Author Archives: Michael Froomkin

Judicial Fireworks in Broward

Posted on July 19, 2007 by Michael Froomkin

It's an old Miami saying that we live in the only part of the country where you have to go north to get to the South.

Evidence of the truth of that aphorism can be found in the judicial dust-up currently unfolding in Broward County, the county just north of us. Broward county judges have had a bad patch recently, what with one being busted for smoking pot in a park, and various ethical transgressions emerging, one of which led to the resignation of the Chief Judge.

We though things might be looking up this week when the election for a new Chief Judge appeared to have gone off without either allegations of vote tampering or mayhem, but in fact this was just the calm before the storm.

And what a storm. It seems that during the brief interregnum, Acting Chief Judge Mel Grossman eviscerated a diversity committee chaired by Judge Elijah Williams, the only black male judge to be appointed in Broward in the last two decades. And Judge Williams, to his credit, isn't taking it lightly.

The full fireworks can be seen at the rather active unofficial Broward lawyers' blog at A Calculated Scorched Earth Policy or a Simple Case of Al Haig Disease? Judge Elijah Williams Has Had Enough!. See also Miami-Dade's own Rumpole, enjoying a few moments of schadenfreude.

Posted in Florida, Law: Everything Else | Comments Off on Judicial Fireworks in Broward

What is Your Nightmare Job?

Posted on July 19, 2007 by Michael Froomkin

What would be the most unattractive job in the regular economy? I'm not talking about the objectively least-well paid or statistically most dangerous, or most unpopular (car salesman?). I mean, what job would you least like to have. No fair saying subsistence farmer in Darfur either — I mean in the US (or other developed economy).

For me, I think the worst job I see around me easily has to be toll booth attendant: Breath fumes all day. No real human contact. Uncomfortable reaching. Half in and half out so your body is a mix of too hot and too cold depending where and when. Much worse than the worst job I ever had (for a week) of (attempted) selling books by phone.

What's your worst nightmare of a job?

Posted in Etc | 20 Comments

R. Milhous Giuliani

Posted on July 18, 2007 by Michael Froomkin

R. Milhous Giuliani — that's how Michael Gerson characterizes the current GOP front-runner, and I think he nails it on substantive, stylistic, and not least emotional grounds.

As president, Nixon was a talented man without an ideological compass, mainly concerned with the accumulation of power. … And, as with Nixon, Giuliani's combativeness, on occasion, blurs into pettiness.

Richard Milhous Giuliani. Just trips off the tongue…

Posted in Politics: US: 2008 Elections | Comments Off on R. Milhous Giuliani

Short and Sweet

Posted on July 18, 2007 by Michael Froomkin

Sentenc.es – A Disciplined Way To Deal With Email

The Problem

E-mail takes too long to respond to, resulting in continuous inbox overflow for those who receive a lot of it. The Solution

Treat all email responses like SMS text messages, using a set number of letters per response. Since it’s too hard to count letters, we count sentences instead. five.sentenc.es is a personal policy that all email responses regardless of recipient or subject will be five sentences or less. It’s that simple.

– See also: two.sentenc.es, three.sentenc.es, and four.sentenc.es.

Posted in Internet | 1 Comment

POGO Asks If Marine Corps Lied to Senator Levin about MRAP Request?

Posted on July 18, 2007 by Michael Froomkin

Nick Schwellenbach of the Project On Government Oversight has a very interesting post at the POGO Blog asking whether the Marine Corps Lied to Senator Levin about MRAP Request:

Marine Corps claims described in congressional correspondence are at odds with the actual text of a February 2005 urgent needs request from Marines in Iraq.

In a letter Senator Carl Levin (D-Michigan), chairman of the Senate Armed Services Committee, wrote to Senator Joe Biden (D-Delaware) on June 26, 2007 (pdf), the following was written:

Press reports about the February 2005 Marine Corps Urgent Operational Needs Statement [pdf] that you referenced in your letter concerned me a great deal as well. Since learning of this needs statement, my Committee staff has met with the Marine Corps multiple times. The Marine Corps’ answer to the Committee staff has been two-fold: 1) the Marine Corps has initiated its own internal review of how urgent operational needs statements are handled; and 2) the Marine Corps indicated that the request from theater called for more effective armor materiel, which came in the form of fragmentation kit upgrades, rather than a specialized vehicle like the MRAP. I have directed my Committee staff to continue meeting with the Marine Corps on this matter until the internal review is completed. [Emphasis added]

However, even the briefest look at the February 2005 request (pdf) shows otherwise; that is, that the Marines on the ground, in Iraq, requested MRAPs specifically.  The first lines in that document on the first page, under “Description of Need,” are:

MINE RESISTANT AMBUSH PROTECTED (MRAP) VEHICLE. This is a Priority 1 Urgent UNS in support of OIF EDL. Total AO requirement is 1169.

There is an immediate need for an MRAP vehicle capability to increase survivability and mobility of Marines operating in a hazardous fire area against known threats.

On its face, it seems that the Marine Corps engaged in telling the congressional staffers of the chairman of the Senate Armed Services Committee a bold-faced lie.  The only other possibility is that Senator Levin’s staffers misinterpreted or wrongly portrayed the Marine Corps’ claims. 

If it’s the former, Congress should consider prosecuting the responsible parties for making false statements under 18 U.S.C. §
1001.  Congress cannot intelligently and adequately perform its legislative and oversight functions if the executive branch is not providing it with truthful information–hence the existence of 18 U.S.C. §
1001.  There need to be penalties for willfully misinforming Congress, especially on matters of life and death in wartime.  These requests were not made by bureaucrats at the Pentagon, but by Marines in Iraq regarding a vehicles which, if procured sooner, could possibly have saved the lives of hundreds. 

If Congress never penalizes or threatens to penalize those who lie to it, then it will only invite more dishonesty and a withering of its own stature.

I think the principle at stake is important. So too is the underlying factual issue: despite desperate pleas from the folks on the ground, the Pentagon decided not to send armored vehicles that could withstand IEDs in Iraq to US soldiers. At the same time, they made sending these vehicles to the Iraqi troops a priority. Why? Not clear — kindest explanation is that they thought we’d be ought of there so quickly there would be no need for the improved armor; the stuff also makes the vehicles slow. Even so, that’s no excuse for lying about it to Congress.

Posted in National Security | 1 Comment

On ‘Outrageous’ Government Conduct

Posted on July 17, 2007 by Michael Froomkin

I read the news that Judge Lewis A. Kaplan dismissed the criminal tax case against 13 KPMG defendants with a little bit of bemusement.

Judge Kaplan has a reputation as a fine judge, and I have no reason to question his decision…but it does make for an odd juxtaposition with the Padilla case, in which Judge Cooke denied Jose Padilla’s motion to dismiss for outrageous government conduct.

Here's a snippet on the KPMG decision:

A judge threw out charges Monday against 13 former KPMG employees who were accused of participating in a fraud that helped the wealthy escape $2.5 billion in taxes. The ruling essentially guts what the government once called the largest criminal tax case in U.S. history.

U.S. District Judge Lewis A. Kaplan said he dismissed the charges because prosecutors blocked the defendants from putting on a defense. He said the government coerced KPMG to limit and then cut off its payment of the employees' legal fees, meaning the defendants were effectively stripped of their constitutional right to legal representation in what was sure to be a long, expensive trial.

The harshly worded decision also amounted to a stinging rebuke of the Justice Department in its prosecution of KPMG, a global tax firm.

“Their deliberate interference with the defendants' rights was outrageous and shocking in the constitutional sense because it was fundamentally at odds with two of our most basic constitutional values – the right to counsel and the right to fair criminal proceedings,” Kaplan wrote.

Sounds plausible. And not having followed the case with great care, I'm prepared to accept this ruling until someone explains to me what is wrong with it.

But it sure seems odd that denying the lawyer of their choice to bunch of rich professionals is outrageous government conduct sufficient to get a criminal charge dismissed, but the same does not apply to holding a guy in solitary for years under conditions that may amount to torture.

I am sure someone will reply that in the KPMG case the government action directly impacted the trial, while in the Padilla case the judge has ruled that nothing learned during his confinement in a military brig can be introduced at trial. Furthermore, government experts testified that despite the years of isolation and sensory deprivation Padilla is competent to stand trial. But — based only on the news reports of the KPMG decision — that misses the point of comparison. The KPMG defendants had access to lawyers, just not the very most expensive ones they wanted. (And in case you had doubts, there's some evidence that those public defenders are pretty good…) Padilla may be functional, maybe, but does anyone seriously believe he is unscathed and as able to participate in his defense as he would have been but for the government's conduct? If so, I have a portfolio of bridges to sell you…tax free…

(I'm always a bit nervous posting about cases based only on news reports. If there's something in the text of the KPMG decision which explains this disjunction, I will welcome corrections and amplifications.)

Posted in Law: Constitutional Law, Padilla | Comments Off on On ‘Outrageous’ Government Conduct