On the Record

On Saturday, I spent a rejuvenating morning serving as a judge for the semi-final round of a moot-court competition hosted by American University’s Washington College of Law.

My service to the Burton D. Wechsler First Amendment Moot Court Competition stirred me in three ways:

1. It made me feel 20 years younger, when I nervously stood as a law student waiting to be grilled by “judges” at the same school;

2. It enabled me to step out of the role of spectator (I have reported on oral arguments for two decades) and participate in the enterprise; and

3. As a husband — and father of a teen and a tween — it was refreshing to have people listen to me and answer my questions.

It also didn’t hurt that the fact pattern and issue were right up my alley.

The head of research and development at a major high-tech company was suing for libel a blogger who had accused him online of running a Mumbaian sweatshop where child laborers built computer components.

The issue before the moot court was whether the company executive qualified as a “public figure” or “private person” under the Supreme Court’s First Amendment jurisprudence, a critical distinction that largely determines who wins the case.

Public figures, to prove libel, have the heavy burden of showing that the reporter wrote an erroneous story either knowing it was false or with a reckless disregard for the truth.  Private individuals need only show that the journalist was negligent in reporting a story that was  untrue.

The three-judge panel on which I served — as “chief” no less — ruled for the reporter. Imagine that.

Talk about a cold case.

A U.S. District Court judge recently ruled that the federal government will have to prove a Philadelphia jewelry dealer stole rare, gold 1933 ”double eagle” coins from the U.S. Mint - 75 years ago, according to The New York Times.

Around 500,000 of these $20 coins were minted before President Roosevelt issued an executive order that made owning large amounts of gold coins illegal as he moved the country away from the gold standard. Two coins ended up in the Smithsonian, and most of the rest were melted down, according to the Times.

Other coins did survive, however, and the only one sold at public auction went for $7.6 million. So imagine Roy Langbord’s surprise, then, when in 2003 he discovered 10 double eagles in a long-forgotten family safe deposit box. The Mint authenticated the coins five years ago but said it would be keeping them because Langbord’s grandfather stole them. Langbord and his family claim his grandfather acquired the coins legitimately before the ban was enacted.

The government has until the end of the month to prove the coins were stolen or else they will have to return them to Langbord. Observers believe it will be nearly impossible for the government to prove its theft theory.

Or, if I may put words into their mouths, the government’s chances are significantly less than a coin flip.

A vote on U.S. District Judge Andre M. Davis’ nomination to the 4th Circuit could be scheduled as soon as next week, according to The Baltimore Sun’s Maryland Politics blog.

Since taking office, President Obama has made 17 Article III appointments to the federal judiciary. So far the full Senate has approved just one: Justice Sonia Sotomayor, who heard her first case on Wednesday.

Sorry, still no word on when DLLR Secretary Tom Perez might be able to follow his staff to the Justice Department.

Wednesday’s reindictment of Mayor Sheila A. Dixon is reinvigorating our interest in the fight between her lawyers and the state prosecutor over three grand jury subpoenas issued well after her first indictmen.

Even though the state prosecutor withdrew the post-indictment subpoenas shortly after her lawyers sought to quash them earlier this month, the presiding judge asked for more discussion of the issue.

And lawyers on both sides, none particularly shy, have obliged, poised to make pretrial hay of the controversy.

Last Monday, State Prosecutor Robert A. Rohrbaugh said the public filing of Dixon’s motion to quash — to prevent two current city employees and one former city employee from offering testimony and evidence to the grand jury — was “in direct contravention” of the Maryland rules and that it could “inappropriately influence the potential jury pool and prospective jurors.” He promised to say more in a private hearing.

Dixon’s lawyers called Rohrbaugh’s two-page response “paltry” and accused the state prosecutor of blaming Dixon for his mistake.

“By withdrawing the subpoenas, the State impliedly admits that it abused the grand jury process by issuing them in the first place,”their motion reads. “Yet, in what can only be described as the height of irony, the State Prosecutor complains that the defendant has wrongfully exposed his abuse of process by filing her motion on the public record.”

“The grand jury is not the prosecutor’s private discovery cell, and he should not be permitted to undermine the integrity of the Court’s processes to his own advantage, nor hide behind the veil of grand jury secrecy for that purpose.”

Rohrbaugh argues it’s a moot point, but Dixon’s defense team thinks there might be “other potential similar violations.”

In light of yesterday’s reindictments, is the subpoena question even more moot, or even more relevant?

– BRENDAN KEARNEY

The latest group to seek the government’s help in handling the economic downturn is the U.S. Bankruptcy Court.  Business, it seems, is too good there.

As reported by our sister blog, D.C. Dicta, the Judicial Conference of the United States is asking Congress to boost the number of bankruptcy judges in the country (currently 324) by 13, and convert 22 “temporary” judgeships, created by the bankruptcy reforms of 2005, to permanent status.

Three of those temporary judgeships are in Maryland and will expire in 2011, according to the Judicial Conference.

Somebody ought to tell the folks over at the Maryland Manual, which says the three most recent appointees are all good to go until 2020.

I chose not to go into D.C. today to stand on the Mall in freezing weather and strain to catch a glimpse of Barack Obama’s swearing-in. At 5′1″, I don’t have good experiences in crowded situations where stadium seating isn’t available.

Nevertheless, as I watch my second hour of live inauguration coverage on CNN this morning, I can’t help feeling wistful about not being one of the masses, energized by my peers, watching history unfold - even if it is unfolding on a Jumbotron.

And then I think about what would happen if I had to go to the bathroom.

I’m tuned in to Twitter, simultaneously getting updates from those who are on-site and those who aren’t.

One user - who chose to stay home - just wrote: “No queues this morning getting to television. Unobstructed sight lines, good sound. Temp: 67 degrees.”

Clearly he’s happy with his choice.

Another user (Zappos.com CEO Tony Hsieh, who most likely has a better seat than your average spectator) writes: “Amazing view at Inauguration, looking towards Washington monument seeing more people together in one place than ever seen before in my life.”

And even through all the hassles - on the Metro, with the portable bathrooms, and traffic - people on the Mall look nothing short of thrilled.

Are you regretting your decision to stay indoors? Or glad to avoid the mayhem?

JACKIE SAUTER, Web Editor 

Photo by Ron Edmonds/Associated Press

Michael Newdow has found a new target: President-elect Barack Obama’s upcoming presidential oath of office.

Newdow, along with 29 individuals and 11 atheist groups, has filed suit against Chief Justice John Roberts, the Presidential Inaugural Committee and others, claiming the phrase “so help me God” in the upcoming inaugural ceremony violates the Establishment, Free Exercise and Due Process clauses of the Constitution and the Religious Freedom Restoration Act.

In 2000, Newdow filed a lawsuit arguing the words “under God” in the Pledge of Allegiance constituted an endorsement of religion. While the 9th Circuit agreed, the Supreme Court ultimately overturned the decision on procedural grounds. Newdow later brought an unsuccessful lawsuit challenging the constitutionality of the prayer recited during George W. Bush’s inaugural ceremony in 2001.

What do you think?  Does the use of the phrase violate principles of separation of church and state or does it have “legitimate secular purposes of solemnizing public occasions?”
 
CHRISTINA DORAN, Assistant Legal Editor

A lot of Montgomery County residents have fallen victim to a speeding camera in our neighborhoods. Especially the one on Wootton Parkway in Rockville.

I know this because of the neverending traffic to Steve Lash’s blog post from May, where he announced that his minivan was caught doing 36 mph in a 25 mph school zone. (He, of course, was innocent).

As a Bethesda resident, the trap that lies in wait for me is on Connecticut Avenue in Chevy Chase. It hasn’t snapped me up yet, but it did get my colleague, Joe Bacchus, while he was visiting his father.

Here’s the bad news I’ve procrastinated — for those of you who live, work or visit MoCo: The Rockville PD is cracking down, and fast. Fourteen new speed camera traps have been set up, and warnings will be issued through Sunday. After that, it’s an automatic fine if you’re 11 mph or more over the speed limit.

Here are the new hotspots:

1. Glenora Lane
2. Hurley Avenue
3. Gerard Street
4. Dunster Road
5. Sunrise Drive
6. Cabin John Parkway
7. W. Edmonston Drive
8. Edmonston Drive
9. Grandin Avenue
10. Broadwood Drive
11. Ardennes Avenue
12. Fallsgrove Drive
13. Mannakee Street
14. Martins Lane

View Larger Map

Note: The points are plotted only on the street the camera is located on - not at the exact location of the camera. Be careful!

JACKIE SAUTER, Web Editor

Some Marylanders’ names have been tossed around as possibilities for posts in the Obama administration (i.e. former Rep. Wayne Gilchrest and Dr. Joshua M. Sharfstein, Baltimore’s health commissioner), although none have come to fruition yet.

That changed Thursday when President-elect Barack Obama named Baltimore native Gary Gensler as his pick to head up the Commodity Futures Trading Commission. The CFTC oversees $5 trillion in futures and options trading — oil and other commodities prices have been hot-button issues there this year. 

Gensler, 51, is locally known for advising former Democratic Sen. Paul Sarbanes and serving as the treasurer of the Maryland Democratic Party. He’s also a graduate of Pikesville High School, not to mention the Wharton School at the University of Pennsylvania.  

He also spent some time on the national stage during the Clinton administration as assistant secretary for financial markets to the Treasury.

Before turning to politics, Gensler made his money at Goldman Sachs, where he became a partner at the age of 30.

His book “The Great Mutual Fund Trap,” was highly critical of fees attached to mutual funds and the unmentioned incentives brokers get to sell them.

Check out this interview on PBS in 2003, when Gensler went head-to-head with his twin brother Rob, a fund manager at T. Rowe Price, to get a taste of Gensler’s expertise. 

DANIELLE ULMAN, Business Writer

From the WSJ Law Blog comes the news that President Bush has issued an executive order stating that, if the attorney general, deputy attorney general, associate attorney general and everyone the AG has designated to act as attorney general all die, resign, etc., Rod Rosenstein’s in charge.

The order lists three U.S. Attorneys who would assume the AG position in this, um, highly unlikely (unless Bush knows something we don’t) situation. In order of succession, they’re the U.S. Attorneys from Maryland, the southern district of Alabama and the northern district of Georgia.

The Law Blog writes, “With that winning smile we have no doubt that Rosenstein would make a fine stand-in.”

But the question is, why did Bush do this? The Law Blog put in a call to the White House but apparently hasn’t heard back yet. I got in touch with Rosenstein but he declined to comment.

Anyone have ideas?

CARYN TAMBER, Legal Affairs Writer