the Temple some years earlier but had been unable to view the plaque when he attempted to do so. Goodman then began to ask Rabbi Lankry whether the Temple was being leased out, but Mayor Edelcup interjected, admonishing Goodman to “[f]ocus on the issues.” Before closing his remarks, Goodman asked Rabbi Lankry whether Lankry had called him an anti-Semite in the local newspaper.

Yikes.  At the end of the day, the Court engages in some technical ripeness analysis but asks the parties for some reflection (which is appropriate at this time of year!):

We do not know who will ultimately prevail between the Temple and the City in this ongoing feud. That question—a merits one—is not ours to answer. We merely decide today that the claims enumerated in the Temple’s complaint are ripe for judicial adjudication. And while we embrace some hope that the parties might bury their strife before the next stage of federal litigation comes to pass, again on that score, only time will tell. At this juncture, it is enough to say that the order of the district court is vacated, and that the Temple’s challenges to the enactment of the historic designation are ripe for review.

Dan Wallach of Becker & Poliakoff represented the Synagogue. Coffey Burlington represented the City.

Sorry kids, summer's over

That means it's time for football, traffic, and... some changes at the U.S. Attorney's office.  Here's your new lineup:

Marcus Christian is leaving the local office and heading to DOJ -- UPDATE: Actually he is headed to a law firm in DC, and not DOJ.  Thanks to the commenters and tipsters.
George Karavestos takes over as Executive Assistant U.S. Attorney
Lynn Kirkpatrick takes over for George as the Chief of Narcotics
and Norman Hemming is now Special Counsel

Meantime, the government has charged two lawyers in the Rothstein saga.  From the Sun-Sentinel:

Nearly four years after Scott Rothstein's massive Ponzi scheme spectacularly imploded, the long-simmering criminal investigation entered a new phase Friday with the arrests of two Broward County attorneys accused of assisting the fraudster.
Douglas L. Bates, a Plantation attorney, was picked up at his Parkland home early Friday by IRS agents. Christina Kitterman, who had worked at Rothstein's law firm, surrendered at the West Palm Beach federal courthouse. Both are accused of lying to some of Rothstein's investors as he kept his $1.4 billion fraud alive.
"The success of such a large-scale scheme depended on the complicity of Rothstein's colleagues and associates, like Douglas Bates and Christina Kitterman," said U.S. Attorney Wifredo A. Ferrer.
The two attorneys became the first defendants to be indicted for their roles in the alleged criminal activities the now-disbarred attorney ran out of the Rothstein Rosenfeldt Adler law firm. The now-imprisoned Rothstein and eight other defendants all cut deals with the federal government in advance of being criminally charged.

What is Marco Rubio's reason for blocking Will Thomas?

The DBR (John Pacenti) has a lengthy article about Marco Rubio's decision to block two African American nominees -- William Thomas and Brian Davis -- to the district court.  But he refuses to explain his reason for the decision. 

Republican U.S. Senator Marco Rubio, a tea party darling, is blocking confirmation hearings for two black judicial nominees by withholding the formality of submitting what is known as a "blue slip." Miami-Dade Circuit Judge William Thomas was nominated 552 days ago for a Miami opening in the Southern District of Florida. Nassau Circuit Judge Brian Davis has been waiting even longer — 612 days — for action to fill a Middle District of Florida vacancy in Tampa. The blue slip is a required by the chairman of the Judiciary Committee, Senator Patrick Leahy, D-Vermont. Waiting for blue slips is a longstanding procedure that the chairman does not plan to break, his spokeswoman Jessica Brady said Thursday. Florida's other senator, Democrat Bill Nelson, has submitted blue slips for both candidates. Rubio's and Nelson's offices did not respond to telephone calls or emails seeking comment by deadline. The failure to submit blue slips marks a ratcheting up of Republican efforts to block President Barack Obama's judicial nominees, even if means alienating minorities, critics say. Thomas and Davis fulfill Obama's goal of bringing greater diversity to the federal bench. Both are black, and Thomas is openly gay. Obama has been more dedicated to diversity than any of his predecessors, with 43 percent of women nominees compared with 22 percent under George W. Bush and 29 percent by Bill Clinton. Obama also surpassed his predecessors on nominating blacks and Hispanics. By delaying the nominations of minorities, Republicans hope to hinder a lasting legacy on the lifetime appointment of jurists, said Andrew Blotky, director of Legal Progress, part of the Center for American Progress in Washington. "If you look at how long these vacancies have been open, it's ridiculous and unconscionable," he said.

Meantime, the district continues to try interesting cases.  The psychic trial is going on in Ft. Lauderdale.  Via Paula McMahon:

When Sylvia Roma visited a psychic in late 1997, she was a successful executive who figured her life was happy and the tarot card reading was "just for entertainment."
But Roma was quickly convinced that her family was cursed, she said, and over the next 14 years she sent close to $800,000 worth of cash and gold coins to the woman she knew as Joyce Michaels, but who was really Rose Marks.
Marks summoned her to Fort Lauderdale in July 2002 and told her that nearly $500,000 in cash and gold coins Roma had already given to Marks had burned in the 9/11 terrorist attack on the World Trade Center — yet Roma continued to send money and jewelry to Marks, she testified.
"I was in so far, I had nothing to do but believe her. I didn't see any way out," Roma testified Thursday in federal court in West Palm Beach, where Marks is on trial.
Prosecutors say Marks, 62, of Fort Lauderdale, and her family defrauded about $25 million from victims they met in Manhattan and South Florida.
It's rare for so-called Gypsy fortune-telling frauds cases such as this one to go to trial, law enforcement experts say, and one of the reasons is that alleged victims are embarrassed and ashamed to admit they've been tricked.
Roma, who will be back on the witness stand Friday to be cross-examined by the defense, told jurors that she became depressed and isolated as Marks urged her to send more and more money.
Marks told Roma she couldn't discuss "the work" with anyone because it would let "negative energy" affect Marks' efforts to lift the curse and help Roma to have a happier life, she said. Marks told her she was meditating and building an altar and a protective shield with the hundreds of gold coins that Roma provided to her.

Any predictions on how this one will turn out?

JNC decides to interview these 17 applicants

Two new federal district judges will come from this list:

Beatrice Butchko
Jack Tuter, Jr.
John Thornton, Jr.
David Haimes
Thomas Rebull
Mary Barzee Flores
Martin Bidwill
Daryl Trawick
Jeffrey Colbath
Darrin Gayles
Robin Rosenberg
Migna Sanchez-Llorens
Meenu Sasser
Veronica Harrell-James
Beth Bloom
Barry Seltzer
Peter Lopez

I've listed the applicants in interview order.  The interviews are on September 17, and this list will be narrowed to 4 people.

Fat Joe to the Big House

For 4 months on a tax evasion case.  He's at FDC.  From TMZ:

Fat Joe has just turned himself in to prison to serve his 4 month sentence for tax evasion.

The rapper -- real name Joseph Cartagena -- is officially in custody at the Federal Detention Center in Miami.

As TMZ previously reported, Joe pled guilty back in December to stiffing Uncle Sam on a boatload of taxes for the years 2007 and 2008 ... more than $1 million total.

He originally faced up to two years in the slammer for the crime -- but was ultimately sentenced to just 4 months and a $15,000 fine, plus one-year supervised release.

Justice Ginsburg not going anywhere

She's been giving a bunch of interviews lately, the most recent one on the front page of yesterday's NY Times. Lots of really interesting stuff, including that she's not leaving the Court any time soon:

On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.

“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.

Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.

Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.

Her age has required only minor adjustments.

“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”

Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”

“I love my job,” she added. “I thought last year I did as well as in past terms.”

In other news, Eric Holder is speaking out for PD funding. Here's his op-ed:

Fifty years ago, the U.S. Supreme Court unanimously held that everyone who is charged with a serious crime has the right to an attorney. In Gideon v. Wainwright, Justice Hugo Black observed for the court that “in our adversary system, any person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided to him.” As a prosecutor, as a judge and as our nation’s attorney general, I have seen this reality firsthand.

Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources. And this year’s forced budget reductions, due largely to sequestration, are further undermining this critical work.

In stark contrast to many state defender programs, the federal public defender system has consistently served as a model for efficiency and success. According to court statistics, as many as 90 percent of federal defendants qualify for court-appointed counsel, and the majority of criminal cases prosecuted by the Justice Department involve defendants represented by well-qualified, hardworking attorneys from federal defender offices. Yet draconian cuts have forced layoffs, furloughs (averaging 15 days per staff member) and personnel reductions through attrition. Across the country, these cuts threaten the integrity of our criminal justice system and impede the ability of our dedicated professionals to ensure due process, provide fair outcomes and guarantee the constitutionally protected rights of every criminal defendant.

I join with those judges, public defenders, legal scholars and countless other criminal-justice professionals who have urged Congress to restore these resources, to provide needed funding for the federal public defender program and to fulfill the fundamental promise of our criminal justice system.

The Justice Department is strongly committed to supporting indigent defense efforts through an office known as the Access to Justice Initiative, which I launched in 2010, and a range of grant programs. The department took this commitment to a new level on Aug. 14 by filing a statement of interest in the case of Wilbur v. City of Mt. Vernon — asserting that the federal government has a strong interest in ensuring that all jurisdictions are fulfilling their obligations under Gideon and endorsing limits on the caseloads of public defenders so they can provide quality representation to each client.

Unfortunately the federal public defender program is in dire straits. As I write, federal defenders representing the Boston Marathon bombing suspect are facingabout three weeks of unpaid leave. In Ohio, the director of one federal defender office who had served there for nearly two decades has laid himself off rather than terminate several more junior attorneys.

This shameful state of affairs is unworthy of our great nation, its proud history and our finest legal traditions. In purely fiscal terms, the cuts imposed by sequestration defy common sense because they will end up costing taxpayers much more than they save. The right to counsel is guaranteed under the Constitution. On the federal level, this means that every defendant who is unable to afford a lawyer must be represented by either a federal public defender or an appointed attorney from a panel of private lawyers. While federal defender offices are staffed by experienced, dedicated professionals operating in a framework that has proved both effective and efficient, panel attorneys often possess less experience and incur significantly higher fees. An increased reliance on panel attorneys may result in less desirable outcomes as well as significantly higher costs.

Five decades after the Supreme Court affirmed that adequate legal representation is a basic right, sequestration is undermining our ability to realize this fundamental promise. The moral and societal costs of inadequate representation are too great to measure. Only Congress has the ability to restore the funding that federal defenders need to ensure that justice can be done. It is past time for our elected representatives to act.

Judge Scola sentences Khan to 25 years...

...10 more than the prosecution was asking for. The AP's Curt Anderson has this:

Hafiz Khan, 78, had faced up to 60 years behind bars on four terrorism support-related charges. But U.S. District Judge Robert Scola opted for less than the maximum term, although it is 10 years more than the sentence recommended by federal prosecutors.

The case against Khan, who was imam at a Miami mosque prior to his 2011 arrest, was built on hundreds of FBI recordings of both telephone calls and Khan's face-to-face conversations with an undercover informant. In the calls, Khan discusses details of numerous wire transfers to Pakistan over a three-year period that totaled about $50,000.

Khan also was overheard praising deadly attacks by the Taliban in both Pakistan and Afghanistan, including a 2009 bombing at a CIA base in Khost, Afghanistan. In another call, Khan was heard wishing for the deaths of 50,000 U.S. troops in Afghanistan.

"May Allah utterly destroy them. The destruction . if they do not repent and do not revert to the right path," Khan said on the FBI recording.

Scola said several times Friday that the evidence against Khan was strong.

"I can't think of a case where the evidence would be more overwhelmingly clear," the judge said.

During trial, Khan testified in his own defense that although he sometimes made strongly worded political statements, the money he sent to Pakistan was for family, friends and charity. In particular, Khan said he sent money to a religious school, or madrassa, that he'd founded in Pakistan's Swat Valley. That school was closed for a time by the Pakistani government, which claimed it was a Taliban hideout and training ground.

Khan also claimed in his testimony that he only pretended to support extremist Taliban views — including toppling Pakistan's government in favor of one that would impose strict Islamic law — in order to obtain $1 million promised him by the man who turned out to be the FBI informant. Prosecutors said that was a complete fabrication.

"Terrorists need money. What he did was put lives at risk," said Assistant U.S. Attorney John Shipley. "It put Pakistani lives at risk and it put American lives at risk."

In a lengthy statement to the judge in Pashto through an interpreter, Khan again insisted he was not a terrorism financier and that his sole intent was to help the poor in his native Swat Valley.

"I did not send one dollar to the terrorists or the fighting Taliban," Khan said. "I am absolutely against the terrorists and the violence."

Khan's wife, Fatima, appealed to Scola from her wheelchair, also in Pashto, to allow him to come home. She said his rants against Pakistan and the U.S. on the FBI tapes did not mean he was a proponent of violence.

"He gets angry a lot. He is not speaking from his heart," she said.