Judge Beverly B. Martin

By Michael Caruso:

 

Today is Judge Beverly B. Martin’s last day of service on the Eleventh Circuit Court of Appeals. She’ll be missed.

 

I’m limited by both ability and space to do justice to Judge Martin’s work on the Court. But, I offer two brief opinions.

 

First, I’d note her work—with former Chief Judge Ed Carnes—in effectuating systemic change for the men and women on Florida’s death row. In United States v. Lugo, Judge Martin concurred in the result but wrote separately to note the “alarming” number of cases where state-appointed lawyers missed their federal habeas filing deadlines. As Judge Martin pointed out, these missed deadlines have many negative consequences, including barring a federal court from reviewing the death row inmate’s claims on the merits. Her concurrence is well worth reading to see how she addresses this issue with thoroughness, compassion, and humility. And, as a result of this opinion, we now have two Federal Public Defender Capital Habeas Units in Florida to represent these men and women in federal court.

 

Second, although Judge Martin grounded her opinions on the facts and law of the case, I believe she never forgot that these cases are about people and not abstract legal questions. Again, my space is limited, but one recent example is United States v. Bryant. In Bryant, Judge Martin dissented from the Court’s holding that limited a person’s ability to obtain a  compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons. I acknowledge that the majority’s holding has negatively impacted our clients, but I think Judge Martin was right on the law. Beyond her legal analysis, however, her opinion captures the hopes and struggles that Mr. Bryant experienced while in prison. This combination of rigorous analysis and human understanding is the mark of a great judge and person. 

Like I wrote, Judge Martin will be missed.

Sentencing Commission releases "Compassionate Release Data Report"

It's a very interesting read.  For 2020 and the first half of 2021, there were over 20,000 compassionate release motions filed.  

Our district had the highest number of filed motions (879) and right behind us was the Middle District of Florida.

However, we fell below the nationwide grant rate.  Nationwide, about 17.5% of CR motions were granted.  In our district, it was only 15.4%.  

Come on, judges... we shouldn't be lower than the national average when our sentences are traditionally higher than the national average!

Just to give a sense, the SDNY is 4th in filed motions, but their grant rate is over 20%.

Maryland is 5th, and their grant rate is 34%.

What do you think of this govt exhibit in R. Kelly case?

 As has been widely reported, R. Kelly was convicted yesterday of racketeering and sex offenses.  Racketeering?  Well, the government used the below exhibit, which has been flying around some of the listservs and has garnered lots of debate.  Do you think it was proper for the judge to admit this gov't exhibit?

News & Notes

 1. There's a lot of prosecutorial misconduct in the Southern District of Florida.  But get a load of this case out of Texas (via the AP):

Texas’ highest criminal court on Wednesday overturned a death row inmate’s capital murder conviction because one of the prosecutors in his 2003 trial was moonlighting as a clerk for the judge in the case.

The Texas Court of Criminal Appeals ruled that the arrangement between Midland County State District Judge John Hyde and then-prosecutor Weldon Petty clearly violated Clinton Young’s right to a fair trial. Young was convicted and sentenced to death in the shooting of a man during a 2001 drug-related crime rampage across Texas.

Hyde died in 2012, but Midland County prosecutors in 2019 discovered the paid arrangement between the judge and Petty, who had also been working on the side for other district judges for years.

The appeals court noted that as a prosecutor, Petty would oppose defense motions while also drafting recommendations of denial for judges to sign. As part of the legal team prosecuting Young, Petty drafted the legal motions submitted during the trial and sometimes participated in oral arguments.

Petty’s side agreement with Hyde was to perform “legal work” as a judicial clerk outside of his official duties. It paid him more $9,000 over the time spanning Young’s initial indictment, trial and post-conviction appeals, which Petty handled both as prosecutor and as clerk for the judge, the appeals court noted.

“Judicial and prosecutorial misconduct, in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him, tainted (Young’s) entire proceeding from the outset,” the court wrote. “As a result, little confidence can be placed in the fairness of the proceedings or the outcome of (Young’s) trial.”

Alrighty then.

2. Here's an interesting case out of the 9th Circuit that will, I'm sure, be heard by the Supreme Court. From the intro:

We once again consider the application of the Fourth Amendment’s warrant requirement to new forms of communication technology. See, e.g., United States v. Cano, 934 F.3d 1002 (9th Cir. 2019); cf. Carpenter v. United States, 138 S. Ct. 2206 (2018). “When confronting [such] concerns wrought by digital technology, th[e] [Supreme] Court [and this court] ha[ve] been careful not to uncritically extend existing precedents.” Id. at 2222.

Our question this time concerns the private search exception to the Fourth Amendment—specifically, the intersection between electronic communications providers’ control over material on their own servers and the Fourth Amendment’s restriction of warrantless searches and seizures, which limits only governmental action. See Burdeau v. McDowell, 256 U.S. 465 (1921); Walter v. United States, 447 U.S. 649 (1980); United States v. Jacobsen, 466 U.S. 109 (1984).

The events giving rise to Luke Wilson’s conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilson’s email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson’s email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilson’s email account and Wilson’s home, describing the attachments in detail in the application. 

Our question is whether the government’s warrantless search of Wilson’s email attachments was justified by the private search exception to the Fourth Amendment. See Walter, 447 U.S. at 655–56; Jacobsen, 466 U.S. at 113–14. For the reasons that follow, we hold that it was not. We therefore reverse the district court’s denial of Wilson’s motion to suppress and vacate Wilson’s conviction.

Federal Bar Association Annual Meeting

 The SDFLA Federal Bar Association is hosting the big national convention here in Miami.  Last night there was a reception welcoming Judge Altonaga as our new Chief Judge.  Below is a picture (courtesy of Margot Moss) of the Chief speaking at the event, which had really cool courtroom art displayed all throughout the room.  I still think cameras in the courtroom would be a big improvement over the pictures, but it was fun to walk around and see the old drawings.  Congrats again to Judge Altonaga!

Breaking -- WPB Magistrate Judge short list

 Thanks to a great tipster, I know now that the 5 lawyers who made the short list for Magistrate Judge in West Palm Beach are:

-AUSA Brandy Galler

-AUSA Randy Katz

-Ryon McCabe, McCabe Rabin

-AFPD Penny Birch

-Patti Leonard, Shutts & Bowen

Congrats to the finalists.

Also, it turns out that I missed regular blogging more than I thought I would.  So I am going to take the reins back for a while.  I want to thank the guest bloggers for their amazing posts and the time that they spent on the blog.  They will hopefully still post, especially when I need some help.  But for now -- for better or worse -- you have me back for a while.  

More Defenders on the Bench, Please.

 By Margot Moss

Although President Biden took office with the fewest judicial vacancies for a new president in over 3 decades, nearly 50 federal judges announced their retirement since Biden's inauguration.  This nearly doubles his opportunities to appoint lifetime judges.  

With these vacancies, President Biden and his top lawyers are making an effort to increase professional and demographic diversity.  Just yesterday, Veronica Rossman, a longtime assistant federal defender, was confirmed by the Senate to the Tenth Circuit.  She will join other former federal defenders on the Circuit Bench, including Ketanji Brown Jackson (D.C. Circuit), Gustavo A. Gelpi, Jr. (First Circuit), and Eunice C. Lee (Second Circuit) - who also all happen to be individuals of color.  Still awaiting confirmation is Candace Jackson-Akiwumi (Seventh Circuit), who practiced for over 10 years as an assistant federal defender.  Former public defenders are also being appointed to the District Court bench, including Omar A. Williams (D. Ct.), Jia M. Cobb (D.D.C.), Margaret Strickland (D.N.M.), and many others. 

But we still need more!  At a time when diversity is encouraged and applauded, this should include diversity of legal background as well.

No update yet on the two openings in our District.  Note that Michael Caruso is on the list of finalists.  Not only is he the Federal Defender, but he is also a fellow blogger! 

 

Happy Autumn Equinox!  Can’t believe the year has gone by so fast. 

Judge Bloom strikes down sanctuary city ban

From the Miami Herald:

A federal judge in Miami on Tuesday blocked Florida from enforcing a ban on so-called sanctuary cities, declaring portions of a law unconstitutional and tinged with “discriminatory motives.”

The judge’s ruling struck down a key portion of the 2019 law that prohibits local and state officials from adopting “sanctuary” policies for undocumented migrants, a main focus for Gov. Ron DeSantis, who vowed to ban “sanctuary cities” in Florida when running for governor in 2018 even though there were none in the state.

The judge also blocked the state from enforcing a provision in the law that requires law enforcement officers and agencies to “use best efforts to support the enforcement of federal immigration law” when they are acting within their official duties.

But the court allowed other provisions to stand, including one that required state and local law enforcement agencies to comply with immigration detainers — federal requests to hold undocumented immigrants past their release dates so that immigration agents can pick them up.

However, the judge blocked a provision that said local and state agencies could transport detainees who are subject to an immigration detainer to federal custody outside of their jurisdiction because it is “preempted by federal immigration law and is therefore unconstitutional.”

The ruling was in response to a lawsuit filed by the city of South Miami and other organizations, including the Florida Immigration Coalition, against DeSantis in an effort to strike down the law.

“The verdict validates what we said three years ago, Governor DeSantis pushed for a law that is not just racist, but unconstitutional,” said Antonio Tovar, a board member of both the Florida Immigrant Coalition and the Farmworkers Association of Florida, another group that joined the case.

Here's the 110 page order. 

In praise of trial lawyers

By Michael Caruso

Unlike David, I'm not a naturally gifted trial lawyer. Any skill I've managed to acquire over the years is from watching and learning from my colleagues at the Federal Defender's office.  When I started, lawyers like Hector, Mary, Miguel, Joaquin, Manny, Omar, and Ken were my role models for how to try a case. And my current colleagues continue to inspire me with their grit, creativity, and ability. 

One cross-examination I saw when I was a young lawyer stands out in my memory. An assistant federal defender—Richard—was trying a case that lawyers sometimes call a "slow plea." A challenging case. 

As usual, the arresting agent wrote a report of his investigation. On direct, however, he testified to seemingly critical facts that were not in his report. When he had a chance to ask questions, Richard pressed him on these "new" facts. The agent, when confronted, responded that he had an exceptional memory and powers of recall. 

Richard reached the end of his questions. Despite his best efforts, the agent inflicted damage and Richard looked beaten. Gathering his notes, Richard turned to walk back to the table where his client sat. But, before he sat down, he returned to the lectern. 

He looked at the agent and asked: "What were the first three questions I asked you?" Richard let the "uh...." hang just long enough in the air before he sat down and said, "No further questions."

Richard's work left a lasting impression on me. His tenacity, inventiveness, and courage are all traits I've tried to emulate. 

This trial happened a very long time ago, and my memory may be faulty as to all of the circumstances. I would've double-checked with the transcript, but the jury found Richard's client not guilty, and no transcript was ordered.

 

REMORSE

            By Phil Reizenstein

          Fall brings to my religion the unseasonal concept of atonement and renewal, something usually associated with spring. There is the new year, followed ten days later by Yom Kippur- the Day of Atonement. In between is a time of introspection. Atonement is what follows remorse for transgressions. 

Federal courts have no problem considering “lack of remorse” as a valid sentencing factor: “In the instant case, the district court did not err in considering Bryant's lack of remorse and her disrespect for the law evinced by her allocution, in sentencing her to a term of imprisonment at the higher end of the Guidelines range. United States v. Bryant, 618 Fed. Appx. 586, 590 (11th Cir. 2015).

While it has been black-letter law in Florida for decades that lack of remorse was not a permissible sentencing factor, the First District en banc has had enough of  that trifling concept, recently holding that since remorse means an expression of desire to rehabilitate, lack of remorse means that the defendant may continue with their criminal ways and should be sentenced accordingly: “ For these reasons, we can no longer embrace the blanket, judge-made rule that when it comes to sentencing lack of remorse or failure to accept responsibility may not be considered.” Davis v. State, 268 So. 3d 958, 965 (Fla. 1st DCA 2019), review granted, SC19-716, 2019 WL 2427789 (Fla. June 11, 2019). The Florida Supreme Court has yet to rule on this issue although the case is fully briefed and was argued in 2019.  Considering the Court’s  new-found enthusiasm for reversing precedent, it is not looking good.

We’ve been down this path before in our country: judges and legal systems punishing defendants for a perceived lack of remorse. In at least one famous instance, the legal system blinked first.

 In May of 1961, Freedom Riders from Alabama rode into Mississippi and entered the “Whites Only” waiting room of the bus station in Jackson and were arrested (after being beaten).

 Parchman State Prison in Mississippi was and is as notorious a prison as there is in the United States. In 1961 prisoners in Parchman  were forced to work on chain gangs.  A Jackson, Mississippi state judge had the bright idea to send the Freedom Riders to Parchman, believing Parchman would put the fear of g-d into the Riders and end the rides. The Freedom Riders had other ideas. They decided to fill up Parchman and sent more buses to Jackson. Once inside Parchman the Freedom Riders began to sing: “More buses are a coming oh yeah.  Better get you ready, oh yeah.  More buses are a coming, more buses are a coming, better get you ready, oh yeah.”

Eight and ten men were placed in cells built for two. The Riders would not keep quiet and kept singing, so the guards threatened to take away their mattresses, which caused the Freedom Riders to sing: “You’re  going to take our mattresses, oh yeah. You’re going to  our mattresses oh yeah. You’re going to take our mattresses, you’re going to take our mattresses, you’re going to take our mattresses, oh yeah.”

Over 300 Freedom Riders were arrested in Mississippi in 1961, and many of them were sent to Parchman, and they never stopped singing. Sometimes a lack of remorse is not a bad thing, even in this season of atonement.

Phil Reizenstein

For The Federal Court Personal Injury Lawyer

By: Alaina Fotiu-Wojtowicz

Between forum selection clauses and defendants’ tendency to remove state law claims whenever there is complete diversity, premises liability and other personal injury cases end up in federal court more frequently than you might expect.  But even so, Judge Altman’s recent 37-page summary judgment order in the Torres v. Wal-Mart Stores East, L.P. case is unusual – not only for its length, but also for its depth of discussion on state-law, premises liability negligence issues.

Torres is in many respects the quintessential slip-and-fall, premises liability case.  The plaintiff, Nosleyki Torres, slipped and fell on a puddle of water while shopping at Wal-Mart.  The case was removed by Wal-Mart after Mr. Torres filed in Broward County Circuit Court.

Judge Altman’s order is an entertaining discussion of constructive notice, causation, and the type of disclosures required by Rule 26(a)(2) from hybrid treating physician expert witnesses who will testify as to causation at trial.  The order comes complete with citations to Eleventh Circuit precedent, both in and out of jurisdiction trial court opinions, John Adams’s correspondence, and perhaps most importantly, “Bill Nye the Science Guy.”

At its core, however, the order reiterates that, even in a federal court personal injury suit, or perhaps especially in such a case, it is the jury's role to determine questions of fact:

Who should decide whether, in weighing its important interest in reducing overhead costs against an invitee’s right to amble freely through un-puddled aisles, Wal-Mart has struck the right balance? A life-tenured judge no one elected? A jury of both parties’ peers? The answer—to us—seems clear.

. . .

If we are, as we were meant to be, a democracy—and if Adams was right in suggesting that everyday jurors are the “heart and lungs” of that democracy—then we should let jurors (not unelected judges) make these policy choices for us.

The entire opinion is worth a read and is available here.

Win for Governor DeSantis on Mask Mandates

By John R. Byrne

        This state has seen a flurry of recent litigation involving mask mandates, with numerous school districts resisting Governor DeSantis’s July 30 executive order barring schools from mandating that students wear masks at school.  Wednesday marked a victory for Governor DeSantis.  Judge Moore denied a request by parents of disabled children for a preliminary injunction that would have stopped DeSantis and others from enforcing the order.

        Judge Moore ruled that the parents failed to exhaust administrative remedies under the Individuals with Disabilities Education Act before filing suit.  You can read the order here.  DeSantis has had mixed results in the state so far.  Leon County Circuit Judge John Cooper had previously issued a permanent injunction against the order.    

        On a non-legal note, rest in peace Norm Macdonald.  A comedian's comedian.  You can go through a YouTube rabbit hole with his stuff.  The moth joke is one of the best.

Breaking -- Ariana Fajardo Orshan appointed to state circuit bench

By David Oscar Markus

Gov. DeSantis just appointed our former U.S. Attorney, Ariana Fajardo Orshan, to the state bench.  She previously served from 2012-2018 as a state judge (she was appointed by Rick Scott back in 2012) and then as U.S. Attorney from 2018-2021.   

I wonder if this is a first -- a state judge becoming U.S. Attorney and then getting re-appointed to the state bench.

Congrats to Ariana!

Trials and more

By Margot Moss 

The Operation Varsity Blues' Trial Begins

The trial of John Wilson and Gamal Abdelaziz began Monday.  The 2 men are accused of paying bribes to coaches and officials to have their children admitted to elite colleges.

The government claims that Wilson and Abdelaziz worked with fraud leader Rick Singer to portray the kids as athletic recruits when they weren't actually talented enough to compete in college athletics.  In her opening statement, the prosecutor offered, "This is not a case about wealthy people donating money to universities with the hope that their children get preferential treatment in the admissions process."  Instead, she contended that the case was about lies:  "Lies to obtain admissions spots that were bought and paid for."  As proof of these claims, the government plans to admit recordings of conversations Singer made with the parents.

The defense contends that donations is exactly what this case is about - or at least what the parents thought was happening but for Rick Singer conning them.  Wilson's attorney stated in Opening, "Rick Singer is one of the great con men of our time."  John Wilson "trusted a con man who stole his money.  That con man knows how to play people better than anybody in this courtroom."  The attorney said that the parents did not know that Singer was creating fake athletic profiles for the children applying to the schools and pocketing part of their donation money for himself.

Interestingly, the government does not plan to call Singer as a witness.  Turns out, Singer made notes at the times of the recordings with parents that the agents pressured him and "continue to ask me to tell a fib and not restate what I told my clients as to where [their] money was going - to the program not the coach and that it was a donation, and they want it to be a payment."  

So interesting.

Fifty seven people, including celebrities, business people, athletic coaches, proctors, and administrators, have been charged in the case since March 2019.  Forty six of them have pleaded guilty, and one parent was pardoned by former president Trump.  Wilson and Abdelaziz are the first to go to trial.

Meanwhile, another trial has ended early.

Arizona Federal Judge Declared a Mistrial in the Backpage Case

From Law 360:

An Arizona federal judge on Tuesday called an early mistrial in a pimping case against former executives and employees of Backpage.com, who argued that prosecutors had poisoned the jury with irrelevant stories of human trafficking.

U.S. District Judge Susan M. Brnovich ordered the do-over eight days into a trial that had lasted more than two months, dealing a win to defendants who sparred with the government for three years over admissibility of evidence in the sprawling case. Prosecutors are seeking to prove that former Backpage executives Michael Lacey and Jim Larkin and a half-dozen underlings facilitated prostitution with adult ads on the now-defunct classifieds site.

The Defense's scathing motion for Mistrial begins:

The government's opening argument was a parade of horribles about human trafficking destroying the lives of trafficked women and children, with barely any mention of charged counts and zero linkage of any Defendant to any charged count.  The opening offended the law, ignored indisputable facts, and consisted of inflammatory, unproven, and unprovable assertions that fail in any event to address what the government must prove to convict any defendant.

In the end, the judge agreed.

... and last, but not least ...

The Federal Bar Association Annual Meeting & Convention is Next Week!

Yaniv Adar, President of the South Florida Chapter of the FBA, and many others have been working extremely hard to put together what I'm sure will be a wonderful and informative event next week.  They've put together a great program, including local SDFL judges and speakers from across the country.   Register here to attend.  

 

#Womenalsoknowlaw

By Michael Caruso

Although there's a vigorous debate about the impact of social media on our lives, there's no debate that these platforms can enhance communication, collaborative learning, and creative expressions. In particular, Twitter is the home to many active law professors who write about the criminal legal system (and who also happen to be women). 

For example, Rachel Barkow (NYU/@RachelBarkow) is the author of  the recent book,  "Prisoners of Politics: Breaking the Cycle of Mass Incarceration." She's also at the forefront of advocating for systemic changes in our clemency process.  

Leah Litman (Michigan/@LeahLitman) writes on constitutional law, federal post-conviction review, and federal sentencing.  She's also the co-host of the Strict Scrutiny podcast that discusses the culture of the Supreme Court and individual cases. 

Melissa Murray (NYU/@ProfMMurray) is also a co-host of Strict Scrutiny. Professor Murray writes about criminal law as well as justice issues in our society. Many have mentioned her as being on President Biden's shortlist for the Supreme Court.  

Carissa Byrne Hessick (North Carolina/@CBHessick) heads the Prosecutors and Politics Project at UNC and will publish her book "Punishment Without Trial: Why Plea Bargaining Is a Bad Deal" next month. 

Last, but certainly not least, is our own Aya Gruber (Colorado/@AyaGruber). Professor Gruber is a former law clerk and AFPD in our district. Last year, she published her first book, "The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration" to wide acclaim. Congrats Aya! 

If you're a Twitter user and have any interest in the criminal legal system, start following these important and engaging legal minds! 

#Womenalsoknowlaw

9/11 TWENTY YEARS LATER

 

By Phil Reizenstein

September is my favorite month, especially when I can spend part of it in New York, like I did last week. Fall is beginning to poke its way into the end of summer. The air was cold enough to make a Miami lawyer shiver, while New Yorkers ( I used to be one until Janet Reno hired me in 1986) wore shorts and T-shirts and soaked up the remaining sun. Saturday, the twentieth anniversary of the  9/11 attacks,  hung over everything, mostly unspoken, but never far away.

I grew up in Brooklyn, and I watched the twin towers being built. As a child I marveled at the predictions for Battery Park and the lower west side of Manhattan. There would be apartment buildings for people to live in! In lower Manhattan! This was a strange concept in the days when only struggling artists inhabited industrial lofts in an area of Manhattan vaguely known as “SoHo”.  

Fast forward to May 26, 1977, and I am staying at my father’s loft at 100 Wooster Street. He wakes me up and drags me to the roof  where we  watched George Willig climb South Tower Two. Willig made it to the top, was arrested, and later paid a fine. For me the Towers were no longer a symbol of Wall Street- they now had a little rebel New Yorker in them- an attitude I admired, like when Springsteen sings “When they said sit down, I stood up.” in Growin' Up.

As a New Yorker, I had one very specific need for the Towers: every time I got out of a subway station in Manhattan, I would spin around until I saw the towers; then I was oriented to downtown and uptown and could set off on my journey. The first time I exited a subway station after 9/11, I instinctively did my spin and did a futile 360- they were gone. 

Make no mistake, 9/11  impacted the American legal system.  The US Patriot Act – an Orwellian named law, expanded surveillance powers of government agencies to new heights. Guantanamo Bay became and remains the failed poster child for indeterminate detention. 

In Holder v. Humanitarian Law Project, 561 US 1, (2010)  CJ Roberts, writing for the majority, in a 6-3 decision,  upheld 18 U.S.C.A. §§ 2339A & B in which Congress prohibited almost any conduct that provided “material support” to a designated terrorist organization.  In other words, say what you want, do what you want, support whom you want, unless you are speaking out for, and supporting an organization Congress does not like (which in the 1950’s included the American Communist Party). The law has frightening implications.

Maybe Roberts thought he was just calling balls and strikes when he opined “If only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II.” Holder, 561 U.S. at 38. I understand the analogy, but a bit of judicial activism crept into Roberts’ reasoning IMHO. 

The 9/11 attacks took 2,977 lives that day (many more as the years wore on). It set our nation on a course of deadly, costly and destructive wars, and it permanently altered our legal system and enforcement of Constitutional rights. Rightly or wrongly,  a “terrorist exception” was created for the Bill of Rights out of our fears in the aftermath of the attack. And yet, as James Madison wrote in Federalist 41: "Security against foreign danger is one of the primitive objects of civil society, It is an avowed and essential object of the American Union." The tension between the Bill of Rights and the issues of modern America are as prominent and taut as ever.

One last personal note. I spent my formative years in Brooklyn hanging around the fishing docks in Sheepshead Bay until the captain of the Amberjack V took pity on me one day and said “get on the boat kid” which started a decade long love affair with a job as a mate on a fishing boat. In the days after the attack,  I saw pictures of the Amberjack V- my boat- rescuing people from Battery Park on 9/11 and taking them to New Jersey- anywhere in NY was thought to be too dangerous. I could not have been prouder to have been a New Yorker and a mate on the Amberjack.

 I am not sure this post is what David envisioned when he gave a bunch of us a shot at following in his large footsteps with the blog he built. I am grateful for the opportunity, and in the coming weeks and months (and years?) I  will endeavor to bring to your Monday mornings some of my thoughts on the intersection of legal and social issues from hopefully an interesting and personal perspective. Or Maybe David just says "WTF?"  and revokes my access. 

Balls and Strikes

by Robert Kuntz 

When I was a boy, “social media” meant mostly getting together to play baseball and football, the primary “platforms” of our interactions with our peers. We played endless games on our suburban streets, in our connected backyards, in neighborhood parks and even – when local school officials were insufficiently attentive to the locks on their gates – on actual ball fields. If we had enough kids – and at the tail end of the Baby Boom, we often did – we’d play 11-on-11 or 9-on-9 as the season demanded. If too many kids were sick or grounded or on vacation, we engaged in endless personnel adjustments to make the games even. Somebody might be the designated quarterback for both sides. Or the hitting team might provide its own catcher. But there was one position that was never filled: No one was going to waste valuable playtime being the referee or the umpire.

With the exception of the occasional squabble, our honor system worked a treat. If you stepped out of bounds (that is to say, into Mrs. Scheimann's yard), you stopped where you were. If you missed the tag before Billy Miller made it to the back corner of the Buick, you said so. And if too often you didn't, you were subject to the ultimate sanction: Kids who couldn’t be counted on to call it square – on themselves most of all – found their doorbell stopped ringing, because nobody cared if Mikey could come out to play, if Mikey was a cheat.

No one wanted to be the referee, or imagined he had the authority to appoint himself the umpire, but we knew that – at least as measured over the course a summertime baseball season – we had no need of an umpire, because we were all smart enough to sort out balls from strikes, to distinguish the salient truths from the possible fictions.

Not long after those idyllic days of my suburban youth, I was a newspaper reporter. Full of the glories of Bly and Sinclair and Mencken and Woodstein, I was determinedly certain that the Fourth Estate was the key element required for a healthy republic. Over the years, writing and participating in the production of thousands of stories, we mostly got it right. And when we didn’t – when the angry subject of a story called to tell us so, or when more reporting revealed our error – we’d run the correction.

We tried to get it right not merely because getting it right was the right thing to do. No lofty J school platitudes were necessary, nor would they have been sufficient for our readers to trust us. Rather, our bosses’ business models depended on us getting it right, and our jobs depended on serving our bosses' business models. No publisher was long going to employ a reporter who generated too many corrections, because no reader wanted to read a paper that got it wrong, and no advertiser wanted to advertise in a paper that no one read – and no publisher wanted to run a paper that couldn’t make money.

Thus was the circle of accountability drawn (with the assistance of the paper across town, back when towns of any size had more than one paper, ever-eager to call out our mistakes).

But there still were no referees – at least not outside the jury in a libel trial, if you got it that wrong.

Part of the process of getting it right was fact checking. Yes, even back in the prehistoric era when the signature sound of the newsroom was a clattering teletype, and you could smoke at your desk, we had fact checkers. Smaller publications gave the task to someone in the newsroom without a pressing assignment in the moment. Large publications, especially periodicals with long lead times, often employed folks whose entire job it was to run down everything the reporter put into the story and confirm its veracity: “Sheriff Gilbert, our reporter Robert Kuntz visited with you Tuesday for an interview about the new civilian oversight committee. Did you in fact say. ‘I’m the law in this county. I’m the law. Me.’” If the sheriff, hearing his pronouncement in the voice of another, had reason to wish he hadn’t said what I said he said, he might denounce the quote to the fact checker. Then the fact checker came back to me and vetted the details. He asked to see my notes or to listen to the tape, and then made a call – subject to appeal to an editor – about whether the quote would be published or not. [Sheriff Gilbert said exactly that, by the way. I had the tape. We ran the quote.]

But like the call on whether Johnny Newman had crossed the line between the maple and the birch trees that demarcated the end zone, the fact checking process took place among the players.

Today’s professional “fact checkers” operate in an entirely different system. They sit outside the organizations they monitor, apart from the writers – professional journalists and casual Twitter tweeters alike – and they rarely if ever consult those writers or speakers before rendering their unappealable judgments: “Misinformation.” “Misleading.” “Lacks context.” “Disputed.” “Partly false.” Those judgments are then executed not merely with the generation of a correction, but often by disappearing the offending story entirely. More than that, with the flip of a switch, today’s fact checkers can silence not only the story but the story teller, and not only from a single platform, but from practically all of them.

Which might be alright, I guess, if fact checkers were selected from human stock inherently more trustworthy and less prone to bias or self-interest than adolescent ballplayers or small town reporters. But they, predictably, aren’t. And it might be alright if it didn’t turn out – as it, predictably, has – that "independent" fact checking has a business model of its own.

So when the limits of discourse are imposed from without, by the diktats of folks who make their living drafting those diktats, might it be time at least to ask qui bono?

In this month’s Harper’s Magazine, Joseph Bernstein (who, without irony, is described as a “Senior Report at BuzzFeed News”) does just that in his article “Bad News: Selling the Story of Disinformation.” In exhaustive, troubling detail, Bernstein examines the ways in which politics, culture, commerce, and technology have intersected to weaponize “fact checking” into the ultimate political power tool. (And Bernstein goes a long way to dismantling the comfortable rationalization and rhetorical off ramp that, since none of this “private action” falls under the ambit of the First Amendment, it is no legitimate cause for concern.) The piece should be required reading for anyone with even a passing interest in participatory democracy in the Twenty-first Century.

Back in the day, if one of our gang had volunteered for the job of umpire, and especially if he’d done so every time we got together to play, and most especially if he'd figured out how to fund his baseball cards and sodas by doing so, we would have been profoundly dubious, we'd have had a chat with him about his motives, and we would have kept our collective eye on how he was calling the balls and strikes.

Whatever you think of the President immediately preceding the current one, it’s probably worth at least asking if a system that bans his narcissistic, blustering bombast but platforms terror organizations’ manifestos is entirely in balance. One might, it seems, reasonably wonder if silencing every slightly heterodox voice giving consideration to something as staggeringly complex as managing a global pandemic is the very best way to vindicate the once sacred notion of a marketplace of ideas. And so on to a score of examples more or less daily.

It's a precept so old Juvenal asked it in Latin, and so timeless it's the title of a Star Trek episode: As Bernstein's piece conclusively demonstrates, barest prudence demands we pay attention to who exactly is doing the banning and the silencing and why.

Sports Cases on an NFL Opening Weekend

By John R. Byrne

For starters, I’d like to thank David for giving me the opportunity to post on his blog.  He’s created something special, and I’ll do my best to meet the high standards he has set.

Given that we already have a great group of (mostly) criminal law-focused bloggers, I plan to focus my posts on the civil side of the federal fence.  Still, today, in keeping with the theme of this post, I’m covering a few criminal cases. 

1.  Clinton Portis—the former University of Miami and NFL running back—pled guilty this week to participating in a health care fraud scheme.  The scheme involved submitting false claims to the NFL Player Health Reimbursement Account Plan.  Although the case was prosecuted in the Eastern District of Kentucky, there is a Miami nexus (the Miami FBI Field Office helped with the investigation).  Miami sports fans may recognize another defendant, Tamarick Vanover, who played at FSU and later the NFL (in one Miami-FSU classic at the Orange Bowl, he took the opening kickoff to the house).

2.  The Dolphins open the season against the New England Patriots.  Back in February of 2019, Florida state prosecutors charged the owner of the Pats, Robert Kraft, with misdemeanor solicitation (a charge that was dropped).  In late July, Palm Beach County Judge Leonard Hanser ordered the state to destroy the previously suppressed video evidence (this followed a S.D. Fla. federal court order this past January ordering the video’s destruction).  The case had many a twist and turn and Vanity Fair published a long article about it, if you’re interested in reading more.  

3. In golf news, a week or so back, Judge Ruiz issued an order granting summary judgment to the PGA Tour in a lawsuit filed by Hank Haney.  In short, Haney had blamed the PGA Tour for costing him his radio show at Sirius XM Radio (Sirius had cancelled Haney’s show after he made comments predicting a “Korean” to win the U.S. Women’s Open and going with the last name “Lee” because, if he “didn’t have to name a first name, I’d get a bunch of them right.”).  Order was picked up by ESPN and other news outlets. 

4.  Finally, and on a non-sports note, the high-profile federal criminal trial of Theranos founder Elizabeth Holmes began this past week.  You can read about the opening statements here.  Both sides seem to have the right strategy, with the defense looking to humanize Holmes and calling her "innocent" and the government portraying her as a greed-driven executive. 

 Hope everyone has a great weekend and that the Dolphins get the W.

 

Shadow Dockets

 

By Marissel Descalzo

 

Thank you David for inviting me to serve as a guest blogger.  I’m very excited for this opportunity to contribute to the community you’ve created.

 

If you’ve been following the news over the past few days, you’ve probably heard about the Supreme Court’s cryptic “shadow docket.” The “shadow docket” is a phrase coined by William Baude, a professor at the University of Chicago Law School, to describe the use of emergency orders and summary decisions by the Supreme Court without full briefing and oral argument. 

 

Shadow docket cases typically arise from emergency requests to stop a lower court’s decision where the applicant has to show “irreparable harm” absent immediate intervention. The Supreme Court has historically used the shadow docket to decide unambiguous cases (e.g., federal death penalty cases). 

 

Recently, there has been a recent shift in the type and number of cases being decided on the shadow docket. In the past 18 months, the Supreme Court has issued shadow docket decisions on issues involving the COVID-19 pandemic, restrictions on places of worship, and changes to voting rules during the pandemic.  

 

In the last week of August alone, the court decided three highly politically charged issues – the Biden administration’s eviction moratorium, the Trump administration’s “Remain in Mexico” policy, and the new Texas abortion law – all on the shadow docket. Arguably, the most controversial decision related to the Texas abortion law.  The decision was widely reported and criticized, even David blogged about it  and was reported throughout mainstream media, including was the Texas abortion law  HERE.

 

Critics claim that the “right” is using the shadow docket to push an agenda.  Steve Vladeck, a law professor at the University of Texas School of Law, strongly supports this view.  He’s been tracking the shadow docket and reports that 41 requests for emergency relief were submitted by the Trump administration, while only eight were submitted by the Obama and Bush administrations combined.  More about Professor Vladeck’s opinions can be found HERE.

 

Whatever the motivation, the use of the shadow docket is certainly troubling and downright dangerous.  Significant issues that affect our legal system and vulnerable populations are being decided without the benefit of briefing, oral argument, and public input through amicus briefing.  Here’s to hoping that these matters shift back into the light and out of the shadows!

 

 

---

 

Some good reads and great things to watch.

 By Margot Moss:

1.  “I helped destroy people.”  No - not the words of Sal Magluta during the era of the Cocaine Cowboys.  That’s FBI agent Terry Albury.  Albury says that he, along with his colleagues, “were compelled to commit civil and human rights violations.”  The story is here in this Sunday’s New York Times Magazine section.  Albury stated:  We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque, and that every newly arrived Muslim immigrant is secretly anti-American, and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I., or we take people from foreign countries where they have secret police and recruit them as informants and capitalize on their fear to ensure there is compliance. It’s a very dangerous and toxic environment, and we have not come to terms with the fact that maybe we really screwed up here,” he says. “Maybe what we’re doing is wrong.”  Albury became so convinced that it was wrong that he leaked documents to the media “exposing the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.”  For sending these documents, Albury was arrested and sentenced to 4 years in prison.  

Sometimes, the bad guys in the courtroom aren’t the defendants.  

2.  In another good read, a law review article examines the “deep flaw” of the sentencing guidelines’ loss section, which “routinely recommends arbitrary, disproportionate, and often draconian sentences.”  Not only does the loss section fail to address unwarranted disparities among similarly-situated individuals, but it “actively exacerbates them.”  Barry Boss and Kara Kapp lay out the history of the guideline, give examples of the outrageous sentences it recommends, and offers reforms that we should pay attention to. 

They point out that some courts “have called the loss tables ‘patently absurd’ and ‘a black stain on common sense’ that rely upon a ‘flawed methodology for tabulating white-collar sentences[.]’  Accordingly, courts have concluded that imposing sentences corresponding to the loss tables would ‘effectively guarantee[ ] that many such sentences would be irrational on their face.’”

Unfortunately, not all courts see it that way and continue to give guideline sentences using the 2B1.1 table.  That’s why reform is necessary.  Boss and Kapp first suggest calculating loss based on actual loss, not intended loss.  Or, in the alternative, to find that the intended loss was substantially likely to occur.  These seem like great places to start.  We all know that Medicare never pays what it’s been billed – if it pays at all.  What do blog-readers think?

3.  I’m fully aware that this is a blog largely devoted to the Southern District of Florida news and notes and other federal goings-on around the country.  But I can’t make my first post without giving a huge shout out to state Chief Judge Nushin Sayfie.  For years, I worked by her side as an APD and then looked up to her on the state bench in Miami.  She is a force and an incredible asset to our community.  And how great is it to have a former criminal defense attorney as the top dog?!  The Passing of the Gavel ceremony recognizing her election as Chief Judge of the 11th Judicial Circuit is this Friday, September 10 at 12:15.  You can watch it live here on YouTube.  Congratulations, Chief Judge Sayfie!

4.  Finally - R.I.P. Michael K. Williams, aka Omar Little, the greatest character on one of the best series on television, The Wire.  If you haven’t watched it, the show is a must-see.  I know David O. Markus likes it.  Here is Michael K. Williams/Omar in a classic scene:

Miami History Part 1

By Michael Caruso:

Thank you David for inviting me to contribute to your blog. For the last 15 years, your blog has been an integral part of our local federal court culture, and I'm flattered that you thought of me. 

For my first post, I wanted to offer an alternative to the current Netflix offering about Miami. In 1994, journalist Susan Orlean wrote an article based on her investigation of the 1994 arrest of horticulturist John Laroche and in south Florida for poaching rare orchids in the Fakahatchee Strand State Preserve.

Two years later, Orlean wrote another south Florida story. Orlean's story—The Homesick Restaurant—describes Juan Saizarbitoria and his restaurant in Miami and Havana.  Here's an excerpt:

"Saizarbitoria had grown up in the Basque region of Spain, and he had made his way to Cuba in the late thirties by sneaking onto a boat and stowing away inside a barrel of sardines. When he first arrived in Havana, he pretended to be a world-famous jai-alai player, and then he became a cook at the jai-alai club. In 1940, he opened Centro Vasco, and he made it into one of the most popular restaurants in Havana. Having lost the restaurant to Castro, in 1962, Juan Saizarbitoria moved to Miami and set up Centro Vasco in exile." 

I had not known of Saizarbitoria or his restaurant before coming across the article. Orlean reports from Centro Vasca in Miami and also visits the Havana restaurant taken away from Saizarbitoria. I fear that not much of this type of Miami history will be preserved, and I thought I'd share.

Blog changes

 I started this blog as a pet project back in 2005 as a way to keep up with our District and federal courts in general.  I didn't really think anyone would read it when I started.  But after 4044 posts and 15,104 comments over 16 years, we have 5.3 million views and lots of good tipsters.  

But now it's time to add some new voices and perspectives.  So you are going to start seeing some new authors pop up.  

Our all-star lineup includes:

John R. Byrne

Michael Caruso

Marissel Descalzo

Alaina Fotiu-Wojtowicz 

Robert Kuntz

Margot Moss  

Phil Reizenstein

I am going to continue to post (so definitely keep sending your tips), but it's way past time for the blog to open up a little bit.

Thanks for being part of the small federal family we have here in the Southern District and enjoy the new upcoming posts by our new contributors!

I'm really excited about this -- I hope you are too.

Houston, we have a problem.

 At least it's not Florida this time.  It's Texas.  It's always Texas or Florida...

The Supreme Court 5-4 last night did not take action to stop Texas' new abortion law.  From SCOTUSBlog:

Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.

The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.

The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, ...

***

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Texas case will now return to the lower courts, where litigation will continue. ***