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Monthly Archives: December 2009

Pending SCOTUS cases complicate criminal probes of pols

Indicted and/or convicted pubic officials across the country – and the lawyers who prosecute and defend them – are in a holding pattern as they wait to see what the U.S. Supreme Court will do with an anti-corruption law under constitutional attack.

During oral arguments last week in the cases Black v. U.S. and Weyhrauch v. U.S., both challenging a law that criminalizes the deprivation of “honest services,” the justices hinted strongly that the law may be unconstitutionally overbroad. A third case challenging the law’s constitutionality, Skilling v. U.S., is scheduled to be argued at the Court in March.

But defense attorneys for former Illinois Gov. Rod Blagojevich, who faces charges under the law, embattled former Memphis Mayor Willie Herenton, who is being investigated and could be charged under the law, and former Bergen County, N.J., Democratic Chairman Joseph A. Ferriero who was convicted under the statute are making moves in hopes that the Court will strike down the law.

Blagojevich’s lawyers are seeking access to certain evidence – including federal investigators interviews with President Barack Obama – as they prepare for trial in the case, where prosecutors allege the former governor sought to sell the Senate seat vacated by the president. Prosecutors, meanwhile, are preparing to revise their case and re-indict for the former governor in case the Supreme Court strikes down the honest services fraud statute.

Herenton’s case took a turn yesterday when it was reported that a grand jury that was investigating allegations of corruption against him has disbanded. Lawyers for Herenton, who has not been indicted, said they too are awaiting the fate of the law before the High Court, and in the meantime Herenton is readying a run for Congress next year.

Ferriero’s attorneys as well as prosecutors have asked for his sentencing to be delayed until the Supreme Court rules.

SCOTUSblog creator inspires television show

NBC is developing a television “dramedy” show whose main character will be based on SCOTUSblog founder and DC legal celeb Tom Goldstein, the ABA Journal reports.

The show, which has a working titled of Tommy Supreme, will follow a likeable character through a not-so-likeable profession – sort of like House in reverse, the website reports.

Goldstein, whose blog of Supreme Court news and analysis is a must-read for lawyers inside and outside of the Beltway, famously left a law firm as a fourth year associate to pursue Supreme Court practice working out of his home and offering to represent clients for free. He ultimately worked his way up to become a partner at Akin Gump and head of the firm’s Supreme Court practice.

Speaking to the Washingtonian‘s Capital Comment Blog, Goldstein said being the subject of an in-development television show was “both flattering and crazy.”

“My life isn’t the stuff of dramatic television, as I’ve experienced it,” he said.

UPDATE: As if to demonstrate why the network was so inspired by him, Goldstein has put out a video showing his comic side.

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Court takes up text messaging case, two others

The U.S. Supreme Court added three cases to its docket this morning, including a case asking whether government officials have a reasonable expectation of privacy in text messages on their government-issued pagers.

That case, City of Ontario v. Quon, involves SWAT team members from California who had pagers covered under a no-privacy policy, but who were informally told that personal use of the pagers was allowed. The 9th Circuit Court of Appeals held that the officers had a reasonable expectation of privacy in the messages, and that the police department’s search of the messages was unreasonable.

In Robertson v. U.S. Ex Rel. Watson, the Court will consider whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.

And in Carachuri-Rosendo v. Holder, the Court agreed to decide whether a lawful permanent residnt convicted under state law for simple drug possession  has been “convicted” of an “aggravated felony” and thus faces mandatory deportation.

The Court also asked for the Justice Department to chime in on whether the Court should decide whether a third party is afforded protection under the anti-retaliation provision of Title VII based solely upon his association with a protected employee in Thompson v. North American Stainless.

Monday status conference: Holiday slowdown

Today the U.S. Supreme Court is expected to release orders in pending cases and certiorari grants and/or denials. No opinions are expected, according to SCOTUSblog. Then the justices begin their holiday recess and – unless an emergency order is needed – not a creature will be stirring at the High Court until January.

Meanwhile, as the Senate continues to try to find a health care reform plan that will please everyone – or at least a voting majority – here’s a look at the legal headlines.

Candidates await decision: The Court still hasn’t released an opinion in the case challenging the Federal Election Commission’s limit on campaign spending for documentary films, which is leaving politicos readying 2010 election campaigns in a lurch. (Politico)

Pentagon contempt: A federal judge in Washington found the Department of Defense in contempt of court for not videotaping the testimony of a Guantanamo Bay detainee for the press and public. (Courthouse News Service)

Bill passed, with strings: Congress has passed President Obama omnibus spending plan, but earmarks and other items in the budget will be political fodder for some Republicans later. (The Washington Post)

Only 5 shopping lawmaking days left…: Although member of Congress would like to break for the holidays on Friday, there is still a lot of legislative work to do. (New York Times)

Friday morning docket: The weekend option

The weekend is almost here, folks. And while Democrats in the senate continue to wrangle over the hot-button issue of the health care public option, let’s take a look at the legal news:

There’s no recuse: Members of a House Judiciary subcommittee searched for ways to curb federal judges who refuse to step aside in cases where a conflict of interest is apparent, saying such refusals deny litigants a fair chance in court. (Lawyers USA)

O’Connor still no fan of elections: Former Supreme Court Justice Sandra Day O’Connor said a way to get a fair and unbiased judge is to do away elected judges altogether. She has launched an initiative to help states do just that. (ABA Journal)

An ‘honest’ reversal? If the Supreme Court strikes down law criminalizing the deprivation of “honest services” – as the justices seemed inclined to do at oral arguments Tuesday – will there be “an earthquake within the criminal justice community?” (WSJ Law Blog)

Sound of silence: On Wednesday, the justices of the U.S. Supreme Court contemplated whether arbitrators may compel class arbitration when the arbitration contract is silent on the issue. (Lawyers USA)

Chief statue: A marble bust of the late Chief Justice William Rehnquist was unveiled at the Supreme Court. (SCOTUSBlog)

The Funniest Justice, week 6: Breyer leaves ’em laughing

“I thought there was a principle that a citizen is supposed to be able to understand the criminal law that was around even before Justice Scalia,” said Justice Stephen Breyer during oral arguments Tuesday.

That quip, made lightly at the expense of his colleague, was one of five chuckle-drawing comments Breyer made this week, allowing him to pass Chief Justice John G. Roberts, Jr. and take second place in the running tally of the Funniest Justice on the Supreme Court this term.

Justice Antonin Scalia also got five laughs this week, protecting his healthy lead.

Here are the laugh standings:

Justice Antonin Scalia: 28

Justice Stephen Breyer: 14

Chief Justice John G. Roberts, Jr.: 13

Justice Anthony Kennedy: 3

Justice John Paul Stevens: 2

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Thomas has remained silent during oral arguments since Feb. 22, 2006, although he often laughs heartily at other justices’ jokes)

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0

Sotomayor’s first opinion rejects attorney-client privilege argument

The first full opinion handed down by the U.S. Supreme Court this term came from its newest jurist, Justice Sonia Sotomayor. The unanimous ruling in Mohawk Industries Inc. v. Carpenter held that litigants have no immediate right to appeal orders to compel documents based on a claim of attorney-client privilege under the collateral order doctrine.

In so ruling, Sotomayor stressed the importance of the attorney-client privilege to the judicial system, but said that importance was not outweighed by the interest of awaiting a final verdict before allowing appeals.

In addition, Sotomayor pointed out that there are other remedies for parties wishing to minimize the damage caused by disclosing privileged information, such as asking a court to certify an interlocutory appeal, asking for post-judgment review, or violating the disclosure order and being held in contempt and/or facing sanctions. “The party can then appeal directly from that ruling, at least when the contempt citation can be characterized as criminal punishment,” Sotomayor explained in the opinion.

More on that case later on Lawyers USA online.

The Court also handed down three other opinions, In Alvarez v. Smith the Court, as it hinted strongly that it would, vacated as moot a case asking whether the Chicago police department’s practice of seizing property related to drug activity without a probable cause hearing is unconstitutional.

In, Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers and Trainmen, the Court held that the National Railroad Adjustment Board had jurisdiction to hear employees’ arbitration claims under the Railroad Labor Act.

And in Beard v. Kindler the Court held that an escaped felon cannot later reinstate post-verdict motions he filed before escaping custody by claiming that the state grounds supporting the judgment were inadequate.

Hurry: Be the 10th justice before the first opinion comes out

(Photo from FantasySCOTUS.net)

(Photo from FantasySCOTUS.net)

Today the Supreme Court is set to release its first opinion, or opinions, of the cases that have been argued so far this year. We don’t know what cases could be decided today – some speculate that it could be Citizens United v. FEC, since that was a holdover from last term, and it was argued a month earlier than the other cases. But we do know one thing: You only have minutes left to get ahead of that decision in your “Fantasy SCOTUS” league.

That’s right, just like the football and basketball fantasy leagues going on right now, Supreme Court geeks like you (and me!) can predict how the justices will decide the cases on the October Term 2009 docket on FantasySCOTUS.net.

For each case, you can predict which side wins, what the split will be, and which justices will be in the majority and the minority. We’ll let you know how DC Dicta does at the end of the term.

Monday status conference: A matter of opinion

This week the U.S. Supreme Court is expected to issue its first full opinion(s) of the October 2009 term. Those opinions are expected to come tomorrow.

So far, the Court has only released a handful of per curiam rulings, but tomorrow’s opinions will come in one or more of the cases that have been argued before the bench. As always, the Court gives no indication of which opinions it will issue beforehand, but we’ll catch you up on what the Court does tomorrow. It’s also oral argument week at the Court, which takes up cases involving Sarbanes-Oxley Act and the right to counsel today.

Meanwhile, it was a busy weekend here in Washington, where members of the Senate worked all weekend in hopes of coming to agreement on a health care package to send to a final vote before the holiday break. President Obama even dropped by Capitol Hill Sunday to give lawmakers an extra pep talk as they continue to work to negotiate the language of the bill. The Senate continues debate today, tackling on the thorny issue of abortion.

In other news:

IP VIP: The Senate has confirmed Victoria Espinel, President Obama’s choice to be the nation’s first-ever intellectual property czar. (ABA Journal)

Girlfriend defense: Senate Finance Committee Chairman Max Baucus defended recommending his girlfriend for appointment as Montana’s U.S. attorney, which we eventually withdrew. (AP)

Votes on gay rights bills near: The House is poised to pass bills to provide health coverage for the same-sex partners of gay federal workers and to protect all gay and transgender employees from job discrimination, lawmakers say. (AP)

Legal aid waning: Just when it is needed most, funding for legal aid plummets. (Washington Post)

No longer President Popular: Obama’s popularity numbers fall as some criticize him for taking on too much at once. (New York Times)

Friday morning docket: Secretary’s privilege

Who knew that White House party crashers would create a constitutional issue between the White House and Congress? You can’t make this stuff up, folks.

Yesterday, the House Homeland Security Committee held a hearing to examine the “system failure” that allowed unauthorized people to get up close and personal with President Obama at a White House state dinner last week. But the only witness who testified was Secret Service Director Mark Sullivan.

Tareq and Michaele Salahi, who started this whole thing by showing up at the White House with no formal invitation, had been called to testify but declined. The committee is now prepared to issue the couple a formal invitation to appear before lawmakers, in the form of a subpoena.

Republican members also wanted White House social secretary Desiree Rogers to testify, since her office too dropped the ball by failing to have staff checking arrivals against the guest list. But the White House nixed that idea, citing separation of powers.

That didn’t sit well with New York Rep. Peter King, who wanted Rogers to explain the gaffe.

While legal scholars ponder the extent of executive privilege enjoyed by a White House party planner, let’s take a look at the news:

House votes for death tax freeze: Yesterday the House passed a bill that would hold the estate tax at 2009 levels rather than allow it to be repealed next year before resetting to the highest levels in a decade. (Lawyers USA)

Leahy blasts SCOTUS, Iqbal: Note to Chief Justice John G. Roberts, Jr.: Senate Judiciary Committee Chairman Patrick Leahy doesn’t like the job your Court is doing in several areas. In his fifth hearing called to complain about the Court’s rulings, Leahy blasted the recent decisions setting tougher civil pleading standards in federal court. (Lawyers USA)

Battle of opinions: In a rare move after a summary disposition, Justices John Paul Stevens and Clarence Thomas issued dueling opinions in a death penalty case. (Newsweek)

Ogden to exit: The Justice Department’s No. 2 is leaving early next year and heading to the private sector. (BLT Blog)