Monday, December 19, 2011

Judge Pryor Loves Free Speech!!!

Some folks often point out that Judge Pryor seems to be a very very very conservative jurist.  Whether that criticism comes from his facial expressions (some might call smirks) when confronted with a liberal thought or argument, or the general tenor of his body of work, it may be time to rethink the position.

In Keeton v. Anderson-Wiley, judge Pryor wasn't satisfied with just affirming a trial court's denial of a requested injunction to prevent Augusta State University from discriminating against a potential enrolee because she had expressed homophobic sentiment and wanted to be a multicultural counselor, so he specially concurred to let everybody know just how much he loves free speech:

"But we have never ruled that a public university can discriminate against student speech based on the concern that the student might, in a variety of other circumstances, express views at odds with the preferred viewpoints of the university. Our precedents roundly reject prior restraints in the public school setting.
...

"A few decades ago, the prevailing view of the psychiatric profession maintained that homosexuality was a treatable mental disorder. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (2d ed. 1968). As this record makes plain, the prevailing view changed. This shift in psychiatric orthodoxy occurred largely because professionals who had been taught that homosexuality was a disease of the mind, but who rejected that view, argued successfully that the psychiatric diagnostic criteria should be amended. See Herb Kutchins & Stuart A. Kirk, Making Us Crazy 55–77 (1997) (describing professional efforts to remove homosexuality as a mental disorder from the DSMII).

This change in opinion would have taken much longer if public universities had been able to expel students who rejected the prevailing view and intended to argue that homosexuality was not a mental disease. As the First Amendment protected the professionals who successfully advocated against the then-prevailing view of the psychiatric profession, so too does it protect Keeton should she decide to advocate that those professionals got it wrong."

I wholly agree with the opinion and argument.  But something makes me suspicious of Judge Pryor's desire to make his position so crystal clear...I am not sure why, but if I may take a moment to speculate as to what Judge Pryor may have intended the concurrence to mean, I may be able to get my thoughts in order:

'Dear Newt:

Should you be elected President in a conservative tidal wave, please do not be offended by my opinion in Keeton v. Anderson-Wiley, et al..  In fact, I am happy to be subpoenaed before Congress to explain under the escort of US Marshals (an idea of yours that I fully support) that I specially concurred so I could make clear that people who hate homosexuality, evilution, the environment and puppies, are all free to use whatever academic exertions they choose to convince those tree hugging homo liberals otherwise, and if need be, obtain degrees so that they can provide a scientific basis for what we all know is true.

Yours Truly,

J.P.

P.S., when you nominate me for the Supreme Court and I am appointed, I promise not to wear silly gold stripes on my robe.

xoxo

P.P.S.

F the liberals.

Dust in the Wind

""My name is OZYMANDIAS, King of Kings."
Look on my works ye Mighty, and despair!
No thing beside remains. Round the decay
Of that Colossal Wreck, boundless and bare,
The lone and level sands stretch far away." 

-Percy Bysshe Shelley

Kim Jong-il - Dead.

I wonder whether those who abuse their power ever think about how they will be remembered?

"The boast of heraldry, the pomp of power,
And all that beauty, all that wealth e'er gave,
Awaits alike th' inevitable hour:-
The paths of glory lead but to the grave.

Nor you, ye Proud, impute to these the fault
If Memory o'er their tomb no trophies raise,
Where through the long-drawn aisle and fretted vault
The pealing anthem swells the note of praise.

Can storied urn or animated bust
Back to its mansion call the fleeting breath?
Can Honour's voice provoke the silent dust,
Or Flattery soothe the dull cold ear of Death?"


-Thomas Gray

Tuesday, December 13, 2011

Jorge A. Perez A Bit Defensive?

I thought it was a very nice gift, but isn't he a bit defensive?



On behalf of all Miamians, I thank you for the gift.

Monday, November 28, 2011

Yikes?

"One of the women threw water in my face and they injected me with something that gave me a strong sexual desire," he said.

"They stopped the car and made me have sex with each of them several times, using condoms.

"When they had finished they left me in the bush totally naked.

"Some people gathering grass helped me by calling the police, who took me to hospital to deal with the effects of this drug that I had been given, as the urge to have sex was still there."

That's right, he was injected with a substance that made him have sex with three women, several times, and he was not finished. Here is the article...you would think they would at least have let him have a drink of water.

How much do you think they could sell that stuff for on South Beach? 

Do you think the CIA is passing it out to tribal elders in lieu of Viagra?

Perhaps a few hundred thousand cases could be shipped to Japan, where they have an interesting problem:

"The latest found that 61% of unmarried men aged 18 to 34 have no girlfriend, and half of women the same age have no boyfriend - a record high.

More than a quarter of the men and 23% of the women said they were not even looking.

Some cited a shortage of money, others a belief that it is impossible to find a good partner once they had passed the age of 25.

Many of the women also said single life suited them better than how they imagined marriage would be.

The survey also found that more than quarter of unmarried men and women between 35 and 39 years old said they had never had sex."

Those numbers are probably about on par with the success rate of UFs abstinence only campus club.

Thursday, November 17, 2011

What the hell are we doing here?

From the BBC

"Officials at a meeting of elders in Kabul changed a committee's number after delegates rejected 39 because of an Afghan belief that the number is associated with pimps.
....

Elders refused to take part in group 39 until its number was changed to 41.

The number is held as a mark of great shame across Afghanistan.

Correspondents say some believe the taboo started because a pimp had 39 on his vehicle number plate. But others say it dates from an old way of calculating numbers called "Abjad".

Many delegates at the loya jirga voiced their fervent opposition to being part of committee 39, one attendee told the BBC's Bilal Sarwary in Kabul.

''One delegate said: 'I don't want to return to my area and be called a pimp. I don't care if it is true or not, but people out there believe in it. Look no one wants to have a vehicle with number plate 39. And yet, you want me to be in 39?''' the member said.

...

"But when I raised it, everyone else told me to shut up. Everyone said, they didn't want to be called [a pimp] or their children and family members harassed in streets, schools and neighbourhoods. So than a committee 41 was established,'' the delegate continued...."

I can just hear Karzi saying "Oy Vey!"

We are trying to establish a partnership with a country that has people in it who will harass family members in the streets because their father is on committee # 39?  And yet, changing the official number to "41" despite the fact that it remains in reality the 39th committee is sufficient?

I know we have many buildings here that "don't" have a 13th floor, but harassing children because of a committee number?

I am now convinced that our mission in Afghanistan, whatever it might be, is doomed.

Monday, November 7, 2011

Boy would Cleisthenes be pissed off.

I am back from my vacation paddling down the Yangtze in search of the Baiji to ask it whether or not the long nose is a curse handed down for lying about the source of its rather pale skin.  Sadly, there are only a couple dozen left and I was unable to commune with one.

Lot's has been going on since I departed!

Perhaps most interesting is the fact that democracy's birthplace has now seen the final demise of democracy. First, the Greeks come to a bailout deal with the EU that requires significant cuts to social expenditures and increases in taxes, next, the Greek prime minister announces his intention to allow the people of Greece to vote on whether or not they want to accept the agreement. The EU countries, stock markets, banks and China all go berserk. Finally, the vote by the people is tabled, the prime minister is out, and the Greeks are now having the deal shoved down their throats.

If anybody ever questioned who runs the world, you now have the answer - the bankers.

The following is a great video by a rapping Tennessee lawyer (HT ATL), you HAVE to freeze the thing at 2:19 to fall in love with this guy who apparently loves to make out with clients(?) paralegals(?) co-counsel(?):




Do you think Judge Moreno will let me shoot my video in his courtroom? Maybe I could borrow a couple of his and Martinez's clerks for extras?

Friday, October 14, 2011

A big cross in the middle of a government cemetary isn't an endorsement of religion!?

That is what the more conservative wing of the Ninth would have the law say if they only had a some more votes:

"“A rose is a rose is a rose.”

— Gertrude Stein, Sacred Emily, 1913.

Stein wrote this sentiment to express the flower’s indescribable, unchangeable essence. The panel appears to have transmogrified Stein’s ode to a rose into a new rule of law—“a cross is a cross is a cross.” Alas, that is neither good poetry nor valid law. Unlike roses, religious symbols can have multiple meanings..."

I think the Ninth did a disservice to Shakespeare by skipping 500 years forward to Stein:

"What's in a name? that which we call a rose
  By any other name would smell as sweet;"

 -Romeo and Juliet

The opinion is an interesting piece, and I am sure the Court will be taking it up.  The other interesting issue is that it shows the Conservatives have not quite yet wrested control of the Ninth away from the Liberals, but they are getting closer.

Bea authored it, and four other judges signed on, all but one were Republican appointees, except Tallman, who was appointed by Clinton in 2000 when the Republicans controlled congress.

Who ever said there were no litmus tests?

By the way, here is a picture of the cross which Judge Bea would have you believe is not a religious symbol that represents an endorsement of religion.


In truth, I am a bit sympathetic to the dissent, the thing has been there for over 70 years in one form or another, why tear it down now?  But for the whole "camel's nose" under the tent style reasoning, it seems to me that this was a bad use of Establishment precedent.

Friday, September 30, 2011

In MORE Serious News

Our country just carried out the first extra judicial death sentence of a United States citizen, that I am aware of - under the circumstance where the person was executed for providing material support to a terrorist organization, but was not in possession of any weapon that posed an immediate threat to anybody.

No trial, no appeal, just death.

I am certainly not crying over the fact that Anwar Al-Alwaki is dead...by all accounts, he cheered, goaded and probably colluded in attacks that killed innocent people.  But, that should never ever trump the rule of law our country has been founded upon - a rule that requires American Citizens be afforded due process before sentence, which has time and time again been interpreted to mean a jury trial. 

In this case, the closest anybody can tell is that some secret committee, based upon secret evidence, issued a death warrant.  The administration opposed this man's family's attempts to challenge the publicly known death warrant, and was successful - no hearing or trial on the merits.

As a life-long democrat and unabashed liberal, I hope this stain upon American history haunts Obama throughout the rest of his life and his legacy beyond - as our commanders in chief are fond of saying - the buck stops with Obama on this one.

Super Sex Lawyer?

While most lawyers would be lucky to have had sex 75 times before getting married, this dude in Boston had 75 Children!!!

His wife is not too happy: "“What if they all come knocking?” she asks angrily on camera. “Did you think of the consequences that would come out of this?”"

Cudos to you Ben Seisler!

Friday, September 23, 2011

You better be Good.

"I think if the heavens were striking in cases of spontaneous combustion then there would be a lot more cases. I go for the practical, the mundane explanation," he said."

From the BBC:

"A man who burned to death in his home died as a result of spontaneous combustion, an Irish coroner has ruled.

It is believed to be the first case of its kind in Ireland.

West Galway coroner Dr Ciaran McLoughlin said it was the first time in 25 years of investigating deaths that he had recorded such a verdict.

Michael Faherty, 76, died at his home at Clareview Park, Ballybane, Galway on 22 December 2010.

An inquest in Galway on Thursday heard how investigators had been baffled as to the cause of death.

Forensic experts found a fire in the fireplace of the sitting room where the badly burnt body was found had not been the cause of the blaze that killed Mr Faherty.

The court was told that no trace of an accelerant had been found and there had been nothing to suggest foul play.

The court heard Mr Faherty had been found lying on his back with his head closest to an open fireplace.

The fire had been confined to the sitting room. The only damage was to the body, which was totally burnt, the ceiling above him and the floor underneath him.

Dr McLoughlin said he had consulted medical textbooks and carried out other research in an attempt to find an explanation.

He said Professor Bernard Knight, in his book on forensic pathology, had written about spontaneous combustion and noted that such reported cases were almost always near an open fireplace or chimney.

"This fire was thoroughly investigated and I'm left with the conclusion that this fits into the category of spontaneous human combustion, for which there is no adequate explanation," he said.
'Sharp intake of breath'

Retired professor of pathology Mike Green said he had examined one suspected case in his career.

He said he would not use the term spontaneous combustion, as there had to be some source of ignition, possibly a lit match or cigarette.

"There is a source of ignition somewhere, but because the body is so badly destroyed the source can't be found," he said.

He said the circumstances in the Galway case were very similar to other possible cases.

"This is the picture which is described time and time again," he said.

"Even the most experienced rescue worker or forensic scientist takes a sharp intake of breath (when they come across the scene)."

Mr Green said he doubted explanations centred on divine intervention."

In other, more disturbing news, the Eleventh Circuit has once again affirmed that when you are sentenced as a Career Offender but legally should not have been, if you miss the 2255 deadline, you are doomed to serve many, many more years in prison than you would have if the court had got it right the first time.

"We thus decline to extend the actual innocence of sentence exception to claims of legal innocence of a predicate offense justifying an enhanced sentence. In so doing, we heed the Supreme Court’s instruction to exercise restraint in expanding the procedural default rule’s exceptions. We also keep the actual innocence exception narrow, and ensure that this exception remains “rare” and is only applied in the “extraordinary case.”

In short, the actual innocence exception does not apply to McKay’s claim that he was erroneously sentenced as a career offender. This sentencing claim is barred by the procedural default rule and, therefore, we AFFIRM the denial of McKay’s § 2255 motion."

McKay v. United States

This is just morally wrong.

Wednesday, September 21, 2011

That's MY Money!


Odyssey v. Kingdom of Spain:

"In 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar. Odyssey filed a verified admiralty complaint in rem against the shipwrecked vessel and its cargo in the Middle District of Florida and also sought a warrant of arrest. The Kingdom of Spain (Spain), the Republic of Peru (Peru), and twenty-five individuals filed claims against the res. Upon receiving additional information about the vessel’s identity, Spain also filed a motion to dismiss. Spain argued, without waiving its sovereign immunity, that the res was a Spanish warship and the district court thus lacked subject matter jurisdiction over Odyssey’s claims because the vessel was immune from judicial arrest under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. The district court granted Spain’s motion to dismiss, concluding the res was the shipwreck of a sunken Spanish warship and was entitled to sovereign immunity. Having determined that the res is “immune from . . . arrest” in United States courts, we affirm. 28 U.S.C. § 1609."

To make matters worse:

"We note, the release from custody sought by Odyssey would not, as Odyssey contends, return matters to the status quo at the commencement of this suit. The U.S. Marshal seized the res approximately one month after Odyssey discovered the site in March of 2007. Odyssey continued recovery operations after the order of arrest. While Odyssey may have had prior custody of some items from the site, the remainder of the recovered res was received in Odyssey’s capacity as custodian for and under the authority and protection of the court.

Moreover, releasing the res to the custody of Spain is not, as Odyssey attempts to characterize it, a “transfer.” Odyssey holds the res as a substitute custodian of the district court; the res remains in custodia legis (in the court’s possession). By ordering Odyssey, as substitute custodian, to release the res into Spain’s custody, the court is relinquishing its control of the res and releasing it to the party that has a sovereign interest in it. Further, Spain’s sovereign interest in the res existed before Odyssey initiated this action and deposited the parts of the res it had salvaged from the shipwreck."

To paraphrase the opinion - Great Work! Now give the stuff back. Schmucks.

Obama at the UN

President Obama is speaking and has been lauding the fact that through peaceful opposition, peoples around the world have begun to realize the "universal right" of self-determination.

He said - 

"We will always stand up for the universal rights that are recognized by this assembly..."

Then went on to address Palestine - 

"One issue stands as a test...conflict between Israelis and Palestinians...

One year ago called for independent Palestine...deserve state of their own...

Genuine peace can only be realized between...the parties...

Question isn't goal that we seek...quetion is how to we reach that goal...

Peace is hard work...won't come through statements...at UN..."

One cannot help but recognize the hypocrisy of our country's position.  It is morally wrong, and I have yet to hear a reasonable explanation as to why the UN should not recognize Palestine.  I want to hear one because I want to be able to say to my friends that Israel is in the right.  I just don't see it.

Tuesday, September 20, 2011

Palestinian Statehood

I previously posted about the intent of the Palestinians to seek recognition from the UN as a state. 

It appears that they will be moving forward with that plan this week.  The United States has said it will veto acceptance of Palestine in the security counsel, which will then leave the Palestinians with the sole option of going to the general assembly to be recognized as a "observer state."  That will allow them to bring Israel before international tribunals to challenge Israeli actions, such as building settlements on what would then be recognized as Palestinian land.

I am deeply disturbed by the US and Israeli positions regarding the Palestinians actions.  Repeatedly, they have both referred to the Palestinian's intent as "unilateral action."  How can going to the UN, which has 193 member states, be considered "unilateral"?  To be accepted as an observer state, the Palestinians would need 2/3 approval from the general assembly -- 129 countries.  The time has come for this to happen.

Essentially, the Palestinians are looking to have a state which is enfranchised and legitimate - how can that be bad.  In the future, if Palestinians continue to lob rockets at Israel, Israel can declare war and seek to legitimately end such state aggression - how is that bad?

Somebody please tell me why the Palestinian's should not have a state?

Wednesday, September 14, 2011

Sara Palin!

Although I have often been critical of Palin, I can't help but like her just a bit more because of this one:

"A new book about tea party darling Sarah Palin has a salacious revelation about her sex life involving a well-known Miami sports star.

According to The National Enquirer, which obtained an advance copy of a book about Palin by investigative writer Joe McGinniss — Palin and former Miami Heat player Glen Rice had a one-night tryst back in 1987."

Dude could hit the Three.

Tuesday, September 13, 2011

Actress banned from films because of alleged affair!

Female actress has alleged affair with another star.  He is married, she is not.  He is arrested when he allegedly beats his wife and threatens her with gun after his wife confronts him about alleged affair with the actress.  Wife then drops charges and he is freed.

Result?

"The Kannada Film Producers' Association imposed the ban on Ms Thukral saying she had spoiled the 'domestic harmony of a fellow actor'."

...

"'If Nikhita [Thukral] apologises for her behaviour and says she will just work in films and not get involved in domestic affairs of fellow actors, we will withdraw the ban,' association president Munirathnam told the BBC."


What a Country!

In other news - The Mighty Dicks - Perry and Scott, have announced plans to annex the Florida Everglades to Shell Oil.  After that is completed, they have indicated that they will mount white horses and "finish that darned war against the Injuns in Florida.

Monday, September 12, 2011

Palestinian Statehood

The New York Times published an op ed piece today arguing against recognition by the UN of Palestine as a State.

The article rightly points out that Israeli leadership is to blame for the breakdown in the peace process: "we put the greater onus on Mr. Netanyahu, who has used any excuse to thwart peace efforts..." Unfortunately, the article goes on to suggest that the "best path to statehood remains negotiations" and that Palestine should not seek Statehood.

Where have negotiations gotten the Palestinians in the last Forty-Four Years? A few examples:

- More settlers on land that the international community recognizes as belonging to Palestine - not Israel.

- Operations such as "Cast Lead" - the type of community wide reprisal that the Nazi's were known to commit - which resulted in the deaths of 320 children under 18 and over 100 women.  It also saw the use of white phosphorus by Israel, which has been recognized as a war crime because of it indiscriminate effect on the target population and manner in which it kills - literally burning a hold through a person.

- An apartheid state for Palestinians who are Israeli citizens.

The Palestinians share in the blame - there is public support in Gaza and the West Bank for terrorist attacks against innocent Jews, as well as support for Hamas - an organization that has sworn itself in support of the demise of Israel.

But to say that Israel is justified is the same as saying that a man who shoots an unarmed kid who enters his fenced in yard is justified in the killing because Florida Law allows him to "defend his castle."

So what is the argument that the NY Times comes up with to oppose Palestinian Statehood?

"To get full U.N. membership the Palestinians have to win Security Council approval. The administration has said it will veto any resolution — ensuring the further isolation of Israel and Washington. If they fail in the Security Council, the Palestinians have said they will ask the General Assembly for enhanced observer status as a nonmember state. Even the more modest General Assembly vote, which the Palestinians are sure to win, would pave the way for them to join dozens of U.N. bodies and conventions, and could strengthen their ability to pursue cases against Israel at the International Criminal Court. But Israel would still control Palestinian territory, leaving the Palestinians disaffected after the initial euphoria."

In other words - (1) the United States and Israel will look bad because they oppose Statehood, (2) the Palestinians are likely to win in the General Assembly and thus gain rights that Israel will not permit them to have (territorial sovereignty), and (3) Palestine will be able to hold Israel accountable in International Courts of Justice.

Pretty awful reasons to oppose Statehood.

I want Israel to succeed and be a Jewish State for the rest of time.  The way Israel is going about trying to protect itself is nothing more than ensuring that will not happen.  Only internationally recognized borders for Israel and Palestine will ensure Israel's survival. 

Only then, when terrorists attack Israel and violate is sovereignty (which undoubtedly will happen), will Israel be able to turn to the UN and muster International support for its necessary reactions to such an attack, and if necessary go to war - with proper justification.

Thursday, September 8, 2011

The Liberal 4th Has Spoken

Looks like Obamacare lives on...for now...thanks to those liberal minded jurists in the Fourth Circuit.  In a 33-page opinion, the first 16 of which listed the parties and amici (not sure if that is the correct usage), the Fourth ruled that the Commonwealth of Virginia lacked standing to sue:

"For the reasons that follow, we hold that Virginia, the sole plaintiff here, lacks standing to bring this action. Accordingly, we vacate the judgment of the district court and remand with instructions to dismiss the case for lack of subject-matter jurisdiction."
The Court may not be as liberal as I hoped, it did go on to conclude:

"In sum, the significance of the questions at issue here only heightens the importance of waiting for an appropriate case to reach the merits. This is not such a case."

Wednesday, September 7, 2011

Lead up to 9/11

Leading up to the 10-year anniversary of 9/11, I encourage everybody to reflect on that day, and what has happened since.  A good starting point would be to recall the impact it had on you and others.  The link below will take you to a BBC page that has a few short videos you can watch - take a minute to go through some of them.

http://www.bbc.co.uk/news/magazine-14790016

Friday, September 2, 2011

Nice Defense Win in 11th

If you were to check the published opinions of the 11th Circuit, you would not find the win by Eric Cohen - because the opinion is unpublished.

Maintaining a consistent approach to a tradition that any opinion likely to establish or reaffirm helpful precedent for a criminal defendant is not to be published, the 11th did not publish the decision of U.S. v. Williams, 2011 WL 3055281 (11th Cir. 2011), which confirmed two very important rules:

1) A defendant's "request to call his attorney to tell him “he was going to cooperate with the Government” constituted “some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.""  In the face of such a request, "further questioning is limited to clarification of the equivocal request.”" Williams, at *1.

2) If there is evidence that can support a valid theory of defense instruction, it is error not to give it.  In Williams, the instruction would have told the jury that he could have had the intent to smuggle drugs, without the criminal intent necessary to convict. Id., at *2.

The Court did not even bother to publish the language of the instruction that was requested, but instead simply referred to another published case (United States v. Ruiz, 59 F.3d 1151 (11th Cir.1995) (team of Robert N. Scola, Jr., G. Richard Strafer, H. Scott Fingerhut for the appellants) containing a "nearly identical" instruction.  Nearly identical is helpful, but not as helpful as the actual language itself.

You can be sure that if Williams ultimately decided the improperly admitted confession was harmless error and did not otherwise reverse, the opinion would have been published.  Fortunately, the Court did not even reach that questions because it found the denial of the requested jury instruction to be reversible error.

But it is interesting to note that Williams also raised a third issue on appeal, which the Court did not address because of the reversal.  Williams complained that the district court failed to conduct a competency hearing, but the Court found that because it was reversing on the jury instruction issue, it did not need to reach the competency question.  A bit confusing give the fact that the Court did find the admission of Williams's confession to be in error, but did not reach the question as to whether or not it was reversible error.

The Court deserves credit for publishing a finding that a statement should have been excluded when it wasn't reversing on that issue.  Too often the decisions go the other way - find any possible error harmless, without ever providing any reasoning (or guidance) as to whether or not there was error in the first place.  But it seems that there is no rhyme or reason to what issues are reached and what issues are left untouched.

Anybody want to help me out?

Wednesday, August 31, 2011

Circuit Split Brewing?

As you all know - the always excellent Sowmya Bharthi, from our stellar FPDs office, had a great win in the 11th in relation to the FSA.  Because of her efforts, the 11th has ruled that so long as a defendant is sentenced after the FSA takes effect, that defendant gets the benefit of the FSA, regardless of when the crime occurred.

The Fourth just issued an opinion that seems to suggest it might disagree with the 11th.  In US v. Taylor, upon request of the government, the 4th vacated a judgment and remanded for resentencing in light of the FSA.  But in doing so, the Court added this:

"By this disposition, however, we indicate no view as to whether the FSA is retroactively applicable to a defendant like Taylor, whose offenses were committed prior to April 3, 2010, the effective date of the FSA, but who was sentenced after that date. We leave that determination in the first instance to the district court."

I guess the district court could get the case and resentence the defendant, holding the FSA does not apply - seems to me that is what the 4th is looking for.

Tuesday, August 30, 2011

Monday, August 29, 2011

Shaygan Order Out

Looks like it is coming back to Judge Gold for round 2:

Quite an interesting way to start for Judge Pryor:

"The stakes in this appeal are high: they involve the sovereign immunity of the United States, the constitutional separation of powers, and the civil rights and professional reputations of two federal prosecutors."

I guess in your run-of-the-mill appeal where a defendant is sentenced to Life, the stakes aren't so high.

What is intersting/troubling about Pryor's opinion (as it relates to the Hyde Amendment Fees), is that he goes through this lengthy recitation of the facts, as though it is a Rule 29 appeal from a conviction (crediting everything in favor of the government), with zero discussion concerning the cross-examination and argument that had to have been made, that the government's witnesses were full of it.  There is not even a discussion, such as you might expect to see in a civil case, laying out both sides cases/version of events.  A magistrate judge found that law enforcement witnesses were lying and ordered evidence suppressed; the jury rejected the government's evidence; Judge Gold found that at least one of the prosecutors was not straight with the court, and yet, no credit to those findings from Pryor.

"We express no view about whether the district court should conduct further proceedings, but if the district court decides again to consider sanctions against Cronin or Hoffman, it must, of course, afford them due process. An attorney charged with misconduct is entitled to notice of the charge: that is, the attorney is
entitled to know the precise rule, standard, or law that he or she is alleged to have violated and how he or she allegedly violated it. Each of these attorneys also cannot be held responsible for the acts or omissions of others: Cronin, for example, cannot be held responsible for the acts or omissions of his superiors, such as
Gilbert, and Hoffman cannot be held responsible for Cronin’s acts or omissions.

Another reprimand also would be subject to another appeal to this Court. We do not mean to suggest or even hint that the district court should consider sanctions against either Cronin or Hoffman. It is not apparent to us that either attorney necessarily violated any ethical rule or any constitutional or statutory standard. The record before us is unreliable because it was developed, after all, without affording either of them due process.

The award of attorney’s fees and costs against the United States is VACATED. The public reprimands of Cronin and Hoffman are VACATED, and this matter is REMANDED."

Edmondson wrote an interesting dissent in which he essentially argued that the Court should rely on its prior precedent in reviewing bad faith issue:

"I conclude that the evidentiary record is sufficient as a whole to support the Hyde Amendment fact-findings of the District Judge, but I make two specific observations. First, the District Judge heard the testimony of the lead prosecutor and rejected the prosecutor’s explanation. I am aware that we uphold criminal convictions regularly based upon the sufficiency of evidence that proceeds from a criminal defendant’s testifying to his innocence. We say -- I believe entirely correctly -- that a fact-finder is entitled to believe the exact opposite of what a witness testifies to and, then, to treat this disbelieved testimony as substantive evidence of guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). I think the same thought process applies here: the prosecutor and the criminal investigator offered explanations for their questionable conduct; the District Judge rejected their explanations and determined that the opposite -- a prosecution hammered into shape “in bad faith” -- was the truth.8

8 This determination was not simply a matter of disbelief. The record reflects many irregularities in the Government’s handling of this case. For example: the magistrate judge, in recommending that the District Court grant Defendant’s motion to suppress, found the testifying DEA agents -- including the principal criminal investigator -- to lack credibility (and the District Court accepted that magistrate judge’s recommendation); the Government has admitted to multiple discovery violations; and the Government not only conducted an improper investigation of defense counsel, but kept this investigation from the District Court until the Government’s hand was forced by the revealing testimony of one Government witness. Plenty of evidence in the record corroborates the District Court’s finding of a prosecutorial position of bad faith and its finding that the prosecutor and criminal investigator lacked credibility.

...

By the way, no party to this case contends that the first Indictment in this case was filed in bad faith. I understand the Government not to dispute that, as a matter of law, the manner of advancing a prosecution can make the Government’s position in that prosecution a position “in bad faith,” even when the initial Indictment was not “in bad faith.” But whether the Government does or does not accept this legal proposition, I do. Moreover, the Government, by its very nature, can act only through agents who represent it, such as its Assistant United States Attorneys prosecuting criminal cases. The word “position,” as used in the Hyde Amendment, can easily apply to the way in which the Government conducts the prosecution, including the illwill state of mind that a prosecutor’s acts evidence; this definition is not a strained use of the word “position.” The Oxford English Dictionary defines “position” as “[m]ental attitude; the way in which one looks upon or views a subject or question.” XII OXFORD ENGLISH DICTIONARY 165 (2d ed. 1989). To me, in this sense the word “position” echoes Congress’s use of the phrase “in bad faith” in the statute."

...

"Pursuant to Rule 404(b), we routinely allow evidence of other crimes and wrongs to show the bad motive and bad intent that accompanied a criminal defendant’s conduct as he did something else. FED. R. EVID. 404(b). Especially applying the rationale of 404(b), it seems to me that the District Court had ample support to think that the filing of the Superseding Indictment was motivated by the same bad faith as the later acts of
discovery violations and improper investigation of the defense team."

...

"I also think the facts of prosecutorial misconduct in this case -- as found by the District Judge -- are exceptionally troubling: I do not believe we will often see cases involving fact-findings for this sort of extensively manifested prosecutorial ill will toward the defendant and defense lawyers."


Tuesday, August 23, 2011

Computer Law

Rick B. and David O. - If a computer, using a complex formula, makes a decision that effects us - say develops new administrative regulations...can it ever be arbitrary and capricious? Or, are we just f-ed?

From the BBC:

"At last month's TEDGlobal conference, algorithm expert Kevin Slavin delivered one of the tech show's most "sit up and take notice" speeches where he warned that the "maths that computers use to decide stuff" was infiltrating every aspect of our lives.

Among the examples he cited were a robo-cleaner that maps out the best way to do housework, and the online trading algorithms that are increasingly controlling Wall Street.

"We are writing these things that we can no longer read," warned Mr Slavin.

"We've rendered something illegible. And we've lost the sense of what's actually happening in this world we've made."

It is not just robots, it turns out these programs are actually helping or making daily decisions for us.

"British firm Epagogix is taking this concept to its logical conclusion, using algorithms to predict what makes a hit movie.

It takes a bunch of metrics - the script, plot, stars, location - and crunches them all together with the box office takings of similar films to work out how much money it will make.

The system has, according to chief executive Nick Meaney, "helped studios to make decisions about whether to make a movie or not".

In the case of one project - which had been assigned a £180m production cost - the algorithm worked out that it would only take £30m at the box office, meaning it simply wasn't worth making.

For another movie, it worked out that the expensive female lead the studio had earmarked for a film would not yield any more of a return than using a less expensive star."

...

"a recent study by psychologists at Columbia University found that reliance on search engines for answers is actually changing the way humans think.

"Since the advent of search engines, we are reorganising the way we remember things. Our brains rely on the internet for memory in much the same way they rely on the memory of a friend, family member or co-worker," said report author Betsy Sparrow.

Increasingly, she argues, we are knowing where information can be found rather than retaining knowledge itself."

...

"Up to 70% of Wall Street trading is now run by so-called black box or algo-trading."

...

"In the so-called Flash Crash of 2.45 on May 6 2010, a five minute dip in the markets caused momentary chaos....it was the computer program that the unnamed trader was using that was really to blame....No-one has ever managed to pinpoint exactly what happened, and the market recovered minutes later."

So what happens when algorithims start making decisions for the State that effect us...really effect us, like passing regulations?  Deciding who to do secondary screening on at the airport?  Who to arrest instead of PTA on a minor misdemeanor?  Who to sell a gun to?  Who to hire or fire?

Thoughts?

Friday, August 19, 2011

3 Men are going to plea no contest to Murders of 3 young boys, and immediatly be set free?

Years ago, Damien Echols, Jason Baldwin and Jessie Misskelley were convicted for the horrific 1993 murders of 3 Cub Scouts in Arkansas. Two were sentenced to life, and one to death.

Prosecutors argued that the boys were killed as part of a satanic ritual.

Years of litigation ensued, and thanks to DNA evidence, it now appears the men were factually innocent.

Rather than just admit the defendants' innocence, the prosecutors appear to have struck a deal with them - in exchange for no contest (Alford) pleas, the men will be released.

Those of us who practice in State court routinely enter no contest pleas for our clients - in Federal Court, at least in the Southern District of Florida, such a plea is almost unheard of.

Is it the right call?  It seems to me that for the defendants it is.  How could they be counseled not to accept a withhold of adjudication, or even a conviction for the crime, if it means going free - immediately? 

To me, that is the joke of the Federal plea colloquy - you have a guy who is 851 mandatory life eligible, who is told that if he pleas, he will receive 10 years, but if he looses at trial he will receive mandatory life.  The cases usually involve snitches and some evidence of involvement, but also a viable defense.  So, the client who tells you he is innocent is given a choice.  What does he do usually?  Take the plea.  Then, in front of the judge, he is required to acknowledge that he was NOT coerced, forced or threatened to enter a plea of guilty.  Right.

The problem with the case is that if you presume these men are innocent, there is a real killer(s) at large.  What happens now?  Does the search for the murderer of these three innocent young children end?   What happens if the killer is caught - doesn't he have a great chance of prevailing because there are three men who were convicted of the crime?

One of the parents of the children took exception to it:

"He said Thursday that prosecutors told him that they planned to reach a no-contest plea.

"There's certainly no justice for the three men that's been in prison or my son and his two friends," Byers said. "To me, this is just a cop-out from the state for not wanting to admit that they made a mistake.""

I believe that Federal Court should take more no contest pleas - if for no other reason than to avoid the hypocrisy of guilty pleas that are coerced out of clients by a system that virtually guarantees a much higher sentence post-trial.

I think this is one case where the State should not be offering such a deal and the defendants should be seeking it. Is justice being served?

Interesting issues - I am curious about your thoughts.


Thursday, August 18, 2011

Eleveth Circuit republishes "Catch-22"

United States v. Willis

Let's see if I can summarize this 22-page opinion that details why the defendant didn't raise anything for appeal...

Defendant sentenced as a career offender and receives firearm enhancement.  Defendant receives an 18% reduction under 5k for cooperation.  Defendant appealed the sentence in light of the firearm enhancement - he looses.

Defendant files 2255 motion alleging that his counsel was ineffective for failing to raise various objections, including to the firearm enhancement, drug quantity and career offender recommendations of the first PSR.  Government concedes on career offender and judge orders that:

"Movant Charles Willis is entitled to be resentenced absent the career offender enhancement applied at his initial sentencing.  Accordingly, the United States Probation Office is DIRECTED to prepare a new presentence investigation report reflecting the fact that Willis is not a career offender under the sentencing
guidelines."

PSR comes back and judge orders sentencing for next day.

Judge does not hear any objections to anything during sentencing hearing.  Judge sentences Willis to bottom of the guidelines and then denies government's motion for 5k.

Appeal follows.

Court finds that Willis has waived everything except his objection to the one-day turnaround from PSR to sentencing (which is now viewed under a harmless error analysis thanks to the opinion) and his objection to the denial of the 5k.

Now this is the great part.  The Court reasons that all the other issues that Willis tried to raise during his re-sentencing but that the district court refused to hear because those issues had been dealt with in the original sentencing hearing (including the firearm enhancement and drug quantity), and in Willis's 2255 (which had been denied on those issues), were not before the district court on the second sentencing.

BUT - for some reason, the district judge had discretion to deny the 5k motion the second time around when it had ruled the first time Willis was entitled to the reduction and gave him an 18% cut.

And to make it even better, the appellate court finds that Willis raised the 2255 issues which the district court refused to hear because he did not ask the appellate court for a certificate of eligibility on them!

Now - to save time, I am writing on behalf of my favorite poster: "This Blog Sucks!"  Also, I have finally figured out why he is so angry - the attached clip explains it all - now go kick your dog.

Pissed about the UM problems

What really bothers me about the University of Miami ordeal is that it was prompted by the same people who now announce they are "shocked" by the scandal.  These administrators - Shalala included - are the same ones who were more than happy to tout UM Star Football players in the "all about the U" adds that were run ad nauseum during football season (most of which Shalala appeared in):



UM runs the ads to bring in money while Shalala hangs out with the ponzi-scheming scum that is now trying to shave time off his 20-year sentence.


In reality, it was Shalala and UM that were acting like pimps, not Shapiro (who claims to have gotten players hookers).


Why do you think that Shapiro was allowed on the sideline during UM football games?  Was he a coach?  Was he a former player - or even athletic?  No.  It was because he gave money to the school for access to the athletes.  Nothing new - no different than a John with the ladies.  Shalala acted like a pimp with the athletes and now she is "shocked" that they were hanging out with Shapiro the shitbag on his boat with some alleged hookers?

Hypocrisy.

Time to own up to what she fostered and resign.

Monday, August 15, 2011

Good Restitution Case

Tjoflat wrote a nice opinion, which was published today:

"The Government had the burden of proving, with respect to each of the mortgages for which it sought restitution, that the mortgage was the product of a fraudulent misrepresentation. The district court’s statement in the July 22 restitution order that “restitution of at least $1,000,000 has been established by the Government” did not identify the mortgages that had been fraudulently obtained and caused losses totaling that sum.

To enable meaningful appellate review, a district court's calculation of restitution must be supported by specific factual findings. Huff, 609 F.3d at 1248.  In the context of the case here, the district court’s task was, first, to determine by a preponderance of the evidence which of the 56 mortgages the loan officers handled was obtained through a false “gift” letter, a false “credit explanation” letter or a false employment verification form, and, second, where fraud is found, to determine the extent of the actual loss HUD may have incurred due to the mortgage’s foreclosure.The district court failed to carry out this task.

We therefore VACATE the restitution provisions of the Singletarys’ judgements and REMAND the case so that the court may perform this task. We do so with this caveat: the Government is not receiving another bite of the apple. The district court shall render the necessary findings of fact and conclusions of law with respect to each of the 56 mortgages at issue on the basis of the evidentiary record as it now exists."

Basically, the opinion stands for not allowing the government to prove restitution through generalized testimony.  But I also like the part about not allowing the government to have another hearing to fix its case.

Keep it in your pocket √† la Bobby Aaron for a sentencing hearing one day.  It will come in useful.

Funny Stuff

You guys know that I am no fan of the right-wing politics that are often associated with Israel.  Don't get me wrong, I am no self-hating Jew, I want Israel to succeed, but I think it is going about it the wrong way.  So, don't go accusing me of being some Muslim-bashing Jew; this note from Congressman West really made me chuckle.

Apparently West hangs around with some accused Muslim-bashing-fanatics, and the Counsel on American-Islamic Relations (CAIR) does not appreciate it.  CAIR asked West to renounce his association with them and he responded with "Nuts."

Note - I am interested to see who Debbie Wasserman-Schultz (West's nemesis) is hanging around with in the pro-Israel crowd.

Here is West's response:


No long explanations from West - just go F-yourself.

I love the response because it is so A-Political - the guy is basically saying: 'I will hang out with whomever I want to, and I don't have to explain myself to anybody.'  He is certainly willing to stand by his convictions, even if it means buddying up with accused Islamophobes - people that are probably better left in the company of Anders Breivik - but hey, at least West won't be accused of being a fair weather friend!

Stole the story from Pulp.

Friday, August 12, 2011

Surprise Surprise

My readers will never accuse me of not being responsive - one devoted subject wrote:

"When are you going to comment on the 11th striking down Obamacare?"

Now my friend:

Today, the Eleventh struck down Obamacare a law that was intended to make health care in this country more affordable, sustainable and better. 

The opinion, co-authored by Dubina and Hull. 

Of course, some naysayers out there took exception to Dubina hearing the case because "Dubina’s daughter, Rep. Martha Roby (R-Ala.), is one of dozens of freshman Republicans who campaigned on repealing the health care law."  But I am not so cynical. 

I actually do have some concerns about the interpretation of the commerce clause that is necessary to sustain the law - unfortunately, my concern is dangling by a thin hair after having been nearly beaten to death by criminal statutes that are based upon commerce clause jurisdiction. 

I often wondered if there were any limits to the "CLAUSE", and now know that yes, in fact, if you want to use it to do something daring and positive, the courts may not let you - Of course, it does not help that I think the New Eleventh might come down differently on Heart of Atlanta Motel Inc., but that is another story altogether.

So, congrats to the Conservatives in the South - your Eleventh handed you a nice win today.  As one prominent defense lawyer is often times quoted - take the rest of the day off "now figure out how to pay for your policies" and enjoy the weekend.

They're Back!

Thank goodness that once again, gladiators are fighting it out in Rome.  Only this time, it seems that Caesar is not too happy about it.

I can't wait till they bring back the animal fights - David, I think you should take this one on and make sure we can all watch the Elephant vs. Crocodile fight - I have allays wondered about that match-up.

It seems that Bert and Ernie will not in fact marry!

"The makers of Sesame Street say characters Bert and Ernie will not marry in a same-sex ceremony despite an online petition calling for the union.

Campaigners say the best friends should marry as a way to encourage tolerance of gay people.

Nearly 7,000 have signed the petition, with more than 3,000 joining a Bert and Ernie Get Married Facebook page."

Okay - I am perhaps a little left of liberal, but doesn't it strike anybody else as odd that people would want these puppets to marry?  It did the creators too:

"A statement from the show's makers said: 'They remain puppets and do not have a sexual orientation.'

The confirmed bachelors have lived together for 40 years and sleep in the same bedroom, albeit in single beds.

'Bert and Ernie are best friends,' the statement from Sesame Workshop added. 'They were created to teach preschoolers that people can be good friends with those who are very different from themselves.'"

I think that the gay community might be getting hijacked by some extremists - and the media is loving it. Think about it - there are a heck of allot more than 7,000 gay people on Facebook; yet, an article is appearing in the BBC (and I am writing about it), that talks about the aims of this small segment of a group. It is unfair to say that all gay people want Bert and Ernie to marry, but that is the suggestion in the article. It is the same thing that Fox News does with Muslims and terrorists.

Thursday, August 11, 2011

When the cat's away...

Poor David,

He turns over his storied blog to a friend, former defense attorney/star and law professor extraordinaire and what happens?  The prof. blogs about arbitration clauses while the Eleventh Circuit publishes a case that is as old as the "internets," as proved by a scene from War Games - student accessing school grading system to change grades.

Sadly, these students - FAMU undergrads - ended up getting caught and going to prison.  Of course, it may not have just been the grade changes that got them there:

"Using the surreptitiously obtained usernames and passwords, the conspirators accessed FAMU’s grading system, changed grades, added credits for courses which had been failed or not taken, and changed the residencies of several non-resident students to qualify them for in-state tuition. The changes were made via the Internet from the conspirators’ home computers, campus computers at FAMU and Florida State University, and from several wireless laptops."

Perhaps a bit over the line, but comeon...is this case not ready made for comment by ?  Rick, you can do a hell of a good job with United States v. Barrington, now hit one out of the park!

In other news - Europe is considering a ban on short selling.  What the heck are Republican's gonna do if this comes to America?  They won't be able to use best efforts to cause the financial markets to crash so that Obama looks bad, they profit by betting against the market and they pay almost zero in taxes!  End times.


Wednesday, August 10, 2011

Congratulations to Bill Altfield!

Bill Altfield was just appointed to the State bench - it is well deserved, he will be a great judge.

But that doesn't mean that Rick Scott has won me over yet:

Tuesday, August 9, 2011

Bad week to be an Asshole

Poor Rummy - can't get no love.  Last week, a district judge ruled that he can be held liable for ordering the tourture of an American citizen.  Now, the Seventh Circuit came to the same conclusion in a different matter, involving the torture of two American citizens who were working as contractors:

"US military personnel detained them, confiscated their belongings, handcuffed and blindfolded them and took them to a military base in Baghdad, where they were fingerprinted, strip-searched and locked in a cage.

They were then taken to Camp Cropper near Baghdad International Airport, where they "experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment - Vance for three months and Ertel for six weeks", the court wrote, reiterating the men's allegations.

The men claim they were deprived of sleep, food and water, held in extremely cold cells without warm clothing, and threatened with beatings.

They were ultimately released at the Baghdad airport and were never charged or designated security risks."

So what is Rummy's defense?

"[T]he decision to allow the suit 'saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America.'


'Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war,' David Rivkin said in a statement."

Here is the article.

Sadly, Obama is fighting the lawsuit.  So who is this Rivkin guy that Obama is siding with on legal theory?  A Class-A Asshole.   Great company you are keeping Mr. President.

Friday, August 5, 2011

Good on ya!

Judge Allows Torture Suit Against Rumsfeld to Go Forward

"A federal judge has agreed to allow an Army veteran who says he was tortured during a nine-month imprisonment in Iraq to sue former Defense Secretary Donald H. Rumsfeld."

The guy was beaten, subjected to enhanced interrogation techniques torture, and denied counsel. Of course Obama raised the state secret privilege to try and defeat the suit.

I am sure it will work its way up; if this can be done to an American citizen who will then have no recourse...what is the point of having constitutional protections in the first place?

Thursday, August 4, 2011

Rick Scott doesn't like clean water.

"Appellants’ alleged substantive injury—the forthcoming EPA rule mandating numeric nutrient limits—is fairly traceable from the requirements imposed by the consent decree."

That's right, the State of Florida (through one of its "governmental entities") appealed a consent decree between the EPA and some environmentalists which puts rules in place as to how dirty our water can be.  Luckily for us all - the appellants lost.

Gotta love that guy.

Interesting case out of the Fourth:

Gov. indicts defendant, then before he is arrested, sends informant to him to record a conversation, which was very damning.  On appeal, government leads the Fourth Circuit into error by taking the position that the right to counsel did not attach because the defendant was not arrested.  Appeal to Sup. Ct., and solicitor general concedes error and admits that as soon as a person is indicted right to counsel attaches.  Fourth then refuses to address Sixth Amendment claim, and instead remands to district court to determine whether or not the recorded statement violates the Fifth Amendment because of the manner in which it was conducted.

If I had to bet, I would say the Fourth is not looking to establish a bight-line Massiah-type rule in this situation where the defendant had not yet been arrested.

Friday, July 29, 2011

Well that ain't good

Apple holding more cash than USA

Apple now has more cash to spend than the United States government.
Latest figures from the US Treasury Department show that the country has an operating cash balance of $73.7bn (£45.3bn).

Apple's most recent financial results put its reserves at $76.4bn (£46.9bn).

I hope the first checks to be cut are the ones to the DEA - those guys have been riding high on the war on drugs for too long now - that should be a few billion in savings real quick.

Can you guys imagine DEA guys having a real job?

Me neither.

Thursday, July 28, 2011

So you want to be an AUSA in the Southern District of Florida?

Well, given the recent hiring proclivities of the current US Atty for the SD Fla., you probably shouldn't apply unless you look like this guy:


I am really not sure what is going on over there, perhaps the hiring committee has been taken over by a group of women who want to respond to a certain Federal Judge's clerkship hiring practices, but it just seems every time I am in court, I am looking up at another guy like this:


Any AUSAs care to explain?

Of course it does not matter because as we all know, by the time the FPDs get done with them in court, they look more like this: 

Monday, July 25, 2011

Did you know Muslims attacked Norway?

Well, if you watch Fox News, you may



Love the way they tie the "Muslim" attacks in Norway to the construction of a mosque in New York.

The closer link is probably between Fox News and the actual perpetrator of the attacks, a self-proclaimed "knight Templar" (yes, that would be Christian crusader), who despised liberals as much as Muslims.

I pulled the guys "manifesto" online and found that he cites Fox News as a source for some of his hateful thoughts:

"The idea that Christians must “feel themselves subdued” (Qur’an 9:29) in Islamic lands is also very much alive. When the first Catholic Church in Qatar opened in March 2008, it sported no cross, no bell, no steeple, and no sign. “The idea,” explained the church’s pastor, Fr. Tom Veneracion, “is to be discreet because we don’t want to inflame any sensitivities.”[67]"

Footnote 67 links to: "Sonia Verma, “First Catholic Church Opens in Qatar, Sparking Fear of Backlash Against Christians,” FoxNews, March 14, 2008."

Nor is the guy a fan of Al Gore, or women.  But he did seem pleased that American women don't vote, otherwise Bush may not have been elected:

"The only major political party in Norway that has voiced any serious opposition to the madness of Muslim immigration is the rightwing Progress Party. This is a party which receives about two thirds or even 70% male votes. At the opposite end of the scale we have the Socialist Left party, with two thirds or 70% female votes. The parties most critical of the current immigration are typically male parties, while those who praise the Multicultural society are dominated by feminists. And across the Atlantic, if only American women voted, the US President during 9/11 would be called Al Gore, not George Bush."

Didn't the republicans try to argue that UBL would love to see Obama elected?  Well, at least Bush and the republicans have their fans too.

Okay, maybe he didn't love Bush: "I never liked Bush very much, but Obama’s appeasement of the Islamic world trumps anything seen since the days of Dhimmi Carter..." well, at least not very much.

I realize that crazy homicidal maniacs like this guy derive their ideas from all sorts of sources, including little green men, but aren't we starting to see a pattern here?  Republicans, it is time to stand up to the nut-jobs in your party...or, would you rather remain associated with these guys --

Wednesday, July 20, 2011

My People are !@#!&!@

So it appears that in Israel, it is acceptable for the government to pass a law that uses the power of the state to punish those who would protest through boycott (sorry Dr. MLK).

And, the people seem generally okay with it.

But, if the police want to question the authors of a book that advocates the killing of non-Jewish babies (not quite for the baking of Matzo, but still) or other innocents, look out for the right-wingers.

Of course, what would you expect from a country that allows for the military detention and imprisonment of children, just so long as they are not Israelis?

Don't get me wrong - I want Israel to exist, but unfortunately is is headed in a very wrong direction.  What do you think American policy towards Israel will look like, if Israel continues to act in this manner, when the wells begin to run dry?

Monday, July 4, 2011

Happy 4th Y'all!

This is my uncle Jake at our celebration last year -- this year we are gonna go bigger

Friday, July 1, 2011

Oops - Sorry Roy

I guess Roy might make a pretty darn good juror too -

Strauss-Kahn Case Seen as Near Collapse

"The sexual assault case against Dominique Strauss-Kahn is on the verge of collapse as investigators have uncovered major holes in the credibility of the housekeeper who charged that he attacked her in his Manhattan hotel suite in May, according to two well-placed law enforcement officials.

Although forensic tests found unambiguous evidence of a sexual encounter between Mr. Strauss-Kahn, a French politician, and the woman, prosecutors now do not believe much of what the accuser has told them about the circumstances or about herself.

Since her initial allegation on May 14, the accuser has repeatedly lied, one of the law enforcement officials said.

Senior prosecutors met with lawyers for Mr. Strauss-Kahn on Thursday and provided details about their findings, and the parties are discussing whether to dismiss the felony charges. Among the discoveries, one of the officials said, are issues involving the asylum application of the 32-year-old housekeeper, who is Guinean, and possible links to people involved in criminal activities, including drug dealing and money laundering.
Prosecutors and defense lawyers will return to State Supreme Court in Manhattan on Friday morning, when Justice Michael J. Obus is expected to consider easing the extraordinary bail conditions that he imposed on Mr. Strauss-Kahn in the days after he was charged.


The revelations are a stunning change of fortune for Mr. Strauss-Kahn, 62, who was considered a strong contender for the French presidency before being accused of sexually assaulting the woman who went to clean his luxury suite at the Sofitel New York.

Prosecutors from the office of the Manhattan district attorney, Cyrus R. Vance Jr., who initially were emphatic about the strength of the case and the account of the victim, plan to tell the judge on Friday that they “have problems with the case” based on what their investigators have discovered, and will disclose more of their findings to the defense. The woman still maintains that she was attacked, the officials said.

“It is a mess, a mess on both sides,” one official said.

According to the two officials, the woman had a phone conversation with an incarcerated man within a day of her encounter with Mr. Strauss-Kahn in which she discussed the possible benefits of pursuing the charges against him. The conversation was recorded.

That man, the investigators learned, had been arrested on charges of possessing 400 pounds of marijuana. He is among a number of individuals who made multiple cash deposits, totaling around $100,000, into the woman’s bank account over the last two years. The deposits were made in Arizona, Georgia, New York and Pennsylvania.

The investigators also learned that she was paying hundreds of dollars every month in phone charges to five companies. The woman had insisted she had only one phone and said she knew nothing about the deposits except that they were made by a man she described as her fiancé and his friends.

In addition, one of the officials said, she told investigators that her application for asylum included mention of a previous rape, but there was no such account in the application. She also told them that she had been subjected to genital mutilation, but her account to the investigators differed from what was contained in the asylum application.

In recent weeks, Mr. Strauss-Kahn’s lawyers, Benjamin Brafman and William W. Taylor III, have made it clear that they would make the credibility of the woman a focus of their case. In a May 25 letter, they said they had uncovered information that would “gravely undermine the credibility” of the accuser.

Still, it was the prosecutor’s investigators who found the information about the woman.

The case involving Mr. Strauss-Kahn has made international headlines and renewed attention on accusations that he had behaved inappropriately toward women in the past, while, more broadly, prompting soul-searching among the French about the treatment of women.

The revelations about the investigators’ findings are likely to buttress the view of Mr. Strauss-Kahn’s supporters, who complained that the American authorities had rushed to judgment in the case.
Some of Mr. Strauss-Kahn’s allies even contended that he had been set up by his political rivals, an assertion that law enforcement authorities said there was no evidence to support."

Wow --

I am not sure which is more significant about this turn of events -- that Roy was dead on or that there exists in this land a prosecutor's office that actually understands Brady/Giglio obligations.  Of course, in the SD Fla., that information would never have been turned over because "those revelations do not prove his innocence"!!!

Wednesday, June 29, 2011

Oy! Roy!

Roy has posted a couple times about the DSK case - the first post is a great closing argument for the attorneys involved in the case...they should digest it and deliver it.

The more recent one was a bit more entertaining, if only becuse Roy stirs the pot.  It can be summed up as..."if a rape victim doesn't fight off the rape, then she wasn't raped."

Now Roy...

(1) how in the heck are you going to get all those examples in front of the jury and (2) how are you going to prevent (a) every woman on the jury from hating you and (b) every man on the jury from siding with the women on the jury for fear of not wanting to look like an ass in front of the women?


Anybody ever have any success with that type of argument since the 1950s 1890s?

Oh, wait a minute...

Monday, June 27, 2011

Some Happenings

Torture, Inc.

If you are tortured by a private American company, do not look to the US court system for relief.  You will not find it.

Holy Shmoley

If you own an apartment complex, you better provide a least attempt to provide security.  An accused killer might just break into one of the tenant's apartments, scare her into jumping out of the third-floor window, cause her to sustain physical and emotional damage; and, you might just get dinged for 1.8 million at trial - nice win for Joseph Lipsky (whoever that is).

Marial Schmarial

And finally, remember how you have been telling your Cuban clients that there is no way they will be deported because of current US policy...even though it is technically possible?  Well....not so much anymore.  Seems that now they actually might be deported.  Something tells me that Chief Judge Moreno has a few medicare and mortgage fraudsters that he would very much like to be waiving goodby to as they fly the friendly skies home.

Sunday, June 19, 2011

You get what you pay for?

I was really enjoying Justice Thomas's approach to oral argument...he basically came out and said that other judges use it for grandstanding and bickering and he wants no part in it.  And then, despite his ridiculous conservative phillosophy, just when I was starting to like him, Justice Thomas goes and screws everything up.

Sure, I could get by his wife's involvement in the Tea Party - sort of - and sure, I could overlook the fact that he filed false mistakenly inacurrate financial disclosure forms, but now, it seems to me he is just part of the machine.  Read the Times story and let me know if you think it is time for the Court to take a few steps back towards being respectable.

Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.

- Lord Acton

Friday, June 17, 2011

"Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself."

That was President Jimmy Carter speaking to Congress in 1977, and he is saying it again in an Op-Ed piece in the NY Times.

"But in the 1980s President Ronald Reagan and Congress began to shift from balanced drug policies, including the treatment and rehabilitation of addicts, toward futile efforts to control drug imports from foreign countries.

This approach entailed an enormous expenditure of resources and the dependence on police and military forces to reduce the foreign cultivation of marijuana, coca and opium poppy and the production of cocaine and heroin. One result has been a terrible escalation in drug-related violence, corruption and gross violations of human rights in a growing number of Latin American countries.

Drug policies here are more punitive and counterproductive than in other democracies, and have brought about an explosion in prison populations. At the end of 1980, just before I left office, 500,000 people were incarcerated in America; at the end of 2009 the number was nearly 2.3 million. There are 743 people in prison for every 100,000 Americans, a higher portion than in any other country and seven times as great as in Europe. Some 7.2 million people are either in prison or on probation or parole — more than 3 percent of all American adults!"

Carter goes on to criticize our current sentencing structure...

"Some of this increase has been caused by mandatory minimum sentencing and “three strikes you’re out” laws. But about three-quarters of new admissions to state prisons are for nonviolent crimes. And the single greatest cause of prison population growth has been the war on drugs, with the number of people incarcerated for nonviolent drug offenses increasing more than twelvefold since 1980.

Not only has this excessive punishment destroyed the lives of millions of young people and their families (disproportionately minorities), but it is wreaking havoc on state and local budgets. Former California Gov. Arnold Schwarzenegger pointed out that, in 1980, 10 percent of his state’s budget went to higher education and 3 percent to prisons; in 2010, almost 11 percent went to prisons and only 7.5 percent to higher education.

Maybe the increased tax burden on wealthy citizens necessary to pay for the war on drugs will help to bring about a reform of America’s drug policies. At least the recommendations of the Global Commission will give some cover to political leaders who wish to do what is right."

That last bolded comment really strikes me.  Until rich folk start hurting in the pocket, nothing is going to change - they run the country. 

Right, cause you can count on Republicans to raise taxes and "soften up" on crime.

Wednesday, June 8, 2011

$ + Kill Two People = House Arrest!?*!

Daily Pulp has coverage here - case sickens me too much to discuss.

Judge Barkett wrote a nice dissent in Childers v. Floyd, a recent en banc decision by our favorite executioner's court circuit court of appeals.

"I dissent from the majority’s opinion in two respects. ...viewing this record de novo, Childers was not afforded the fair trial guaranteed by the Sixth Amendment because he could not present crucial evidence that the State’s star witness, Willie Junior, had fabricated the evidence against him.  Knowing that Junior told different stories, without any evidence of Elliot’s acquittal or the attempt to revoke Junior’s plea agreement, merely permitted the jury to infer that Junior was a typical cooperating witness with an incentive to assist the State and that his inconsistent statements were simply the product of memory lapses."

Given Justice Scalia's love of the Confrontation thingamagig, this could make it up.

Thursday, June 2, 2011

Surprise, Surprise, Surprise!

"The global war on drugs has "failed" according to a new report by group of politicians and former world leaders.

The Global Commission on Drug Policy report calls for the legalization of some drugs and an end to the criminalization of drug users.

The panel includes former UN Secretary General Kofi Annan, the former leaders of Mexico, Colombia and Brazil, and the entrepreneur Sir Richard Branson.

The 19-member commission includes Mexico's former President Ernesto Zedillo, Brazil's ex-President Fernando Henrique Cardoso and former Colombian President Cesar Gaviria, as well as the former US Federal Reserve chairman Paul Volcker and the current Prime Minister of Greece George Papandreou.  The panel also features prominent Latin American writers Carlos Fuentes and Mario Vargas Llosa, the EU's former foreign policy chief Javier Solana, and George Schultz, a former US secretary of state.

The Global Commission's 24-page report argues that anti-drug policy has failed by fueling organized crime, costing taxpayers millions of dollars and causing thousands of deaths.

It cites UN estimates that opiate use increased 35% worldwide from 1998 to 2008, cocaine by 27%, and cannabis by 8.5%.
'No harm to others'"
Of course..."The US and Mexican governments have rejected the findings as misguided."
 
The authors criticize governments who claim the current war on drugs is effective:

"Political leaders and public figures should have the courage to articulate publicly what many of them acknowledge privately: that the evidence overwhelmingly demonstrates that repressive strategies will not solve the drug problem, and that the war on drugs has not, and cannot, be won," the report said.

Instead of punishing users who the report says "do no harm to others," the commission argues that governments should end criminalization of drug use, experiment with legal models that would undermine organized crime syndicates and offer health and treatment services for drug-users.

It calls for drug policies based on methods empirically proven to reduce crime and promote economic and social development.

The commission is especially critical of the US, saying it must abandon anti-crime approaches to drug policy and adopt strategies rooted in healthcare and human rights.

"We hope this country (the US) at least starts to think there are alternatives," said former Colombian President Cesar Gaviria. "We don't see the US evolving in a way that is compatible with our (countries') long-term interests."

The office of White House drug tsar Gil Kerlikowske rejected the panel's recommendations.

"Drug addiction is a disease that can be successfully prevented and treated," said a spokesman for the Office of National Drug Control Policy.

"Making drugs more available - as this report suggests - will make it harder to keep our communities healthy and safe."

The government of Mexico, where more than 34,000 people have died in drug-related violence since a crackdown on the cartels began in December 2006, was also critical. 

Legalisation would be an "insufficient and inefficient" step given the international nature of the illegal drugs trade, said National Security spokesman Alejandro Poire.

"Legalisation won't stop organised crime, nor its rivalries and violence," he said.

"To think organised crime in Mexico means drug-trafficking overlooks the other crimes committed such as kidnapping, extortion and robbery.""

http://www.bbc.co.uk/news/world-us-canada-13624303

Tuesday, May 24, 2011

Not so feel good stories

It is allways interesting to see what defense is raised in a criminal trial, when nobody had a guess as to what it might be.  In the Casey Anthony case, the defense just raised a very interesting, and plausable theory - that the child died in a swimming pool, and the mother covered it up out of fear and as a result of the years of abuse she suffered at the hands of her father.

Should be interesting to see what the evidence shows.

Also going on is the recent killing of Reynaldo Munoz, apparently while he was trying to steal a wave runner from the property of the father of the shooter.  Munoz was shot in the head with a shotgun during the crime, in daylight.  The Herald is reporting that Munoz was deaf and could not speak.  I question this only because a teacher who claimed to have taught Munoz apparently made no mention of it when she spoke to Channel 7 News.  Of course, Channel 7 is not the best source of information, unless you just like watching the weather.

I had an interesting discussion about this with a reader of the blog (hat tip to my one loyal reader who sent the Herald article to me), and I agree, no property is worth the life of another human being.  The law is in line with that sentiment as well; although we have the "castle doctrine" in Florida, take a look at the statute - it specifically covers the dwelling and porch of the home, no more.  I do not believe this shooting will be governed by the castle doctrine, even though Munoz was in the clearly enclosed back yard/curtilage of the home.

Of course, one cannot gloss over the fact that the shooter was a 14 year old kid, who was probably terrified when he confronted Munoz.  This should certainly play into any investigation the police are conducting.

Do any of my other readers believe that it is okay to kill somebody for trying to steal your property?

In other news, great Ninth Circuit opinion here, quoting from Twelve Angry Men.  No hat tips to any other bloggers - this is covered by the David Markus inevitable discovery doctrine.