Macondo Law

Hillary's Moment

2008-02-22T11:20:00.002-04:00

Will this be the moment from the debate last night that changes the momentum? It was not my favorite moment, as I much prefer the discussion on the issues, but if it helps, so be it.

Barack Obama: There Will Be Bamboozling

2008-02-21T01:04:00.004-04:00

Is this what this guy is all about? I have been feeling that he has been the one playing the race card all along, just as his wife has, and I'm more convinced than ever that is the case. There will be buyer's remorse with Obama.

In Puerto Rico he has promised things that he knows he is not capable of ever delivering, but I guess it's okay for him to baboozle us. Shame on you, Barack!

Nuevo Blog - Puerto Rico

2008-01-07T11:47:00.000-04:00

If you can read Spanish and are interested in Puerto Rico's history, you will find the columns appearing at the new blog - Puerto Rico - authored by Francisco Ortíz Santini, quite interesting. The blog consists mostly of his columns published in El Vocero newspaper. Here, from his introductory post, is an idea of what the author wants to do:

Lo que usted encontrará aquí, son una serie de columnas sobre temas de Historia de Puerto Rico y el Caribe, previamente publicadas en días viernes alternos en el periódico El Vocero de Puerto Rico. Las mismas no necesariamente llevan una secuencia cronológica o analítica de la historia. Son más bien el fruto de un modesto esfuerzo por provocar la discusión de temas históricos, políticos, jurídicos y antropológicos, más allá de los espacios académicos. No son textos para citar ni mucho menos; pero son un esfuerzo.

El paso de los años no debe ser óbice para la rectificación y la iluminación del entendimiento opacado por el barniz de la leyenda.

The discussion of the Insular Cases from the beginning of the 20th Century is very good, one covered by my former boss, Judge Juan R. Torruella, U.S. Court of Appeals for the First Circuit, in his book The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (1985), as well as other scholars. I invite you to check out this new blog.

The Voice and the Genius

2007-11-17T04:00:00.000-04:00

As you can tell, we are into absolutely legal music.

Chega de Saudade - Antonio Carlos Jobim & Joao Gilberto Reunited

2007-11-17T03:49:00.000-04:00

Two musical giants who have given so much joy to so many for so long.

Yet Another Political Discrimination Case from Puerto Rico Reaches the First

2007-10-22T18:04:00.000-04:00

Today's decision by the First Circuit in Carlos Calderon-Garnier v. Hon. Anabelle Rodríguez, No. 06-2222 (1st Cir., Oct. 22, 2007) involves an interlocutory appeal in yet another Puerto Rico political discrimination case. The appeal is from the denial of qualified immunity. The parties to the appeal are a former Commonwealth prosecutor (now a PRACDL member) and a former Commonwealth Secretary of Justice (now an Associate Justice of the Commonwealth of Puerto Rico Supreme Court). The PRACDL member prevails, at least at this stage of the proceedings.

Meetings before President's Task Force on Puerto Rico's Status and Congressional Action on October 23, 2007

2007-10-21T23:19:00.000-04:00

Meetings will be held at the Department of Justice next Tuesday, October 23, 2007 presided by the President's Task Force on Puerto Rico's Status. We last posted here on the Report by the President's Task Force on Puerto Rico's Status.

Also on Tuesday the House of Representatives will be going through the markup of what appears to be an Amendment In The Nature of a Substitute to H.R. 900 Offered by Mr. Rahall of West Virginia. In essence, this provides for a referendum vote for or against the current status -- a colonial status.

UPDATE: You can view the House Committee on Natural Resources markup hearing here.

New Look for Macondo Law

2007-10-21T18:56:00.000-04:00

Perhaps getting a new look on Macondo Law will make me want to post more regularly. It's not as if I don't want to post, or have run out of things to write about. Recently I have had a lot of work to get out. I can say that I am cautiously optimistic about the outcome of Gall v. US, No. 06-7949 and Kimbrough v. US, No. 06-6330. (Briefs and Oral Argument Transcripts added to the sidebar).

On the Puerto Rico front, we had the recent embarrassing news spread all over the world about the dozens of pets seized from their owners and thereafter apparently thrown over a bridge some 50 feet to their deaths (for the most part). The pet owners resided in public housing and had been threatened with eviction unless they handed over the pets. A lawsuit requesting in excess of $20 millions has been filed in U.S. District Court against the municipal government of Barceloneta, PR, the mayor, personnel from the municipality, as well as a private entity --Animal Control Solutions, Inc. (ACS)-- alleged to have carried out the part of taking the pets away and throwing them over the bridge to their deaths. ACS owner Julio Díaz has also been sued.

More news on this later as it develops.

Happy Birthday to "El Gabo" and Cien Años de Soledad

2007-03-05T01:26:00.000-04:00

The story of Macondo turns 40 as Gabriel García Márquez turns 80 on March 6th. Our congratulations and thanks to him for such enjoyable times in our many readings of "Cien Años de Soledad" and the many other great novels.

Some PRACDL Members Compete in World's Best 10K Race

2007-02-27T20:27:00.000-04:00

In the photo to the right are attorney Lydia Lizarribar (the lady in blue), her secretary, the one and only Mayra Martell (standing next to Lydia) and the latter's daughter (who ran for about 3 miles and then walked the rest of the way). The lady on the left side of the photo is Mayra's sister-in-law.

In the photo on the left is attorney Lydia Lizarribar (probably discussing a case with a client) before starting her run at the World's Best 10K this past Sunday.

There were runners, dominated by the Kenyans, and there were walkers (of which I was supposed to be one). A bad cold during the last week, probably the result of a recent change in climate while visiting New Orleans for the Annual CJA Panel Representatives Conference, caused me to drop out of the race. Next year we plan to organize a team of runners and walkers from the Puerto Rico Association of Criminal Defense Lawyers.

David Bowie & Mick Jagger - Dancing In The Street - 1985

2006-07-20T04:44:00.000-04:00

Great video. Hat tip to TalkLeft.

Luis Balbino Arroyo Colón

2006-06-10T22:14:00.000-04:00

Luis Balbino Arroyo Colón, all of age 16, earned his bachelors degree with a 4.0 grade point average from the University of Puerto Rico, with a major in Physics. He now plans to go on for graduate studies in Physics and, then, for a law degree! At his graduation ceremony he was awarded all sorts of prizes: a recognition as the outstanding student in the Arts and Sciences Faculty, the Enrico Fermi Award, given to the best student in the Physics Department, and the Luis Stefani Raffucci Award, the top academic award granted by the UPR's Recinto Universitario de Mayaguez.

Luis says he is "very happy." We are also very happy for Luis, who should have a distinguished future in anything he sets out to do.

Top 10 Law Schools for 2007 from U.S. News & World Report's

2006-04-03T11:57:00.000-04:00

U.S. News & World Report's ranking of the top 10 law schools for 2007:

Yale Law School
Stanford Law School
Harvard Law School
Columbia Law School
New York University School of Law
University of Chicago Law School
University of Pennsylvania Law School
University of California, Berkeley School of Law
University of Michigan Law School
University of Virginia School of Law

Report by the President's Task Force on Puerto Rico’s Status

2005-12-22T21:34:00.000-04:00

There is very little that goes on in this lovely island of Puerto Rico that is not somehow permeated with status politics. Today The White House released the Report by the President's Task Force on Puerto Rico’s Status. I have always favored statehood for Puerto Rico as a preferable solution to independence. Puerto Rico's current status is unstable. Just think, Congress can do away with our U.S. Citizenship unilaterally according to this Report.

My wish for the coming year? That all local politicos would only say things to the public as regards the status issue that would serve to properly educate the public and help them make proper choices, rather than the choices necessarily advocated by the particular politicos. If they do this, then win, lose, or draw I'll be more than satisfied.

A Lesson from my Friend Carlos

2005-11-18T00:05:00.000-04:00

My friend Carlos has passed on. He had long suffered from muscular dystrophy. Recently he had some breathing problems and had to be hospitalized. He developed a pneumonia and three days ago, early in the morning, he stopped breathing.

As is natural, some of us who knew Carlos all our lives were talking about him. Some of the outrageous (at least in his mom's eyes) things he would do as a kid, only made us laugh a little. But we also spoke of the manner in which Carlos dealt with his muscular dystrophy. He never gave in to his illness, but did everything humanly possible to continue living as normal a life as possible despite his condition. Others may have become extremely depressed, but Carlos, in his own way, faced up to the harsh reality and did not want anyone to feel sorry for him, nor did he feel sorry for himself.

A funny thing happened to me today. My cell phone rang, and it was a call from Carlos! At least that is what the caller ID indicated. Actually it was his older brother, who is my age and also a lawyer, who was calling me from Carlos' house to let me know the time of the funeral this morning.

Carlos never seemed to have asked "why me?" Instead, he accepted it and set out to live with and around his illness. In so doing, Carlos not only made life easier for himself, but for all of us around him as well. And, even more important, he taught us all how to deal with adversity.

Carlos, I will try to recall your lesson often. Until we meet again, a big hug.

Rosa Parks, R.I.P.

2005-10-25T01:37:00.000-04:00

It is with great sadness that we learn of the death of Rosa Parks. Her last name -it seemed to us- should have been Spark rather than Parks, for her one woman act of defiance certainly was a spark for the civil rights movement.

Harry Potter

2005-07-18T00:09:00.000-04:00

Scholastic, the U.S. publisher of J.K. Rowling's Harry Potter series, said a record 6.9 million copies of "Harry Potter and the Half-Blood Prince" were sold in the first 24 hours in the U.S. And you just wait until Harry starts blogging!

End of Term - My Pick of the Worst Decisions

2005-07-12T00:39:00.000-04:00

The term is up, and I have let sufficient time pass to allow everyone else in the blogosphere to comment about it. To me the following were the biggest disappointments: the remedies portion of U.S. v. Booker, No. 04-104 (Jan. 12, 2005); Kelo v. City of New London, No. 04-108 (June 23, 2005) (see our previous posts here and here); and Castle Rock v. Gonzales, No. 04-278 (June 27, 2005) (see our post It was "Poor Joshua!" then and will it now be "Poor Rebecca, Katheryn, Leslie and Jessica"?

And on the question of who will replace Justice O'Connor, I only hope that it is someone who will be an additional vote to undo the Booker remedial opinion, and who will also vote to undo Harris and Almendarez-Torres, but I will not hold my breath waiting.

Nino's Dictionary -- or -- The Meaning of "Shall" from Booker to Castle Rock

2005-06-30T11:20:00.000-04:00

During Oral Argument in United States v. Booker last October 4, 2004 (transcript here), Justice Breyer and Justice Scalia had the following exchange:

JUSTICE BREYER: All right, if I believe that that is just out of the question, it's so complicated, nobody could do it, it would [*45] be a radical change, Congress could never have intended that, what about a much simpler approach? What you would do is take 3553(b), and you say, "Read the word 'shall' -- i.e. 'shall apply the guidelines' -- to 'may,'" so that the guidelines become advisory, either because the "shall" becomes a "may" or because you give each judge the power to give any reasonable reason at all as to why the Commission's guideline, they didn't actively consider this factor. In other words, read 3553(b) as permissive. And now, assuming I've expressed myself on the underlying Apprendi questions, so I, but suppose Blakely does apply, would you -- is -what would be wrong with taking that approach?

MR. CLEMENT: Assuming I understand the approach you propose, there would be nothing wrong with taking that approach.

JUSTICE BREYER: All right, I have thought of one thing that might be wrong.
[Laughter.]

JUSTICE BREYER: So I'll ask you about it, if you want.
[Laughter.]

JUSTICE SCALIA: Could it be that "shall" [*46] does not mean "may"? Right?
[Laughter.]

JUSTICE SCALIA: Oh, that's not it? "Shall" -

JUSTICE BREYER: All right, well, I -- you see nothing wrong with that. That makes the guidelines advisory, and there are a number of objections -- maybe not, maybe big, maybe small. One objection I was worried about is -- I'm giving you my thought process, you know, and I -- because I'm trying to get a -- your response -- is that if we did take that approach, you'd leave the appellate section in place. That means every time the judge didn't use the guideline, the appeals courts would have to review for reasonableness. Now that would be in place. We would discover judges all over the country having different views on that. Courts of appeals would have different views about was or what was not reasonable. We would be here to review those differences, and we would become the sentencing commission. I thought I had escaped.
[Laughter.]

JUSTICE BREYER: Now, how, how serious an objection is that? Or do you recommend that, if [*47] you lose on this point, we take the approach of, in that way, making the guidelines advisory?

That was Booker and Justice Scalia was quite cocky as to "shall" does not mean "may." But somehow he found a new dictionary when it came time to write the opinion in Castle Rock v. Gonzales, and decided that he would interpret the Colorado statute at issue so that every shall was magically turned to a discretionary shall or a may. The statute reads in part (taken from Court's opinion):

“YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.” Ibid.

Nino, you are less than consistent. As a matter of fact, you have done in Castle Rock that which you so much complain of: you made up the law to suit the result you wanted.

Director of the U.S. Marshals Service Resigns

2005-06-27T09:49:00.000-04:00

Law.com reports here that the director of the U.S. Marshals Service, Benigno Reyna, announced his resignation Friday, following strong criticism over inadequate security for federal judges. The resignation is effective July 31, 2005, bringing to a close his tenure in that office since October 2001.

On Edgar Ray Killen's Conviction

2005-06-21T19:42:00.000-04:00

Justice delayed is justice denied, but there is always a modicum that can be achieved even 41 years later. Such is the case with the conviction of Edgar Ray Killen for manslaughter in the deaths of Andrew Goodman, then 20, and Michael Schwerner, then 24, and James Earl Chaney, then 21, three young, idealistic civil rights workers who were in Mississippi in 1964. The conviction has come 41 years after the murders, and Mr. Killen - what a name - should have been in prison for years now, but it is better late than never.

As a citizen, I like to see justice done. And when proper convictions have been achieved, I like to see them upheld. But as a lawyer I also understand that prosecutors sometimes do things that jeopardize these convictions, and this annoys me because the prosecutor acts in a manner that may deprive a defendant of a fair trial, not to say jeopardizing a conviction that should otherwise stand. I mention this because in an Associated Press article on the conviction, it states that "Prosecutors had asked the jury to send a message to the rest of the world that Mississippi has changed and is committed to bringing to justice those who killed to preserve segregation in the 1960s." Prosecutors should not be asking jurors to send messages to the world. This is absolutely improper argument, and may well jeopardize an otherwise valid conviction. That jury was not there to atone for past wrongs by some of Mississippi's citizens; it was only there to decide the guilt or lack thereof of one man in the deaths of 3 young men 41 years ago. Shame on the prosecutor for making this sort of argument. The end does not justify the means. If it did, someone would have probably murdered -justifiably- Mr. Killen long ago, rather than wait 41 years for a modicum of justice.

Chief Judge Steven J. McAuliffe (D.N.H.) to sit by designation in Marquez-Marin v. Gonzales, et al.

2005-06-21T15:43:00.000-04:00

First Circuit Chief Judge Michael Boudin, at the request of District of Puerto Rico Chief Judge José Antonio Fusté, has designated Chief Judge Steven J. McAuliffe, District of New Hampshire, to preside over Marquez-Marín v. Gonzales, et al., Civil No. 05-1619, a case brought by Carmen Marquez-Marín, a former Assistat U.S. Attorney in Puerto Rico, against Attorney General Alberto Gonzales and U.S. Attorney for the District of Puerto Rico Humberto Garcia a/k/a "Bert". You can see the designation here, and our previous post (with link to the Complaint) here.

Marquez-Marín v. Gonzales, et al. - Complaint by Former AUSA

2005-06-17T01:52:00.000-04:00

Here is the Complaint in Marquez-Marín v. Gonzales, et al. No. 05-1619 -HL. Most of the stuff alleged therein has been vox populi for some time now. Former AUSA Carmen Marquez-Marín is a straight shooter, incapable of including allegations in a complaint that are not true. The question then becomes: will there be anyone at our U.S. Attorney's Office who will stand up and tell the truth, rather than constantly telling everyone else outside the office how bad things are in there? Carmen's credibility will withstand any attacks from defendants, so I would suggest to defendants they ought to think twice before deciding that the only thing to do is defend at all costs. I doubt they listen to me, so . . . let the games begin.

I saw Bert on TV - He's Distracting Us

2005-06-15T04:47:00.000-04:00

I actually got to see H. S. "Bert" Garcia, our Texan U.S. Attorney in Puerto Rico, on the TV news last night when they showed a portion of a press conference the U.S. attorney's Office gave to announce a number of indictments in what they call a $4 billions a year money laundering operation and drug trafficking conspiracy. I was going to repress myself and not comment on the case, given that I have a client who is accused, but why should I have to shut up while the U.S. Attorney blabs to the press.

Bert, my client is innocent!

Bert must be thrilled to have some big indictments to put forth after playing with silly putty for more than a year. See our post on "Thin Resources" a/k/a AUSA's in D.PR in which we summed up the Chief Judge's comments to one of the Assistant U.S. Attorney's as to the paltry grand jury returns for the past year in this district.

Moreover, Bert must also be thrilled to have something to distract the attention momentarily from a lawsuit filed against him and others by former Assistant U.S. Attorney Carmen Marquez, who Bert fired. Carmen was a serious prosecutor, and she now has a formidable attorney named Judith Berkan. I would not enjoy being on the opposite side of Judy Berkan.

So, Bert, the distraction will only last for a short while. Enjoy your depo. Maybe I'll help Judy set it up in TrialDirector so that the same can be videotaped and then the transcript can be played along synchronized with the video. And, remember, the truth and nothing but the truth! Can you handle that?

You cannot bully people around and expect all of them to go away quietly. Some will inevitably come back to haunt your life. You cannot sully someone's reputation and expect them to take it in stride. No, Bert, you can't do that. And I believe Carmen any day, just any old day, before I believe you.

To the reader it may seem as if I have something against Bert. Well, I really do not know Bert other than by what gets out to us defense lawyers - but that's usually an earful - and the lousy treatment he gave me the one time I called him directly on a civil forfeiture matter. Bert, you could have been courteous, it would not have hurt much. Arrogance, sheer arrogance!

Google celebrates Frank Lloyd Wright

2005-06-08T11:37:00.000-04:00

Google celebrates Frank Lloyd Wright.

(CTRL + left click on image) And I again daydream what if's about my architectural career that never happened. But, hey, being a lawyer --particularly a criminal defense lawyer-- is not bad at all.