Tuesday, September 22, 2020

More on Barbara Lagoa

 This time, a deep dive, by the New York Times. It starts this way:

As a young associate in a prestigious Miami law firm, Barbara Lagoa took on an unusual pro bono case, one without a supervising partner and against a formidable adversary: the Clinton administration.

Ms. Lagoa represented a relative of a 5-year-old boy found off the Florida coast after his mother had drowned trying to cross over from Cuba. His name was Elián González.

Federal agents would eventually seize Elián and return him to his father in Cuba, setting off political shock waves that arguably cost former Vice President Al Gore the 2000 presidential election when he lost Florida.

“After six months, countless briefs, a few all-nighters, two oral arguments and one midnight raid by armed commandos, we learned what it was like to lose,” Eliot Pedrosa, another lawyer on the team, said at a ceremony last year when Judge Lagoa joined the Florida Supreme Court. The experience of “watching armed federal agents use force to pre-empt process,” he said, was “seared into her soul.”

That formative episode helped shape Judge Lagoa’s career as a federal prosecutor and appellate judge and thrust her into South Florida’s political culture, dominated by Cuban-American Republicans.

It is an electoral dynamic that remains powerful two decades later and has helped Judge Lagoa, who now sits on the United States Court of Appeals for the 11th Circuit, emerge as an attractive choice for President Trump as he considers whom he will name to replace Justice Ruth Bader Ginsburg on the Supreme Court.

Trump says he may be meeting with her this week in Miami.  The article ends this way:

For the people trying to promote her nomination in South Florida, though, Judge Lagoa’s life story as the daughter of immigrants matters just as much as her record.

Her friends mention her modest upbringing in the blue-collar city of Hialeah. She rode her bike and roller skated around the neighborhood. Her parents saved up to send her to Catholic school. It was a big deal when she went away to New York for law school.

“In the country my parents fled, the whim of a single individual could mean the difference between food or hunger, liberty or prison, life or death,” Judge Lagoa said last year, when she was nominated to the Florida Supreme Court. “Unlike the country my parents fled, we are a nation of laws — not of men.”

Sunday, September 20, 2020

Barbara Lagoa is at the top of Trump’s short list for RBG’s Supreme Court seat

Judge Lagoa, 52, is a Miamian, who currently sits on the 11th Circuit. She previously sat on the Florida Supreme Court and 3rd DCA. And before becoming a judge, she was an AUSA in the SDFLA. She's married to Paul Huck Jr. (son of District Judge Paul Huck Sr.) and they have three daughters. Here's a picture of Gov. DeSantis announcing her to the Florida Supreme Court with her and her family in the background:
We've never had a Floridian on the Supreme Court, which is something I've been pushing for since the start of this blog back in July 2005

More on the politics of this choice from Politico: Lagoa is on a list of names that Trump released earlier this month as possible replacements. But unlike Barrett, people close to the process say Lagoa has demographic and geographic advantages in her favor when it comes to the politics of Senate confirmation and the presidential election: Lagoa hails from Trump’s must-win state of Florida and she’s Cuban American. “Justice Lagoa is perfect,” said one source, who has discussed the matter with White House officials but was not authorized to speak on record. “The president wants a conservative jurist and he wants to win the biggest battleground. How do Democrats in the Senate vote against a Latina?” A second Republican who has close ties to Florida said that “Lagoa is at the top of the list. She checks a lot of boxes.” But some conservative groups could object based on what they see as Lagoa’s insufficient record on abortion, the ultimate litmus test on the right. One prominent GOP senator, Josh Hawley of Missouri, has already said he would only vote for a nominee who has affirmed that Roe v. Wade was “wrongly decided.”

Friday, September 18, 2020

RIP Ruth Bader Ginsburg

Everyone will be talking about whether Trump has enough time and the votes to get someone confirmed in the next couple of months.  But before we turn to politics, let's take a moment and remember the incredible woman, an inspiration to so many.  What a truly amazing person.  RIP.

From NPR:

Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas.

The court, in a statement, said Ginsburg died at her home in Washington surrounded by family. She was 87.

"Our nation has lost a justice of historic stature," Chief Justice John Roberts said. "We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tired and resolute champion of justice."

Architect of the legal fight for women's rights in the 1970s, Ginsburg subsequently served 27 years on the nation's highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed."


UPDATE -- Chief Judge Moore just issued this new order concerning COVID-19, which seems to suggest that judges are not permitted to hold in person plea or sentencing hearings.  Yet there are rumors that the U.S. Attorney's Office will be convening a grand jury in November to start indicting cases that have been backlogged.




Let’s go Heat!

Have a great weekend. 

 Here are two great articles about the Heat's incredible run:

    1)    This one is about Udonis.

    2)    This one is about what it took to put together this team.

Wednesday, September 16, 2020

Must read opinion out of the SDNY regarding prosecutorial misconduct

 From Politico:

A federal judge has ordered all federal prosecutors in the Southern District of New York to read a ruling she issued Wednesday that blasts prosecutors for their handling of evidence in a criminal case involving alleged violations of sanctions against Iran.
U.S. District Court Judge Allison Nathan also said she was unsatisfied with the completeness of the government’s account of why prosecutors failed to turn over one key piece of evidence to the defense until the middle of trial, with one government attorney discussing with colleagues a plan to “ bury” the previously undisclosed letter among other documents being emailed to defense lawyers. “No responsible Government lawyer should strategize how to ‘bury’ a document that was not, but should have been, previously disclosed to the defense. A responsible Government lawyer should—at a minimum—forthrightly and truthfully reveal late disclosures to the defense,” Nathan wrote, emphatically disagreeing with the conclusion from U.S. Attorney’s Office leaders that there was nothing to “condemn” in the prosecutors’ actions.

“This Court disagrees and hereby strongly condemns this conduct,” Nathan wrote in her 34-page opinion. Nathan called some of the omissions by prosecutors “shocking.” And she expressed the greatest concern over the explanation prosecutors gave her after the defense for Iranian banker Ali Sadr questioned the late disclosure of the letter prosecutors discussed burying.

“The Court finds that the Government’s representation was misleading, as it implied that it had explicitly informed the defense that [the exhibit] was being disclosed for the first time. Indeed, the Court was misled,” the judge wrote. A jury convicted Sadr in March of five felony counts related to the alleged sanctions violations. However, in June, prosecutors abruptly sought to abandon the case due to the evidence issues that emerged.

You can read the whole opinion here.  Good for Judge Nathan.  Makes me remember how great Judge Gold was as a judge here in this District.  Here's how the opinion starts:

Federal prosecutors have constitutional and statutory duties to disclose many types of evidence to defendants. This principle of disclosure is central to our criminal-justice system. “A prosecutor that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant . . . That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.” Brady v. Maryland, 373 U.S. 83, 87–88 (1963). And federal prosecutors, like all parties that appear before the Court, have ethical duties of candor. United States v. Universita, 298 F.2d 365, 367 (2d Cir. 1962) (“The prosecution has a special duty not to mislead; the government should, of course, never make affirmative statements contrary to what it knows to be the truth.”). In the near decade the Undersigned has sat on the bench in the Southern District of New York, the vast majority of Assistant United States Attorneys before the Court have embraced their disclosure obligations, worked diligently to meet them, and forthrightly admitted when they did not. 

But not all. In this case, federal prosecutors have by their own admission repeatedly violated their disclosure obligations and, at best, toed the line with respect to their duty of candor. Over the course of years in this prosecution—before, during, and after trial—the Government has made countless belated disclosures of arguably (and, in one instance, admittedly) exculpatory evidence. For some pieces of evidence, the Government provides plausible explanations for its late disclosure. For others, it provides no explanation at all. And when the Court pressed for more information about one of these failures, the Government made a misrepresentation to the Court. This serious dereliction requires a serious response. 

And the conclusion:

Almost a century ago, the Supreme Court defined the singular role federal prosecutors play in our system of justice:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . . . He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935).

The Government in this case has failed to live up to these ideals. The Court has recounted these breaches of trust, proposed some systemic solutions, urged referral to the Office of Professional Responsibility for admitted prosecutorial failures apparent in the existing record, and ordered further fact-finding. The cost of such Government misconduct is high. With each misstep, the public faith in the criminal-justice system further erodes. With each document wrongfully withheld, an innocent person faces the chance of wrongful conviction. And with each unforced Government error, the likelihood grows that a reviewing court will be forced to reverse a conviction or even dismiss an indictment, resulting in wasted resources, delayed justice, and individuals guilty of crimes potentially going unpunished. The Court thus issues this Opinion with hopes that in future prosecutions, the United States Attorney for the Southern District of New York will use only “legitimate means to bring about a just” result. Id. Nothing less is expected of the revered Office of the United States Attorney for the Southern District of New York. That Office has a well- and hard-earned reputation for outstanding lawyers, fierce independence, and the highest of ethical standards. The daily work of the prosecutors in that Office is critically important to the safety of our community and the rule of law. Those who stand up in court every day on behalf of that Office get the benefit of that reputation—but they also have the responsibility to maintain it. The Court hereby ORDERS that the Acting United States Attorney ensure that all current AUSAs and SAUSAs read this Opinion. Within one week of the date of this Opinion, the Acting United States Attorney shall file a declaration affirming that this has occurred. The Court FURTHER ORDERS that each of the trial team AUSAs, supervising Unit Chiefs, and the SAUSA submit the declarations described in Section III no later than October 16, 2020. By October 30, 2020, the executive leadership for the USAO may submit a brief as to why no further proceeding for additional fact-finding or credibility determinations is necessary. Counsel for Mr. Sadr may, if they wish, submit a responsive filing by November 13, 2020, and the Government a reply by November 20, 2020.  

The only thing that can be said for the SDNY is that they eventually did the right thing and dismissed the case.  There have a bunch of cases in this District and others where serious misconduct has been uncovered, but admissions of wrongdoing and dismissals were not forthcoming. Sadly in those cases, the government has dug its heels in.  If prosecutors won't dismiss where misconduct is uncovered, then judges should.

If you are looking for some free CLE credits regarding e-discovery....

I'm told that there is a criminal component involving the seizure of a cell phone pursuant to a search warrant, the government’s lengthy efforts to unlock the seized phone, self-incrimination issues re: an i-Phone password, and a Rule 41 return of property issue.

The Palm Beach County Chapter of the Federal Bar Association

proudly presents:

Towards A New E-Discovery Paradigm

A Zoom Webinar featuring:




Presentation to be preceded by the swearing-in of the Palm Beach Chapter Officers

for the 2020-2021 year by:




September 18, 2020, AT NOON


This event is FREE for all attendees.

0.5 CLE credit requested

 RSVP by September 17, 2020 at noon to Traci Willard (twillard@mrachek-law.com

 The Zoom Meeting ID and Password will be sent by 3 p.m. on September 17th. If you do not receive the invitation by 5 p.m., please send an email to both twillard@mrachek-law.com and adrumm@carltonfields.com

Tuesday, September 15, 2020

Did the Dems win the fight against DeSantis regarding the Florida Supreme Court?

 Well, the challenge was successful and Renatha Francis is out.  The Governor appointed Jamie Grosshans, 41, in her place.  Grosshams was appointed to the county bench when she was 38.  Of the choices DeSantis had from the JNC list, many said that Grosshans was the most right wing and her reputation is certainly more conservative than Francis.  Does anyone have any experience before her either in county, circuit, or the 5th?

Meantime, DeSantis said that Francis should now be considered for a federal seat in the Southern District of Florida.  Currently David Leibowitz is still up for Judge Moreno's seat, but there has been no movement there in a while.  Leibowitz is a great guy; smart and personable.  It will be interesting to see how this plays out.  If Biden is elected in November, will there be enough time for Trump to fill Moreno's seat?  

Monday, September 14, 2020

Phase 2 in Miami-Dade

Things are starting to reopen.  We even had sports this weekend.  School may reopen before October 5.  And the rumors are flying around that Chief Judge Moore may update his order on grand juries to allow them to reopen before the Jan 2021 date.  But before we get too optimistic and happy, check out these horrific numbers from the prison system, via the Marshall Project:


The first known COVID-19 death of a prisoner was in Georgia when Anthony Cheek died on March 26. Cheek, who was 49 years old, had been held in Lee State Prison near Albany, a hotspot for the disease.  Since then, at least 1,016 other prisoners have died of coronavirus-related causes.  By Sept. 8, the total number of deaths had risen by 5 percent in a week.

There have been at least 1,017 deaths from coronavirus reported among prisoners.

Florida is second only to Texas in number of prisoner deaths.  And the death rate in prison is 130% higher than in general in Florida.  This doesn't account for the number of deaths by staff members, which is also extremely high in Florida (75 as of now).  Extremely sad.

Friday, September 11, 2020

Florida Supreme Court says Gov. DeSantis must appoint new Justice by Monday (UPDATED)

 Read the unanimous opinion here.

UPDATE -- while DeSantis lost this battle, he won a big one in the en banc 11th Circuit.  William Pryor writes the majority opinion backing DeSantis' position that felons cannot vote until they have paid all court costs, fees, etc.  Judges Jordan, Martin, and Jill Pryor all write dissents.  Judge Jordan's ends this way:

Our predecessor, the former Fifth Circuit, has been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s. See generally Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality 259–77 (1981). I doubt that today’s decision—which blesses Florida’s neutering of Amendment 4—will be viewed as kindly by history.

Pryor responds like this:

I write separately to explain a difficult truth about the nature of the judicial role. Our dissenting colleagues predict that our decision will not be “viewed as kindly by history” as the voting-rights decisions of our heroic predecessors. Jordan Dissent at 189 (citing Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality (1981)). But the “heroism” that the Constitution demands of judges—modeled so well by our predecessors—is that of “devotion to the rule of law and basic morality.” Patrick E. Higginbotham, Conceptual Rigor: A Cabin for the Rhetoric of Heroism, 59 Tex. L. Rev. 1329, 1332 (1981) (reviewing Bass, Unlikely Heroes, supra). As a distinguished colleague presciently warned decades ago, there is a “genuine risk” that later judges will “easily misunderstand” this lesson. Id. Our duty is not to reach the outcomes we think will please whomever comes to sit on the court of human history. The Constitution instead tasks us with “administering the rule of law in courts of limited jurisdiction,” id. at 1343, which means that we must respect the political decisions made by the people of Florida and their officials within the bounds of our Supreme Law, regardless of whether we agree with those decisions. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.

Wednesday, September 09, 2020

Barbara Lagoa makes Trump’s short list for SCOTUS

 You can watch Trump’s press conference here where he lists all of the candidates here, including our very own Barbara Lagoa. The other Florida short-lister is Carlos Muniz on the Florida Supreme Court. 

Update to Florida Supreme Court Justice controversy by Kyle S. Roberts

 Here's a further update to Kyle S. Robert's post on the Florida Supreme Court:

On September 8, 2020, the Florida Supreme Court denied Thompson’s motion for rehearing, but granted her motion for leave to amend the Emergency Petition for Writ of Quo Warranto and Writ of Mandamus.

 The Court ordered the Governor to show cause why he should not be required immediately to fill the vacancy in office of justice of the supreme court by appointing a candidate who was on the JNC's certified list of January 23, 2020, and is now constitutionally eligible for appointment. The Governor shall respond by Wednesday, September 9, 2020.


Monday, September 07, 2020

Curtis Flowers won't be retried

 It would have been his 7th -- SEVENTH! -- trial.  The AP covers the decision here:

A Mississippi man freed last year after 22 years in prison will not be tried a seventh time in a quadruple murder case, a judge ruled Friday after prosecutors told him they no longer had any credible witnesses.

Curtis Flowers was convicted multiple times in a bloody slaying and robbery at a small-town furniture store in 1996. The U.S. Supreme Court threw out the most recent conviction in June 2019, citing racial bias in jury selection.

“Today, I am finally free from the injustice that left me locked in a box for nearly twenty three years,” Flowers said in a statement released by his lawyer. “I’ve been asked if I ever thought this day would come. I have been blessed with a family that never gave up on me and with them by my side, I knew it would.”

Montgomery County Circuit Judge Joseph Loper signed the order Friday after the state attorney general’s office, which had taken over the case, admitted the evidence was too weak to proceed with another trial.

“As the evidence stands today, there is no key prosecution witness ... who is alive and available and has not had multiple, conflicting statements in the record,” Assistant Attorney General Mary Helen Wall wrote in a filing presented to Loper on Friday.

 Vangela Wade, one of Flowers' current lawyers, wrote an op-ed in the Washington Post.  It starts this way:

Nearly 23 years. More than 8,000 days. That’s how long Curtis Flowers — a Black man who was tried an astonishing six times for the same crime — was locked away in a cramped jail cell with little ability to see his family. Until Friday, when Mississippi’s attorney general decided to drop the charges, Flowers was waiting to find out whether he would be subjected to yet another trial.

My organization, the Mississippi Center for Justice, has been defending Flowers since summer 2019, working with the team of lawyers that has represented him for many years. We are thrilled that he will finally go free. The accusations against Flowers were never grounded in facts, but rather fueled by improper conduct by Montgomery County District Attorney Doug Evans — the prosecutor in each of Flowers’s six trials.

Unfortunately, the Flowers case offers just a tiny snapshot of prosecutorial misconduct. Such misconduct — which can include introducing false evidence, using dubious informants, withholding evidence that could exonerate the defendant or discriminating in jury selection — puts countless innocent people behind bars. As a former prosecutor — notably, the only Black staff member in the office — I witnessed firsthand the disproportionate number of African Americans entangled within the criminal justice system.

Prosecutors wield enormous control over the criminal justice system. They determine which charges to pursue — if any — and make recommendations on bail, pretrial incarceration and sentencing, which are often accepted by judges. In each of these instances, prosecutors have the potential to abuse civil rights — with few, if any, consequences.

One analysis by the Innocence Project of 660 cases in which courts confirmed prosecutorial misconduct revealed that the prosecutor was ultimately disciplined in only one. Another report of 707 cases of prosecutorial misconduct in California found that just six prosecutors were disciplined.

Thursday, September 03, 2020

Michael Sherwin is a good example of a U.S. Attorney with principles

 Check out this Washington Post article here. Sherwin is being criticized by both the left and the right.  But he's just trying to do the right thing by not bringing charges where there is no evidence.  Good for Sherwin!

Federal prosecutors on Tuesday accused D.C. police of using insufficient evidence to arrest demonstrators accused of rioting, putting the U.S. attorney’s office and local authorities at odds over how to deal with days of unrest in the District.

The written rebuke came one day after D.C. Mayor Muriel E. Bowser (D) publicly criticized the U.S. attorney’s office for not pursuing most of the criminal ­charges filed by police against nearly 70 people arrested during protests since mid-August. She also sent a letter to prosecutors detailing her complaints.

Noting the mass arrests three weeks ago of 42 people who police said were in a group that spray-painted buildings and set fire to patio umbrellas in Northwest Washington’s Adams Morgan area, acting U.S. attorney Michael Sherwin told Bowser in his own letter that he had no choice but to drop charges against all but one defendant.

“The ‘42 rioters’ were arrested as a collective by MPD and presented to the Office without any articulable facts linking criminal conduct to each individual arrested,” Sherwin wrote in his letter. “Simply put, we cannot charge crimes on the basis of mere presence or guilt by association.”

In his letter, Sherwin says he met with police leaders to request help “to further develop these cases to establish a bare minimum of probable cause. To date, no sufficient evidence has materialized.”


“As I am sure you are aware, without some evidence to establish probable cause of a particular arrestee’s criminal conduct — e.g., a police officer’s observation or video footage of the alleged crime — we cannot bring federal ­charges,” Sherwin wrote. “Surely, by your comments, you are not suggesting that this Office skirt constitutional protections and due process.”


Tuesday, September 01, 2020

I’m no fan of Steve Bannon.

 But the way DOJ is treating him and his co-defendants in the press isn’t right.  I call it chutzpah in this piece in the Hill:

Chutzpah is defined as “shameless audacity.” In his book of the same name, Alan Dershowitz said the concept is more easily demonstrated than defined. He gave the classic illustration of the kid who murders his parents and then pleads for mercy on the ground that he is an orphan. The Department of Justice’s recent actions with respect to Brian Kolfage (Steve Bannon’s co-defendant) — issuing press releases with inflammatory quotes about the allegations and the arrest while at the same time filing a motion with the court saying that the defense should not be able to respond in the press — is another good example of chutzpah. So too is DOJ's handling of the press in the Ghislaine Maxwell case — holding a lengthy press conference with pictures and charts and opposing the defense’s motion to curtail the prosecution’s media blitz.
On Aug. 20, the DOJ arrested Kolfage, Bannon and other alleged co-conspirators for fraud in connection with an online fundraising campaign for “We Build the Wall.” Regardless of what you think of Steve Bannon, President Trump, or “the wall” — and as a liberal Democrat, I have pretty strong views — all defendants are presumed innocent and should be treated fairly.

Please read the whole thing and let me know your thoughts.  Try to imagine a defendant that you don’t hate in Bannon’s or Maxwell’s place.