Thursday, January 23, 2020

Michael Avenatti should not be in solitary confinement

That's the title of my latest piece in The Hill.  Please let me know your thoughts.  From the introduction:

Imagine being held by yourself in a small, freezing cold cell 24 hours a day. Not allowed to go outside. Not allowed to make a phone call. Not allowed to go to the bathroom without being watched. Not allowed to shave. Not allowed to visit with a family member. Shivering and alone, day after day.
This is bad enough for a hardened convicted criminal who cannot safely be housed with others. But imagine being held in these conditions when you have not been convicted of any crime. And when the only crime of which you have been accused is a non-violent financial crime.
This is no crazy, off-the-wall hypothetical. It is a strategy too often used against accused first-time non-violent offenders in an attempt to crush them and coerce them into pleading guilty.
This is what is happening right now to Michael Avenatti.
And it is wrong.

Wednesday, January 22, 2020


It's finally winter!

And it's impeachment talk all the time.

But while everyone is talking impeachment, there are two big trials starting up in New York.

The first is Harvey Weinstein, where he won a motion to be able to show the jury in opening the "dozens and dozens" of loving emails from his accusers:
"What we will counter with are their own words, where they describe loving relations, sensual encounters with Mr. Weinstein," defense attorney Damon Cheronis said during oral arguments Tuesday. "Mr. Weinstein is described as someone they care about both before and after the alleged sexual assault."

"Another complaining witness who claims Harvey Weinstein sexually assaulted her sent him an email wanting to introduce him to her mother," Cheronis argued at another point, though he never specified to whom among the six he was referring.
Of course he should be able to do so, and it's weird that it was even a question. 

For the other big NY trial, we move to federal court where Scott Srebnick and Jose Quinon are representing Michael Avenatti.  The big fight right now is trying to get Avenatti out of the SHU, where it is impossible to prepare for trial.  Here's Scott's letter and the Warden's response. It's absurd to keep a first-time accused white collar defendant in solitary conditions like El Chapo.  Let's hope this doesn't break Avenatti into pleading as the government is trying to do.

Tuesday, January 21, 2020

Slow blogging

Sorry for the slow blogging over the long weekend. I’ll be back at it tomorrow (Wednesday). See you then.

Thursday, January 16, 2020

Should we have a "Defender General?"

Daniel Epps and William Ortman make the pitch for a Defender General in this forthcoming piece:
The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.
I haven't thought through all the pros and cons of a DG, but if we are going to have one, I nominate Michael Caruso.

Wednesday, January 15, 2020

News & Notes

1.  Fane Lozman, of Supreme Court fame, has settled his case against Riviera Beach to the tune of $875,000.  Good for him!

2.  Michael Munday's case was affirmed by the 11th Circuit.  No issues with playing clips from Cocaine Cowboys at trial.

3.  Should Apple be forced to open an iPhone from accused defendants?  The NY Times covers this recurring debate here.

4. Michael Avenatti was supposed to start trial next week in New York (with Miami criminal defense lawyers), but he was arrested last night in connection with his California case.  The feds allege that he was violating his bond conditions. 

5.  Mike Flynn wants to withdraw his guilty plea.  I've never understood judges who deny these motions.  (There are some judges in this District who always grant them, which seems like the right move.)  If he wants a trial, let him have his trial!