In the Roberts Court, More Room for Argument

This is the week that the Supreme Court, done with its regular argument sessions, enters the stretch run.

While it is too soon for substantive appraisals of the first year of the Roberts court, it is not too soon for stylistic observations about what is clearly, in the view of lawyers who have appeared there this term, a different court.

“The tone has changed,” Prof. Richard J. Lazarus of the Georgetown University Law Center, where he runs the Supreme Court Institute and teaches a course on Supreme Court advocacy, said on Tuesday.

In common with every other Supreme Court specialist contacted for this article, Professor Lazarus listed several obvious changes. “They’re not stepping on each other,” he said of the justices. “They take longer before someone asks the first question. They give the lawyers more time to answer.”

Beth S. Brinkmann, like Professor Lazarus a veteran of the solicitor general’s office, who now represents private clients before the court, said of the new courtroom experience: “You sit there and think, ‘Whoa, isn’t anyone going to ask a question?'”

Details here from the New York Times.


Justice Weighs Desire v. Duty (Duty Prevails)

Justice Stevens

WASHINGTON, Aug. 24 – It is not every day that a Supreme Court justice calls his own decisions unwise. But with unusual candor, Justice John Paul Stevens did that last week in a speech in which he explored the gap that sometimes lies between a judge’s desire and duty.

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term’s decisions, including his own majority opinions in two of the term’s most prominent cases. The outcomes were “unwise,” he said, but “in each I was convinced that the law compelled a result that I would have opposed if I were a legislator.”

In one, the eminent domain case that became the term’s most controversial decision, he said that his majority opinion that upheld the government’s “taking” of private homes for a commercial development in New London, Conn., brought about a result “entirely divorced from my judgment concerning the wisdom of the program” that was under constitutional attack. . . .

[J]ustice Stevens said he also regretted having to rule in favor of the federal government’s ability to enforce its narcotics laws and thus trump California’s medical marijuana initiative. “I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters,” he said. But given the broader stakes for the power of Congress to regulate commerce, he added, “our duty to uphold the application of the federal statute was pellucidly clear.”

Don’t miss this rare and fascinating glimpse of Justice Stevens from Linda Greenhouse of the New York Times.


GOP Worries Ethics Issue May Hurt Party in ’06

From page A1 of today’s Washington Post:

Tom Delay

ZANESVILLE, Ohio — After enlarging their majority in the past two elections, House Republicans have begun to fear that public attention to members’ travel and relations with lobbyists will make a potent issue that could cost the party seats in next year’s midterm races.

In what Republican strategists call “the DeLay effect,” questions plaguing House Majority Leader (R-Tex.) are starting to hurt his fellow party members, who are facing news coverage of their own trips and use of relatives on their campaign payrolls.

It’s simple. When you sell out your own values and your constituents’ interests and become a paid whore for corporate and evangelical goals instead, you eventually pay the price. The only questions is: when is “eventually”? It looks like the Republicans are about to find out. Details here from The Washington Post.


Secret Tapes Allowed in Case Against Lawyer

Secret tape recordings made by a lawyer at the behest of federal agents can be used as evidence against indicted bankruptcy attorney Daniel J. Gates, who is accused of embezzling millions from his clients, including former Pittsburgh Steelers cornerback Rod Woodson.

U.S. District Judge Joy Flowers Conti recently ruled that all but one of the incriminating recordings made by attorney Patricia L. Blais in 2002 are admissible.

Gates, former owner of Gates & Associates, had tried to argue that Blais was his lawyer and that the tapes were illegal because they violate the attorney-client privilege.

Another one bites the dust. Details here from the Pittsburgh Post Gazette.


Woman in Wendy’s Finger Case Arrested

Anna Ayala, the Las Vegas woman who claimed to have bitten into a severed finger at a San Jose Wendy’s restaurant, was arrested Thursday night in connection with the case, San Jose police said.

San Jose police spokesman Enrique Garcia said Ayala, 39, was arrested, but he declined to provide further details.

“We’ve arrested her in connection with the Wendy’s investigation. She’s currently in custody” in Las Vegas, said Garcia late Thursday night.

Police did not say on what charges Ayala was arrested. A press conference is scheduled at the San Jose Police Department at 1 p.m. today to discuss details about the arrest, Garcia said.

I had read earlier that she had been arrested and allegedly charged with grand theft, but not that it was in connection with the Wendy’s investigation. Details here from the San Francisco Chronicle.

UPDATE: The Smoking Gun has the San Jose Police Department’s press release from Friday Apr. 22 online here. Ayala’s in serious trouble now. And it sounds like she deserves every bit of it.


Internet Quotation of the Week

“Forget about it, dude–even genocidal litigation can’t stop file sharers.”

Grokster president Wayne Rosso.

I stole this awesome quotation from Donna Wentworth of COPYfight.org, a great blog straight outta Harvard Law School. Donna has done us a great service by blogging from (something called) ILAW. Thanks, Donna!


Evangelists Have Enforcers?

I am so out of touch with the world of evangelism.

LITTLE ROCK, Ark. — A fugitive accused of beating two teenagers on evangelist Tony Alamo’s orders must pay $3 million in restitution, a federal judge ruled Thursday.

U.S. District Judge Harry F. Barnes awarded $1.5 million each to Spencer Ondrisek and Seth Calagna, who were both raised in Alamo’s church in Fouke in southwestern Arkansas. The teens accused Alamo’s alleged enforcer, John Kolbek, of battery, false imprisonment, outrage and conspiracy.

Source: $3M awarded in suit against alleged Alamo enforcer – washingtonpost.com



Defendant, Deputies Scuffle in Courtroom

Cotati resident even gets hit in the face by his own attorney

A defendant in a Sonoma County courtroom got rough justice Wednesday when he was punched in the face by his own attorney and shocked twice with a Taser stun gun after he tried to wrestle a court bailiff’s gun from its holster.

Cotati resident Martin E. Hirtz, 44, was in Superior Court Judge Lawrence Antolini’s court at about 9 a.m. on a probation violation charge related to a previous conviction for assaulting a peace officer when the chaos began. Hirtz made a move for the gun as he was being taken from the courtroom into custody, according to a statement by the Sonoma County Sheriff’s Office.

Hirtz lunged at bailiff Eric Greenband’s holster, grabbed hold tightly and tried to pull out the weapon by jerking it back and forth and pushing Greenband backward against a short court partition, sheriffs said. Hirtz unsnapped the holster and partially removed the gun as another deputy sheriff joined the fray and called for backup.

Seeing that the officers could not subdue Hirtz, his own defense attorney, the prosecutor and the probation officer on duty jumped into the melee to try to control the defendant. Despite several blows from Deputy Public Defender Jeff Mitchell and baton strikes to the head and arms by Deputy Sheriff Will Conner, Hirtz would not relent.

It was not until another deputy sheriff shot Hirtz with a Taser probe and shocked him that he began to give in. After a second shock, deputies finally subdued Hirtz and hauled him away.

I can’t tell you how glad I am that I don’t practice criminal law. Details here from the San Francisco Chronicle.


NY Judge: Parachute Off Any Skyscraper You Want (As Long As You’re Careful)

Jump off whatever you want – just be professional about it. That’s the moral of the story after a Manhattan judge ruled that a professional stunt-jumper’s attempt to parachute off the Empire State Building last spring wasn’t “depraved” enough to be a felony.

Until yesterday, Jeb Corliss, 30, had faced up to seven years in prison for first-degree reckless endangerment. But Corliss is a free man – and the charge against him is dismissed – thanks to a legal loophole big enough to jump one of his $3,500 customized stunt parachutes through.

Under state law, a charge of first-degree reckless endangerment requires prosecutors to prove Corliss showed a “depraved indifference” to the risk of killing bystanders. But Justice Michael Ambrecht found that Corliss, who has some 3,000 successful jumps under his belt, was too experienced and too obviously concerned with public safety to have met the “depraved indifference” standard. Corliss’ careful planning – the stuntman had factored in wind conditions and traffic-light patterns to ensure he wouldn’t land atop moving cars – precludes a finding of recklessness, the judge ruled.

“The circumstances surrounding this admittedly dangerous stunt suggest that rather than indifference to the risk of harm to others, [Corliss] took affirmative steps to ensure the safety of others,” the judge wrote.

Details here from the New York Post. (via Fark and Gothamist)


The Bush Administration Lies

I try to avoid injecting much opinion or politics into this weblog, but I feel a civic duty here.

All politicians spin and selectively recite the facts that favor them — it’s the nature of the beast.

But I’m increasingly convinced that the Bush administration takes it a notch further, and just flat out lies. I’m convinced that they have repeatedly decided “let’s do plan A,” and then come out and told the press and public that “we’re doing plan B” when the two plans are diametrically opposed. That’s brazen. That’s unacceptable.

I’m increasingly convinced that the core of this administration has a radical “neo-con” agenda that they are systematically carrying out while knowingly lying about what they are doing because they know the American people would be outraged if they understood what the administration was really doing.

Just two examples:

Donald Rumsfeld was recently (3/14/04) caught red-handed on CBS’s “Face The Nation” lying about earlier lies he had told about Iraq. Read all about it here.

And Congressman Henry A. Waxman has compiled a report and database of the lies that Bush, Cheney, Rumsfeld, Powell and Rice told to the American public and the world to get us to go to war in Iraq. It makes compelling reading and speaks for itself. You can see for yourself here.

I think the American people are beginning to wake up and notice all of this. I hope so. And I hope the mainstream, non-partisan press lends a hand.