Harry Potter

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

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

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

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

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.

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

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

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

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.

No Entrapment Here

Today the First Circuit decided United States v. Villafañe-Jiménez, No. 03-1230 (1st Cir. June 7, 2005) dealing with an appeal from one of the trials in the "Lost Honor" investigation. As expected, defendants lost on all the important issues to their appeals. I wrote about the "Lost Honor" investigation and prosecutions over at The Best Defense some time back. See When defendants think they know more than the lawyers. While I am not handling the appeal for the client I represented at trial, it all looks too familiar and the result would surprise me if it was any different.

Gal Costa

This year's Puerto Rico Heineken JazzFest is dedicated to the great Brazilian singer Gal Costa. She will be performing Saturday night and I will be right there to enjoy. Lawyers who have gone through the hassle of having to reinstall everything in their computers, and then do innumerable updates, do deserve some leisure time.

Fresh Starts

I'm sitting here waiting for my dial-up connection to download Scansoft's PaperPort 10 Professional (a 258.4 MB download), one of several downloaded programs I lost when my previous hard-drive decided to call it quits. I am greatful that I had backups of all my files, as that would have really represented a huge loss. And I am also greatful for the fast attention Dell Latin America gave to me, getting a new hard drive installed at 9:00 a.m. after having contacted them the previous afternoon. Oh, and they actually delivered exactly as they said they would: "Mr. Lincoln, we don't have the Maxtor 120 GB drive, so we will be sending you a Seagate Barracuda SATA 160 GB drive, if you don't mind."

Now, if that download would only end soon, but it's only about 42% through. I've had to download Windows XP Service Pack 2, Norton Internet Security 2005 (plus all the updates), Acrobat Reader, and a few other programs. We have both DSL and cable internet connections available in San Juan, so maybe it's time to think of upgrading from my old trusty dial-up.

To Circuit Judge Howard: You may be last, but certainly not least

We blogged on the May 12, 2005 Memorandum and Order in Igartua de la Rosa v. United States in this post. The First Circuit has now published an errata for the Igartua de la Rosa case here, that reads as follows:
ERRATA

The memorandum and order of this court issued on May 12, 2005, should be amended as follows:

On the cover sheet replace "Torruella, Selya, Lynch, Howard and Lipez, Circuit Judges." with "Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges."

Well, my favorite Circuit Judge has always been the one with the least seniority on the Court, since it is to that Judge that the Chief Judge traditionally delegates the review of all CJA Vouchers from the District Court, so Circuit Judge Howard may now be last, but certainly not least, certainly not in my view of things.

It is a Crime to Gossip

No, I'm not kidding and neither is the mayor of Icononzo, Colombia.

Fed up with people targeted by false rumors turning up dead or wrongfully arrested, the mayor of a small Colombian town has made gossip a crime punishable by up to four years in prison.

"Human beings must be aware and recognize that having a tongue and using it to do bad is the same as having dynamite in their mouths," says an official municipal decree issued last year in Icononzo, 40 miles southwest of the capital, Bogota.

According to this Associated Press story, a story that could have just as well been written by Gabriel García-Marquez, the move to criminalize gossiping was necessary --said the mayor-- because "in a country as violent as Colombia, gossiping can have serious consequences."

Nobody has been charged with felonious gossiping, but officials say it is not because they aren't gossiping, but merely that they have not been caught. There are also fines up to $150,000.00 for gossiping.

While the story does not mention our esteemed Representative Feeney, we have noticed that Rep. Feeney did not vote on the House of Representatives' latest harsh sentencing bill, H.R. 1279. See this Final Roll Call under NV here. Could it be that Rep. Feeney has moved to Icononzo, Colombia? Ooops, better not start gossiping now.

"Thin Resources" a/k/a AUSA's in D.PR

An Assistant U.S. Attorney shows up before Chief Judge Fusté (D. PR) for what was supposed to be a change of plea hearing. Defense counsel requests additional time because there are additional matters to be resolved before defendant can enter a guilty plea (i.e., defendant wants a better plea offer). Chief Judge Fusté is known to move his cases along, sometimes faster than one would desire. So he sets a trial date and then the Assistant U.S. Attorney informs him that she has another trial and the Judge replies that another AUSA can try this case. Thus far, okay. But then the AUSA tells the Judge that the resources of the U.S. Attorney's Office are already stretched thin. The Chief Judge was surprised, to say the least, at this response, and must have been wondering whether she worked at another U.S. Attorney's Office. He simply said (and I'm paraphrasing): "Have you seen the grand jury returns for this district? Your office has hardly done anything for some time!" With that, he recessed.

What the Chief Judge said is not news to anyone practicing before the District of Puerto Rico. And if they are "stretched thin" it is only because they have been treating people so badly that a whole bunch of Assistant U.S. Attorney's have either resigned or sought transfers elsewhere.

Is there some headcounting going on here?

On May 4th, 2005 the First Circuit sitting en banc heard argument in Igartúa de la Rosa v. United States, No. 04-2186 (1st Cir. Oct. 14, 2004). The 3 judge panel opinion was withdrawn when petitioners' requested rehearing or, alternatively rehearing en banc, and the panel agreed to rehear the case and vacated its opinion and judgment and ordered additional briefing by the parties. With briefing completed, but before rehearing by the 3 judge panel, the en banc Court decided to take up the case. A link to the audio of the en banc oral argument can be found here.

Today the First Circuit has issued a Memorandum and Order (per curiam) with a strong dissent by Circuit Judge Juan R. Torruella, over whether Senior Circuit Judge Levin Campbell, who sat in the initial 3 judge panel, can sit on the en banc panel. The majority concludes that he may, and Judge Torruella argues that he may not. It is abundantly clear that had the Court taken up the matter en banc following the original panel's opinion, Senior Judge Campbell would be qualified to sit on the en banc panel. But Judge Torruella argues (and I'm simplifying a bit here) that because the panel's opinion and judgment had been vacated by the 3 judge panel itself and no rehearing before the panel had taken place when the en banc Court motu propio decided to take over, the en banc Court is really reviewing the district court's opinion and not the opinion by a 3 judge panel, since there was no longer an opinion by the panel at the time of the en banc court's decision to take the case, and in that scenario the Senior Judge cannot sit on the en banc.

Aside from the legal niceties, I wonder whether there is some counting going on here, or merely a discussion of purely legal issues. After all, there are only 6 active Judges in the First Circuit, and Judge Torruella was the dissenting judge in the original panel's decision. Hey! It happens in the Supreme Court, so why would it not happen elsewhere?

Will the First Circuit's en banc Opinion in U.S. v. Councilman Matter?

We have previously posted on the First Circuit's opinion in United States v. Councilman, 373 F.3d 197, 201 (1st Cir. 2004), withdrawn, 385 F.3d 793 (1st Cir. 2004) and en banc ruling pending, in the following:

• The Volokh Conspiracy on US v. Councilman (July 14, 2004)
• Amici Brief in US v. Councilman (September 11, 2004)
• First Circuit Grants Petition for Rehearing en banc in US v. Councilman (Oct. 5, 2004)
• Supplemental Brief filed by Amici in US v. Councilman (November 29, 2004)

For more information see United States v. Councilman at the Electronic Privacy Information Center. Professor Orin Kerr, who wrote the amicus brief 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, has recently pointed out two matters in this post at The Volokh Conspiracy:

1. The First Circuit has yet to decide the case after rehearing en banc (oral argument was held, I believe, on December 8, 2004); and
2. If the en banc First Circuit upholds the panel's opinion, there is already a piece of clarifying legislation that would likely be passed by congress to remedy the situation, so Councilman's holding may have little or no impact beyond the particualr case itself.

There was a strong dissent in the Councilman panel opinion by Circuit Judge Kermit Lipez, which I believe the en banc Court will likely follow. But if it doesn't, it is at least a good thing that Senator Leahy is ready for the outcome with legislation. This should be easy legislation to get passed, as both DOJ and civil liberties groups are in agreement on this one.

Are You a Republican?

I have just checked my health and have been informed that I am doing fine!

I am: 0% Republican.

"You're a complete liberal, utterly without a trace of Republicanism. Your strength is as the strength of ten because your heart is pure. (You hope.)"

Are You A Republican?
Link via TalkLeft.

Should Burger King be preparing for this?

From CrimLaw, Ken Lammers asks : Are you sane enough to kill if you tell the psychiatrist that you're going to go to Burger King after your execution? And I ask, could this have a connection to the body parts that have been appearing in fast food?

Audio of Rehearing En Banc Oral Argument Today in Igartúa-de la Rosa v. United States (1st Cir., Oct. 14, 2004)

I will be posting more on the background and the oral argument held this afternoon in Igartúa de la Rosa v. United States, No. 04 2186 (1st Cir. Oct. 14, 2004)(be sure to read Circuit Judge Torruella's dissent). In the meantime, you can listen to the en banc oral argument here.

P.S. - The case is about whether the rights of more than 4 million U.S. "citizens" residing in Puerto Rico are being violated by not being allowed to vote for electors in U.S. presidential elections. The First Circuit has previously said no in rather stark terms, so I'm wondering what they asked about at oral argument.