How odd! The Second Circuit has held that the destruction of trial exhibits, absent a showing of specific prejudice to an appellant's ability to perfect an appeal, does not warrant a new trial. That is not odd. The Second Circuit is in agreement with most other circuits on this point. What is odd that the two circuits that hold differently are the Fifth and the Eleventh Circuits, two fairly conservative circuits. Well, if the Fourth Circuit had joined them, I would have believed that the Messiah has come. To read the Second Circuit's opinion in United States v. Weisser, click here.

Supreme Court nominees. Everyone's talking about who's going to replace Chief Justice Rehnquist (or other aging justices). (It's not as bad as last year when the media decided that there Rehnquist and O'Connor were both quitting and neither did. Serves the media right!) In the past I had thought that a number of Second Circuit judges would be excellent choices. My top had been Senior Judge Jon Newman, although he's now in his 70s. I know Amalya Kearse was Judge Newman's choice -- he did an op ed piece suggesting her appointment during the Bush I presidency -- and she certainly would have been a credible pick and a fine justice. I also like Judge Jose A. Cabranes, although not being from the Federalist school, I doubt he'd even be considered, let alone considered seriously. If a Democrat were in office Guido Calabresi might have been chosen, although because of intemperate remarks about President Bush, his appointment would be fought by the Republicans. But actually, the best pick I could provide to President Bush, if he were inclined to pick a New Yorker, would not be on the Second Circuit, but on the New York State Court of Appeals. Judge Robert Smith would not only be a credit to the High Court, but has the Conservative credentials (Republican, Federalist Society) that he could actually be considered. Here's hoping President Bush looks beyond the short list that has been reported in the media.

Voting Rights of Felons. The Second Circuit, sitting en banc, has heard a case involving the voting rights of prisoners and felons on parole. New York law provides that such individuals are not eligible to vote, but the statute has been challenged under the Voting Rights Act on the ground that that qualification results in the denial to vote because of race. An article on the argument in Muntaqim v. Coombe can be found here. (You may need a password to access it. Sorry.) I will report on further developments.

Unfair settlement. The Government, in the course of criminal proceeding, entered into a settlement agreement with members of the Rigas family. Under the agreement, the Rigases would forfeit certain assets and all victims of their crimes would be discharged. Certain victims protested, claiming that the settlement would foreclose them from getting full restitution in ongoing civil actions, which they claim to be entitled to under the Crime Victims' Rights Act of 2004 ("CVRA"). The Second Circuit noted that, under the Manditory Victim Restitution Act ("MVRA"), victims are not entitled to restitution if there are too many victims or if the factual issues are so complex that determining the cause or the amount of a victim's loss would unduly prolong the sentencing process. In this case, both exceptions to required restitution under the MVRA, were applicable. Also, in light of the complex issues of culpability of the individuals and because of the security ineterest affecting the Rigases assets, the victims could not meet their burden in showing that the Government or the district court had acted unreasonabley in entering into the Settlement Agreeement or approving it. The decision in In re W. R. Huff Asset Management Co. can be found here.

"Excessive" Appeal -- Off Topic. This has nothing to do with the Second Circuit, but the Pennsylvania Superior Court's decision in Jones v. Jones may be of interest to appellate practitioners. The appellant (the wife in a divorce case) has raised 29 issues on appeal and listed them in narrative form in a statement required by Pennsylvania rules. The Court found that such a statement waived the issues on appeal and that the appeal was frivolous. The case was remanded for a hearing on counsel fees. The decision can be found here.