Huge and well-deserved victory for our own David O. Markus as Judge Gold drops a bomb on Alex Acosta's office:

The judge reprimanded the two trial prosecutors, saying that along with Drug Enforcement Administration agent Christopher Wells, they “acted vexatiously and in bad faith” in prosecuting Dr. Ali Shaygan. Also reprimanded was assistant U.S. Attorney Karen Gilbert, the narcotics section chief.

Gold called the secret taping of phone calls to Shaygan’s attorney and defense investigator by two informants was “profoundly disturbing.” He raised the specter of the recent dismissal of a conviction against former U.S. Sen. Ted Stevens, R-Alaska, because prosecutors in that case withheld key evidence.

The $601,795 covers court fees and lawyer costs dating from a superseding indictment filed by prosecutors in September.

“The order speaks for itself. We regret that any of this ever happened in the first place but we are grateful that Judge Gold took it seriously and did the right thing,” said Miami criminal defense attorney David O. Markus, the lead counsel for Shaygan. “Thank goodness that the conduct did not distract the jury from finding Dr. Shaygan not guilty of all 141 counts against him.

Miami attorneys Marc Seitles and Robin Kaplan served as co-counsels for the defense.

You can read the order here.

Alex has other not-so-great coverage in the DBR here.

I previously covered Alex's alleged supervision of rogue Christian Bradley Schlozman and his unsolicited intervention in the Ohio election process.

His defense on that -- that I was just informing those poor black voters about their legal rights -- is particularly lame.

I like Alex. He doesn't strike me as aggressively ideological, and his office is filled with many talented attorneys who take their charge as public servants seriously. And of course he is not solely responsible for this Judge Gold order.

But as I say about Frankie boy and 9th Circuit torture judge Jay Bybee, this stuff kinda matters.

It's easy to have integrity and to be highly ethical when you are not particularly pressed by a superior or government to do something possibly dubious or questionable. That's 98 percent of your life.

It's what you do in the other 2 percent that matters.

And that doesn't mean people don't make mistakes sometimes and can't ever do the right thing again. They do and can.

But if you are in denial mode about the original questionable action it is hard to move past it and for others to have confidence in your judgment in the future.

John Pacenti breaks down the opposition to Acosta's appointment, based on his inadequate supervision of Bradley Scholzman, and his intervention in Ohio election law right before the 2004 election.

I previously reviewed the Scholzman matter here.

Regardless of your views on this, you gotta love being a member of the press and going to Marva Wiley, President of the Gwen S. Cherry Black Women Lawyers Association, for comment. She never disappoints:

Acosta sent the letter without prompting four days before the 2004 election to a federal judge in Ohio who was deciding whether to allow Republicans to challenge the registrations of about 23,000 mostly African-American voters. Acosta argued it would “undermine” the enforcement of state and federal election laws if citizens could not challenge voters’ credentials.

Acosta later said the letter was intended to make clear that anyone whose eligibility was questioned had a right to file a provisional ballot.

“He got into that unsolicited. Nobody asked him,” Wiley said. “He felt it important enough to involve the authority of the government on what many would consider a fundamental issue of equity.”

Wait a minute -- the point of the letter was to ensure that these minority Ohio voters could cast a provisional ballot? Oy.

You can read excerpts of Acosta's letter here:

Al Gerhardstein, the lawyer representing two civil rights activists who want the poll watchers banned, said Saturday that the Bush administration may have breached legal rules by contacting the judge by letter.

"It is totally unusual, it is unprecedented for the Justice Department to offer its opinions on the merits of a case like that," Gerhardstein said. "This is the civil rights division saying it is OK for voters to be ambushed when they reach for a ballot. That's how the letter reads to me."

The Justice Department's letter was faxed to Dlott in Cincinnati on Friday and made public Saturday. She could not be reached for comment Saturday.

Copies were sent to Gerhardstein and Ohio Attorney General Jim Petro, whose office is defending the state law that allows poll watchers.

While expressing the civil rights division's views, the letter did not ask the judge to let the Bush administration formally intervene in the case.

Instead, Assistant Attorney General R. Alexander Acosta wrote to the judge to advise her that "nothing in the Voting Rights Act facially condemns challenge statutes."

The Justice Department said poll watchers can aid election officials in eliminating fraud by spotting and weeding out people who should not have their ballots counted.

"Restricting the ability of citizens to make challenges when they have such information would undermine the ability of election officials to enforce their own state laws that govern the eligibility for voting," the letter said.

The government's civil rights lawyers also assured Dlott that no Ohioans will be blocked from casting a ballot Tuesday, even if they are challenged when they show up to vote.

The Justice Department said all voters will be eligible to receive a provisional ballot "even if they are unable to answer specific questions posed by election judges."

Provisional ballots, unlike regular ballots, are set aside and tallied later. However, the votes are counted only if the voter is determined to have met Ohio's requirements for residency in the precinct, for age and U.S. citizenship.

You know, we all did things during the war we're maybe not so proud of. Those were weird times. Hey, some folks did much worse.

Why look backwards?

This is Miami, after all.

Hi, did you know that in just four months Iqbal has already produced more than 1500 district court and 100 appellate decisions?

Hmm, if Iqbal were a type of bread, what type would it be?

Ok, let me translate it into something even you ham-and-schleppers can understand -- Iqbal is like the Lindsay Lohan of Supreme Court opinions -- a once promising young talent who has descended into a desperate drug-induced haze of oddball wildchild Scalia-like excess.

But some grey-hairs apparently think there's something.....stupid (and/or boundless) about the new pleading "standard":

"I have spent my whole life with the federal rules, and this is one of the biggest deals I have ever seen," said New York University School of Law professor Arthur Miller, a longtime expert on civil procedure. "Me, old fogy troglodyte that I am, I see serious problems with democratic values here, with access to the courts, with resolution of disputes with a jury of peers."

Brooklyn Law School professor Eliza­beth Schneider, who has written extensively on federal civil procedure, said Iqbal is forcing trial judges to go "line by line" through pleadings, using subjective factors to decide what parts are factual and which statements are conclusory. "If that's not an open door to judicial bias, I don't know what is," she said.

Michael Carvin, a partner in the Wash­ington office of Jones Day and a frequent litigator on behalf of companies, countered that Iqbal has been "very beneficial" in "slowing the major abuse of litigation against corporations." He said, "You can't just throw mud against the wall. You have to have some theory of the case." Under the previous rule, companies contend, plaintiffs would state frivolous claims in hopes that companies would settle rather than face expensive discovery.

The main target for those seeking to roll back Iqbal is Congress. Sen. Arlen Specter, D-Pa., introduced a bill in July that would return pleading standards to the pre- Twombly status. A similar House bill may be introduced this week. To turn an esoteric issue like pleading standards into a popular cause, the groups that met last week may seek out individual litigants who can testify about how the Iqbal standard affected their lawsuits. "Though the issue may seem dry, we've already seen that Americans are being kept out of the courtroom as a result of Iqbal … so passage of this legislation is critically important," said Nan Aron of the Alliance for Justice.

REVISING THE RULES

Another strategy under debate is to seek changes in the Federal Rules of Civil Procedure regarding pleadings (Rule 8) and dismissals (Rule 12). Some critics say the Supreme Court, by deciding Iqbal as it did, in effect amended the rules without going through the rulemaking process. Rule 8, for example, calls for a "short and plain statement" of the plaintiff's claim in initial pleadings. At the Second Circuit's judicial conference this summer, Justice Ruth Bader Ginsburg, who dissented in Iqbal , said that in her view the court had "messed up the federal rules."

But altering the federal rules is a lengthy process, noted University of Penn­syl­vania Law School professor Stephen Burbank, a strong critic of Iqbal . He also cautioned, "The process is under the control of the Supreme Court, which is responsible for these atrocities." Chief Justice John Roberts Jr., who was in the 5-4 majority in Iqbal, appoints members of Judicial Conference committees.

U.S. District Judge Mark Kravitz of Connecticut, who chairs the influential Judicial Conference Advisory Committee on Civil Rules, said his committee is monitoring the impact of Iqbal and Twombly with an eye toward gathering data and discussing later this year whether rule changes are needed. "We ought to be deliberate about it," Kravitz said in his first comments to the press about the Iqbal issue. So far, he told The National Law Journal , a Recorder affiliate, his sense is that judges are "taking a fairly nuanced view of Iqbal " and that it is not yet "a blockbuster that gets rid of any case that is filed."

Indeed, not all judges are rubber-stamping Iqbal motions. During a hearing Aug. 10 in an employment discrimination case, Senior Judge Milton Shadur of the U.S. District Court for the Northern District of Illinois told defense lawyers that Iqbal and Twombly "don't operate as a kind of universal 'get out of jail free' card."

In unrelated news, congrats to 80% of FIU's Law School that passed the Florida Bar and whom new Dean Alex Acosta forgot to mention in his email last night:

From: "R. Alexander Acosta"
Date: Mon, 21 Sep 2009 19:10:15 -0400
Subject: [Students] Bar Results

Dear Students:

I write to inform you of this year’s bar results.

FIU has traditionally scored far higher than the statewide average. Last summer, for example, we ranked 2^nd in the State.

This year, we exceeded the state average only slightly, with 72 of 89 students passing the Bar.

To have ranked as we did last summer, we needed 77 of 89 students to pass.

While this difference is small, it matters. I expect us to return to topping the statewide pass rates in the future.

R. Alexander Acosta

Dean

Florida International University

College of Law

Office: 305-348-1777

Fax: 305-348-1159

Alex also forgot that in February FIU was first in the state.

You can see all the results here.