Abuse of discretion to deny continuance motion leads to reversal

In U.S. v. Schwarz, the 11th Circuit reversed a large white collar SDFLA case, where the defendant was not given sufficient time to prepare for trial.  The defendant was sentenced to 480 months in prison even though he was acquitted of half the counts and even though he only had a few months to prepare for trial.  The appellate court called out the trial court's "history of denying continuances in criminal cases":

There are seven cases from 2006 through 2017 in which the issue in this particular trial court was raised and argued on appeal, and, in all but one, there are substantive rulings by this Court. See Jeri, 869 F.3d at 1257–59; United States v. Ubieta, 630 F. App’x 964, 970–72 (11th Cir. 2015); United States v. Bates, 590 F. App’x 882, 890–91 (11th Cir. 2014); United States v. Anderson, 329 F. App’x 878, 882–84 (11th Cir. 2009); United States v. King, 306 F. App’x 501, 513–18 (11th Cir. 2009); Valladares, 544 F.3d at 1264–65; United States v. Perez, 473 F.3d 1147, 1150–51 (11th Cir. 2006). We by no means challenge the conclusions of prior panels. The rules of the Circuit are clear, and the bar is high for reversal when continuances are denied. None of the listed cases resulted in reversal, but three contained warnings to the trial court, and the most recent, United States v. Jeri, found error by the trial court, but insufficient evidence of prejudice to defendant under our precedent.

United States v. King was a 2009 complicated tax fraud case involving four years of personal and corporate tax returns of two corporations owned by defendant which had been investigated by the Internal Revenue Service for over three years and involved 80,000 documents in discovery. 306 F. App’x at 506. Trial was set to begin forty days after arraignment and fifty-three days after indictment. Discovery was turned over by the government during the 40 days. Id. at 504. This Court noted: “The difficulty in trial preparation was exacerbated by the fact that, little more than a month before trial, the government left 39 boxes containing 80,000 discovery documents at Xpedia, a copy center.” Id. at 515–16. The trial court denied several motions by defendant for a continuance, including an unopposed motion for at least a seven-month continuance. Id. at 506. The trial court eventually granted an eight-day continuance, after which the government added twenty-five exhibits and substituted ten more, one day before the new trial date. Id. at 515–16. On the day of trial, defendant renewed orally his motion for a continuance, to no avail. Id. at 515.
Implying error, this Court made the following observations for the benefit of the trial court:

[T]his is a complicated tax fraud case involving voluminous records. King’s requests for more time to prepare was reasonable. While we understand the need to move cases expeditiously, this case was not a simple one. A 30– or 60–day continuance . . . would not have unduly delayed the court’s docket under these facts.

Id. at 516. Nevertheless, “[t]he problem for King . . . is that he has not shown that the district court’s denials resulted in ‘specific, substantial prejudice’ to his defense.” Id. There was also overwhelming evidence of guilt. Id. at 518.
We issued another warning in our 2014 opinion in United States v. Bates, which dealt with a child pornography prosecution. See generally Bates, 590 F. App’x at 882. The denial of repeated requests for continuance was argued on appeal but not decided by the panel. Id. at 890. Nevertheless, this Court instructed on remand that “the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense.” Id. Noting a short period for the expert to complete a computer forensics examination, and a superseding indictment just two weeks before trial, this Court warned: “If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for . . . adequate time to prepare for trial.” Id. at 891.
As stated above, in United States v. Jeri, our Court found error on the part of this trial court in denying a motion for continuance when a television video of the fruits of a search in a drug case was located by the government on the day before trial, and turned over to defendant on the morning of trial.

The facts of this case suggest to us that the trial court would have been wiser to grant a continuance or at least a short recess. After all, the video was not made available to Jeri until the morning of trial and he did not get to watch the video until after the first day of the day-and-a-half-long trial, by which time five Government witnesses had already testified.

Jeri, 869 F.3d at 1258. Again, however, despite “this error,” defendant could not show specific, substantial prejudice, and there was no reversal. But our panel did not leave it there:

[I]t is worth reiterating “that a scheduled trial date should never become such an overarching end that it results in the erosion of the defendant’s right to a fair trial.” Id. at 1291 [citing United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976)]. The costs attendant to a continuance were low, but the potential risk to the defendant was real. While we are acutely aware of the district courts’ heavy caseloads and fully appreciate the important public interest in their expeditious resolution, it is often wise to counsel patience in finding the “delicate balance between the defendant’s right to adequate representation by counsel of his choice and the general interest in the prompt and efficient administration of justice.”

Id. at 1258–59 (full citation added).

We are troubled, after three warnings by prior panels and in view of the particular facts of this case, that this trial court has not heeded prior panel warnings, resulting in an abuse of discretion in this case. The risk of error is exacerbated by the setting of short trial dates. We have considered, but rejected this time, the sanction of reassignment of this case to another court. To avoid future sanctions, the trial court must be carefully mindful of the occasional needed continuance for a defendant and, in some cases, both sides, especially in a case as complicated as this one.
Because we conclude that the district court abused its discretion in denying Schwarz’s several motions for continuance and caused him to suffer substantial prejudice in presenting his defense, we VACATE appellant SCHWARZ’s convictions and REMAND for a new trial.

Wow! 

It's debate night

How about a debate night drinking game.  Take a drink every time the following term is mentioned.  

For Joe Biden:

• $750
• Starts a sentence with "look"
• Obama
  
• "Trump is going to take away health care" 
• "You're fired."
• anything in Spanish
• "Come on man" or "Here's the deal"
  
• RBG
  

Trump:

• Drug test
• Sleep Joe
• "mail in ballots" or "voter fraud"
  
• Closing the borders to China
• Joe will "defund the police"
• "Law and Order"
• "Fill the Seat"
• China
• Rigged
  

It's Amy Coney Barrett

 Many of us here in South Florida were rooting for Barbara Lagoa.  Even though she didn't ultimately get the nomination, what an honor and an experience to have made the 2 person short-list. 

In the meantime, the left will have to decide how they want to play the Barrett nomination especially since it's pretty clear that she will be quickly confirmed.  

Some liberal commentators are already coming to Barrett's defense.  Here's Noah Feldman, who wrote a piece titled: "Amy Coney Barrett Deserves to be on the Supreme Court."

Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term. And I’m revolted by the hypocrisy of Senate Majority Leader Mitch McConnell’s willingness to confirm Trump’s nominee after refusing to even allow a vote on Judge Merrick Garland.

Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.

I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.

When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.

Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.

Martinez had the special skill of connecting the tangle of complex strands to a sensible statutory purpose. She clerked for Justice Stephen Breyer, who also believes in pragmatically engaging the question of what a statute is actually trying to do in order to interpret it.

In a world where merit counts, Barrett and Martinez would both be recognized as worthy of serving on the Supreme Court. If a Democratic president with the support of a Democratic Senate asked me to recommend a current law professor for the bench, Martinez would be on my short list.

There is no question that Barrett will move the Court far to the right, which is pretty depressing.  But at least she is extremely smart, qualified, and a nice person as described by all who know her.  Barrett gave a really nice acceptance speech and said all of the right things:

Corrine Brown's case goes en banc before the 11th Circuit

 I previously blogged about the fascinating panel decision here.

In the Brown case, the district court excused a juror who said that he was deliberating based on what "[t]he Holy Spirit told [him]," which was that Brown was not guilty on all counts.  Judge Rosenbaum said it was appropriate to excuse the juror because the juror was not praying for guidance but was basing his decision on what was "told" to him by the Holy Spirit.  Visiting Judge Conway joined Judge Rosenbaum.

Judge William Pryor wrote a lengthy dissent, arguing that jurors should be able to rely on their religious beliefs.

Now the case goes en banc.  Here's what I said about the panel opinion at the time:

For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.

What about Amy Coney Barrett?

 The blog obviously has a local interest in the consideration of Barbara Lagoa as a SCOTUS short-lister.  But the other woman on the short list is Amy Coney Barrett, a judge on the 7th Circuit.  Here's what she said about replacing her former boss, Justice Scalia during an election year:

 

 

Trump #SCOTUS front-runner Amy Coney Barrett, when asked whether Obama should be able to appoint a Supreme Court justice in an election year, said it's inappropriate when it would “dramatically flip the balance of power." pic.twitter.com/loLMaLrsUm

— Mark Elliott (@markmobility) September 23, 2020

And here's a Reason article about her criminal justice record:

Appeals court judge Amy Coney Barrett, a leading contender to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, is a popular choice among conservatives. That fact does not, by itself, tell us much about Barrett's treatment of criminal defendants' constitutional and statutory claims.

When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes. Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases. Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas. By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture. While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.

It is clear from Barrett's record that she does not reflexively side with the government in criminal cases. In a 2019 opinion, for example, she concluded that Drug Enforcement Administration agents violated the Fourth Amendment when they searched a suspect's apartment based on the consent of a woman who answered the door but did not live there.

"Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence?" Barrett asked. "We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property."

In another Fourth Amendment case, decided in 2018, Barrett concluded that an anonymous tip did not provide reasonable suspicion for police to stop a car in which they found a man with a felony record who illegally possessed a gun. "The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable," she wrote for a unanimous three-judge panel. "The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful."

In a 2018 case, by contrast, Barrett joined the two other judges on a 7th Circuit panel in rejecting the Fourth Amendment claims of three men who had been convicted of viewing and possessing child pornography after they were identified as users of the dark website Playpen. The FBI, which ran Playpen for about two weeks in 2015 as part of its investigation, identified people who visited the site via tracing software it installed under a warrant issued by a federal magistrate judge in Virginia. The defendants argued that the warrant was invalid because it purportedly covered searches outside the magistrate judge's district.

Writing for the unanimous panel, Barrett said "we need not decide…whether the searches violated the Fourth Amendment." Even if they did, she said, "the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies." Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that.

 

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.”

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.”

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."

pic.twitter.com/dKaprfvfN7

— David Oscar Markus (@domarkus) September 19, 2020

🔥🔥🔥 (UPDATED WITH NEW ADMINISTRATIVE ORDER CONCERNING COVID-19)

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.

 ORIGINAL POST:

2-0

10-1

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.

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:

THE HONORABLE WILLIAM MATTHEWMAN

U.S. MAGISTRATE JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

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

for the 2020-2021 year by:

THE HONORABLE KENNETH MARRA

SENIOR U.S. DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

September 18, 2020, AT NOON

FROM YOUR COMPUTER – BY ZOOM

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 17^th. 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

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?  

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:

Deaths

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.

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.

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.

 

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.

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.”

 

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.