Thursday, October 22, 2020

News & Notes

1.    Another debate tonight.  This time with a mute button.  Fun times.

2.     Obama goes after Trump.

3.    ACB takes next step to confirmation.

4.    Wear a mask, even Chris Christie says so.

5.    Jury trials are off till April, but we're making grand juries come in starting in mid-November. Instead of 11 GJs, there will be 2.  And they will meet two days a week.  

 6.    Transitions is holding its annual fundraiser today, virtually.  They are a good group who needs your help.


Wednesday, October 21, 2020

Attorney Aaron Honaker arrested for bank robbery

Another Miami story.

Here's the Herald:

A Coral Gables attorney was called a “serial bank robber” by the FBI, which believes he robbed five banks since Sept. 30 before his Tuesday night arrest.

The agency said Miami resident Aaron Honaker, 41, was headed into a bank when Coral Gables police arrested him. Honaker’s first appearance in Miami federal court is set for Wednesday afternoon.


Honaker’s Florida Bar entry says he’s with the firm of Martinez Morales and has no Bar discipline cases in the last 10 years. Court documents say he previously worked at Greenberg Traurig. He joined the Bar in 2008, two years after graduating from Duke University School of Law.

Court packing

 There's been a lot of debate about packing the Supreme Court.  Most Americans are against it, and according to a recent poll, 51% of Americans want ACB confirmed. That said, here's an interesting essay from Charles Fried about why Biden should do it if SCOTUS goes too far.  It ends this way:

But before going forth on any enlargement plan, a Biden administration would do well to see if the Supreme Court might not heed the lesson of history. Consider the well-known episode indelibly judged as President Franklin Roosevelt’s “failed” court packing plan. Mr. Roosevelt waited to propose his “Judicial Procedures Reform” legislation until 1937, after his first four years in office during which the reactionary Supreme Court majority relentlessly obstructed desperately needed experiments to combat the Great Depression.

President Roosevelt’s move is viewed as a rare failure by a master politician. But was it? Immediately after his proposal was unveiled, the court ruled 5 to 4 that the Wagner Act, restructuring American labor law and relations, was constitutional, and a spate of pro-New Deal decisions followed. The very threat of court packing and the passage of time made this “nuclear option” unnecessary.

Let’s see whether the current Supreme Court majority overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.

In local news, if you are looking for Chief Judge Moore's Order postponing jury trials until April 2021, here ya go.

Monday, October 19, 2020

Who is left on SCOTUS from Bush v. Gore?

Billy Corben's and Alfred Spellman's new documentary 537 Votes has me thinking Bush v. Gore...

Only Justices Thomas and Breyer remain on the Court from that time.  But two current Justices (Roberts and Kavanaugh) and one soon to be Justice (Barrett) all worked for the Bush team.  From CNN on ACB:

Barrett wrote on the questionnaire she submitted to the Senate for her Supreme Court confirmation review, "One significant case on which I provided research and briefing assistance was Bush v. Gore." She said the law firm where she was working at the time represented Bush and that she had gone down to Florida "for about a week at the outset of the litigation" when the dispute was in the Florida courts. She said she had not continued on the case after she returned to Washington.

During her hearings this week, she told senators she could not recall specifics of her involvement.

"I did work on Bush v. Gore," she said on Wednesday. "I did work on behalf of the Republican side. To be totally honest, I can't remember exactly what piece of the case it was. There were a number of challenges."

Friday, October 16, 2020

SDFLA trials suspended until April 2021

 But grand juries are coming back in November instead of January as originally planned. That’s the word out of the judges’ meeting today but no official order yet. 

Thursday, October 15, 2020

District Judge in L.A. dismisses case with prejudice for speedy trial violation

 Oh wow, this Order is worth a read.

I consider the trial by jury as the only anchor, ever yet imagined by man, by which a
government can be held to the principles of its constitution.
–Thomas Jefferson1
The United States Constitution protects our fundamental freedoms and liberties. One of the most important rights guaranteed by the Constitution is the Sixth Amendment right of the accused to a public and speedy trial. It protects against undue and oppressive incarceration prior to trial and it allows the accused the ability to defend himself against the criminal charges before evidence becomes lost or destroyed and witnesses’ memories fade. But the Sixth Amendment protects much more than just the rights of the accused. It also protects the rights of all of us. It gives each of us called for jury service a voice in our justice system. And it holds the government  accountable to the principles of the Constitution. Thomas Jefferson and the other Framers of the Constitution wisely recognized that without jury trials, power is abused and liberty gives way to tyranny. Given the constitutional importance of a jury trial to our democracy, a court cannot deny an accused his right to a jury trial unless conducting one would be impossible. This is true whether the United States is suffering through a national disaster, a terrorist attack, civil unrest, or the coronavirus pandemic that the country and the world are currently facing. Nowhere in the Constitution is there an exception for times of emergency or crisis. There are no ifs or buts about it. Sadly, the United States District Court for the Central District of California has denied Defendant Jeffery Olsen his Sixth Amendment right to a public and speedy trial on the criminal charges that were filed against him in this case. Specifically, the Chief Judge for the Central District refused to summon the jurors necessary to conduct Mr. Olsen’s trial that was scheduled for October 13th of this year, believing it was too unsafe to conduct the trial during the coronavirus pandemic even if significant safety precautions were in place. Most troubling, the Chief Judge refused to summon jurors for Mr. Olsen’s trial even though grand juries have been convening for months in the same federal courthouse in Orange County where his trial would take place and state courts just across the street from that federal courthouse are conducting criminal jury trials. Clearly, conducting a jury trial during this coronavirus pandemic is possible. Yet the Central District prevented the Court from even trying to do so for Mr. Olsen. Because the Central District denied Mr. Olsen a public and speedy trial under the Sixth Amendment, this Court now must dismiss the indictment against him.
 The L.A. Times covers it here:

A federal judge in Santa Ana on Wednesday dismissed an indictment against a Newport Beach physician accused in a drug distribution case, ruling that his constitutional rights to a jury trial were denied due to an order barring trials in the federal courthouse in the Central District of California during the COVID-19 pandemic. U.S. District Judge Cormac Carney dismissed the indictment against Jeffrey Dove Olsen with prejudice, so prosecutors could not just file another case against him or seek another indictment from a grand jury. Prosecutors could appeal the ruling with the U.S. 9th Circuit Court of Appeals. Olsen was indicted in July 2017 on 35 counts that alleged he prescribed and distributed “large amounts of oxycodone, amphetamine salts, alprazolam and hydrocodone to confidential sources, an undercover agent and numerous addicts without a legitimate medical purpose over the course of three years,” according to federal prosecutors who said two of the doctor’s patients died from overdoses of pain medication.

The issue came to a head this week when Olsen refused to waive any more time for his trial, but U.S. District Judge Philip S. Gutierrez, the chief judge of the Central District, refused to budge on the prohibition of jury trials at this time.

“Quite frankly, the court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse,” Carney wrote in his ruling as he noted various other federal agencies have offices that are open and that first responders still report to work, as well as employees in essential businesses.

“Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining,” Carney added. “Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors and pet groomers in Orange County are open, even indoors, with protective modifications.”


Tuesday, October 13, 2020

Judge like a champion today

Apparently, Judge Amy Coney Barrett was given a sign for her chambers from judge Don Willett that says, Judge Like A Champion Today (which is a play on the sign that Notre Dame players hit on the way onto the football field).  There's another judge that has that same sign -- Judge Like A Champion Today -- in his chambers and has had it since his law clerks got it for him in 1998: Judge Moreno.


Friday, October 09, 2020

SDFLA Grand Juries to return sooner than planned

 Chief Judge Moore previously ordered the suspension of grand juries until January 4.  But there has been an effort to get a grand jury up and running before then, and now multiple sources have confirmed that the goal is to have one by mid-November.  We have schools, restaurants, and even open stadiums, so it's no wonder that we will have grand juries soon enough.  Let's see if they actually show up!

Tuesday, October 06, 2020

Rakontur's new doc coming out soon.

 And it's going to be a doozy.  It's called 537 Votes and is about the 2000 presidential recount in Florida or what Billy Corben and Alfred Spellman call a heist.  It's premiering on HBO Max on October 21.

Here's the trailer:


Here's a more detailed description from rakontur's website:

In early 2000, the international custody battle over a six-year-old Cuban boy, Elian Gonzalez, triggered a political earthquake in the swing state of Florida, ultimately swaying the outcome of the presidential election. With Miami’s largely conservative Cuban American population outraged at the Clinton administration’s handling of the repatriation of Gonzalez, many called for “el voto castigo:” the punishment vote, to harm Vice President Al Gore’s chances at the ballot box. Miami-Dade County mayor, Democrat Alex Penelas, dubbed People magazine’s “Sexiest Politician,” is surprisingly absent from Gore’s side as election fever mounts. After election day, with the margin of victory hinged on Florida, weeks of chaotic ballot recounts, lawsuits, counter lawsuits and public protests ultimately ended with George W. Bush winning the presidency by a mere 537 votes. 

With humor, verve and new insights, 537 VOTES exposes the key players who contributed to the chaos in the contested Florida county, featuring interviews and archival footage of insiders and political operatives at the time, including Roger Stone; Joe Geller, Chairman of the Miami-Dade County Democratic Party; Al Cardenas, Chairman of the Florida Republican Party; Cuban American anchorman Rick Sanchez; political consultant Armando Gutierrez; Bush campaign operative Brad Blakeman; Democratic Mayor Alex Penelas; author of Cuba Confidential, Ann Louise Bardach; Democratic political operative Jeff Garcia; Miami political reporter Michael Putney; Gore attorney Mitchell Berger; and Democratic pollster Fernand Amandi.

On election day, November 7, 2000, in one of the narrowest election margins in history, it all came down to Florida, where the state’s 25 electoral votes would decide the next president of the United States. The press called Florida for Gore and then retracted it, and Fox News called it for Bush. Gore called Bush to concede, and then all networks deemed Florida “too close to call.” Gore then retracted his concession and the recount began.

Both parties braced for a bitter and lengthy legal battle. Bush’s campaign mobilized its troops, rallying local Cuban Americans and national GOP figures such as former Secretary of State, James Baker. In turn, Gore’s side hired former Secretary of State Warren Christopher and called for a manual recount in four Florida counties, including Miami-Dade. Under heavy scrutiny were 10,750 “no vote” ballots, where “dimpled,” “pregnant” or “hanging” chads were not counted by the tabulating machines. After 36 days of legal maneuvering and appeals on both sides, the U.S. Supreme Court, with a conservative majority, ruled to stop the manual recounts, thereby granting the presidency to George W. Bush on December 12, 2000.

The best documentarians have another classic on their hands.  And another only-in-Miami story.

Sunday, October 04, 2020

First Monday in October

 It's been an insane 2020.  The Supreme Court is no different, and we open the Term with 8 Justices.  A ninth may be on the way. And it looks like there will be election litigation that will make Bush v. Gore look like playtime in comparison. Fun times. The WaPo covers the beginning of the Term:

The Supreme Court opens its new term Monday at the forefront of the national political conversation, but with its future uncertain and the unwelcome prospect of deciding a divisive presidential election on the horizon.
With Justice Ruth Bader Ginsburg’s seat on the bench still draped in black crepe, the eight remaining justices will gather via teleconference to tackle a docket that, for now, is not nearly as controversial as the last.
That term saw the court strike a restrictive state abortion law, decide LGBTQ workers are protected by federal anti-discrimination laws, grant temporary relief to undocumented immigrants brought to the United States as children and reject President Trump’s insistence he was above investigation from Congress and local prosecutors while in office.
“The court in this term may be looking for ways to avoid partisan controversy, to delay deciding cases that are of deep ideological division as much as it can,” David Cole, the national legal director for the American Civil Liberties Union, said last week in a briefing for reporters.
There is a foreboding, but “the biggest possible partisan controversy that it might face is a dispute about the election,” Cole continued. “I’m sure that all of the justices are saying the election officials’ Election Day prayer, which is: ‘Dear Lord, let this election not be close.’ ”
The court already is inundated with emergency lawsuits regarding the voting process, such as what accommodations must be made for voters during the coronavirus pandemic and whether the time frames for receiving mail-in ballots should be extended.
But President Trump has made it clear he believes there will likely be litigation over the results.
“I think I’m counting on them to look at the ballots, definitely,” Trump said during Tuesday’s debate with former vice president Joe Biden. “I don’t think — I hope we don’t need them, in terms of the election itself, but for the ballots, I think so.”

Friday, October 02, 2020

CA11 affirms Judge Moreno's decision to terminate protections for homeless in Miami

 Decision by Judge William Pryor here.  It starts like this:

This appeal requires us to decide whether the district court abused its discretion when it terminated a consent decree that regulated how the City of Miami treats its homeless residents. Twenty years after the consent decree’s adoption, the City moved to terminate it based on changed circumstances, fulfillment of its purpose, and substantial compliance with its requirements. The homeless argued the City was still systematically violating the consent decree and moved the district court to hold the City in contempt and sanctioned for committing the violations. The district court ruled the City had not violated the consent decree, granted its motion for termination, and denied the opposing motion for contempt. Because the district court correctly interpreted the decree and did not abuse its discretion by terminating the decree, we affirm.

Some coverage:

An 11th Circuit panel on Thursday upheld the termination of long-standing judicial protections for Miami’s homeless population, finding that the city had overhauled its homeless policing to the point where court oversight is no longer warranted.

The homeless protections were in place for two decades as part of the landmark settlement in Pottinger v. City of Miami, a class action that accused the city of unconstitutional mistreatment of its homeless population in the 1980s.

After the city secured a termination of the settlement in Miami district court in 2019, David Peery — on behalf of homeless Miamians — turned to a three-judge appeals panel in the 11th Circuit. Among other protections, Peery fought to reinstate a requirement that police officers offer homeless people a bed in a shelter as an alternative to arrest for certain misdemeanors, such as sleeping on a park bench.

The three-judge panel on Thursday rejected Peery’s appeal.

According to the panel’s opinion, the city showed “substantial compliance” with the Pottinger settlement by retraining its police on how to deal with the homeless people.

“All police officers receive training on Pottinger’s requirements, and the City has put in place body-camera-usage, records-keeping, and disciplinary procedures to monitor and regulate interactions between the police and the homeless, ” Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote in a 26-page ruling

During the appeal proceedings, Peery and his counsel had pointed to a 2018 mass removal of homeless people from the downtown Miami area as key evidence that the city was violating the settlement and couldn’t be trusted to regulate itself regarding its handling of the homeless population.