Law Updates for September 11, 2009

Pittman, 34 FLW 1809, 3rd DCA. Lewd and Lascivious. Info charged def with sex battery +12, did not adequately inform the def he would be subject to a conviction of LIO of lewd or lascivious battery, +12 -16. Remand to discharge the def from custody. State's last minute announcement on day of trial they intended to request jury charge on lesser offense clearly prejudiced the defendant and the nature of his defense

Mistral, 34 FLW 1817, 3rd DCA. exigent circumstances. Police received a call about a possible burglary in progress at def's residence, took him into custody in his front yard and conducted a protective sweep of the house. Sweep was illegal police entered the house without consent, exigent or a search warrant. Ofcs entered the house as a routine practice not on the basis of articulable facts that would warrant a reasonable belief that there was any dangerous individual inside whose posed a threat to those on scene.

Cable, 34 FLW 1827, 2nd DCA, knock and announce. Exclusionary rule applies to Florida statutory knock and announce law. Goes further than the U.S. Supreme court case of Hudson v. Michigan, certified to the Florida Supreme Court.



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RIP Patrick Swayze.

Forum Nons Are Funny Things

Remember that Chevron suit in Ecuador that Glenn Garvin wrote about recently? (We gave our take about it here).

Glenn basically accused the lawyers bringing the suit of carpetbagging, filing the case down there when the politics of that country started to take a leftward tilt.

This, of course, makes no sense, but who knows?

Well it turns out the suit was -- as I suspected -- originally filed in the United States, and it was Chevron was insisted -- over the plaintiffs' objections -- that the courts in Ecuador were perfectly capable of administering justice:

This case was originally filed in U.S. federal court in 1993. Texaco submitted 14 expert affidavits praising Ecuador's courts and used that as a basis to move the case to Ecuador over our objections. They succeeded, so we refiled the case in Ecuador.

Never lets facts get in the way of a good story, I always say.

When Lawyers Blog

As Mr. Markus notes, the Broward Blog and allegedly intemperate judicial commenter Sean Conway made the front page of the Sunday NYT:

For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.

But the State Supreme Court ultimately accepted Mr. Conway's earlier reprimand agreement with the bar, which had argued in its brief to the court that the online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system, and so the statements “fail as protected free speech under the First Amendment.”

I am a strong advocate for professionalism and civility among members of the Florida Bar.

And without wading into the particulars of Mr. Conway's case, I also obviously feel there is a value in lawyers commenting on -- and sometimes even criticizing where appropriate -- the courts and the legal process and attorneys and judges who participate therein.

In my view the entire panoply of expressive tools should be available for that purpose -- sober essays, humor, satire, irony, poetry, song, drum circles, Bo Derek photos whatever.

But when is too far too far?

Some of the situations identified in the Times article are unique -- if you are practicing before a particular judge in a particular case, you owe specific obligations to the Court that arise from that representation, whether you are in court, on the beach, in bed with your significant other, or posting on this crappy blog.

But what are the constraints that should apply in situations where we don't have a case in front of a particular judge, but still have an opinion? Do we as lawyers have the right to express it, and if so, how and where? In a classroom, in a law office, at a restaurant, or on a blog?

A related question is what is the appropriate sanction, if any, for comments that go "over the line."

Is the disciplinary process always necessary, or is opprobrium by peers or persuasive counterarguments a better solution?

Should the test for disciplinary action be, as the Bar suggests, whether or not the comment "was uttered in an effort to expose a valid problem"?

Look at poor Mr. Liar Liar Pants On Fire Joe Wilson, the new Joe The Plumber/Bob Roberts of the 20 percenters.

Should he be formally censured or admonished by the House, or is it sufficient that fair-minded people reacted with shock and derision at his outburst?

To me the latter is the best course. We live in a democracy, not a monarchy, and an idiot should be allowed to heckle the President without fear of formal sanction, even an idiot who coincidentally has spent much of his career defending the Confederate legacy.

Besides, what will a censure mean to Joe Wilson as compared to a solid arse-kicking by Jon Stewart?

What about the tea baggers who marched on DC over the weekend? What is the best way to deal with this type of free speech:

The line of protesters clogged several blocks near the Capitol, according to the D.C. Homeland Security and Emergency Management Agency. Demonstrators chanted "enough, enough" and "We the People." Others yelled "You lie, you lie!" and "Pelosi has to go," referring to House Speaker Nancy Pelosi, D-Calif.

Throngs of people waved U.S. flags and held signs reading "Go Green Recycle Congress" and "Obama Bin Lyin.'" Men wore colonial costumes as they listened to speakers who warned of "judgment day" - Election Day 2010.

Other signs - reflecting the growing intensity of the health care debate - depicted President Barack Obama with the signature mustache of Nazi dictator Adolf Hitler. Many referred to Obama as a socialist or communist, and another imposed his face on that of the villainous Joker from "Batman."

Or how about Serena Williams, who threatened to shove a tennis ball down a line judge's throat on Saturday, then showed up at the MTV Video Music Awards later that night and will be playing in the women's doubles final today? Is there a point to the formal $10k fine, or does treating her like a superstar on MTV send a bigger message?

Obama was articulate and bright on 60 Minutes last night as usual (see, Joe was right!), lamenting that "civility" is not very interesting and there has been a general coarsening of discourse in our culture generally.

He's right, of course. The bigger question is what tools do we use to address this problem, and which ones should be used, and when.

My own view -- save formal sanctions for the really bad stuff.

Mockery, derision, and robust condemnation with a few YouTube clips thrown in should be adequate most of the time.

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Tampa Federal Criminal Defense Attorney on eMail and Subpoenas

Tampa Federal Criminal Defense Attorney notes that one court just held a Search Warrant for eMail was unnecessary, where a federal subpoena was issued. The federal Judge ruled that an Internet Service Provider must comply with the Government subpoena for E-Mail. In this cybercrime prosecution, the Government had subpoenaed the Internet service provider (ISP) and sought the contents of electronic communications. The subpoena requested previously opened or sent e-mail that belonged to the defendant.

The ISP failed to produce e-mails that had been stored for fewer than 181 days, the Government filed a motion to compel production of the e-mails' content. The ISP claimed the information sought required a search warrant. The Court ruled that the Stored Communications Act (SCA), required the ISP to comply with the Government's subpoena if the e-mails are held or maintained solely to provide the customer storage or computer processing services.

The court further ruled that previously opened e-mails stored by the ISP for web-based e-mail systems—as distinguished from other e-mail systems—are not in "electronic storage," which is defined by the Wiretap Act as storage incidental to electronic transmission and for the purposes of backup protection of the e-mail. Based on this finding, the court ordered the ISP to comply fully with the Government's subpoena.

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Tampa Federal Criminal Defense Attorney Subpoena eMail

Source: United States v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009).

SFL Friday -- Perform Some Public Service, Plebes!

Well kids today is Friday but it's also the eighth anniversary of 9/11.

Talk about cognitive dissonance.

It's a shame that eight years later the legacy of 9/11 can be polarizing to some.

Still, for a moment put aside the regrettable politicization and manipulation, and remember the lives lost, the heroes found, the challenges our nation faced that day and those we will continue to face and must defeat in order preserve our sometimes-flawed but great democracy.

I even found President Bush's words that day moving:

"Today, our nation saw evil, the very worst of human nature, and we responded with the best of America."

True dat.

This may not be very surprising, but I really like the idea of performing public service as a way of paying tribute to the rescue teams who rushed in to save lives on 9/11, as well as a way to allow us to participate in a greater good on an otherwise somber day.

As lawyers we are fortunate to have so many chances to put something back, pun intended, and our range of possibilities should of course include nonlegal service opportunities (just like regular folks).

When was the last time you staffed a small claims clinic? Took a pro bono case? Gave time to a nonprofit or charity (raising money counts, btw).

Well that's enough about that so let's get ready for the weekend.

As usual I am heading out early so I can help spread the oxytocin, trade in my Prius, and catch this Slovenian arts festival.

What? I'm a fan of good advertising.

Have a great weekend everybody!