"The Psychology of Persuading Jurors in the TikTok Era"

 Here's a little something that my daughter (and I) wrote:

In 1924, two wealthy University of Chicago students, Nathan Leopold and Richard Loeb, thought they were so smart that they could commit the perfect, unsolvable crime. So they lured a 14-year-old boy into their car, killed him, and then sent a $10,000 demand letter to the boy’s family. Before the boy’s family could pay the ransom, police found the body.

Far from committing the perfect crime, Leopold left his glasses at the scene, and police quickly traced the glasses to his optometrist. The prosecutors sought the death penalty for the boys, who hired Clarence Darrow—the greatest criminal lawyer of his day—in a bid for their lives. It was the trial of the century (before Darrow’s next trial, the Scopes Monkey trial).

After three months of trial, the courtroom was sweltering the day that Darrow delivered his closing argument. He spoke for 12 hours. That’s not a typo. Twelve hours.

I have friends that can’t even sit through a two-hour movie.

I’m almost 18 years old, and what that means is that my generation and I soon will be sitting on juries. That may scare many of you trial lawyers, but you are going to have to figure out a way to reach the minds of people who are used to absorbing information from 30-second bites on TikTok.

So here’s some advice:

1. Keep it moving. I understand that you lawyers think that every document is a critical piece of evidence. And that jurors will be able to follow the excruciating detail in every contract.  But trust me, you are much better off just making the point and moving on. Don’t waste time with a long lead up. Make your point and get out of there.
2. Be passionate. There’s nothing worse than watching someone speak who doesn’t feel some passion for what they are saying. I can sit through calculus—yes, calculus—because my teacher makes it fun and interesting. And trust me, I’m not otherwise that into the subject matter. If you don’t believe in what you’re saying, the jury isn’t going to be either.
3. Keep it simple. I didn’t include the last S of K.I.S.S. (look it up) because that’s just rude. But this one’s obvious, right? If you can’t explain it quickly and easily, then you are going to lose the jury. Analogies help. Think about the psychology of the people sitting in your jury box, and try to appeal to them.
4. Don’t read. Bueller, Bueller. If you are just reading, you can expect your audience to disengage and stop listening. This point relates to points 2 and 3 above. If you are passionate and keeping it simple, you won’t need to read. Speak from the heart (and from an outline, if necessary).
5. Use visuals. Us young people need to see, not just hear. So please use visuals. This does not mean putting a bunch of words or your outline on PowerPoint slides. Death by PowerPoint is real. The visuals need to be engaging and have a point. My dad likes starting his opening statements with a picture of his client and the family. He may not even mention the picture while speaking, but it’s up there. And jurors see it and understand that it’s a real person with a real family, not just “the defendant” as the prosecutor just said over and over. Again, play to the psychology of your jurors.
6. Make your argument unique. There is a reason everyone binge watches Legally Blonde.  Keeping the defense witty, sharp, and “fun” to listen to is crucial. “What, like it’s hard?”

Darrow saved the lives of Leopold and Loeb with that long closing argument. I’m sure it was perfect for jurors in the 1920s. In fact, Darrow was credited for winning a case with unwinnable facts. That said, if he went on for that long today, the jurors may have saved his clients, but they would be thinking about sending him to Old Sparky!

David Oscar Markus is a partner at Markus/Moss. Follow him @domarkus. Kate Emily Markus is in her senior year at Palmetto Senior High School. Follow her @kate_markus.

1.  

"That's exactly right, sweetheart..."

 "…uh, excuse me, Your Honor..."

Eek.

Not the best way to end your rebuttal in the 11th Circuit. It's at the 36:25 mark of this oral argument.

I really debated posting this because I actually kinda feel bad for the guy, who sounds old, was obviously embarrassed, and immediately apologized. But people are talking about it and it’s public record, so I put it up. It’s a good reminder that this kind of thing still happens even to the best and most powerful women in our profession. 

Should USAO offices be tweeting?

 

Say what you will about Menendez… but it always bothers me when prosecutors have flashy press conferences. Do they really need to be tweeting? https://t.co/1vgTaeK8d4

— David Oscar Markus (@domarkus) September 23, 2023

I'm sure you're not surprised by my view.  What's yours? 

What happens when judges, appointed for life, are too old?

 Pauline Newman, 96, was suspended for a year.

Colleagues of Pauline Newman, a 96-year-old federal appeals judge, have suspended her from hearing cases as part of a clash over her mental fitness.

The U.S. Court of Appeals for the Federal Circuit’s active judges on Wednesday barred Newman from hearing cases for one year unless she complies with their demand to submit to medical testing.

“We are acutely aware that this is not a fitting capstone to Judge Newman’s exemplary and storied career,” according to the order.

“We all would prefer a different outcome for our friend and colleague,” it continued. “However, we have a solemn obligation under the Act and an obligation to the litigants before our Court and court staff to take action—and not to simply look the other way—when it appears that a judge of this Court is no longer capable of performing the duties of her judicial office.”

The ruling is the latest development in a bitter battle over Newman’s fitness to continue serving on the Federal Circuit, an appeals court that hears patent cases and other specialized disputes.

We've had some wonderful judges who had to confront the issue in our district over the years, including one during a high profile case dealing with the Everglades cleanup.

Congratulations to Florida's new lawyers

Congratulations to everyone who passed the Florida Bar. 

Here’s how lawyers were notified back before there was the Internet. This is my Dad’s notification back in 1958. 

A telegram!

 

Opponents of Florida Sports Betting To Seek SCOTUS Review

By John R. Byrne

If you're wondering when you're going to be able to lock in your parlay bet on Dolphins winning the Super Bowl and Tua the MVP award, the answer is not anytime soon. We blogged a while back about the Seminole Hard Rock's big win in the U.S. Circuit Court of Appeals for the District of Columbia. The three-judge panel held that the Secretary of the Interior did not violate the Administrative Procedures Act when she allowed the gaming compact between the Seminole Tribe and Florida to go into effect.

Though the DC Court of Appeals denied en banc review, opponents of the compact say they plan to pursue SCOTUS review. From their lawyers:

“[The Court] held that a tribe and state may use the process set forth in IGRA (the Indian Gaming Regulatory Act) to grant exclusive statewide internet gaming franchises to Indian tribes. This understanding contradicted Congress’ clear intent in enacting IGRA which was to provide for gaming ‘on Indian lands,’ not to provide a means to introduce internet gaming statewide."

So, the case is "under further review." You can read the Tampa Bay Times's coverage here.

Parallels in Statutory Interpretation

By John R. Byrne

Interesting dissent from Judge Rosenbaum in an order denying rehearing en banc. At issue was the American Rescue Plan Act of 2021, which gave the states over 200 billion dollars to deal with the coronavirus pandemic. But the federal government argued there were strings attached to that funding, strings that 13 different states (including Florida) challenged. The original panel held that the feds could not enforce those conditions, relying on precedent that required such conditions to be expressed "unambiguously" and "with a clear voice."

In her dissent, Judge Rosenbaum criticized the majority for not following the US Supreme Court's approach to statutory interpretation. She wrote that "The Supreme Court has told us that 'before concluding that a [statute] is genuinely ambiguous, a court must exhaust all the traditional tools of construction'" and stressed the need to consider "the statutory context" and the "statutory structure." In response to her criticism, Judge Brasher faulted the feds for not presenting these statutory interpretation arguments in the first place.

The commentary on statutory interpretation by Judge Rosenbaum is strikingly similar to language recently used by the Florida Supreme Court. In Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022), Florida Supreme Court Justice Muniz wrote that, when interpreting a statute, a court must consider “the [statutory] language itself, the specific context in which that language is used, and the broader context of the statute as a whole” and that "the traditional canons of statutory interpretation can aid the interpretive process from beginning to end."

Order below.

American Rescue Plan Act Case by John Byrne on Scribd

Should prosecutors who commit crimes be permitted to continue as prosecutors?

 AP's Joshua Goodman has this report about Tampa AUSA Joe Ruddy:

When police arrived at his house to investigate a hit-and-run, Joseph Ruddy, one of the nation’s most prolific federal narcotics prosecutors, looked so drunk he could barely stand up straight, leaning on the tailgate of his pickup to keep his balance.

But he apparently was under control enough to be waiting with his U.S. Justice Department business card in hand.

“What are you trying to hand me?” an officer asked. “You realize when they pull my body-worn camera footage and they see this, this is going to go really bad.”

You can watch the video of the stop and encounter at this tweet:

.

"You realize when they pull my body-worn camera footage and they see this, this is going to go really bad"

Veteran federal prosecutor in Tampa hands police officer his @TheJusticeDept business card after drunkenly leaving scene of hit-and-run on July 4

w/ @JimMustian pic.twitter.com/v8tkHq4TwF

— Joshua Goodman (@APjoshgoodman) September 8, 2023

For the Defense, Season Finale

 

pictured: Margot Moss (left), Andrew Gillum and his family (center), and David Markus (right)
 

FOR THE DEFENSE, SEASON 5 FINALE:
MARGOT MOSS (AND I) FOR MAYOR ANDREW GILLUM

Season 5 has been a blast. Thank you all so much for listening and for your supportive emails.  I really appreciate it.

The season finale is a special episode for me as I got to sit down with my partner Margot Moss and discuss a recent trial we finished a few months ago involving Mayor Andrew Gillum.  (Our team also included Katie Miller and Todd Yoder). You'll enjoy hearing Margot's passion for criminal defense and how she won this case in her opening statement. 

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 season's Florida CLE code is listed at the end of this episode. If you're a Florida lawyer, you'll get 9.5 general credits, 2.5 ethics credits, and 1.5 technology credits.  Not bad for a free podcast.  All that I ask in return is that you spread the word, leave reviews, and subscribe.  It will take you 30 seconds. THANK YOU.

The podcast continues to make news. Most recently, the interview of John Lauro was discussed in the New York Times, and was previously cited in in the Wall Street Journal, Politico, Salon, CBS, and other outlets. If you missed it, you can check it out on audio and YouTube.

I also want to thank our other awesome guests this season:  Milton Hirsch, Todd Blanche, Gerry Lefcourt, Lisa Wayne, Matt Menchel, Barry Scheck, and Craig Albee.  Their trials and stories were inspiring. 

There are also a few Markus/Moss updates from the last few months while we're here:

• Since it's all Trump all the time, I've been making the rounds on various news shows to discuss recent developments, including Kaitlin Collins (here), Erin Burnett (here and here), Jim Acosta (here), Greta Van Susteren (here, here, and here) and Glenna Milberg (here). It's been a lot of fun.
• 
• Margot Moss was named the Criminal Justice Act Representative for the Southern District of Florida, which is a huge responsibility and honor. She also appeared on the wonderful Athena Rising podcast with Vanessa Johannes and Marissel Descalzo. 
• 

 

• We are currently fighting the government's efforts to freeze all of our client's assets pretrial.  Although its early, this ruling -- covered by the Miami Herald -- was favorable and is of interest.  The team includes Lauren Doyle.
• One of our biggest wins this year was a decision from the government (memorialized in a letter) not to prosecute our client, the CEO of a publicly traded company after we made a number of presentations along with wonderful co-counsel.
• The Firm and its lawyers continues to be recognized in Chambers and Best Lawyers.  Chambers named David a "Star Lawyer" and Best Lawyers awarded him "Lawyer of the Year."  Margot and Mona were recognized as well.

We love trials, criminal defense, and speaking to the lawyers. We hope you are enjoying this podcast as much as we are doing it. Please stay in touch with your suggestions and comments.  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

Bench and Bar (cont.)

By John R. Byrne

After a long hiatus, the Court held its semi-annual Bench and Bar Conference last Friday at the Miami Beach Convention Center. The event enjoyed record attendance, with over 1000 members of the bar attending. 

The decision to have fewer panels to ensure robust attendance at each panel was smart and the App allowed the moderators to ask questions from the audience in real time (and *mostly* avoided audience members hijacking the discussions with lectures masquerading as questions!)

I know there were complaints about the Gideon panel composition from the criminal defense bar. Still, Judge Williams and Judge Scola made powerful cases for the dire need for more federal funding for indigent representation. 

A really nice event put on by Chief Judge Altonaga and Judge Altman. Some pictures below. 

Panel on multi-district litigation with Judge Moreno, Judge Ruiz, Judge Rosenberg, Judge Singhal, and Podhurst partner Peter Prieto.

Afternoon plenary session on Gideon v. Wainwright with Judge Williams, Akhil Amar, Judge Scola, and David Howard.

Panel on criminal trials with Judge Marra, Judge Dimitrouleas, Chief Judge Altonaga, Judge Altman, Judge Cohn, and Judge Torres.

Supreme Court Roundup with Neal Katyal and Miguel Estrada.

Panel on civil jury trials with Judge Middlebrooks, Chief Judge Altonaga, Judge Bloom, Judge Altman, and Kozyak partner Ben Widlanski.

Bench & Bar conference

The big SDFLA conference is today.  It's a huge event and looks to be very successful.  If you are there, take some pictures and I will post them. (email them to me at dmarkus at markuslaw dot com)

One bit of controversy -- it's also the 60th anniversary of Gideon and there's a Gideon panel at the conference.  However, there is no public defender on the panel (the panel does include Judge Kathy Williams, the former FPD and David Howard, a criminal defense lawyer).  The local criminal defense listserv was fired up about it last night.  

In other news, prosecutors are pushing forward with charges against Hunter Biden, including possession of a firearm while being an addict.  The problem -- right wing judges have already struck down this statute as unconstitutional.

Georgia prosecutors are cray cray

 They are saying they plan on calling 150 witnesses and taking 4 months to try their case.  And they will likely have to do it more than once.  Those poor jurors.  

In Florida news, the Florida Supreme Court has abandoned the presumption of innocence and says that “The fact that a lawyer has been charged with a felony by an indictment or information in state or federal court may, for the purposes of this rule, constitute clear and convincing evidence that the lawyer’s continued practice of law would cause great public harm when such a felony charge alleges conduct reflecting adversely on the lawyer’s fitness to practice law.”  

Hmmm.  

Don't we tell juries that a charge is not proof of anything and should not be considered when deciding guilt or innocence?  Apparently our fine state Supreme Court disagrees. 

Another sketchy white collar prosecution thrown out

 This time its the soccer prosecutions in EDNY.  From the AP:

A federal judge threw out the convictions of a former Fox executive and a South American sports media and marketing company in the FIFA bribery investigation, citing a May decision by the U.S. Supreme Court in a case involving an aide to former New York Gov. Andrew Cuomo.

U.S. District Judge Pamela K. Chen, who presided over the trial in Brooklyn federal court, granted a motion for an acquittal in a 55-page decision filed Friday night.

Hernan Lopez, the former CEO of Fox International Channels, was convicted on March 9 along with the marketing company Full Play Group SA of one count each of wire fraud conspiracy and money laundering conspiracy related to the Copa Libertadores club tournament.

Full Play was convicted of two additional counts each of wire fraud conspiracy and money laundering conspiracy related to World Cup qualifiers and friendlies and to the Copa América, the continent’s national team championship.

***

“The Supreme Court’s latest wire fraud decisions — especially Percoco — and the absence of precedent applying honest services wire fraud to foreign commercial bribery, requires this court to find that (the statute) does not criminalize the conduct alleged in this case and that therefore the evidence at trial was insufficient to sustain defendants’ convictions under that statute,” Chen wrote.

She added: “Defendants’ convictions for money laundering, predicated on their honest services wire fraud convictions, also cannot be sustained. The court therefore grants defendants’ motions to acquit on all counts of conviction.”

 In other news, some inmates are playing D&D while others are listening to Taylor Swift.  We should be giving inmates iPads and phones so that they can make the most of their time in prison.

In news closer to home, Judge Rosenberg dismissed a case on standing grounds where the merits issue was whether the 14th Amendment barred Trump from running for President.