Category Archives: Suggestion box

Why is the Third Circuit’s courthouse named for James Byrne?

Okay, my fellow Third Circuit enthusiasts, it’s quiz time.

Question: The courthouse where the Third Circuit sits is named the James A. Byrne United States Courthouse. So, who was James A. Byrne?

  1. the Third Circuit’s first African American judge
  2. an FDR-era U.S. Senator, Secretary of State, and Supreme Court Associate Justice
  3. the Third Circuit’s first Chief Judge
  4. the only Third Circuit judge (besides Samuel Alito) elevated to the Supreme Court

Answer: None of the above.

James Aloysius Byrne was a Congressman from Philadelphia from 1953 to 1973. Before that, he was a mortician. He lost in the 1972 Democratic primary to Bill Green, and he died in 1980. His Wikipedia page is here, his Congressional bio is here.

The wrong answers? #1 is William Hastie. #2 is James F. Byrnes. #3 is John Biggs Jr. #4 doesn’t exist — Alito is the only one.

So why was the Third Circuit’s courthouse named after Byrne? Beats me.

Byrne’s biographical pages just list the positions he held, they doesn’t list a single accomplishment. He’s buried in suburban Philly, and Allen Dulles once thanked him for writing a letter of recommendation for a woman who wanted to work for the CIA. Otherwise, he’s an internet cipher, undistinguished and forgotten.

As best I can tell, the reason why the courthouse is named after Byrne was this: Byrne’s two decades in Congress ended around the time the courthouse was being built. He left Congress in 1973, the building was completed in 1975.

Looking at the names of other circuits’ courthouses, I think it’s fair to say that none are named after a less distinguished figure than ours.

Four circuits’ courthouses are named after Supreme Court Justices: the Second (Thurgood Marshall), Fourth (Lewis Powell), Sixth (Potter Stewart), and Tenth (Byron White). Marshall and Stewart served on their circuit courts, while Powell and White both were strongly identified with their home states.

Four circuits’ courthouses are named after legendary circuit judges: the Fifth (John Minor Wisdom), Ninth (James Browning), Eleventh (Elbert Parr Tuttle), and DC (E. Barrett Prettyman).

The other three are, like the Third Circuit’s, named after members of Congress. The Seventh Circuit’s courthouse is named for Senator Everett Dirksen, a Senate minority leader credited with helping to write the Civil Rights Acts of 1964 and 1968. The Eighth Circuit building is named after longtime Senator and abortive Vice Presidential candidate Thomas Eagleton. The closest analog to the Third Circuit is the First Circuit’s courthouse named for Congressman Joe Moakley. Moakley was first elected by defeating a virulently anti-busing incumbent, and after a quarter-century in Congress rose to serve as chair of the powerful Rules Committee.

Are there any better options to name the Third Circuit’s courthouse after than Byrne? Gracious yes. Here’s my back-of-the-napkin list:

I’m probably forgetting other good options. My vote’s for Becker.

As luck would have it, there’s lots of precedent for Congress renaming federal courthouses.

At least four federal circuit courthouses were renamed, all four for judges. The Ninth Circuit’s courthouse was renamed for Browning in 2005, the Second Circuit’s was renamed for Marshall in 2001, the DC Circuit’s was renamed for Prettyman in 1997, and the Fifth Circuit’s was renamed for Wisdom in 1994.

There also is precedent for changing to a courthouse’s name from a politician’s to a judge’s. The federal courthouse in Charleston, SC, was renamed in 2015 for pioneering district judge and civil rights attorney Waties Waring. The building formerly was named for Senator Ernest Hollings.

And there are countless examples of federal courthouse renamings. A few recent ones:

  • Last year the federal courthouse in Shreveport, LA was renamed for a former federal district judge.
  • Also last year the federal courthouse in Greenville, NC, was renamed for a bankruptcy judge.
  • Also last year the federal courthouse in Gainesville, GA, was renamed for a federal district judge.
  • In 2013 the federal courthouse in Sherman, TX was renamed for a federal district judge.
  • And, of course, here in the Third Circuit the federal courthouse in Pittsburgh was renamed in 2015 for Third Circuit Judge Joseph Weis.

I haven’t heard discussed the idea of changing the name of the Third Circuit’s courthouse. But I think it’s worth considering.

Sorry, Mr. Byrne.

UPDATE: Reader Greg emailed me this interesting comment (there seems to be a glitch preventing comments from posting):

As best I can tell you’re right–it appears the courthouse was named after Byrne because of his congressional service and because he was retiring around that time. His upcoming retirement prompted lavish praise in the Congressional Record in 1972, see https://www.gpo.gov/fdsys/pkg/GPO-CRECB-1972-pt28/pdf/GPO-CRECB-1972-pt28-3-1.pdf#page=59. The bill naming the courthouse after him followed shortly after – https://www.gpo.gov/fdsys/pkg/STATUTE-86/pdf/STATUTE-86-Pg1019.pdf#page=7 – see Sec. 38.
 
A related fun tidbit: then-Senators Specter and Santorum introduced a bill in 2001 to name the courthouse’s lobby the “Edward R. Becker Lobby.” See https://www.congress.gov/bill/107th-congress/senate-bill/1790/actions. That bill was referred to the Senate Committee on Environment and Public Works, though I couldn’t find what happened to it after that–but google turns up numerous references to the lobby being named after Judge Becker.

 

 

 

The Third Circuit’s new online argument calendar is glorious

A couple years ago, I put together a post about some of the best features of other federal circuits’ websites. One thing I noted was how much easier to use other circuits’ online argument calendars were. The Third Circuit’s old online calendar told you only two things about each case:

  • the short caption, and
  • the case number

That meant if you wanted to find out if any upcoming oral arguments were of interest, you had to trudge, case by case, through Pacer to find out what the appeal was about and who the lawyers arguing it were. What a slog.

The upshot? As I said at the Judges and Journalists event in November, following the Third Circuit was like driving a car down the highway with the windshield painted over. You could look in the rearview mirror to see what just happened (opinions), but it was a lot harder to find out what was about to happen (oral arguments).

Hurrah! The Third Circuit recently updated its online argument calendar, and what an improvement. Now, for each argued case, the online calendar will tell you:

  • the case number
  • each party
  • each arguing attorney
  • brief statements of the appellate issue by each side

Knowing the issues and the lawyers makes all the difference in making it feasible for lawyers, journalists, and the public to follow the work of the court at the argument stage.

To get these details for each case, you click on the case list link on the main page, then click on the case list link on the next page, then, on the arguments page, click on the arrow on the far left next to the case number you’re interested in.

My modest suggestions for improving the online calendar even further:

  1. cut out the unnecessary intermediate page between the calendar and the arguments page; and
  2. instead of having a separate arguments page for each day, it would be easier if an entire week’s arguments were on one page.

I don’t know this, but my hunch is that new Chief Judge Smith had a hand in making this happen. I’m sure implementing this change and entering all the case date is a lot of work for the circuit staff.

I appreciate everyone’s work who made this happen, and I applaud the court for this important upgrade.

Third Circuit to start using eVoucher in CJA cases

The Third Circuit website today announced:

The Court of Appeals will be going live on eVoucher on June 6, 2016.  All CJA attorneys are directed to review the attached notice regarding the deadline for submission of outstanding vouchers and the implementation process.

The notice is here. Some notable points:

In order to avoid delays in payment, all CJA appointed attorneys with outstanding
vouchers in appeals that are final or with vouchers eligible for interim payment must be
received in the Clerk’s Office in paper format on or before Wednesday, May 18, 2016.

* * *

Once the Court transitions to eVoucher on June 6, 2016, the Court will no longer
be able to process any vouchers submitted in paper format. All paper vouchers submitted
after May 18, 2016 will be returned to counsel without processing. Counsel will then
have to wait to resubmit the voucher until the Clerk’s Office can create the appointment
in eVoucher. Vouchers cannot be submitted electronically until after the Court goes live
on June 6th.

* * *

Any questions regarding this transition to eVoucher should be directed to
evoucher_helpdesk@ca3.uscourts.gov or 215-299-4966.

The notice unfortunately doesn’t mention this, but I would think that the court’s inability to accept vouchers between May 18 and June 6 will mean that it will excuse compliance with its normal rule that CJA vouchers must be submitted within 45 days of the end of the case for cases where the deadline falls in the three-week no-submission period.

I just submitted my first eVoucher bill last month, in a non-Third Circuit case, and I’m still reserving judgment about the new system. But, improvement or not, it’s coming soon.

A Third Circuit bar member allegedly sent “sickening” messages from his government-email account; is that grounds for circuit discipline?

At 4:23 p.m. this past Friday afternoon, as the Labor Day holiday weekend began and few were paying attention to the news, Philadelphia District Attorney Seth Williams released a statement announcing that he would not fire the three lawyers in his office implicated in the Porngate scandal. Instead, the statement said, the 3 lawyers would undergo “sensitivity training.”

The most prominent of the three — and a member of the Third Circuit bar — is Frank Fina. Fina came to the DA’s office from the state Attorney General’s office, and it was while working in that office that he sent and received the emails. Here is how Fina was described in a well-reported Philadelphia Magazine article (link):

Fina was the star prosecutor under Tom Corbett — the guy who made the governor’s career, in fact, by taking on political corruption in Harrisburg and then sending Sandusky away for the rest of his life. Fina hates politicians in general and corrupt ones in particular; he put House Speakers John Perzel and Bill DeWeese, among others, in prison. Fina takes a special pride in how loathed he remains in the state capital, and his approach to skimming the top off Harrisburg’s political elite is infamous: Secretaries and other minions were often brought to tears by Fina or his investigators, who threatened them with jail if they didn’t rat on their bosses. Balls to the wall — that’s Fina’s style. And an atmosphere Fina and his fellow gunslingers called “fuck fuck” reigned in the office. It meant there were no holds barred on anybody who worked there — they could get busted or teased or ridiculed about anything.

Back to those emails. In the media coverage I’ve seen, some of the descriptions of been pretty bland, others more vivid, but nothing I’d read prepared me for what I saw when I actually looked at them online. Even in grainy black and white, it was disturbing. The Philadelphia Daily News called reviewing the Porngate emails “sickening.” (I strongly recommend against it, they are filled with graphic pornographic and offensive content, but, if you need to see them for yourself, the link is here.)

On a Thursday afternoon from his state account, Fina allegedly sent an email with the subject line  “FW: New Office Motivation Policy Posters,”:

fina3

One of the attached images — I’m not re-posting them here — graphically shows a young woman performing oral sex on a man next to a desk. The caption reads: “PERFORMANCE: Monthly performance evaluations are mandatory for all secretarial staff.” Another is a woman, nude from the waist down, kneeling on the floor and performing oral sex on a man seated at a desk. The caption reads: “DEVOTION: Making your boss happy is your only job.”

Fina allegedly sent this email to two subordinates, agents in the AG’s office. Governor Wolf recently fired one of them for receiving this message and others.

And it’s not just pornography. Here’s one of many photos attached to an email (subject line “RE: Need Motivation for the Weekend?”) that Fina allegedly sent to an outside attorney from his official email account during business hours:

fina4

If a high-level, high-profile city law-enforcement official did all that in his last government job, is the problem fixed by sending him to sensitivity training? The president of Philadelphia NOW doesn’t think so: “They get to keep their jobs and their salaries,” she said. “And we get to be demeaned.”

But this is a Third Circuit blog, so what’s it all got to do with the Third Circuit? Well, since 11/26/2001, Fina has been a member of the Third Circuit bar. He appeared for the AG’s office in several Third Circuit cases opened between 2000 and 2003: Fahlfeder v. Varner, 00-2227: Saranchak v. Horn, 00-9009; Gibbs v. Frank, 02-3924, Wenger v. Frank, 03-3014; and Eak v. Johnson, 03-4708. According to PACER, he has not appeared since.

So here’s the question: if Fina did what he’s accused of, did he violate the circuit’s disciplinary rules? Is he at risk of professional discipline by the Third Circuit? Let’s look at the rules.

First, Rule 2.1(b) authorizes circuit discipline  for “discipline, including disbarment or suspension, by another court.” Pennsylvania’s Rule of Ethical Conduct 8.4(e), in turn, provide that it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice.” Could what Fina did here qualify? Maybe. The fact that he was and is a high-profile senior law-enforcement official could weigh against him here.

Another potential basis for discipline is circuit disciplinary Rule 2.1(e), which says that a member may be disciplined for “any other conduct unbecoming a member of the bar of this Court.” Is what Fina allegedly did conduct unbecoming a member of the Third Circuit bar? Again, I don’t know.

But I wonder if the District Attorney’s refusal to more seriously punish Fina will lead the Third Circuit to take a closer look at that question.

 

UPDATE: The Legal Intelligencer just posted an article headlined, “Williams Could Face Fallout From Porngate Prosecutors,” which asserts that the D.A.’s decision not to fire the prosecutors “will likely come back to haunt Williams if he decides to run for statewide office.”

Transcript lost, defendant lost

Kareem Russell was tried and convicted of a crime in federal court and sentenced to prison for seven years. (Full disclosure: I think Russell was a co-defendant of a  Third Circuit client of mine in an unrelated case.) Then he wanted to appeal — but something went badly wrong with his trial transcript.

First, getting the transcript from the court reporter required “protracted attempts.” Then, when he got the transcript, it was a disaster: “a rough transcription replete with mistakes and omissions.” And court reporter wouldn’t turn over the audio recordings. The government “investigat[ed] the court reporter and r[a]n[] a forensic examination of her laptop.” In the end he got a transcript of the first and third days of the trial, but no transcript for day two, on which three prosecution witnesses testified.

What a disaster. I can’t imagine the frustration I’d feel if this happened to my client, or my father, or my son.

The whole reason transcripts exist is to provide a clear record of what happened at the trial. Without a transcript, it’s harder to tell if there was reversible error or not. So who pays that price?

The Third Circuit answered that question again (alas this is not the first lost-transcripts case) in an unpublished opinion last Friday in United States v. Russell, with the facts as stated above. Russell lost, because “to be successful with an argument that because a portion of the trial transcript is missing the case warrants reversal, a defendant must make a specific showing of prejudice.” (internal quotations and alterations omitted). And, without the transcript, the defendant was unable to make that “specific showing.” Naturally.

That is a correct application of binding circuit precedent, but it is disturbing still.

Disturbing too is the idea that this same court reporter (she is unnamed in the opinion, unhelpfully) may have transcribed other cases. If, in one case, a reporter produces a transcript filled with gaps and mistakes and partial audio can be recovered only after a forensic scan of her laptop, how could you be confident about any transcripts this reporter produced in other cases around that time? Has the court done a review? Have the litigants and counsel in those cases been notified?

Ugh.

Are Third Circuit judges reading briefs on tablets?

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In other circuits, judges have made it known that they read briefs on tablets or iPads. For example, a majority of Fifth Circuit judges reportedly read briefs on iPads. Second Circuit Judge Wesley has explained that he does, too.

It is helpful for judges that lawyers know whether they are reading briefs using tablets, as the Columbia Business Law Review has explained:

The words themselves—that is, the content—may well be the same, but the style should differ. Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print.

* * *

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.

Also see this Lawyerist.com post, “5 Tips for Writing Briefs for Tablets.”

So, are Third Circuit judges reading briefs on tablets instead of on paper? I’d love to know. I recently tried to find out from the Circuit Executive’s office. I was told that not all judges read briefs on paper, but beyond that they could not say.

I’ll be looking for chances to find out more. In the meantime, if anyone has insight about it, please post in comments or contact me directly.

What can the Third Circuit’s website learn from other circuits’ sites?

I love the Third Circuit’s court website, and I use it every day. The Third Circuit isn’t just the subject of my blog, it’s the heart of my practice, and the website is essential for keeping up to date.

Every other federal circuit has a website, too–1 2 4 5 6 7 8 9 10 11 DC–and their sites offer some intriguing ideas for ways that the CA3 website could get even better. Other circuits–especially the Fourth and Ninth–make it easier to follow the court and to find appellate advocacy models. Here’s a quick look.

Opinions

CA3 posts all its opinions, and they provide the case name, case number, and the court below. If you already know what case you’re looking for, that’s all you need. But other circuits make it easier for lawyers to find just-issued cases that matter to them without having to download and read each one. Here are the 3 best:

  • CA4’s opinions page doesn’t just give the case name, it also gives a category (criminal, civil private, immigration, civil rights, habeas, 2255, etc), opinion author, and disposition;
  • CA8’s lists the panel and gives a short abstract; and
  • CA9’s lists the category and author and gives a useful search tool.

Also somewhat handy is the search box that both CA10 and CADC provide so you can text-search opinions (meaning you can find all circuit opinions that contain the word “Chemerinsky,” for example, right from the opinion page).

These circuits’ pages make it easier for lawyers to stay current on circuit caselaw, and that benefits everyone.

Argument audio

CA3 gives access to oral-argument audio, which is great and not all circuits do. But all the CA3 site tells you is the case name, number, and argument date. Again, that’s fine if you already know the exact case you want, but if you don’t then you have to go hunting on PACER.

Other circuits make browsing argument audio easier. CA4 and CADC both tell you who was on the panel and who argued. CA5 lists arguing counsel; CA8 lets you search by counsel. CA9 lists the panel. CA7 gives the case type (criminal, civil, prisoner, etc). All useful features.

The Ninth Circuit wins the technology prize: it offers argument video. It is split-screen, so you see both the panel and the lawyer, and video quality is quite good. Imagine how helpful it is for lawyers to be able to see their own arguments looking for areas to improve. And I’d love to be able to watch and learn from top CA3 advocates like Peter Goldberger or a dozen others without ever leaving my office.

Calendars

The same basic observation I’ve made about opinions and argument audio applies to argument calendars, too. CA3’s calendar gives you the case name and case number. Other circuits make it easier to find cases of interest. Once again, CA4‘s and CA9‘s are the best: besides the case name and number, you get the case type, a direct link to the case on PACER, and a short description of the issues.

Links and resources

CA3 has many helpful links and resources, including forms, good brief & appendix cheat-sheets, CJA do’s and don’t’s, and a link to the circuit bar associate and its practice guide.

Three circuit cites go even further with helpful resources:

  • CA4 – an appellate procedure guide, handy page-specific links to appellate rules;
  • CA7 – typography guides, sample briefs, redaction guides, and a criminal appeal handbook; and
  • CA9 — especially informative guides to practice, appellate jurisdiction, and standards of review, plus substantive circuit-law guides for immigration, social security, and 1983 cases.

The Third Circuit’s website is a tremendous resource for lawyers, and hopefully in the years ahead it will only get better.

 

The budgets are coming, the budgets are coming!

Paul_revere_ride

The Midnight Ride (Wikimedia Commons public domain)

CA3 is advertising to hire a circuit case-budgeting attorney. (So are CA4, CA7 & CA8, and CA10. Update: CA1, too.)

CA3’s job listing says the case budgeting attorney will

work with Third Circuit committees, district court judges, magistrate judges, and Criminal Justice Act (CJA) panel attorneys to develop budgets and review budgets of criminal mega-cases and death penalty cases. Specifically, in conjunction with counsel and the assigned judge, the Circuit Case Budgeting Attorney will assist in preparation of budgets that address attorney and paralegal time, experts, investigation, and other case costs.

My two cents: case budgets sound sensible, but in practice they are a disaster. Most federal judges have no earthly idea how many hours are needed to provide competent representation in a capital case, and that’s likely to be doubly true in circuits like ours where CHUs do most of it. I’ve experienced capital case budgets in other circuits, and it was unpleasant indeed. For many indigent capital and multi-defendant litigants, case-budgeting will mean deep funding cuts. And over time this will further dry up the already shallow pool of competent CA3 lawyers doing this work.

After the British invaded, Washington’s army suffered a hard winter at Valley Forge: “Some men had no shoes, no pants, no blankets. Weeks passed when there was no meat and men were reduced to boiling their shoes and eating them. The wintry winds penetrated the tattered tents that were at first the only shelter.”

The budgets are coming — boiled shoes and tattered tents for CJA defense are coming too.

Why make attorneys justify doing online legal research?

Horse_and_buggy_1910

Attorneys appointed to represent indigent defendants are paid for their time and reimbursed for their case expenses. Among the most common case expenses are fees for doing online legal research using Westlaw or Lexis. But, to get reimbursed for that expense, lawyers are required by the Third Circuit (here, p. 9) to prepare a separate document with a “brief statement indicating the issue or issues that were the subject matter of the research” and an “estimate of the number of hours of attorney time that would have been needed to perform manual research.”

Manual research?

I have no idea how many hours it would take to do manual research, because every appellate lawyer on earth stopped relying on “manual research” over a decade ago. Court: I love you, but requiring lawyers to hop through this hoop for every bill they submit is silly. Would any judge hire a clerk who refused to use Westlaw or Lexis? It’s 2014 — the only lawyers who ought to be explaining are the ones who did a federal appeal without online research.

Why not also make us justify taking the train to court, when we could have come by horse and buggy?