Cross examination isn't easy

 Michael Avenatti is learning the hard way from his trial last week where he is representing himself and trying to cross his former client, Stormy Daniels.  One exchange:

Avenatti: Wasn't it true I was typically nice and respectful to you? Stormy Daniels: No. You lied to me. Avenatti: Didn't you tell the government I was nice and respectful? Stormy Daniels: I was wrong. Avenatti: Move to strike.

 Ouch.  

Another exchange:

Avenatti: Didn't you tell the New York Times that watching me work was like watching the Sistine Chapel painted? Stormy Daniels: That's that you told me to say.

More from InnerCityPress here.

Never Forget

By Michael Caruso:

Yesterday was International Holocaust Remembrance Day, marking the anniversary of the liberation of the Auschwitz concentration camp. At a time when antisemitism and extremism are both on the rise, remembering the atrocities of the Holocaust is essential. NPR, in this story, has collected the stories of Holocaust survivors themselves. But, as the UN Secretary-General said this week, "As fewer and fewer can bear direct witness, let us together pledge to always remember and make sure others never forget." 

 

Huge retirement news!

 You might think I'm talking about Justice Breyer.

You'd be wrong!

I'm talking about the announcement that two magistrate judges will be retiring: Magistrate Judge McAliley on January 20, 2023 and Magistrate Judge Lurana Snow on May 31, 2022.  

Chief Judge Altonaga already has formed a Magistrate Judge Selection Panel to make recommendations to fill the slots, which will be chaired by Irene Oria, Esq.

As far as Breyer goes, the smart money is that Ketanji Brown Jackson will be nominated.  That would be extremely cool because she grew up in Miami and went to Palmetto High School.  She would be the first Floridian on the Supreme Court.

Here's a Herald article about her, with a quote from yours truly.  It also has a quote from her high school prom date, former U.S. Attorney Ben Greenberg:

Ben Greenberg, a former U.S. Attorney for the Southern District of Florida who was on the debate team with Jackson at Palmetto High and graduated one year after her, said he and Jackson went to prom together as dates when he was a junior and she was a senior. “On the one hand, it’s incredibly exciting, and on the other hand it’s not at all surprising,” Greenberg, now a partner at Greenberg Traurig law firm in Miami, said of Jackson as a potential Supreme Court nominee. “She was incredibly smart, hard-working, super honest, and one of the nicest people you’d ever want to meet.”

CA11 nominee Nancy Abudu

 The Vetting Room has an interesting post about her here.  The conclusion:

Throughout her career, Abudu has not hesitated in taking strong positions on the law, even where a court has ultimately disagreed. While her advocacy is likely appreciated by her clients, it is also likely to draw strong opposition from those who oppose the positions she has taken. Republicans may particularly highlight Abudu’s presentation of Florida’s felon disenfranchisement policies to the UN Commission on Human Rights, arguing that the move approves international oversight over American policies. Ultimately, while Abudu is unlikely to get much bipartisan support, she also remains a favorite for confirmation.

"We all feel we were abducted by luxurious pirates!"

 By John R. Byrne

That was cruise ship passenger Steven Heard Fales referring to the crew of the Crystal Symphony. The cruise ship avoided docking in Miami--its end destination--because of an arrest warrant issued by Judge Gayles. The ship diverted to the Bahamas and passengers boarded another ship that took them to Port Everglades. Apparently, the U.S. Marshals were ready to board the ship and take it into custody. The New York Post covers it here.  The federal lawsuit that led to the arrest warrant--brought by Peninsula Petroleum Far East Ptd. Ltd.--alleges that Crystal Cruises' parent company failed to pay $1.2 million in fuel bills. Case Number is 1:22-cv-20230-DPG.

Scandal at SCOTUS

 Last week I put up a story by Nina Totenberg about Chief Justice Roberts "asking" the other Justices to wear masks because of Justice Sotomayor's health.  Gorsuch supposedly refused and Sotomayor didn't take the bench.  That led to Gorsuch and Sotomayor issuing a joint statement saying it wasn't true, followed by a statement by the Chief saying it wasn't true.  Woah.  But Nina Totenberg is sticking by her reporting, even if NPR has backed off a little bit.  From the Washington Post:

Totenberg and NPR offered a rejoinder on Wednesday. “NPR stands by its reporting,” Totenberg wrote in a news story reporting on the reaction to her original news story.

And there it stood — until NPR’s public editor, Kelly McBride, weighed in with an assessment late Thursday. McBride, who functions as NPR’s ombudsman and has no authority over its newsroom, recommended that the organization issue a “clarification” to Totenberg’s story — not quite as serious as a correction but still nothing any reporter wants under her byline.

McBride suggested that despite the definitive language in her article, Totenberg wasn’t sure how Roberts conveyed his concerns to his fellow justices — whether he “asked” them to wear masks or made his thoughts known in a subtler way. She quoted Totenberg as saying, “If I knew exactly how he communicated this I would say it. Instead I said ‘in some form.’ ”

McBride concluded that using the word “asked” was “inaccurate” and “misleading,” and wrote that NPR should clarify the article accordingly.

Totenberg seemed to reject the advice, telling the Daily Beast on Thursday night that McBride “can write any goddamn thing she wants, whether or not I think it’s true. She’s not clarifying anything!”

And indeed, as of Friday afternoon, there is still no clarification or correction on Totenberg’s original article. But both NPR and Totenberg have seemed tacitly to acknowledge the problem elsewhere. In a follow-up report Tuesday afternoon on “All Things Considered,” Totenberg avoided the word “asked” and said Roberts had merely “suggested” masks be worn in the courtroom. Neither she nor NPR indicated that her characterization had changed from her report that morning.

Meet the Magistrate Judges

 By John R. Byrne

Nice FBA luncheon yesterday at the Marriott Marquis hotel--"Meet the Magistrate Judges."  Newly retired Judge O'Sullivan moderated a panel with Judges Reinhart, Reid, Becerra, Strauss, and Damian.   Takeaways--(1) the Magistrate Judges are very busy (several fire hose analogies); (2) raise frivolous discovery issues at your peril; and (3) read the judges' discovery procedures on the Court website (they vary from judge to judge). Judge Reinhart also wrote this article on Best Practices for Discovery in Federal Court. Worth a read. The pointers were mixed with some fun banter between the panel and District Judges Bloom and Huck, who attended as well. 

"Purposeful Stupidity"

BY MICHAEL CARUSO

For those of us who've been perplexed by workplace behavior—management and employee—in either the government or corporate world, I recently found a manual that demonstrates how timeless these often ridiculous organizational inner workings are. About 80 years ago, this manual set forth the following observed behaviors:

Organizations and Conferences

-Insist on doing everything through “channels.” Never permit shortcuts to be taken in order to expedite decisions.

-Make “speeches.” Talk as frequently as possible and at great length. Illustrate your “points” by long anecdotes and accounts of personal experiences.

-When possible, refer all matters to committees, for “further study and consideration.” Attempt to make the committee as large as possible — never less than five.

-Bring up irrelevant issues as frequently as possible.

-Haggle over precise wordings of communications, minutes, resolutions.

-Refer back to matters decided upon at the last meeting and attempt to re-open the question of the advisability of that decision.

Managers

-In making work assignments, always sign out the unimportant jobs first. See that important jobs are assigned to inefficient workers.

-Insist on perfect work in relatively unimportant products; send back for refinishing those which have the least flaw.

-To lower morale and with it, production, be pleasant to inefficient workers; give them undeserved promotions.

-Hold conferences when there is more critical work to be done.

-Multiply the procedures and clearances involved in issuing instructions. See that three people have to approve everything where one would do.

Employees

-Work slowly

-Contrive as many interruptions to your work as you can.

-Do your work poorly and blame it on bad tools, machinery, or equipment. Complain that these things are preventing you from doing your job right.

-Never pass on your skill and experience to a new or less skillful worker.

Here's a link to the manual. Well worth a read. 

"It is the Court’s belief that the vast majority of the unvaccinated adults are uninformed and irrational, or—less charitably—selfish and unpatriotic."

That's Judge Scola in this Order:

[I]n light of the recent Omicron surge of Covid-19 cases in Miami-Dade County, the Court advised counsel that all members of the prospective jury panel must be vaccinated. Counsel for the Plaintiff did not object to the Court’s procedures. Defense counsel, claiming they did not want to exclude unvaccinated jurors from the trial, objected to the Court’s use of only fully vaccinated prospective jurors. 

All of us who participate in the justice system have a shared obligation to protect those who enter the courthouse. This grave obligation is particularly pronounced as to jurors and witnesses, who are present only under legal compulsion. See 28 U.S.C. § 1866(g).

         Just as the Court and the legal profession have an obligation to protect those who enter the courthouse, all of us have an obligation to consider the safety and well-being of our community. The vast majority of adults in Miami-Dade County have met this obligation. Over 94% of Miami-Dade County adult residents have been vaccinated. See Miami-Dade County Covid-19 Daily Dashboard, dated January 17, 2022, available at www.miamidade.gov/information/library/2022-01-17-covid-dashboard.pdf. It is the Court’s belief that the vast majority of the unvaccinated adults are uninformed and irrational, or—less charitably—selfish and unpatriotic. The Court believes that these individuals have given a distorted meaning to the COVID-19 vaccine, rather than recognize the vaccine for what it is—an effective and safe means of minimizing transmission and illness.

Whether uninformed and irrational or selfish and unpatriotic, no citizen is excused from considering their obligation to the health and well-being of their community. Else, the health, welfare, and safety of society would be subordinated to a substantial minority. Over one-hundred years ago, the Supreme Court upheld a State’s compulsory vaccination program and noted that nothing in our democracy grants an “absolute right in each person to be . . . wholly freed from restraint.” Jacobson v. Commonwealth of Mass., 197 U.S. 11, 26 (1905). The Court held that individuals may be called upon, and even compelled, to protect their community, whether by means of vaccination or by conscription. Id. at 29. “[O]rganized society could not exist” otherwise. Id. at 26.

In a way, the jury is a microcosm of organized society. It “lies at the very heart of the jury system” that “those eligible for jury service are to be found in every stratum of society.” Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946). Old and young, disabled and immunocompromised, all are called to jury service. The Court will not abdicate its duty and obligation to ensure the protection of these witnesses and jurors by exposing them to risks, particularly when those risks are heightened by the Omicron variant. While the Court does not believe that excluding unvaccinated jurors in the middle of a pandemic is legally impermissible, it nonetheless does not want to create an appellate issue.

         The specially-set jury trial beginning on February 7, 2022 is cancelled.

Meantime, the Supreme Court isn't immune from these sorts of fights. Justice Gorsuch refused to wear a mask even though his Chief asked him to in order to protect his fellow Justice Sotomayor.  He refused. What is going on?! From NPR:

It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers.

Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone.