Judges are crushing defendants even those with no criminal history, so the Sentencing Commission steps in

 Defense lawyers have long been arguing that the way the guidelines treat folks with no criminal history is too harsh.  Judges have mostly ignored these arguments for the past 30 years.  

Well, now the Sentencing Commission has jumped in and said that folks with no criminal history (and no violence) should get an additional 2 levels off of their sentence.  AND it's going to be retroactive. 

  From Reuters:

The United States Sentencing Commission (USSC), in a 4-to-3 vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history—meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text). Amendment 821 creates a new Chapter Four guideline at §4C1.1 (Adjustment for Certain Zero-Point Offenders) providing a decrease of two levels from the offense level determined under Chapters Two and Three for defendants who did not receive any criminal history points under Chapter Four, Part A and whose instant offense did not involve specified aggravating factors. In short, for many white collar crimes and lower-level drug offenses, it could mean months or years off of a sentence.

***

The USSC estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

New podcast episode: Craig Albee for Mark Jensen

 

You've been asking for a good old fashioned murder trial, and we've got one for you this week: Craig Albee for Mark Jensen. This is the "letter from the grave case" where Jensen's wife penned a letter saying that if she turned up dead, the first suspect should be her husband. The fascinating defense was that she committed suicide to set up her husband. Craig is a truly gifted trial lawyer, who also happens to be the Federal Defender in Wisconsin.  So this episode is dedicated to all the wonderful state and federal public defenders out there. 

As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

This is episode 8 of the season.  We have one more episode to finish up, which will be released on September 12.  Then I have a few bonus episodes in the works to sprinkle in throughout the rest of the year.  This season's Florida CLE code will be given in the email on September 12 and at the end of that episode.

The podcast continues to make news. The interview of John Lauro a few weeks ago went viral and was discussed on the news shows as well as in the Wall Street Journal, Politico, Salon, and other outlets. And as the Trump case moves forward, it continues to be cited and discussed, including by CBS over the weekend.  John was gracious enough to spend his time going in depth on a variety of topics, including use of the media, defense strategy, venue, recusal, and so on. If you missed it, you can check it out on audio and I also uploaded it to YouTube as an experiment.  Let me know what you think.

We do not make any money off of this podcast.  We do it because we love trials, love criminal defense, and love speaking to the lawyers.  But to keep it going, we need your help by spreading the word... subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.

 Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur

 

CONTACT: info@rakontur.com, dmarkus@markuslaw.com

Who has it right? Kagan or Alito?

 The issue -- Can Congress regulate the Supreme Court.  Alito says no.  Kagan says yes.  Here's the intro from the NY Times, which covers the debate:

As a young lawyer in the Reagan White House, John G. Roberts Jr. was tartly dismissive of the Supreme Court’s long summer break, which stretches from the end of June to the first Monday in October.

“Only Supreme Court justices and schoolchildren,” he wrote in 1983, “are expected to and do take the entire summer off.”

On the other hand, the young lawyer wrote, there is an upside to the break: “We know that the Constitution is safe for the summer.”

These days, members of the court find time to quarrel about the Constitution even in the warm months. The primary antagonists lately have been Justices Samuel A. Alito Jr. and Elena Kagan.

From the body:

The question is timely, of course, as news reports have raised ethical questions about, among other things, luxury travel provided to Justices Alito and Clarence Thomas. Those reports have led to proposed legislation to impose new ethics rules on the court.

Justice Alito, in an interview published in The Wall Street Journal last month, appeared to object, saying that “Congress did not create the Supreme Court.”

He added: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

A few days later, at a judicial conference in Portland, Ore., Justice Kagan took the opposite view, though she cautioned that The Journal had not reproduced the question that had prompted Justice Alito’s answer. She indicated, graciously, that he could not have meant what he seemed to say.

“Of course Congress can regulate various aspects of what the Supreme Court does,” she said, ticking off a list of ways in which lawmakers can act. Congress sets the court’s budget. It can increase or shrink the size of the court, and it has over the years done both. It can make changes to the court’s jurisdiction.

Indeed, the Constitution provides that the court has appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.”

All of this is unsurprising, Justice Kagan said.

“It just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else,” she said, adding, “I mean, we are not imperial.”

Meantime, if you prefer debates about typography, this NLJ article is for you.  It goes through the various fonts, margins, and line spacing for the different Circuits.  The 7th earns praise.  Not so much for the 11th.

Not the best way to represent a client

 This is nails on a chalkboard, no?  From the Herald:

Something seemed off-kilter when a Florida defense lawyer asked a federal judge in Miami to delay his client’s sentencing the day before the hearing in a health-insurance fraud case. The client showed up in court, but her lawyer didn’t. Then, U.S. District Judge Donald Graham lost his cool when he discovered that Tampa attorney Benjamin Waldo Buck Jr. had abandoned her after an August 2022 criminal trial. “Are you saying that since the trial ended you have not met with Mr. Buck regarding the Pre-sentence Investigation Report?” an incredulous Graham asked the defendant in late October. “No, not at all,” Jaroslava Ruiz responded, saying she went through the process with the probation office on her own.

Graham instantly assigned a seasoned defense lawyer to her Miami case and threatened to hold the no-show Buck in contempt of court. What the judge didn’t know was that Buck had been ghosting clients like Ruiz all over the state, generating more than 30 complaints with the Florida Bar, including allegations of keeping clients’ fees after dropping them. Last Thursday, the Florida Supreme Court revoked Buck’s license for five years — after he had voluntary agreed to surrender it, but then withdrew his motion. The Florida Bar called his reversal “a blatant abuse of the legal process and misrepresentation to this court.” 

On Tuesday, Graham finally held Ruiz’s sentencing hearing, giving her four years and four months in prison for conspiring with others at a Miami-area medical clinic that submitted tens of millions of dollars in false healthcare claims to private insurance companies. But after the longtime federal judge dealt with her punishment, Graham considered whether to hold Buck, her former defense lawyer, in contempt for failing to show up at her original sentencing hearing last October. Graham, who has served on the federal bench in South Florida for 32 years, said he had never seen such misconduct by a lawyer in his courtroom. “Frankly, I was shocked that a lawyer didn’t appear for sentencing,” he told Buck. Buck apologized profusely, saying he couldn’t attend Ruiz’s sentencing because he was representing another client in a criminal trial in another part of the state at the same time. “I’m sorry again, your honor, for my failure to appear,” he said. “I should have been here.” 

 Rather than find Buck in contempt and possibly send him to jail, Graham instead ordered the disbarred lawyer to pay a $1,655.72 fine to Ruiz — representing the personal costs that she incurred while traveling to her original sentencing hearing from North Carolina, where she moved with her family.

3rd Circuit to district judges: Stop guessing people into jail

The guidelines on white collar cases are so out of whack.  Everyone knows it.  They lead to absurd sentences for first time, non-violent offenders.

And even trying to figure out the guidelines is oftentimes based on guesswork.  Some appellate courts are starting to put district judges on blast.  Here's the Third Circuit, reversing a monster sentence in a pill mill case because the district judge's calculations were just speculation:

Yet the evidence did not support a reliable extrapolation. The District Court used the medical expert’s review of twenty four files to infer the illegality of thousands of other prescriptions. In the court’s view, that sample size was not “statistically valid.” JA 2336. Yet it extrapolated anyway. And without much explanation from the District Court, Titus had no chance to “respond meaningfully, or for that matter, at all.” United States v. Nappi, 243 F.3d 758, 766 (3d Cir. 2001). 

Plus, the government never showed that the sample was large enough to be reliably representative of the remaining thousands of prescriptions. (Though statistical evidence can help to show that a sample size is large enough to support reliable inferences, we do not hold that such evidence is always necessary.) Nor did it document proper extrapolation methods. And it never explained how extrapolating from this sample could prove the huge drug weight by a preponderance of the evidence. So the sentencing court failed to “ensure that the Government carrie[d] [its] burden [of proof] by presenting reliable and specific evidence.” United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997) (internal quotation marks omitted).

11th Circuit upholds Alabama statute limiting puberty blocking medications for transgender youth

The Eleventh Circuit upheld Alabama’s Vulnerable Child Compassion and Protection Act, which makes it a felony to provide transgender youth with puberty blocking medication, hormone therapy or surgery for the purposes of changing their birth sex. More analysis of the various standards of review in the opinion, with the trial court applying strict scrutiny and the Eleventh applying rational basis review. Judge Lagoa wrote: "the plaintiffs have not presented any authority that supports the existence of a constitutional right to 'treat [one's] children with transitioning medications subject to medically accepted standard.'" Media coverage here.

Order by John Byrne on Scribd

SCOTUS uses City map for upcoming election

 From the Miami Herald:

The U.S. Supreme Court ruled on Thursday in a legal battle over which voting map should be used for Miami’s upcoming elections, deciding that a map drawn by the city should be used. The map, approved by the City Commission in June after a federal judge rejected an initial map drawn in 2022, leaves one commissioner in his district and places a candidate outside of the district he’s lived in for 20 years. After several appeals that moved the case through federal courts, the Supreme Court decided that a map drawn by the city be used to determine who can vote and who can run for City Commission seats in districts 1, 2 and 4 in the Nov. 7 elections. Three incumbents are running for reelection: District 1 Commissioner Alex Díaz de la Portilla, District 2 Commissioner Sabina Covo and District 4 Commissioner Manolo Reyes. In the city map, District 3 Commissioner Joe Carollo’s home remains inside his district — the other map placed his home outside of his district, which could have led to a residency issue for Carollo.

What happens when judges get too old to serve but won't step down?

 No, I'm not talking about any particular judge in our district.

I'm talking about Pauline Newman of the Federal Circuit.  She's 96 and members of the court have complained about her bouts of paranoia, memory loss, and confusion.

Here's an article detailing how the court there is trying to deal with it.  And it ain't pretty:

U.S. appeals judge Pauline Newman has committed "serious misconduct" by refusing to cooperate with a mental fitness probe and should be suspended from hearing new cases for one year or until she submits to a court-ordered examination, an investigative panel of the U.S. Court of Appeals for the Federal Circuit said in a report released on Friday.

The report cited statements from "many different staff members describing memory loss, confusion, paranoia and angry rants" by Newman, who is 96 and has been a Federal Circuit judge for nearly four decades. Newman has shown "significant mental deterioration," it said.

Meantime, Judge Edith Jones of the 5th Circuit has written an op-ed in the WSJ defending Newman.  

The conclusion:

But in Judge Newman’s case, it appears that career-ending removal from her judicial duties is being imposed by her court, with no time limit and with little heed for the regulations and case law. At odds with fundamental due process, members of her own court sit in inherently conflicting positions as prosecutors, judges, jurors and witnesses.

To obviate unethical conflicts and provide objectivity, the normal application of judicial misconduct rules requires that a matter about a circuit-court judge be transferred to another circuit’s chief judge and Judicial Council. The chief justice and a committee of the Judicial Conference of the U.S. could enforce this norm. Why the usual practice wasn’t followed here is inexplicable.

FOR THE DEFENSE: BARRY SCHECK FOR THE INNOCENCE PROJECT

 

We have a titan of the criminal defense bar on the show this week -- Barry Scheck for the Innocence Project.  Barry has done it all: from winning the trial of the century, to exonerating innocent defendants, to teaching, to running NACDL.  And he's still going strong, having just cleared another innocent man. It was a real honor to speak with him about how he does it. As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and Google,  All other platforms can be accessed on this website.  Last week was a big one for the podcast.  The interview of John Lauro went viral and was discussed on the news shows as well as in the Wall Street Journal, Politico, Salon, and other outlets. John was gracious enough to spend his time going in depth on a variety of topics, including use of the media, defense strategy, venue, recusal, and so on. If you missed it, you can check it out on audio and I also uploaded it to YouTube as an experiment.  Let me know what you think. Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur   CONTACT: info@rakontur.com, dmarkus@markuslaw.com Copyright © 2023 Markus/Moss, All rights reserved. You are receiving this email because you opted in via our website. Our mailing address is: Markus/Moss 40 NW 3rd St Ph 1 Miami, FL 33128-1838 Add us to your address book Want to change how you receive these emails? You can update your preferences or unsubscribe from this list.

Justice Thomas Seeks Response from City of Miami in Voting Map Case

By John R. Byrne

A few weeks back we covered Judge Moore's order throwing out the City of Miami's voting map plan on concerns of racial gerrymandering and adopting the plan proposed by the plaintiffs. The City got the Eleventh Circuit (with a dissent from Judge Wilson) to stay the order, prompting the plaintiffs to ask SCOTUS for emergency review.

Justice Thomas, who handles emergency appeals from the Eleventh, appears to be seriously considering the request. Last Thursday, he ordered the City to respond to the plaintiffs' appeal by 5 p.m. today. The Herald covers it here.

Judge Bloom Strikes Down Florida Lobbying Ban

By John R. Byrne

Big month for First Amendment cases in the district. Judge Bloom ruled that an Amendment to the Florida Constitution prohibiting Florida elected officials from lobbying any government entity on certain topics violated the First Amendment. The defendants had argued that the restrictions were intended to address quid pro quo corruption or its appearance. Compelling state interests aside, the Court ruled that the law was too baggy to survive the narrow tailoring test. The Court did uphold a separate provision barring former government officials from lobbying discretely identified government entities/officials for a limited period of time (six years after the government officials left office).

See, all those tests you had to learn in Con Law are still useful! Opinion below.

In other news, football is back! Dolphins v. Falcons preseason game is on tonight @ 7 p.m. (CBS). March to the Super Bowl begins tonight....

Stillman Order by John Byrne on Scribd

What is a reasonable attorney rate in Miami?

 Gibson Dunn's normal partner rates are $1,815 and $1,785/hour.

They asked for a reduced rate of $950/hour on a case here in Miami.

Chief Magistrate Judge Edwin Torres reduced those rates to $700/hour in this Report & Recommendation.

Here's the Reuters report about it:

"The court's task in a fee petition is not simply to award what a local client could be willing to pay for a given superstar lawyer," Chief U.S. Magistrate Judge Edwin Torres wrote in his report.

Peak One's lawyers included Gibson Dunn partners Helgi Walker in Washington, D.C., and Barry Goldsmith in New York.

RIP Gary Kravitz

Very sad to hear Gary Kravitz passed away.

Gary was a long-time fixture here in federal court.  He was a career clerk for Judge Dube and also served as a law clerk for other magistrate judges.  He then went on to teach at St. Thomas School of Law.  

He was just a good, nice guy.  He was always kind and encouraging to lawyers in his courtroom.

His longtime co-clerk and colleague at St. Thomas, Lourdes B. Fernandez, had this to say: 

For me, I met Gary my 1L year at STU Law as my ever-so-strict Legal Writing Professor and before long he became my mentor. Not always telling me what I wanted to hear, but what I needed to hear. I followed him to Federal Court and he became my work colleague and grew to be one of my closest friends. Beyond doubt, Professor Gary Kravitz was the most powerful influencer in my legal career, and I still praise God for him every day. 

St. Thomas Law is hosting a Celebration of his life on Thursday, August 24^th from 5:30 p.m. to 7:30 p.m. 

5:30 p.m. -6:00 p.m. Reception

6:00 p.m.-7:00 p.m. Program

7:00 p.m.- 7:30 p.m. Reception

Here is the very nice obit:

Gary Neil Kravitz, 66, beloved brother, Godfather, uncle, friend, colleague, and professor, passed away peacefully on July 29, 2023, surrounded by family and close friends, listening to his favorite music, and celebrating a life well-lived.

Gary was born in Philadelphia, Pennsylvania on December 13, 1956, the youngest of three to his parents Leonard and Miriam Kravitz, with older sisters Doris and Faye. Gary and his parents moved to Hialeah, FL in 1969. After graduating high school, Gary moved to Gainesville, Florida to attend the University of Florida where he graduated with high honors and later attended the U.F. Levin College of Law. 

During his professional career, Gary served as a law clerk to several United States Magistrate Judges and a state appellate judge. He also spent time in private practice, with a concentration on civil and criminal appeals. In 2008, he joined the faculty at St. Thomas University, Bejamin L. Crump College of Law where he’d been an adjunct professor since 1996. He served as President of the Federal Bar Association, South Florida Chapter, and the Peter T. Fay American Inn of Court, and several other professional associations and Bar committees.  He was also admitted to the Supreme Court of the United States.

At St. Thomas Law, Gary loved and is beloved by the countless students whose lives he touched.  Gary was a devoted and compassionate professor who was beyond generous with his time and wisdom. These traits made him a popular and defining figure for many alumni at St. Thomas Law.  He always strived to do right by his students and exhibited the utmost professionalism and civility, treating everyone with dignity and respect.  His quick wit might catch you by surprise if you didn’t know him, or even if you did. Gary was the person colleagues and students alike could count on for support.  A mentor to many, he served as a role model for us all.

The simplest pleasures brought great joy to Gary.  He loved the oldies—Frank Sinatra, Louie Armstrong, Ella Fitzgerald—and classic films—Casablanca, The Treasure of Sierra Madre, 12 Angry Men. He loved reading biographies of U.S. historical figures, which in part explains his tremendous grasp on the American system of justice. He especially loved sharing laughter and meals that always included red wine, with family, friends and students who became friends. Gary’s devotion to his students was only eclipsed by the love he had for his Godchildren, Dustin, Brandon and Olivia Thaler.

Gary is survived and lovingly remembered by his sister Doris Jones, brother-in-law Rick Jones, nephews Ronnie and Joseph Listman, niece Dianne Pasley and her husband Dave, his Godchildren Dustin, Brandon and Olivia, and his many friends who became family over the years.  He was predeceased by his parents Leonard and Miriam, and his sister Faye Listman. 

Gary’s family and friends are grateful for the treatment and compassionate care he received from the doctors, nurses, and staff at the Cleveland Clinic in Weston. May he rest in peace, and may we forever remember the lessons he imparted upon us –both in law and in life.

bonus episode of For the Defense -- John Lauro for Donald J. Trump

 You may have seen John Lauro on all of the talk shows today, defending his new client Donald Trump.  He graciously agreed to appear on For The Defense with me as well.  No matter what you think of his client, I think you'll find his discussion of the issues really fascinating.  And unlike the news shows, we were able to go in depth on a variety of topics, including use of the media, defense strategy, venue, recusal, and so on. I also uploaded it to YouTube this time.  Let me know what you think. As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.   Hosted by David Oscar Markus and produced by rakontur

Now that's a speech

 Big shout out to Judge Milton Hirsch for this incredible and well-deserving award from NACDL.  His acceptance speech is worth listening to.  What a story.  And it's delivered with such heart and passion.  The best.  He starts at 8:45:

Media in DC permitted to have cell phones and electronics in courthouse for Trump's arraignment

The sky did not fall.

And all would be fine if we permitted cameras in the courtroom.

That way, we could see it for ourselves and not have to rely on print reporting about it.  Here's a pretty good summary:

If you blinked, you missed it.

For a fleeting moment Thursday, Donald Trump and special counsel Jack Smith — the man who could put him in prison — appeared to make eye contact as the former president prepared to fend off charges that he sought to subvert American democracy itself.

That shared glance crystallized the historic weight of Thursday’s arraignment, the third in recent months for the former president who is fighting federal and local prosecutors even as he appears to be coasting to the 2024 GOP presidential nomination.

Smith said nothing audible during his hour in the room, but repeatedly shot glances at Trump, who occasionally shot them back until their eyes briefly met.

Even before Donald Trump entered a federal courtroom and declared himself “not guilty” on four felony charges related to his effort to derail the transfer of presidential power, the weight of history was evident in Washington, D.C.’s federal courthouse.

***

Minutes before Trump entered the pin-drop silent room, several federal judges — who have been processing the carnage of Jan. 6, 2021 for more than two years — filed into the public gallery, turning themselves into spectators in a building they typically rule. Chief Judge James Boasberg, who presided over several of the secret grand jury battles that preceded the charges against Trump, was among those marking the moment.

***

Minutes before Trump entered the pin-drop silent room, several federal judges — who have been processing the carnage of Jan. 6, 2021 for more than two years — filed into the public gallery, turning themselves into spectators in a building they typically rule. Chief Judge James Boasberg, who presided over several of the secret grand jury battles that preceded the charges against Trump, was among those marking the moment.

 

Eleventh Circuit Rules for UM in Lawsuit Based on Remote Learning During Pandemic

By John R. Byrne

Covid-related lawsuits have now worked their way up to the Eleventh Circuit. The Court just issued a ruling relevant to one species of these lawsuits: lawsuits against universities for failing to provide in-person education during the pandemic. The plaintiff in the case sued University of Miami for breach of contract and unjust enrichment, arguing that UM should refund a portion of her tuition for the Spring 2020 semester because she didn't receive the benefits of in-person learning. The trial court (Judge Singhal) granted summary judgment for UM.

The plaintiff didn't fare any better before the Eleventh Circuit. On the breach of contract, the Court held that UM didn't breach any express or implied contract, noting that provisions in the Student Handbook gave the school wiggle room to temporarily shut down the campus. On unjust enrichment, the Court held that it wasn't inequitable for UM to retain the tuition given that the school (a) provided remote education and (b) was barred (by multiple executive orders) from providing in-person eduction.

This ruling only applies to UM, of course. But the unjust enrichment analysis looks exportable to claims against other colleges and universities and, on the breach of contract front, I have to think that UM's Student Handbook language is comparable to language in other student handbooks.

Also...a nice UM shoutout by Judge Wilson--who graduated from both Notre Dame and Notre Dame Law School--in the conclusion: "We hope that some comfort can be found, however, in our certainty that despite enduring the hardships created by the pandemic, any student who has earned a degree from a school like the University of Miami retains the unspoiled potential for a fulfilling and prosperous future." 🙌

Order in UM Covid Case by John Byrne on Scribd

New Episode: Matthew Menchel for Raoul Weil

 

FOR THE DEFENSE: MATTHEW MENCHEL (left)
FOR SWISS BANKER RAOUL WEIL (not pictured)

This week's episode is a lot of fun -- it's with Matt Menchel, a good friend and an awesome trial lawyer. He successfully represented a Swiss banker named Raoul Weil. Matt is a great story teller, so I think you're going to really enjoy this one. Listen on your computer here or on any of your podcast platforms (Apple, Google, Spotify, or Amazon).

I hope you enjoyed the last episode with Lisa Wayne (Jason Williams), as well as the episodes with Jerry Lefcourt (Abbie Hoffman), Milton Hirsch (Pedro Guerrero) and Todd Blanche (Paul Manafort).

As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

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

 Thank you! --David
 

Hosted by David Oscar Markus and produced by rakontur