What will President Biden do with the Sentencing Commission

 Sentencing Guru Douglas Berman writes about it here.  From his conclusion:

Diverse nominees to the Commission should help ensure this agency pursues an ambitious reform agenda. But President Biden should also expressly request the Commission conduct a comprehensive assessment of the entire federal sentencing system—and perhaps even our whole nation’s many sentencing systems—with a particular focus on modern mass incarceration and mass punishment. The American Law Institute’s recent revision of the Model Penal Code’s sentencing provisions wisely recommends that sentencing commissions regularly “perform an omnibus review of the sentencing system,” which should include “a comparative review of the experiences of other jurisdictions with similar sentencing and corrections systems.” An across-the-board review of the federal sentencing system is long overdue, and the U.S. Sentencing Commission has the staff and resources needed to conduct a systematic, evidence-based nationwide analysis in order to identify those modern sentencing systems and practices that best advance public safety and equitable justice while minimizing the number of persons subject to penal custody and supervision.

Calls for reviving and reorienting the work of the U.S. Sentencing Commission are coming from many quarters: a task force of the Council on Criminal Justice has stressed the need to “reinvigorate the U.S. Sentencing Commission,” for example, and the Biden-Sanders Unity Task Force on Criminal Justice Reform recommended that the Commission be tasked “with conducting a comprehensive review” of federal sentencing law and practices. But even with a chorus of voices and strong political will for significant sentencing reforms, President Biden must prioritize making appointments that can enable the U.S. Sentencing Commission to effectively lead the way.

What will the new SDFLA U.S. Attorney do about prosecutorial misconduct?

 That's a question that should be asked of all potential candidates for U.S. Attorney.  In SDNY, for example, the office has dismissed cases where there is misconduct, even after a conviction (unlike here).  From the WaPo:

Federal prosecutors in New York acknowledged telling a “flat lie” to a criminal defendant’s legal team while trying to downplay their mishandling of evidence in the botched trial of a businessman accused of violating U.S. sanctions on Iran.

The embarrassing revelations about what many consider the U.S.’ top criminal investigating office were contained in a dozens of private text messages, transcripts, and correspondence unsealed Monday, over the objection of prosecutors, at the request of The Associated Press.

The release of the records followed a ruling last week in which U.S. District Judge Alison Nathan urged the Justice Department to open an internal probe into possible misconduct by prosecutors in the terrorism and international narcotics unit in the U.S. Attorney’s Office for the Southern District of New York.

While Judge Nathan found no evidence that prosecutors intentionally withheld evidence from lawyers representing an Iranian banker, Ali Sadr Hashemi Nejad, she said they made a “deliberate attempt to obscure” the truth and attempted to “bury” a key document that might have helped the defense.

The mistakes were serious enough that even after winning a conviction, prosecutors dropped all charges against Sadr.

The whole article is worth a read as it details incredible, but not uncommon, misconduct. The New York judge was upset with the government and urged OPR to investigate.  We know what OPR will do.  But at least SDNY dismissed after the jury verdict of guilt.  That's not true in other officers or especially here, where there is a long line of misconduct cases, which the office tries to defend even after misconduct is exposed.  It will be interesting to see if that changes under the new administration.  

So, hopeful U.S. Attorney candidates -- feel free to email me your plan to address prosecutorial misconduct and I will post your answer in full.

In the meantime, we still need judges to check prosecutors when they cross the line.  

Jayne Weintraub for Yahweh Ben Yahweh

Today's episode of For The Defense is a doozy.  Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended Yahweh Ben Yahweh who some called a cult-leader and others called a savior.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

Yahweh Ben Yahweh, center.

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Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.

Coming up on For the Defense:

• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season.).

I would really appreciate it if you could subscribe and comment on the podcast!  If you or a friend would like to receive these updates, please have them sign up here. 

Hosted by David Oscar Markus and produced by rakontur

RIP Bobby Lee Cook

 It's always sad to say goodbye to great trial lawyers.  And Cook was one of the best  From ACJ:

Bobby Lee Cook, one of the premier trial lawyers in America and perhaps Georgia’s most famous attorney, died Friday at his mountain home in Cloudland. He was 94....the stories of Cook’s ingenuity, antics and legal prowess abound. Many have been repeated so many times over the years, lawyers take them as gospel although some are hard to completely verify. Like the time Cook was defending a man accused of murder and the state’s star witness testified he was certain Cook’s client had fired exactly two shots. Expecting this testimony, Cook stationed a friend outside the courthouse and had him fire off six rounds. When asked how many shots had just been fired, the state’s witness couldn’t say for sure. Cook’s client walked. Or the time in a moonshine case where Cook was cross-examining the local sheriff. When Cook accused the sheriff of not arresting another moonshiner because he’d been accepting bribes from him, the sheriff threw a Coke bottle at Cook, narrowly missing him. Cook dragged the sheriff down from the witness stand and began pummeling him. After a few moments, the trial judge told Cook to let the sheriff get up off the floor, saying, 'I think he’s had enough.' The jury acquitted Cook’s client in that case, too.

Rubio backs Markenzie Lapointe for U.S. Attorney

The Herald article is titled: "Rubio backs Haitian-American lawyer for Miami U.S. Attorney.  But candidate field is growing."  The intro:

Although the Republican Party lost the presidency and the power to pick U.S. attorneys, Florida Sen. Marco Rubio still can wield considerable influence over the selection of the next top federal prosecutor in South Florida.

In a key move, sources close to Rubio say, the senator has privately signaled support for a Haitian-American lawyer considered the Biden administration’s front-runner — Markenzy Lapointe, a Black Miami lawyer and Marine veteran who once worked in the U.S. Attorney’s Office.

But Lapointe isn’t the only candidate to emerge. There are at least four others interested in the job — all also qualified and with a history of practicing law in both the public and private sectors. Among them are former South Florida federal prosecutors Jacqueline Arango, Andres Rivero and David Buckner, along with Palm Beach County State Attorney Dave Aronberg. 

 

Readers of the blog knew of this slate when it was posted here on the blog first back on December 11, 2020.

Should courts be having in person hearings?

Forget about trials for a moment, which are postponed until May.  Here's an email from Paul Petruzzi that just went around about a state court probation violation hearing:

So, many of you know I share space with Jerry Cariglio. Our office also has staff and a lawyer with health conditions that place them at greater risk for serious complications were they to contract Covid. As an office, we have all been very careful to avoid exposing ourselves and then the rest of the office. Over Jerry’s objection, Judge Fernandez decided to conduct a PVH in person rather than waiting for things to become more safe. The hearing started yesterday and was to resume today. It won’t resume today because the bailiff tested positive for Covid. In the meantime, Jerry had very close contact with the bailiff for several hours yesterday and now has had contact with half the people in our office suite.
I encourage the judicial powers that be in state court to rethink their current plans.
Paul P.

"Just Let People Have Cellphones in Prison"

 That's the title of this great piece by Hannah Riley at Slate.  And of course we should let folks have their phones, especially during the pandemic lockdown in prisons where they can't leave their rooms for most of the day.  From the conclusion (and I recommend checking out prison TikTok):

It’s not all grim, though. A scroll through prison TikTok will reveal everything from how to MacGyver loose electrical wires to boil water to recipes for “prison pizza”—and then there are, of course, the TikTok dances. People are risking retaliation to show that they too have joy, in the midst of darkness.

The desire to punish is a deeply human one, but we should know by now that policies based on revenge never end well, especially when we know that those policies actually result in more harm. Access to cellphones—that is, access to love, connection, transparency, and a window to the outside world—is one simple but vital step to reduce those harms. Those who believe incarceration should be maximally harsh and devoid of joy or connection must reckon with reality: The more we isolate and torture people in cages, the less safe we all become.

 

Season 2, Episode 4: Rob Cary for Sen. Ted Stevens

It's prosecutorial misconduct on this week's episode of For The Defense.  The podcast features Rob Cary of Williams & Connolly, who represented Sen. Ted Stevens in his federal trial in which there was widespread prosecutorial misconduct.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

From left are Sen. Stevens, his lawyers Rob Cary and Brendan Sullivan, prosecutor Joseph Bottini, Judge Emmet Sullivan and government witness Bill Allen.

Sen. Stevens and Rob Cary

Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.

Coming up on For the Defense:

• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.
• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (we have applied for Season 2).

Please send me your feedback -- and of course, subscribe, like and comment!  If you or a friend would like to receive these updates, please have them sign up here. 

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur

Latest trial order from Chief Judge Moore (spoiler... trials continued till May)

The order is below. Although trials are technically continued until May, it's going to be longer than that. There is a pilot civil jury trial scheduled for May now (as reported earlier), but juror summons go out about 8-10 weeks in advance. So assuming that May pilot trial goes well and the Court decides to open things up again, we are looking at July before we get back in earnest.

2021-12 Coronavirus Public Emergency - Eighth Order Concerning Jury Trials and Other Proceedings 02-10-21 by David Oscar Markus on Scribd

Mark Lapointe front runner for U.S. Attorney in SDFLA

 Jay Weaver covers the story here:

With sweeping turnover in the U.S. justice system under way in the new Biden administration, a Black lawyer has emerged as the leading candidate for the high-profile job of U.S. Attorney in Miami.

If President Joe Biden nominates Markenzy Lapointe, 53, for the influential post, it would be an historic choice in one of the most dynamic federal prosecutor’s offices in the nation.

Not only would his nomination be a first in the Southern District of Florida, but it would also signal Biden’s nod to the Black vote that helped him defeat Donald Trump in November’s presidential election. Lapointe is the only candidate to be interviewed by the White House counsel so far for the U.S. Attorney’s job, reflecting the strength of his prospects.

This is so great.

Prof. Ron Sullivan for Aaron Hernandez

Welcome to Episode 3 of For the Defense, Season 2. 

This week, we have Harvard Law Professor Ron Sullivan (pictured below, left) to discuss the Aaron Hernandez trial (available on Apple and all other platforms). Sullivan tried the case with Jose Baez (last week's guest, who discussed the Casey Anthony case -- available on Apple here and other platforms here).  Hernandez already had been convicted of murder, and this was his second murder trial where no one gave him a shot.  Enter Sullivan and Baez...

Here's a short clip (via Twitter) of Prof. Sullivan discussing the prosecutor's attempt to use Hernandez's tattoos in closing argument:

Two TDs for Gronk in the Super Bowl. Brady’s former TE, Aaron Hernandez, had two murder trials. In today’s episode of #ForTheDefense, I speak to Prof. Ron Sullivan about the 2nd trial. In this clip, he discusses Aaron’s tattoos and their use at trial. https://t.co/HaF2A4rnxY pic.twitter.com/xcDY4kj5dy

— David Oscar Markus (@domarkus) February 8, 2021

In other news, we are going to have a new U.S. Attorney very soon.  According to this CNN article, President Biden will be asking all Trump hold-overs to resign, including in the SDFLA. According to the article, there are a few exceptions -- including Michael Sherwin in D.C. who is doing a great job handling the insurrection cases.  

Black Lives & Medicine program at the Court (virtually)

 To attend, all you need to do is send an email by February 19, 2021, to: FLSD_Program@flsd.uscourts.gov.

 

"Restoring the Historical Rule of Lenity as a Canon"

 Shon Hopwood has this new piece about the Rule of Lenity.  It's especially important with all of the white collar cases that charge people who are in a gray area.  From the abstract:

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes. As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts. If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

Pilot civil jury trial set for May in SDFLA

The judges voted yesterday to have a pilot civil jury trial in May.  I'm told it was a spirited debate and it passed 10-8.  If that goes well, other civil and criminal trials could resume as soon as the summer.  

For the pilot trial in May, there are a number of protocols and standards that will have to be met before it can go forward.  It will be interesting to see where we will be with the variants and vaccine roll-out at that time.  

I posted about the issue a few weeks ago here.

Judge Fay funeral arrangements

Funeral mass will be held at 11:00 a.m. on February 9, 2021 at St. John the Evangelist Catholic Community Church, 5655 Stadium Pkwy Viera, Florida 32940 and will also be live streaming at https://youtu.be/UvG1-mbN3GE. In lieu of flowers, donations may be made to Rollins College, St. Thomas University, UF Law's Peter T. Fay Jurist-in-Residence Program, Wounded Warriors, or the Shriners Hospitals for Children.

New guidance for federal prosecutors. Will it matter?

 The Acting AG issued new guidance for federal prosecutors "to ensure that prosecutors are able to exercise discretion in pursuing justice."  The January 29 memo explains that the Trump era policy of charging the most serious offense and seeking the highest sentence is rescinded.  And in its place, the old Obama-era policy on charging and sentencing will take its place.  That means that prosecutors will have the discretion to look at the particular case and person, and then decide what the appropriate charge and sentence should be. This is a significant change.  Let's see if our federal prosecutors will take the letter and spirit of the change to heart.

Jose Baez on this week's episode of For the Defense

 

FOR THE DEFENSE EPISODE 2 JOSE BAEZ FOR CASEY ANTHONY This week, we have Jose Baez on the show to discuss the Casey Anthony case. Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. In this clip (posted on Twitter), Jose discusses the first time he started to suspect George Anthony of abusing his daughter, Casey Anthony.   Last week, Season 2 of For the Defense got off to a great start with Alan Dershowitz, who discussed the O.J. Simpson trial as well as lots of other interesting topics.  (Here's a clip of Dersh answering whether the prosecution lost the trial or whether the defense won it.)  Each episode is currently available on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on our website.  Please send me your feedback -- and of course, subscribe, like and comment!  We would really appreciate positive reviews if you have a minute.  Finally, if you would like to receive these updates via email, please sign up here.  Thank you! --David   Hosted by David Oscar Markus and produced by rakontur