One of these things is not like the other...

Remember that song on Sesame Street?

"One of these things is not like the other. One of these things just doesn't belong. Can you tell which thing is not like the others. By the time I finish my song?"

Looking through the mountains of speculation on the pending gay marriage cases, that song seems particularly relevant. Much has been made of certain cautionary statements by Justice Ginsburg which inferred that the continuing cultural battle over abortion may have been fueled by judicial overreach that ended progress at the local level that might have been more enduring.

According to Ginsburg, Roe went "too far, too fast" and some take this as a hint that the court might take a more piecemeal approach to the gay marriage cases, favoring limited decisions over the broad ruling some are rooting for. I certainly hope that is not true, because the analogy just doesn't hold.

I'm decidedly pro-choice. But if asked to argue the other side, I could make a compelling case. It's not as if abortion opponents are completely lacking some science and rational on their side. Life does begin at conception, the question is are the rights of that life equal to those of the mother over the matter of her own body? When do the full rights of a human being kick in? I'm comfortable with first trimester abortions, but increasingly less comfortable as time goes on. The fact is that with abortion there are many gray areas and those combine with religious doctrine and conservative culture to create enduring conflict.

There are no comparable substantive matters in opposition to gay marriage. Opponents have been forced to rely on religious doctrine or the obscure notion of tradition to justify the obvious discrimination. In states that have passed gay marriage, either by court ruling, legislative process, or public referendum the results have been positive. Why? Because it really doesn't affect you unless you're gay and want to get married, and then it's a positive thing.

The correct analogy for gay marriage isn't to abortion. It's to interracial marriage and the historic and aptly titled Loving v. Virgina ruling.

When love walks in the room, everybody stand up. Go wide SCOTUS, go wide!  

Spencer Aronfeld = La Muerte!

I don't speak much Spanish, so I hope I got the headline right.

Joint Post by Justice Building, South Florida Lawyers, and Southern District of Florida Blogs!

You lose your rights, not with a bang, but with a whimper. One small encroachment after another. A bureaucrat pushes the edges here, a prosecutor challenges the boundaries in a few cases there. No one says or does anything and then you look up and suddenly a cherished right is gone. 

Nothing is more insidious and dangerous to our constitutional rights than a bureaucrat who, under the cover of a government agency, seeks to intimidate someone. That is why the letters we have posted  from the Florida Bar to attorney and blogger William Gelin have so alarmed us:the bloggers who run the Justice Building Blog, the South Florida Lawyers Blog, and the Southern District of Florida Blog.

WIlliam Gelin runs the JAA Blog which covers the Broward County Courthouse. To Mr. Gelin's credit he has never sought to hide his identity as the lawyer behind the blog. As a blogger who has openly challenged the way things are done in Broward, Mr. Gelin has courageously taken on numerous people in Broward County, including judges. Now, apparently after a series of posts about two Judges in West Palm Beach and Broward County, (ironically) anonymous bar complaints have prompted the Bar to send Mr. Gelin letters seeking him to admit or deny his involvement in the JAA Blog. 

We as the legal blogging community in Miami view these letters as an unprecedented attack on the First Amendment and freedom of speech. The letters are chilling, and will have a chilling affect on the free speech of lawyers. Judges are invested with responsibilities and powers and all too often those powers cloud their judgment. The ability of lawyers to freely comment on a Judge represents an important check on those powers. The ability of citizens to write about the issues of the day has a long and storied history in our country. James Madison anonymously published many of the federalist papers under the pseudonym Publius in the local newspapers of the time. Blogging, anonymous and otherwise, serves a similar purpose. 

The Florida Bar's letters to Mr. Gelin amount to both a fishing expedition and a veiled threat for him to stop criticizing Judges from the pages of his blog.  We jointly condemn the letters the Bar has written, and stand behind our colleague in this matter. That is why all three blogs have taken the unprecedented step of running this post simultaneously.We urge our readers to voice their support of Mr. Gelin by writing to the Bar to condemn the actions of the Bar Counsel in this case. 

Thank you. 

Justice Building Blog

South Florida Lawyers

Southern District of Florida Blog

Yale Galanter Takes the Stand!

Yale takes the hotseat in the OJ ineffective assistance proceedings out in NV:

Galanter, a veteran Florida criminal defense lawyer, is a key state’s witness in a hearing that, since Monday, has revolved around his promises, payments and performance in the 2008 trial that sent the 65-year-old former football hero to prison for nine to 33 years for armed robbery and kidnapping.

Galanter faces some uncomfortable questions about his trial preparation, the nearly $700,000 he was paid but allegedly didn’t share with the Las Vegas lawyer at his side and why he didn’t try to block prosecutors from playing for the jury secret recordings that amounted to a soundtrack of Simpson and his five pals confronting two sports collectibles brokers and a middleman in a cramped casino hotel room.

Key among Simpson’s 19 claims of ineffective assistance of counsel and conflict of interest being considered by District Court Judge Linda Marie Bell is the allegation that Galanter should have provided witness testimony supporting Simpson’s contention that he didn’t know he was breaking the law.

Simpson says the two even talked about it over dinner the night before the ill-fated confrontation in September 2007, and that Galanter told him that if Simpson recovered the suit he wore the day he was acquitted in Los Angeles, Galanter would like to have it.

Bell has made no indication whether she plans an immediate ruling or will issue a written decision later.

The most damaging testimony about Galanter’s performance came from three other lawyers involved in the case: Gabriel Grasso and Malcolm LaVergne, who represented Simpson, and Brent Bryson, who represented a Simpson co-defendant who also was convicted.
Each said Galanter seemed more interested in what he was paid and protecting himself from having to testify than in fully representing his client.

Yuck!

And you thought you were having a bad day.

Ha Ha You Can't Remove Me Because I Didn't Say Anything About Citizenship!

Oh darn!

Judge Marra is on to this:

The Court notes that Smyth does not address the issue of whether she is a Florida citizen; rather, Smyth merely rests on the proposition that Hillstone cannot demonstrate diversity at both the time the complaint was filed and the time the notice of removal was filed because she only alleged her residency in the complaint. If Smyth’s position was accepted, a plaintiff could frustrate a defendant’s ability to exercise its statutory right of removal simply by failing to allege citizenship, even though diversity of citizenship can be demonstrated by resort to evidence outside the four corners of the complaint.

This is why I always tell youngin' attorneys -- argue policy policy policy, the reasons often matter more than the law itself.

3d DCA Watch -- Throwback Wednesday?

I think the bunker got a little nostalgic today -- consider these moldy golden oldies unearthed by the RRO* this week:

Marder v. Moscoco:

This case is actually about a charging lien filed by Ruden McClosky!

What's next -- an application for fees by Fine Jacobson?

Miccosukee Tribe v. Lehtinen:

Here you have a two-fer:  the Tribe unsuccessfully seeking to remove Joe Klock as counsel for Dexter Lehtinen.

Query -- did Joe receive an "unfair informational advantage" by representing a poor innocent damaged yacht owner by repping the ex-Tribal attorney in other matters:

In the underlying cause, it cannot be said, and no such allegation has been made, that Klock has obtained an unfair advantage in his representation of respondent in his defense of petitioners’ claims. Whether or not Klock obtains an unfair informational advantage in his representation of clients against respondent in other, unrelated matters is pure speculation at this time. Certainly, if petitioners believe at some point in the future that Klock has indeed obtained such unfair informational advantage in those cases, petitioners are free to seek Klock’s disqualification in the courts in whose jurisdiction the cases lie.

In other words, time will tell (it always does).


*"Resplendently Robed Ones" -- get with the lingo already!

Judge Moreno Says Lawsuit Against Usher Can Proceed!

 Judge Moreno has denied a motion to dismiss on this interesting claim:

Davis now alleges that Khaled delivered a copy of "Let's Go'' to Jackson and Harr thus giving them access to "5-15-09.'' Moreover, Davis claims that the Court can infer Defendants' access to "5-15-09'' from the extensive play of "Let's Go'' on 99 Jamz as well as the song's popularity in Miami nightclubs.  From this access, Davis asserts that Defendants incorporated "5-15-09'' without authorization into their own derivative work. Specifically, Davis maintains that Defendants created a musical work entitled "Hey Daddy (Daddy's Home)'' that is based upon and strikingly similar to his original "5-15-09'' composition. Defendant Raymond then recorded his vocals over the alleged infringing work and included the song on his album "Raymond v. Raymond.'' The song was released in December 2009 and was sold as the first U.S. single for the album, peaking at number twenty four on the Billboard Hot 100 chart and number two on the Hot R& B/Hip-Hop Songs chart.

On July 13, 2012, Davis brought this action against Defendants for copyright infringement of his original "5-15-09'' composition.  As the sole author of "5-15-09,'' Davis claims that Defendants' unauthorized use of the composition violated his rights as the copyright owner.

Local counsel for Usher is GrayRob's Karen Stetson (he also has big-city NY counsel too).