News & Notes

1.  The Fort Lauderdale federal courthouse is still closed due to flooding weeks ago. 

2. Check out this wild sentencing, covered by Jay Weaver:

It started out as a routine sentencing of a Colombian cocaine smuggler and wound up as a messy and very Miami legal drama. You’ve got a local jeweler who deals in high-end watches claiming he’s been stiffed on a quarter-million loan to the smuggler’s friend, who bankrolled his legal defense. You’ve got an attorney hired by the jeweler to collect the debt making his claim in a criminal case, something that just never happens in by-the-book federal court. And you’re got a doozy of a motion by the jeweler’s attorney, arguing the drug trafficker should get punished hard because his pal who took out the loan hasn’t paid up, that the FBI fell down on the job of investigating the unpaid debt, and that the defense attorney for the smuggler ought to be sanctioned for any number of reasons.

3. Justice Alito apparently believes he knows who the leaker is.  And he's blaming the bar for not coming to his defense.  Oh boy.  Via the NY Times:

He added that he was disappointed that lawyers had not come to the defense of the court, which has faced mounting scrutiny for what critics say are serious ethical lapses.

“This type of concerted attack on the court and on individual justices” is, he said, “new during my lifetime.”

He added: “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.”

Instead, Justice Alito said, “if anything, they’ve participated to some degree in these attacks.”

4. Unlike the criticism of Justice Thomas, I'm not sure this attack on Chief Justice Roberts' wife, who has a very successful attorney placement firm, is justified.  From Business Insider:

"When I found out that the spouse of the chief justice was soliciting business from law firms, I knew immediately that it was wrong," the whistleblower, Kendal B. Price, who worked alongside Jane Roberts at the legal recruiting firm Major, Lindsey & Africa, told Insider in an interview. "During the time I was there, I was discouraged from ever raising the issue. And I realized that even the law firms who were Jane's clients had nowhere to go. They were being asked by the spouse of the chief justice for business worth hundreds of thousands of dollars, and there was no one to complain to. Most of these firms were likely appearing or seeking to appear before the Supreme Court. It's natural that they'd do anything they felt was necessary to be competitive."

Roberts' apparent $10.3 million in compensation puts her toward the top of the payscale for legal headhunters. Price's disclosures, which were filed under federal whistleblower-protection laws and are now in the hands of the House and Senate Judiciary committees, add to the mounting questions about how Supreme Court justices and their families financially benefit from their special status, an area that Senate Democrats are vowing to investigate after a series of disclosure lapses by the justices themselves.

 5. So, should there be an ethics code for the Justices?  This WaPo piece makes fun of the High Court for pushing back against the code.

Disney Files Suit

 By John R. Byrne

This seemed like a matter of time. But now it's official. Disney is pushing back against Governor DeSantis's latest moves to exert state control over the Magic Kingdom. A few weeks back we covered how the old Reedy Creek board had executed a Declaration of Restrictive Covenants that greatly limited what the new board (the "Central Florida Tourism Oversight District") could do in terms of Disney. Yesterday, the new board declared the Declaration "void and unenforceable." Separately the Florida Legislature has recently pushed forward legislation that would prohibit enforcement of the Declaration (along with a Development Agreement) "unless the [new board] were to readopt them."

Disney presents a host of constitutional challenges to the state's action, arguing that it's "[a] targeted campaign of government retaliation--orchestrated at every step by Governor DeSantis as punishment for Disney's protected speech[.]" 

Disney isn't lacking for sound bites. How about this quote from the Florida representative who introduced the original Reedy Creek dissolution bill? “You kick the hornet’s nest, things come up. And I will say this: You got me on one thing, this bill does target one company. It targets The Walt Disney Company.”

Hard to believe.

The complaint (excerpted below) was filed in the Northern District of Florida. Will be fascinating to see this play out.

Disney Complaint by John Byrne on Scribd

🔥🔥🔥

 

Phins Back in Court

By John R. Byrne

While that Jimmy Butler performance last night has everyone talking about the Heat, one of our other professional sports franchises is back in federal court. 

The Dolphins filed suit last Friday against First Class Cruises, LLC and Jeffrey Nahom. According to the complaint, which landed before Judge Bloom, the defendants promoted a Fan Cruise where fans could interact with 35 former Dolphins players. The defendants allegedly failed to pay the cruise line for the requisite state rooms/amenities for the former players/fans, forcing the Dolphins to come to the rescue at the last minute and cut checks to the cruise line. 

The Sun Sentinel covers the lawsuit here. According to the paper, Nahom/Nahom-controlled entities had other cruise promotions that have generated controversy, including a Philadelphia Eagles cruise (cancelled) and Washington Commanders cruise (cancelled).

It isn't all bad. The Dolphins fan cruise did ultimately go forward and fans got to meet Dan Marino, the greatest quarterback in NFL history....

SCOTUSblog off of Twitter

Not only are they not paying the $8 for the blue check, they have left Twitter altogether.  

Reuters covers how law firms are dealing with the new pay-for-the-blue-check program on Twitter:

While many law firms may be lukewarm to Twitter, some individual lawyers have amassed large followings, using the platform for self-expression, networking and business development.

Are they willing to pay for a checkmark?

Those who have the blue badges include former Manhattan U.S. attorney Preet Bharara, now a partner at Wilmer Cutler Pickering Hale and Dorr (1.7 million followers); Hogan Lovells appellate partner Neal Katyal (837,500 followers); Quinn Emanuel Urquhart & Sullivan founder John Quinn (50,600 followers); and Paul, Weiss, Rifkind, Wharton & Garrison appellate chair Kannon Shanmugam (13,000 followers).

Lest you think the list is limited to the elite alone, Michael Avenatti (aka Federal Correctional Institution, Terminal Island inmate number 86743-054) also has a blue check – and 612,200 followers.

None responded to my requests for comment, though I don’t know if Avenatti can actually get text messages in prison.

Class action watchdog Ted Frank of the of the Hamilton Lincoln Law Institute (20,000 followers) also has a blue check. When I asked him about it, he offered this response via email: “I recently purchased a phenomenal fish appetizer at a Chinese restaurant in Virginia for $12, making that at least 150% as important a story. Would be happy to give that a review.”

This is an example of why Ted Frank is good at Twitter.

Still, plenty of lawyers with big followings are checkmark-free. For example, former U.S. attorney general Eric Holder, now senior counsel at Covington & Burling, has 559,300 followers and no blue mark. He declined comment via a firm spokesman.

“A 17-page paper on the importance of professionalism in the legal field and treating one’s opponents with civility.”

Two defense lawyers in the sprawling Young Thug criminal trial were ordered to write a 17 page paper on civility in the middle of trial or go to jail for 20 days.  

Which one would you pick?

The judge also said that the “Paper is to be published quality in APA format and at least 10 primary and secondary sources. April 28 at noon or you do 20 days.”

You can watch the in court order at the Twitter clip here.

So you want to be a Magistrate Judge?

 There’s a new opening as the Judge Otazo-Reyes on November 30.

Applications are due May 3.  

And here’s the committee who will recommend 5 names to the district bench:

Chair:

Ryan Ulloa, Esq.

Members: 

Sashi Bach, Esq.

Matthew Dates, Esq.

Wifredo Ferrer, Esq.

Hector Dopico, AFPD

Jasmin Grant (non-attorney)

Lindsey Lazopoulos Friedman, AUSA Francesca Nabors (non-attorney) Jonathan Osborne, Esq.

Motion To Continue Sentencing Until Rain Stops

By Michael Caruso 

Judges generally believe they are objective and impartial and can ignore irrelevant information when they make decisions. Research, however, has shown that many legally irrelevant factors may influence legal decision-making.

The “anchoring effect” may be the most well-known example. The anchoring effect is a type of cognitive bias where numbers that act as a reference point influence a person. These numbers may or may not be utterly irrelevant. In 2006, Prof. Dan Ariely asked students at MIT to bid on items in an arbitrary auction using social security numbers as their anchor. Students were asked how much they would pay for two types of wine, a cordless mouse, a cordless keyboard, a design book, and chocolates. The professor instructed students to write down the last two digits of their Social Security number at the top of the page and then write them again as a price next to each item. So, if the last two digits were four and five, the student would write $45. When they finished that task, students were asked to indicate for each item “yes” if they would pay that price or “no” if they would not. As the last step, students wrote down the maximum amount they would be willing to pay for each item. Ariely found that students’ Social Security numbers influenced the amount they were willing to pay. Students with the highest last two digits of their Social Security number (80-99) bid the highest, and those with the lowest last two digits (1-20) bid the lowest. When students were debriefed on the experiment and asked if they thought their Social Security numbers influenced the prices they would pay, they stated no.

In the federal criminal legal system, the Sentencing Guidelines have, post-Booker, remained the essential starting point in all federal sentences. Because the Guidelines produce a numerical value, they create a cognitive “anchoring effect” bias that some say exerts a disproportionately strong impact on a judge’s decision-making that may undermine the fairness of sentencing decisions. Researchers have other ways that anchoring biases purportedly impact judicial decision-making. 

But more decidedly irrelevant factors and circumstances may influence a judge’s imposition of sentence. With the disclaimer that I’m not vouching for any of the conclusions made by the authors of these studies (and note contrary studies), here are a few examples where judges purportedly impose longer sentences or render more severe decisions:

—Bad weather (higher sentences when raining) Cf. https://hal.science/hal-03864854/document with https://eprints.whiterose.ac.uk/137050/8/sentencing%25

 

—Lack of sleep (higher sentences on the Mondays after the start of Daylights Savings Time) See https://hbr.org/2017/02/sleep-deprived-judges-dole-out-harsher-punishments

 

—Hunger (judges are more severe right before a meal break) 

Cf. https://www.pnas.org/doi/10.1073/ pnas.1018033108 

with https://www.scientificamerican.com/article/lunchtime-leniency/ and  https://www.annieduke.com/no-judges-dont-give-harsher-sentences-hungry-annies-newsletter-october-5-2018/

 

—Sports (move to continue when the judge’s football team loses) https://www.theatlantic.com/education/archive/2016/09/judges-issue-longer-sentences-when-their-college-football-team-loses/498980/

 

—Attractiveness (the more unattractive the defendant, the higher the sentence) See

https://www.thelawproject.com.au/insights/attractiveness-bias-in-the-legal-systemhttps://www.thelawproject.com.au/insights/attractiveness-bias-in-the-legal-system

Whatever the import of these and other studies may be, they certainly try to scientifically test Jerome Frank’s belief that a judge’s decisions are but a part of their total behavior and that the process of making decisions is, in reality, a composite of the psychological, environmental, and socioeconomic factors that go into the development of the personality of the individual judge. 

The bottom line is if you have a sentencing set for 11:30 the day after the Dolphins play Kansas City on Monday night and the forecast calls for rain, you may want to move to continue.

Ft. Lauderdale courthouse still closed...

 ... apparently it will be closed all week.

Here's what it looked like a few days ago:

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Trump Sues Cohen in SDFLA

By John R. Byrne 

Our district is now home to another lawsuit filed by former President Trump, this one against his former attorney, Michael Cohen. Trump is seeking $500 million in damages. 

You can read the Complaint here. As of the time of this post, no judge had been assigned yet.

***Update***

The case has been assigned to Judge Gayles

Ft. Lauderdale federal courthouse closed…

 …due to flooding and rain. 

Can’t wait for that new courthouse!

I’m told judges and staff are all working from home and hearings are proceeding via Zoom. 

Stay dry!

"What have you done for mankind today?"

By John R. Byrne

It's a question that Ben Ferencz used to ask his children around the dinner table every night. Ferencz, who was the last living Nuremberg prosecutor, died last Friday in his sleep. He was 103. He had moved permanently to South Florida in 2019.

The South Florida Sun Sentinel, along with countless other media outlets, are covering Ferencz's life. He was only 27 years old when he prosecuted 22 members of the Nazi killing squads. The beginning of his opening statement, which the paper excerpts, is powerful. 

“It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.”

Ferencz is considered one of the founding fathers of the International Criminal Court. Remarkably, in 2011, he delivered the closing statement for the prosecution at the Court's first trial. What a legacy.

One Day It Will Please Us To Remember Even This

By Michael Caruso

Some believe that our unfortunate reality is that, sometimes, no amount of thoughtfulness, hard work, or understanding will transform an intractable problem into a resolvable one. Yet, today marks the 25th anniversary of a counter-example—the “signing” of the Good Friday Agreement that brought peace to Northern Ireland and ended decades of violence known as “The Troubles.”

The origins of the Troubles date back to centuries of warfare in which the predominantly Catholic people of Ireland attempted to break free of British (overwhelmingly Protestant) rule. In 1921, the Irish successfully fought for independence, and Ireland was partitioned into two countries: the Irish Free State, which was almost entirely Catholic, and the smaller Northern Ireland, which was primarily Protestant with a Catholic minority.

While Ireland was fully independent, Northern Ireland remained under British rule, and the Catholic communities in cities like Belfast and Derry complained of discrimination and unfair treatment by the Protestant-controlled government and police forces. In time, two opposing forces coalesced in Northern Ireland mainly along sectarian lines: the Catholic “nationalists” versus the Protestant “loyalists.”

During the 1970s, 1980s, and 1990s, Northern Ireland suffered dozens of car bombings and sectarian attacks perpetrated by paramilitary groups on both sides, like the Provisional IRA and the Ulster Volunteer Force. Hundreds of civilians were among the dead.

There is a connection to our district. The IRA had two primary sources for weapons—Libya and the United States. And there were at least two notable prosecutions here that involved alleged gun running for the IRA. In 1990, the FBI used a Stinger missile to lure four suspected IRA members in a sting operation. One of those arrested—Joseph McColgan— commented: ″I’m just a poor Irishman here on holiday, and I was entrapped by certain people here.″  They were later convicted at a trial presided over by Judge Gonzalez. 

The Troubles ended, at least officially, with the signing of the Good Friday Agreement in 1998, creating a framework for political power-sharing and ending decades of violence. 

A year later, however, "the Florida Four" were accused of smuggling guns to the IRA. At a trial before Judge Ferguson, one of the men testified that “militant Irish-Americans” pushed him to buy weapons because they feared the peace deal would leave defenseless Catholics to face armed Protestant paramilitaries and police. The three men who went to trial were convicted of gun smuggling but acquitted of providing material support and conspiracy to murder. 

 

Postscript: Most of you know that David has a wonderful podcast called “For the Defense,” where he talks with defense lawyers about their cases. In writing this post, I realized that our district’s history—although somewhat alive on the internet—might be lost to time. I wonder if a voluntary bar association would be interested in doing a podcast with the judges and lawyers involved in these and other notable cases and creating an oral history of our district. 

Paul Hastings' associates have to buy their own work from home setup?

Here's the slide everyone is talking about, which was apparently presented to associates at Paul Hastings.  As you can imagine, it's gotten quite a bit of criticism. 

Dershowitz Sees Reversal of Litigation Fortune

 By John R. Byrne:

Judge Singhal just granted summary judgment to CNN in a high-profile defamation case. The Plaintiff, Alan Dershowitz, alleged that a host of CNN anchors and commentators misconstrued statements he made to the US Senate during President Trump’s impeachment trial. 

The order candidly touches on the evolution of the news media and the state of First Amendment jurisprudence more broadly.

Some good legal trivia in the order too, including this about the Supreme Court's landmark defamation decision--New York Times Co. v. Sullivan:

“In Sullivan, an advertisement containing false information was published in the

New York Times. In total the circulation of the paper in the entire state of Alabama—

where the concerned parties’ alleged injury occurred—was 394 copies."

394! 

Bottom line: CNN’s reporters may have “spun” Dershowitz's comments but there wasn’t evidence that they spoke with actual malice, the governing standard.

Worth a read. Order excerpted below.

Dershowitz Order by John Byrne on Scribd

Nikki Fried and Lauren Book arrested for peaceful protests

 

Well, everyone is talking about Trump and whether that's a political prosecution. Take a look at this arrest last night of Nikki Fried and Lauren Book. What happened to the first amendment?

Police just handcuffed & arrested protesters including ⁦@NikkiFried⁩ & ⁦@LeaderBookFL⁩ pic.twitter.com/NCdqHJxmcx

— Gary Fineout (@fineout) April 4, 2023

Yikes.

Judges Branch and Ho ban Stanford Law Students from clerkships

Not just the protestors, but all students who attend Stanford.  They are cancelling the whole school because a small group of students tried to cancel a federal judge who was speaking at a Federalist Society event. They are already boycotting Yale. 

Hey, more opportunities for the UM law students!

Here's some coverage:

"We will not hire any student who chooses to attend Stanford Law School in the future," Ho, who sits on the Fifth Circuit Court of Appeals, said Saturday evening in a speech to the Texas Review of Law and Politics, a transcript of which was reviewed by the Washington Free Beacon. The clerkship moratorium, like the one on Yale, will exempt current law students.

Ho's announcement is the latest and most dramatic effort to hold Stanford accountable for its treatment of Fifth Circuit appellate judge Kyle Duncan, who was shouted down by hundreds of students—and berated by Stanford diversity dean Tirien Steinbach—when he spoke at the law school last month. The students called Duncan "scum," asked why he couldn't "find the clit," and screamed, "We hope your daughters get raped."

Though Steinbach is on leave, Stanford has ruled out disciplining the hecklers, who by Stanford's own admission violated the school's free speech policy.

"Rules aren't rules without consequences," Ho said. "And students who practice intolerance don't belong in the legal profession."