Boring Evidence Shall Be Excluded

I have just come up with a new Federal Rule of Evidence:

Evidence that is deemed boring shall be excluded.

Here is an excerpt from yesterdays daily transcript of a trial I'm attending.

11 MR. LINCOLN-SAN-JUAN: Your Honor,

12 I'm going to object. I don't know if a

13 person had the same number of employees

14 throughout the whole course of the two

15 years.

16 This is getting so, I think,

17 boring. I'll say that much, but

18 really, it's I don't know if the person

19 had the same number of employees

20 throughout the two years or whether it

21 was for -- or whether he increased them

22 or decreased them -- whether the

23 witness knows or what. I would suggest

24 we start –

[. . . ]

9 (At sidebar:)

10 MR. VAZQUEZ [the AUSA]: We know that time is

11 of the essence, and that we didn't

12 expect this to happen today, but now

13 we're going to request the protection

14 and the supervisory power of the Court.

15 Before we went to the break,

16 Mr. Lincoln stood up and made as part

17 of an objection, mentioned that this

18 matter was boring, to the point that

19 the jury laughed.

20 That, Your Honor, affects the

21 decorum and the seriousness of the

22 proceeding. We felt insulted, and we

23 still feel insulted.

24 The duty of counsel is to maintain

25 the decorum as officers of the Court,

1 and I would respectfully request from

2 this Court its protection and give a

3 curative instruction to the jury as to

4 that specific incident and to totally

5 disregard it.

6 This is a very serious matter.

7 Now I am requesting the protection and

8 the supervisory power of the Court to

9 this effect.

10 THE COURT: Mr. Lincoln, it's your

11 turn now.

12 MR. LINCOLN-SAN-JUAN: My turn?

13 THE COURT: Yes.

14 MR. LINCOLN-SAN-JUAN: I really

15 have nothing to say, other than I do

16 not agree with counsel's tone as to

17 saying this.

18 Well, he's raising his voice as he

19 said it, so I have to put that on the

20 record, as well.

21 Yes, it was getting rather boring.

22 I don't see how it is humanly possible,

23 Your Honor -- and I bring this to the

24 Court's attention right now, because

25 under Rule 602 of the Federal rules of

1 evidence, a witness should not be

2 allowed to testify based upon matters

3 that -- should testify based upon

4 matters that he or she knows about.

5 Guessing and speculating should

6 not be permitted, and I don't see,

7 quite frankly, why we tell jurors all

8 the time, the Court instructs them,

9 counsel argues this all the time; that

10 jurors are not to lose their common

11 sense when judging in cases, and I do

12 not think that judges lose their common

13 sense when they're dealing with cases

14 either.

15 I think quite the contrary, and I

16 don't see how one can fairly say that

17 it is humanly possible for this witness

18 to be testifying to all that the

19 Government is bringing out of him of

20 all these different people year by

21 year, drug points by drug points.

22 THE COURT: But it hasn't varied

23 that much.

24 MR. LINCOLN-SAN-JUAN: That he can

25 be able to state -- I don't know what I

1 earned in '95 -- that's my earnings --

2 I don't know what I earned in '96 -- I

3 don't know what I earned in '97. And

4 this witness can tell not only what he

5 did, but what 20 other people did and

6 what guns each one had year per year,

7 what drug amounts they sold on a weekly

8 basis, each one of them.

9 Your Honor, it gets to the point

10 where it's absurd.

11 Then the other thing is, Your

12 Honor, Your Honor has requested that we

13 expedite these proceedings as much as

14 possible. As defense counsel, we have

15 to some degree one problem; that we

16 have clients that may not be amenable

17 to certain stipulations that otherwise

18 counsel would enter into.

19 So that precludes us from being

20 able to stipulate to some things. But

21 other than that, I don't know what the

22 Government is really driving at with

23 all this tedious, repetitive evidence.

24 It is, in fact, getting quite boring,

25 and quite repetitive and, really, of

1 people that are not even here, that are

2 not even -- are so almost collateral

3 and unnecessary, really, for this whole

4 conspiracy thing that they're bringing

5 that it gets to be absurd, and

6 Mr. Vazquez wants to play like he's

7 seeking the protection of the Court,

8 and he's really offended and all this.

9 Well, I am offended by having to sit by

10 listening to Mr. Vazquez trying to drag

11 this from a witness that I do not

12 humanly think is possible for a person

13 to remember.

14 MR. VAZQUEZ: May we reply to

15 that, Your Honor?

16 THE COURT: Go ahead. Briefly,

17 because I don't want to make this an

18 everyday situation that now --

19 MR. VAZQUEZ: Mr. Lincoln had all

20 the time in the world to talk.

21 We have a duty to prove a case

22 beyond a reasonable doubt with all the

23 evidence in light of the sentencing law

24 and all the situations; I have to duty

25 to do that before the jury.

1 Number two, my claim at this time

2 does not in any way preclude

3 Mr. Lincoln or any of the other

4 attorneys to bring arguments of law

5 before this Court. What we're

6 objecting to is the method that's being

7 done. He can simply object and give a

8 ground, and if it's to be discussed, it

9 can be discussed at the sidebar out of

10 hearing of the jury.

11 What's been happening this

12 afternoon is a lot of objections with a

13 lot of improper objections and

14 arguments.

15 THE COURT: What are lots? You

16 mentioned one.

17 MR. VAZQUEZ: There was another

18 one.

19 THE COURT: Bring it out.

20 MR. VAZQUEZ: The record, in fact,

21 read --

22 There was improper comment by you

23 of conspiracy. The record read it was

24 drug operation, not conspiracy, and I'm

25 at blame that I did not go on the

1 record at that time, and I still invite

2 the Court to check that record, but

3 that was passed.

4 At this time, Your Honor, the

5 allegations that have to do as to

6 evidentiary matters are not at issue.

7 The issue are the way they're

8 happening, and now it crossed the line

9 when he simply told the jury that the

10 Government's actions were boring, to

11 the point that the jury laughed. That

12 detracts, and we respectfully request

13 an instruction regarding that matter to

14 the jury.

15 THE COURT: What is the

16 instruction you propose?

17 MR. VAZQUEZ: Regarding a comment

18 of counsel as to the fact that the

19 proceedings followed by the prosecution

20 are boring, that's totally stricken

21 from your mind, and this is a serious

22 matter, and that type of comment is out

23 of order, something to that effect.

24 I go to the wisdom of the Court in

25 setting the words, but that's the idea.

1 Right now, before that jury, it was a

2 big joke, and that should have never

3 happened, because objections are

4 objection grounds, and then sidebar

5 discussion out of the hearing of the

6 jury.

7 MR. LINCOLN-SAN-JUAN: I said this

8 was getting repetitive, and it was

9 almost getting boring or getting

10 boring.

11 MR. VAZQUEZ: He said it's boring.

12 MR. LINCOLN-SAN-JUAN: Well, it

13 is. It's repetitive.

14 THE COURT: Did you finish?

15 MR. LINCOLN-SAN-JUAN: Well, I

16 interrupted him, quite frankly, but I

17 would also, if Your Honor is inclined

18 to give an instruction, then I would

19 also request from the Court -- I don't

20 think that the Court should be giving

21 an instruction of that. The Court will

22 decide.

23 MR. VAZQUEZ: This is a serious

24 matter.

[. . .]

15 MR. VAZQUEZ: May we just request

16 a very slight, since the jury laughed,

17 just a simple instruction to them that

18 the remark involving about boring,

19 please strike that remark, and that's

20 without even mentioning the word

21 "counsel". Because they laughed, and

22 we submit that will take care of it,

23 and we submit that the decorum was

24 misused, and the position of the

25 Government was severely prejudiced.

1 THE COURT: I'll tell you what

2 I'll do --

3 MR. VAZQUEZ: Disregard any remark

4 involving boring case, and that's it.

5 THE COURT: Why don't you get up

6 and you state to the Court when the

7 jury is here that the remark that you

8 had stated that the case was getting

9 boring shall be stricken, and I'll say

10 fine, I'll agree with you, and then it

11 does not sound like I am directing it

12 as to you.

13 MR. LINCOLN-SAN-JUAN: Your Honor,

14 I agree with the matter that it was

15 improper for me to say that, but I do

16 and I still submit to the Court that

17 other than for what Your Honor has

18 pointed out, that that could have been

19 taken care of in about two minutes,

20 that testimony. It has been extremely

21 repetitive and drawn out.

22 MR. VAZQUEZ: We object to that,

23 and the ruling is clear.

24 THE COURT: Fine, but the ruling

25 would be that the Court would not think

1 that it's repetitive yet, because the

2 Court insists that --

3 MR. LINCOLN-SAN-JUAN: And

4 speculative of this witness.

5 THE COURT: That can come out in

6 cross.

7 MR. LINCOLN-SAN-JUAN: That's part

8 of the Federal Rules of Evidence too,

9 Your Honor.

10 THE COURT: But it can come out in

11 cross.

12 MR. LINCOLN-SAN-JUAN: That's why

13 I'm saying part of our frustration is

14 we're making arguments under the

15 Federal Rules of Evidence that are

16 addressed to the Court, and the Court

17 is saying, you handle it, and that's

18 part of the frustration we're

19 experiencing with, quite frankly.

20 THE COURT: I'll tell you what

21 I'll do: Either you get up and state

22 that you wish that that comment be

23 stricken, or I will tell the jury the

24 comment "boring" is to be stricken from

25 the record.

1 MR. LINCOLN-SAN-JUAN: Whichever

2 you prefer, Your Honor.

3 THE COURT: I will state it then

4 that the comment as to "boring" is

5 stricken from the record.

6 MR. VAZQUEZ: Thank you, Your

7 Honor. That will suffice for us.

8 - - -

9 (In open court, jury present:)

10 THE COURT: Ladies and gentlemen,

11 the comment about that the case was

12 boring is ordered stricken from the

13 record.

I'm certain that from then on the jury no longer thought the prosecutor's presentation of evidence was boring. That was yesterday. Today I was hoping to catch a couple of jurors falling asleep and then move to request that the Court instruct the jury that while some of the evidence has been boring, they should make an effort to pay attention.

The Fox Guarding the Chicken Coop

I apologize that I have been away from the blog, but every once in a while we do have such things called trials to attend, and I had just started one on January 12th --briefly interrupted by the Supreme Court's decision in US v. Booker & Fanfan on the 13th-- and, given the amount of coverage Booker was receiving elsewhere, I thought it best to not attempt to be the Judge Paul G. Cassell* of the blogs.

[*Judge Cassell gave us Croxford immediately after Blakely and has now given us US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) the day after Booker & Fanfan.]

What the Court gave in Booker with one hand (bringing the guidelines within the reach of Apprendi and the Sixth Amendment's jury trial guarantee), it took away with the other (holding that the guidelines would no longer be mandatory and, thus, outside the reach Apprendi and the Sixth Amendment's jury trial guarantee). As most of you know, the Court's opinion was really 2 opinions, the first --the merits opinion-- by Justice Stevens, applying Apprendi and Blakely and the Sixth Amendment jury trial guarantee to the sentencing guidelines; the second --the remedial opinion-- by Justice Breyer, deciding the remedy that should be provided for that fatal illness the guidelines had caught was to make the guidelines advisory, rather than mandatory, thereby taking them out of the reach of Apprendi, Blakely and the Sixth Amendment's jury trial guarantee.

The remedial opinion in Booker was hijacked (a finding I base on hearsay, using a preponderance of the evidence standard) by 5 Justices, 4 of who do not even believe in Apprendi, Blakely or Booker's merits holding! For that majority to write the remedial portion was tantamount to the fox guarding the chicken coop. What they do for a "remedy" is the greatest of ironies, as Justice Scalia indicates in his dissent. The following passage says it all:

The remedial majority takes as the North Star of its analysis the fact that Congress enacted a “judge-based sentencing system.” Ante, at 22 (opinion of Breyer, J.).That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read “Congress reaffirms judge-based sentencing” rather than “Congress prescribes standardized sentences.” Justice Breyer's opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity. Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity—that Congress was so attached to having judges determine “real conduct” on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. See ante, at 10–11, 22. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.

Scalia, J. (dissenting in part) (footnote omitted).

A Switch in Time?

There appears to be "some evidence" from which one can reasonably infer that Justice Stevens' dissent from the remedial majority was actually the majority opinion at one point. See Sentencing Law & Policy in this post wherein Justice Stevens' dissent from the remedial majority is quoted at n.8 (in part) as follows:

n. 8 ... The Court did not, as the dissent would have us do, strike down particular parts of the statute ...

Stevens, J. (dissenting in part). If nothing else, some law clerk didn't do his final proof reading after someone had switched sides. I will leave to others the speculation as to who the switching Justice was.

What now?

The only apparent winners -at least for now- are the federal district judges who have been granted more discretion. Whether they will exercise it or not, and how, still remains to be seen. If one goes by Judge Cassell's views as expressed in US v. Wilson, No. 03-CR-00882 PGC (D.Utah, January 13, 2005) ("Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons."), then the result in Booker is even more depressing than I'm willing to accept. After all, even with mandatory guidelines Judge Cassell could have departed for some clearly identified, persuasive and allowed reason. Apparently Judge Cassell bought into Justice Breyer's "carefully crafted statement" which Justice Scalia aptly describes in his dissent in part:

The closest the remedial majority dares come to an assertion that the Guidelines must be followed is the carefully crafted statement that “[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” Ante, at 21–22. The remedial majority also notes that the Guidelines represent what the Sentencing Commission “finds to be better sentencing practices.” Ante, at 20. True enough, but the Commission’s view of what is “better” is no longer authoritative, and district judges are free to disagree—as are appellate judges.

Booker (Scalia, J., dissenting in part) at n. 4.

My wish list for sentencing reform?

• eliminating mandatory minimums
• creating guidelines sentencing ranges that are not so draconian; and
• making the guidelines mandatory again, jury friendly (i.e., simplified), and subject to the Sixth Amendment's jury trial guarantee, and going back to Koon standard for departures.

I have a host of questions (and even answers) regarding matters such as 5K1.1, 5C1.2, their statutory counterparts, acceptance of responsibility, etc., but that will all have to wait for another moment.

Up in Smoke!

If I sound grouchy to some, I probably am, although I'm also very happy. It has now been 6 days since I quit smoking, not an easy thing to do when you smoked 3 packs per day. Now you might be wondering what I've been using to help me stop, and the answer may surprise you: the common cold. Also staying home during these days has helped keep me away from temptation. Only yesterday did I dare to venture outdoors for the first time, . . . and I did not have any urge to smoke.

There is no better time to quit smoking than when you have a bad cold. The memories of your shortness of breath are still fresh, and this helps you fight the urge to smoke. Also, I keep thinking of the money I'm saving by not smoking, and how I can better spend it, which is just another incentive to quit.

Yes, every so often the thought of lighting up comes to mind, but so far everything is under control. As the days go by, it just becomes more and more difficult to imagine a worse habit than smoking, or to imagine ever going back to it. So, if I sound a bit cranky to you, at least you know why.

Oh, and did I mention that I'm doing this at the same time I am on a diet, . . . and taking a medication whose side effects make you hungry?

Bad Marriage Ends Up in Jail

Some case names speak for themselves: United States v. Bad Marriage, No. 03-30404 (9th Cir. Dec. 30, 2004).

Gmail Accounts to Give Away

Have 18 Gmail accounts to give away. If you are interested in one, e-mail me.

He should have been a baseball player!

Skelly reports here at Arbitrary and Capricious on the arrest of a 20-year public defender in Cook County accused of driving drunk and, when Police searched the vehicle, they also found a small amount of cocaine (street value: $1,900.00). Looks as if his days as a PD are sort of over. Now, . . . if he had been a baseball player instead . . .

First Circuit Denies Petition for Rehearing En Banc in Puerto Rico Electoral Cases

As expected by most observers, the First Circuit has today denied in a short Order the Petition for Rehearing en Banc in the Puerto Rico Electoral Cases which was filed by the Rossello plaintiffs.

Rossello-Gonzalez v. Calderon-Serra, No. 04-2610 (1st Cir. Dec. 15 2004)

Just received from the First Circuit the opinion in the Puerto Rico Electoral Cases taken on Mandamus to the Court of Appeals, Rossello-Gonzalez v. Calderon-Cerra, No. 04-2610 (1st Cir. Dec. 15, 2004). More on this once I read it.

Update: The opinion is a very well written. While the First Circuit denies issuance of the mandamus, the practical effect is the same, since it indicates that it expects the Court to remand the Manny Suarez case back to the Supreme Court of Puerto Rico as the complaint in that case does not present a federal question. But do not confuse this for one second with the First Circuit saying the Supreme Court acted properly when it rushed to judgment, because the opinion states precisely the contrary. At n. 22, the First Circuit states:

We agree with the District Court that the Supreme Court's judgment was void. The governing statute provides that the filing of "a copy of the notice [of removal] with the clerk of [the] State court . . . effect[s] the removal and the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d) (emphasis added). The Supreme Court received notice of the removal at 11:48 a.m. on November 20, 2004 but did not issue judgment until that evening. The judgment is thus, as the District Court found, a nullity.

(Underlining in original, bolding added). So it is hard to understand why Puerto Rico Associate Justice Jaime B. Fuster would be quoted as saying he was satisfied with the First Circuit's opinion, when it in fact states that the Supreme Court acted contrary to federal law in issuing its original decision and judgment. What the Supreme Court did speaks very badly for the respect that State and Federal Courts owe each other. It showed a majority of the Supreme Court willing to jump the gun acting along strict party lines, whereas the minority showed the restraint required -by federal law- at the time.

Beyond that, let the recount continue, and may the one who got the most legitimate votes win.

A Very Sobering Reminder

The New England Journal of Medicine has this photographic essay Caring for the Wounded in Iraq — A Photo Essay, by George E. Peoples, M.D., James R. Jezior, M.D., and Craig D. Shriver, M.D. It is a sobering reminder of what our soldiers are facing in Iraq.

No Assured Winner in Puerto Rico's Gubernatorial Race Regardless of Courts' Rulings

Every Tom, Dick and Harry -well, let's leave out Tom- seems to take for granted that without the questioned ballots being annulled by the Courts, pro-colonialist Anibal Acevedo-Vila wins the gubernatorial race. I have news for those of you who believe this: the recounts taking place at the Comisión Estatal de Elecciones are not showing this to be the case.

So, regardless of what the U.S. Court of Appeals and/or the U.S. District Court for the District of Puerto Rico may ultimately rule, pro-statehood candidate and former Governor Pedro Rossello may very well be the winner.

Boston Globe Editorial Urges Court of Appeals to Get Out of Puerto Rico Electoral Issue

The Boston Globe has an editorial today (Votes for Puerto Rico) in which it urges the US Court of Appeals for the First Circuit "to instruct its colleagues on the San Juan bench that this Puerto Rican dispute is not a federal case."

Update on Puerto Rico Electoral Cases before the First Circuit: Audio of Oral Argument to be Available

The First Circuit's website now indicates that a recording of the oral argument in the Puerto Rico electoral cases to be heard Monday, December 13th will be posted and available for download upon completion of the sitting.

Puerto Rico's Electoral Cases before the First Circuit & Comments on the Hipocrisy of Those Complaining against Hon. Daniel R. Domínguez

The First Circuit Court of Appeals has set up a page in its website here with links to all documents filed related to the Puerto Rico Electoral Cases.

Oral argument before the First Circuit is set for Monday, December 13, 2004 at 10 a.m. in the en banc courtroom on the 7 floor of the John Joseph Moakley United States Courthouse in Boston, Massachusetts: Rossello-Gonzalez v. Calderon, No. 04-2610; Rossello-Gonzalez v. The Puerto Rico Electoral Commission, No. 04-2611; In Re:Gerardo A. Cruz, No. 04-2612; and In Re: Comision Estatal de Elecciones, No. 04-2613.

We have read a report of some sort of judicial complaint filed against Judge Domínguez by a non-party to any of the cases, alleging that he should not be hearing the electoral cases because the son of one of the candidates -former Governor Rossello- was a law clerk for Judge Domínguez. Funny that none of the parties have requested recusal. I wonder if this "concerned" citizen went to Puerta de Tierra and filed a similar complaint regarding Supreme Court Chief Justice Federico Hernández-Denton, for whom the other candidate, Anibal Acevedo-Vila, clerked at one time. I doubt the concerned citizen did any such thing, but I mention it because I am seeing and hearing too many persons who should know better, make cheap attacks against a highly regarded and impartial federal judge. There are good legal arguments on all sides, and we do not need to wreck our institutions for short term political agendas. Shame on that "concerned" citizen for being such a hypocrite!

IBM's PC Business

Although I only purchased two products from IBM - my first computer (with a 30 MB hard drive PS2 Model 30) and a printer (an IBM Quietwriter II) - and swore never to buy any IBM products again because of the lousy experience and a feeling that I had paid a lot more than these products were worth, it is still somewhat saddening to read of IBM selling its PC business to a Chinese company. I mean, any copy of PC Magazine years back touted Big Blue as the standard. They pretty much invented the PC as we know it. And, on its way there, gave Microsoft the greatest opportunity it ever had: putting together IBM PC-DOS, but allowing Microsoft to license MS-DOS for all those IBM clones. The rest is history.

With my first computer and printer I also bought WordPerfect 4.2 and a book to learn WordPerfect from Que Corporation. I recall sitting all weekend at home reading and practicing until I could write a half decent looking letter, prepare envelopes, and prepare a motion that looked presentable. Once I could do that, I felt more in control and the rest was just fun learning. I have stayed with WordPerfect, probably because of its Reveal Codes more than any other aspect of it, and probably because I feel sufficiently at home with it not to want to really learn Word, which I have never liked much (at least from my few attempts at using it).

Anyhow, getting back to IBM's PC business, hats off to the folks at Boca Raton who gave birth to the PC. Those were magical days, and they revolutionized the world.

For a more sober look at IBM's sale see John C. Dvorak's Column at PC Magazine.

Kelo v. City of New London, No. 04-108

Kelo v. City of New London, No. 04-108, which we reported on here, is one of the more interesting cases before the Supreme Court this Term. The Petitioners' Merits Brief in Kelo has now been filed. As we indicated in our previous post as to Kelo:

It involves "whether a Connecticut city can take away a person's home to clear the way for upscale development." In seriousness, it is not only for upscale development, but also whether the eminent domain power can be exercised to take someone's home or other property for "economic development" that will place the property in the hands of private developers, thereby creating jobs and resulting in more taxes being paid to the government's coffers. Is this exercise of the power of eminent domain for public use?

The Supreme Court in Kelo will likely reassess the viability of Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), a case decided by an 8-0 vote, with Justice Marshall not participating. The Hawaii Housing Authority opinion was written by Justice O'Connor.

The Wall Street Journal: Don't Count the Triple-X Ballots

Today The Wall Street Journal (subscription required) weighs in on Puerto Rico's on going electoral dispute in a column titled Puerto Rico's Florida and sides with the idea that the triple-X ballots - or "pivazos" as they have been locally termed - should be discarded. The column concludes by stating:

We don't know who's the winner here -- preliminary results show Mr. Acevedo Vila ahead by a hair -- but it seems obvious that the triple-X ballots deserve to be discarded as confusing and possibly fraudulent. Then do a recount and declare a victor -- before January 2, the date the current governor's term ends. If not, there's a nasty political crisis in the offing that could be worse than Florida.

It compares the situation with Bush v. Gore stating that "[i]f all this sounds a lot like Bush v. Gore and the 2000 Florida recount, that's because it is. And it's not just the palm trees in the background. The principle at stake is the same: Election laws ought to mean something; you can't change the rules after votes have been cast." And it then takes a swipe at what the Supreme Court of Puerto Rico did:

There is another parallel with Florida 2000 -- an activist state Supreme Court, which first grabbed the case from a lower court and then ordered that the mixed ballots be counted. The rule, however, is that federal courts decide who has jurisdiction in these cases, and a federal judge has ordered that the triple-X ballots be set aside until he can determine whether they are valid.

Hmm, . . . who would have ever thought of our Supreme Court as an activist one. A Court that takes forever to hand down decisions, practically at flash speed resolved that all was okay with the triple-X ballots and -by the way- without having any evidence whatsoever before it or anything that could be called a record from the lower court to look at. This one The Wall Street Journal got right.

Supplemental Brief filed by Amici in US v. Councilman

On December 8, 2004 the en banc Court will hear oral argument in US v. Councilman. 373 F.3d 197, 201 (1st Cir. 2004), withdrawn, 385 F.3d 793 (1st Cir. 2004), a case we have commented on here, here and here. This case involves internet privacy - and the panel's majority opinion has been widely and strongly criticized. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting. In particular, the case involved whether intercepted e-mails were subject to the Stored Communications Act or to the Wiretap Act. The panel majority held the Wiretap Act did not cover the intercepts.

In granting rehearing en banc the First Circuit stated:

Although the parties can address other issues in their supplemental submissions, and the en banc court is free to consider all of the issues presented, the court specifically requests that the parties address the following questions:

1. Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?

2. Whether the rule of lenity precludes prosecution in this case?

Oral argument is scheduled for 3:00 p.m. on December 8, 2004 in the en banc courtroom in the John Joseph Moakley United States Courthouse.

The court welcomes timely motions to file amicus briefs concerning any of the issues in this appeal.

An excellent Supplemental Brief was filed by Professor Orin Kerr on behalf of the Center for Democracy and Technology, The Electronic Frontier Foundation, The Electronic Privacy Information Center, The American Library Association, The American Civil Liberties Union, and the Center for National Security Studies as Amici Curiae in Support of the United States in favor of reversal.

"Bush practice" in Alaska

Over at Alaskablawg - a blog penned by a criminal defense attorney in Alaska working for the Office of Public Advocacy, there is this recent post on bush practice (not that Bush) which gives one a feel for what practicing law in Alaska is like. We should all be as relaxed!

The Land of Macondo Law: Where the State Court Decides Whether a Petition for Removal to Federal Court is Timely or Not!

And the Governor is ....

Puerto Rico awaits to learn who the next Governor will be. But politics has moved from the polling places to the courthouses, with the Supreme Court of Puerto Rico issuing an opinion while a petition for removal was pending, and the U.S. District Court declaring said decision void ab initio, for having been issued in violation of the Federal removal statute, 28 U.S.C. Section 1446(d).

The Supreme Court of Puerto Rico's opinion (in Spanish) in Manuel R. (“Manny”) Suarez Jiménez v. Comisión Estatal de Elecciones, et al., 163 DPR --, 2004 TSPR 179 (Nov. 20, 2004) purported to decide the issue of the questioned split ballots in which voters had marked an X under one party's insignia, while voting for all the candidates of another party. But when the Supreme Court issued this opinion, it did so fully aware that a Petition for Removal had already been filed in the U.S. District Court, as had a notice of removal before the Supreme Court.

In a concurring opinion, one of the Justices essentially ruled in a footnote that the petition for removal had been untimely filed. In fact, it had been filed 5 days after the filing of the case before the Court of first instance, which had dismissed the case.

U.S. District Judge Daniel R. Domínguez issued an Opinion and Order in the removed case, declaring the Supreme Court of Puerto Rico's opinion void ab initio. See Manuel R. Suarez-Jiménez, et al. v. Comisión Estatal de Elecciones, et al., Civil No. 04-2288 (DRD) (Opinion and Order of Nov. 23, 2004).

In the case that was already pending before the District Court prior to the above mentioned removal petition, the Court issued an Amended Order in which, contrary to what the Supreme Court of Puerto Rico had ordered, i.e., that all of the questioned split ballots be adjudicated as valid, it ordered that such ballots should be tallied but not adjudicated until further order from the U.S. District Court. See Pedro Rosello, Luis Fortuño, et al. v. Sila M. Calderón, et al., Civil No. 2004-2251 (DRD) (Amended Order of Nov. 23, 2004). And it thereafter issued an Amended Order as to Scope of Electoral Recount on November 24, 2004.

Yet, to date, the U.S. District Court has not decided (a) whether it will even exercise jurisdiction, or (b) whether it will accept the removed case or order a remand.

To date, those favoring the counting and adjudication of the questioned split ballots say the Supreme Court acted correctly, with opponents saying the Supreme Court tried to steal the election. In the case of the U.S. District Court, the audience switches sides and those wanting the split ballots adjudicated allege the District Court is trying to steal the elections, whereas those alleging these are null ballots consider that they will only find Justice before the U.S. District Court.

All we can say for the moment is that it clearly appears as though the Supreme Court may have overplayed its hand, even if they are the final interpreters of Commonwealth law, whereas the District Court has yet to render a decision on the merits of the issue. And it seems quite certain that the case will soon head to the U.S. Court of Appeals for the First Circuit.

UPDATE: See dissenting opinions in Manuel R. (Manny) Suarez-Jiménez v. Comisión Estatal de Elecciones, 163 DPR --, 2004 TSPR 185 (Nov. 30, 2004) (Rebollo, J., dissenting), and Manuel R. (Manny) Suarez-Jiménez v. Comisión Estatal de Elecciones, 163 DPR --, 2004 TSPR 186 (Nov. 30, 2004) (Corrada Del Río, J., dissenting) (both in Spanish). See also the District Court's Amended Opinion and Order of November 30th in Rossello v. Calderón, Civil No. 04-2251 (DRD).

So, . . . it is now December 2, and we still await to find out who the next Governor of Puerto Rico will be. In the meantime, it appears the First Circuit will hear oral arguments on a petition for Mandamus on Friday, December 10, 2004.

Congratulations to Michael Cernovich a/k/a Federalist No. 84

Congratulations are in order to Crime & Federalism blogger Federalist No. 84 -now known to the world as Michael Cernovich- for having been selected as part of the Law.com's Blog Network, even if it cost him his anonimity. Lots of readership guaranteed there, but Michael has had an interesting blog all along.