Author Archives: Michael Froomkin

The Ultimate Blogging Poster

Posted on August 21, 2006 by Michael Froomkin

Brad DeLong brings us the ultimate blogging poster:

Posted in Blogs | 1 Comment

Judge Cooke Dismisses 1/3 Padilla Indictment

Posted on August 21, 2006 by Michael Froomkin

See the Miami Herald Judge throws out terror charge in Padilla case, and The Order (pdf).

As usual, SDFL Blog has the juicy details:

Judge Marcia Cooke has dismissed Count I of the indictment against Jose Padilla because it is multiplicitous. In other words, Count I represents the same offense that is also charged in Counts II and III. An indictment is multiplicitous when it charges a single offense multiple times, in separate counts. …

The government, of course, is still free to proceed with its case on Counts II and III. I would guess, however, that the government is going to appeal — and quickly. Count I — conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) — is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties … An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement.

This was a very courageous order by Judge Cooke. The government for far too long has been charging the same crime many different ways for tactical reasons. The more counts in an indictment, the greater the chance a jury will find a defendant guilty of one of the counts. …

In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. The dangers posed by a duplicitous counts in an indictment are three-fold: 1) a jury may convict a defendant without unanimously agreeing on the same offense; 2) a defendant may be prejudiced in a subsequent double jeopardy defense; and 3) a court may have difficult determining the admissibility of evidence. Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section. This decision will also, I’m sure, be appealed.

And there’s lots more good stuff where that came from.

This is a big win for Padilla and his legal team, and a very gutsy decision by Judge Cooke. But from what I know of the case — it looks like she did the right thing. And the government’s case still looks weak, although the very weakest elements are gradually being pared off…

Posted in Padilla | Comments Off on Judge Cooke Dismisses 1/3 Padilla Indictment

Campus Cops Gone Wild

Posted on August 21, 2006 by Michael Froomkin

Via boing-boing comes this amazing story of campus cops gone wild at the University of Florida. (Note that since UF is a public university, the cops are subject to the same constitutional constraints as other cops.):

Phil Sandifer, a grad student in English at Gainesville’s University of Florida … was harassed by campus cops for publishing fiction on his LiveJournal. The cops — acting on a tip that appears to have originated from people displeased with Sandifer’s Wikipedia editing style — argued that because Sandifer’s story depicted a murder, he should be fingerprinted and have his DNA taken in order to ensure that he wasn’t responsible for any unsolved murders.

As I investigated this story, the campus cops stonewalled me, but used the fact that I was leaving messages for them to attempt to frighten Sandifer into allowing them to fingerprint and DNA-sample him, saying that a journalist was on the story and he’d better exonerate himself before the story broke. They went to Sandifer’s (righteously angry and uncooperative) faculty advisors and, in front of them, leaned on Sandifer for his biometrics and threatened to retrieve his DNA from his garbage if he wouldn’t concede to a DNA swab.

Mitchell J Silverman, an attorney in Hollywood, Florida, used the state’s sunshine laws to get hold of the police reports on the event.

The report is remarkable for what it doesn’t say: it is an apparent fabrication that contradicts the eyewitness reports of everyone I spoke to involved in this story.

Posted in Florida | 1 Comment

Student Sues UM Over Strike-Related Discipline

Posted on August 21, 2006 by Michael Froomkin

I have no idea why the details are being reported by a columnist rather than the Miami Herald news section, but Ana Menendez’s opinion column yesterday has an account of Brian Lemmerman’s lawsuit against UM. The essence of the complaint appears to be a breach of contract claim predicated on the the University’s alleged failure to follow its own rules when disciplining him for his participation in strike-support activities.

According to the column, the other students subject to (secret) disciplinary proceedings over the summer have thrown in the towel, in part, I suspect, because most of their punishments were not as severe as the outrageous sanctions the University originally threatened.

I have not seen the complaint, but cases like this generally face two roadblocks: first, universities often write themselves a lot of discretion into their rules in part because they hate to tie their own hands, in part to avoid suits like this. The second problem is that it’s a contract case, not a tort case, so the possible damages are limited to the value of the contract. Mr. Lemmerman is claiming $15K, which I presume is based on some computation involving tuition, but I’d expect UM’s lawyers to press hard on the damages part of the claim.

Background on student discipline issue: Lessons and Faculty Sign Open Letter to Administration.

Posted in U.Miami: Strike'06 | Comments Off on Student Sues UM Over Strike-Related Discipline

Why the Law School Needs an Official Blog

Posted on August 18, 2006 by Michael Froomkin

I think the law school needs an official blog, run by the Dean’s Office, so that we could have quick and official answers to frequently asked student questions. But that’s probably years away. So I’m going to do my best to give unofficial answers to the questions posted by an anonymous student. I’ve put his/her questions in indent and interspersed my responses at the regular margin. Note that the italics are part of the original from which I’m quoting.

They fixed up the student lounge. Fantastic! I didn’t go in but it looks like they got rid of the couches and desks and ripped up the carpet. So it’s a sterile room with more space for setting up chairs but nowhere to actually do the lounging.

We’re having a reception in there tonight. If I recall, I heard that the furniture should turn up in a few days.

Now we can only print a set number of pages, then after 1,200 pages, you have to pay. That’ll work great. I’m sure no one will have any complaints about things like oh, I don’t know…how on any given day at least two printers are broken, which means you send something to a printer and it just disappears into cyberspace, meaning under the new system you’ll still get “charged” with having printed it.

We studied this carefully. 1,200 pages is much, much more than all but a handful of student (ab)users print out. For over 95% of the class, there’s plenty of margin for error. Fewer abusers also means the machines and paper supplies should last longer.

Some of the classes, including Trusts and Estates with professor Elements, were suddenly cancelled. I know several people who are angry about that because it threw off their schedule. I assume the reason is that Professor Elements is not doing well. I knew he was sick but have no idea how he’s doing. Here’s hoping he gets better — if in fact the reason for cancelling the class is that he’s sick.

At present, he’s not reliably well enough to teach, alas.

[Long screed about parking]

Parking is controlled by the university, not the law school, alas. E-mail President Shalala’s office about the flooding, something might actually happen…

Posted in U.Miami | 12 Comments

Quip

Posted on August 18, 2006 by Michael Froomkin

According to reports, Fidel Castro is alert and being briefed. And I’m thinking, why didn’t we get a president like that?

—David Letterman

Posted in Politics: US | Comments Off on Quip