U.S. District Court Judge Jack Weinstein ruled this week that juries should be told before they deliberate if a defendant is facing a mandatory minimum sentence. The 236 page opinion is available here (pdf). [Hat tip to Sentencing Law and Policy].

As a result of his ruling, a child p*rn defendant caught a break. That alone has been enough to make the media take notice. But defense lawyers face this every day with drug defendants. [More...]

Richard Crawford, a founder and past national president of the American Society of Trial Consultants (not a lawyers' group) lists his top ten myths about jury trials.

I haven't yet read them all, but No. 7 leapt out at me. " 7. A trial is about discovering the truth."

I agree that's a big myth but I would give a different explanation. Mr. Crawford says trials are about justice, not truth. One can hope truth (or justice) will be reflected in the outcome, but a criminal trial is only about a testing of the evidence and whether the prosecution can prove its case beyond a reasonable doubt.

Semantics, maybe, but it's an interesting list on the whole.

My good pal Mickey Sherman has a new book out this week, How Can You Defend Those People?

Mickey is not only a great lawyer, he's a very funny guy. The book is eminently readable and entertaining, while at the same time, it offers us glimpses into the criminal justice system from the defense lawyer's point of view.

ABC is excerpting some chapters. My favorite (because I'm in it) is Chapter 4, " Are There Cases or Clients You Won't Take?"

Mickey interviewed some of the best lawyers in the country for the chapter (and me, because we're friends.)

While a few named crimes that they thought were particularly heinous, others (and I'm in this category) listed crimes that we thought we'd bring personal baggage to that might preclude us from providing our best representation which we know the client is entitled to and which we would want to provide.

Here's our answers:

By Big Tent Democrat

Via Turkana, Dana Milbank reports:

Chief Justice John Roberts was pained. Exxon Mobil, the giant oil corporation appearing before the Supreme Court yesterday, had earned a profit of nearly $40 billion in 2006, the largest ever reported by a U.S. company -- but that's not what bothered Roberts. What bothered the chief justice was that Exxon was being ordered to pay $2.5 billion -- roughly three weeks' worth of profits -- for destroying a long swath of the Alaska coastline in the largest oil spill in American history.

"So what can a corporation do to protect itself against punitive-damages awards such as this?" Roberts asked in court. The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. "Well," he said, "it can hire fit and competent people." The rare sound of laughter rippled through the august chamber. The chief justice did not look amused.

The strange thing about this is this is precisely the rationale for punitive damages. The Chief Justice's concern is a curious one for a judicial minimalist. I'll explain why on the flip.

The Office of Professional Responsibility, which is the branch of the Justice Department that investigates alleged misconduct, announced today that it has opened an investigation into the circumstances surrounding the infamous August, 2002 "torture memorandum" that opined interrogation techniques such as waterboarding were not torture.

Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett wrote.

More...

Rupert Murdoch's News Corp announced it has settled the lawsuit filed by Judith Regan for $25 million. (Background here.)

Regan had also accused her former employers of asking her to lie to federal investigators about Bernard Kerik, the former New York City police commissioner who was once her lover, and had tried to smear her.

Regan said the smear campaign stems from her past intimate relationship with Kerik, who was police commissioner under former Mayor Rudolph Giuliani, and from the political agenda of News Corp.

Sounds like Rudy Giuliani will breathe a little easier tonight.

Maybe I'm just fixated on Las Vegas today as I wait for the caucus results, but this CLE (continuing legal education) program for public defenders and private defense counsel sounds great -- and, it's only $90 for the weekend. Check it out here. There's even a poker tournament:

2008 WORLD DEFENDER POKER CHAMPIONSHIP (LIMITED TO 50 ENTRANTS)
Sunday afternoon, 2 pm to 5 pm??: After the MCLE program, we will be holding the 2008 World Defender Poker Championship. Sara Cooper, a public defender from Arizona won the 2005 title, and Public Defender David Daniel from Media Pennsylvania won the 2006 event. Entry fee will be $50 per person, (pay in advance with your Retreat Registration).

More...

In another outrageous attempt at grabbing power that does not belong to it, the Bush Administration is now seeking to control which military lawyers get promotions:

The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted.

In a nutshell,

Under the current system, boards of military officers pick who will join the JAG corps and who will be promoted, while the general counsels' role is limited to reviewing whether the boards followed correct procedures. The proposed rule would impose a new requirement of "coordination" with the general counsels of the services and the Pentagon during the JAG appointment and promotion process.

It's our unitary executive at work again. [More...]

Only two copies of the Magna Carta exist outside Great Britain. One is in Australia and one is in New York. Southby's is auctioning off the New York copy.

In the year 1215, a group of English barons handed King John a document written on parchment. Put your royal seal on this, they said. John did, and forever changed the relationship between the monarchy and those it governed. The document was the Magna Carta, a declaration of human rights that would set some of the guiding principles for democracy as it is known today.

While that original edict was initially ignored and John died the next year, its key ideas were included in other variations over the next few decades, most notably the right of Habeas Corpus, which protects citizens against unlawful imprisonment. More than 800 years later, about 17 copies survive, and one of those, signed by King Edward I in 1297, will go up for sale Dec. 18 at Sotheby's.

Lindsay at Majikthise would really like the New York copy, which is expected to rake in $20 to $30 million. That probably won't happen, but we can all settle for reading it here.

Former Attorney General John Ashcroft's consulting firm is set to make $52 million in fees as a result of being picked by New Jersey U.S. Attorney Christopher Christie to monitor a civil settlement regarding alleged wrongdoing with hip and knee replacement firms. They were investigated for allegedly paying surgeons to use their products.

Former U.S. Attorney General John Ashcroft was one of five private attorneys whom Christie hand-picked to monitor the implant makers. Now Ashcroft's D.C.-based firm is poised to collect more than $52 million in 18 months, among the biggest payouts reported for a federal monitor.

Disclosed in SEC filings, the arrangement calls for Zimmer Holdings of Indiana to pay Ashcroft Group Consulting Services an average monthly fee between $1.5 million and $2.9 million. The figure includes a flat payment of $750,000 to the firm's "senior leadership group," individual legal and consulting services billed at up to $895 an hour, and as much as $250,000 a month for expenses including private airfare, lodging and meals.

Mark Corallo, still doing press relations for Ashcroft defends the fee.

More...

A provision of the UCC, as a point of illustration, not necessarily an expression of the governing law in this case (this is not a contract for goods):

Unless otherwise unambiguously indicated by the language of the offer or the circumstances: An offer to make a contract invites acceptance in any manner and by any medium reasonable under the circumstances. . . . a definite and seasonable expression of acceptance may . . . create a binding obligation . . .

It has been reported that T. Boone Pickens made this offer:

Texas oilman T. Boone Pickens' offer of $1 million to anyone who can disprove even a single charge of the Swift Boat Veterans for Truth.

Presuming Pickens did make such an offer to "anyone," his response to John Kerry's acceptance of Pickens' offer seems at material variance to Pickens' original offer. You see, Pickens now is demanding:

Pickens wrote Friday in a letter faxed to Kerry, "I am certainly open to your challenge," but he said he would not pay Kerry unless the senator first provided him with copies of his wartime journals, as well as movies he shot while on patrol and his complete military records for 1971 to 1978.

Obviously only John Kerry could provide such documents. But Pickens' offer was to "anyone." I believe that Pickens has now made John Kerry a second offer for $1 million.

It would be interesting if Kerry also accepted Pickens' second offer. One would expect that Pickens will welch on that one too of course. But it would be fun to watch him squirm.

An inflammatory title you say? Well, I would like to know whether Schumer and Feinstein believe it is ok to have an AG who does not know that waterboarding is torture? Cuz Mukasey, who they support for AG, does not know that.

I never want to hear Schumer pontificate about anything again. Indeed, with this move, it seems to me that he really has disqualified himself as an observer to listen to on the judiciary committee. Spare us your phony outrage in the future Senator. Your act is over.