Breaking -- U.S. Attorney's Office names new Criminal Chief and Deputy Chief

Congratulations to Peter Forand and Maria Medetis, the new Chief and Deputy Chief of the criminal division at the U.S. Attorney's Office.

Mark Lapointe named them both today in an office-wide email.    

More to follow.

Justice Amy Coney Barrett speaks

 I missed this speech by the relatively new Justice.  The AP covered it here:

 U.S. Supreme Court Justice Amy Coney Barrett said Monday that it would be a good idea for the nation’s highest court to adopt a formal code of conduct, but she said the nine justices already agree that they should hold themselves to the highest ethical standards possible.

Barrett spoke at a University of Minnesota Law School event just two weeks after the high court opened its current term in October with fresh cases on guns, abortion and the power of regulatory agencies on its docket, but with ethical concerns high on many observers’ minds. Ethics issues have dogged some justices — including conservative Justices Clarence Thomas and Samuel Alito and liberal Justice Sonia Sotomayor.

“I think it would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we’re doing — and in a clearer way than perhaps we have been able to do so far,” Barrett said. “I will say this, there is no lack of consensus among the justices — there is unanimity among all nine justices — that we should and do hold ourselves to the highest standards, highest ethical standards possible.”

Qualified Immunity Defense Goes Down Again

By John R. Byrne

Tough week for the qualified immunity defense in the 11th Circuit. This case involved a school resource officer who sought and obtained arrest warrants for first and second degree child cruelty against a single working mom. The basis for the charges was laughable and the case was dismissed. But the mom sued the officer for malicious prosecution. The district court granted qualified immunity to the officer but the 11th Circuit reversed. Judge Newsom’s well-written introduction doesn’t pull any punches. Here’s a snippet:

“[E]ven the most officer-protective doctrines have their limits. Officer Smith had Butler arrested on extraordinarily serious felony charges based on conduct that, by any objective measure, doesn’t remotely qualify. And to make matters worse, the affidavits that Officer Smith submitted in support of her warrant applications conspicuously omitted material exculpatory information.”

Butler Case by John Byrne on Scribd

From Giza to Gaza

By John R. Byrne

UM law school held a panel talking about the current crisis in the Middle East. Interesting perspectives from Judge Altman (not on behalf of the federal bench, he was careful to add!), Lenny Roth, a lawyer and current Vice President at UBS, and Mickey Kerbel, an entrepreneur and veteran of the 1973 Yom Kippur war. The panel provided historical context to the current crisis and touched on other topics, including the Israeli legal system. Worth a watch, link is here.

***UPDATE***

Judge Altman provided Commentary for Real World Politics on the Gaza Hospital Bombing here.

Guest Post: Judge Marcia “Great” Cooke

Judge Marcia “Great” Cooke

By Vanessa Singh Johannes

On Saturday, October 21, 2023, the Florida Bar Association’s South Florida Chapter (“FBA”) dedicated their annual gala extravaganza at the Four Seasons Miami to the late Judge Marcia G. Cooke, the first and only African American female to ever serve as a District Court judge in South Florida.  As many of us who practice in Miami know, Judge Cooke spent 18 stellar years on the federal bench, having served as a Magistrate Judge (Michigan), AUSA (SDFL), Chief Inspector General (Florida), and Assistant County Attorney (Miami) beforehand.  Since her untimely passing this past January, tributes have poured in memorializing Judge’s Cooke legacy.  But in a unique manner, the FBA managed to silence a room of 250 lawyers for nearly an hour as they strove to do more than commemorate Judge Cooke’s career.  They wanted us to appreciate, understand, and reflect on who Judge Cooke truly was – a woman who epitomized humility, grace, and kindness – and how we can all honor her legacy in our practice and daily lives.  Through a deliberate program, these goals they attained.

We got to hear from two “insiders” into the Judge’s life – both on and off the bench.  Judge Williams first walked us through a beautiful “story” of two little girls, herself and Judge Cooke, who had dreams that far exceeded the norm for women of that time.  Both of these girls, who grew up quite different, had a defining commonality: they were raised by strong, fierce mothers who taught them to do and be more than the world ever allowed them to do and be.  Judge Cooke defied odds in fulfilling her mother’s dream for her – going from a black girl born into segregated South Carolina, raised in the tough streets of urban Detroit, to one of the highest pinnacles of our profession.  And in doing so, she never forgot where she came from, including the idioms and parables she learned in the South and shared with others (“remember, pigs get fat; hogs get slaughtered”).  Nor did she forget who she served – the voiceless in the community; the people who don’t have it all – or her peers, friends, and family.  Indeed, as Judge Williams told us, it was Judge Cooke that reached out to her when she joined the bench, to serve as a friend, confidant, and mentor.  Just like that, the wishes for the two mothers of those little girls had come full circle and to life.

Judge Williams then presented the FBA’s prestigious Edward B. Davis Award, given to a judge who exemplifies excellence and service to the community, federal bench and bar, to Judge Cooke.  The award was received by Judge’s Cooke’s youngest sister, DeLois Cooke Sprystzak, who, like Judge Cooke and their mother, is a strong, fierce woman and serves as the Assistant Principal of a high school in Birmingham, Alabama.  DeLois explained that her sister’s middle name may have been “Gail,” but the “G” really stood for “Great,” as Judge Cooke was a great leader, sister, and friend.  Donning neon light-up sneakers, she also told the audience that her older sister worked tirelessly in her professional life to serve the public, a trait their parents instilled in them, and understood that being a federal judge was a privilege and gift.  (By the way, in wearing sneakers, DeLois fully understood the gala’s assignment.  The FBA requested that all guests donate a new pair of youth-sized sneakers to give back to kids in our community and to even WEAR their own hottest kicks to the event.  Note: with black-tie attire, this was not an easy feat for women to coordinate… but so well worth it for the cause and on the feet!)  DeLois also told us that her sister took measures to remember where she came from, how different her life could have been, and treat others with grace.  If you ever practiced before Judge Cooke, as I have, you know this to be true.  I’ll never forget when my infant son was sick during a trial she was presiding over.  With trepidation and tire, I asked to commence trial the following day at 11 am to take him to the doctor’s.  Not only did she grant my request, but the first question she asked once taking the bench was, “Ms. Johannes, how is your son today?”  Emphatic. Graceful. Human.    

After these personal anecdotes about Judge Cooke, the FBA announced the creation of the “Judge Marcia G. Cooke Scholarship,” which will award a law student with $5,000 towards their studies.  The recipient will be chosen and announced in 2024.  To end the night, the audience was reminded to live a life of public service and gratitude, but also levity and fun… just the way Judge Cooke would have wanted it.  And with that, Tomahawk steaks were enjoyed and champagne glasses clinked to toast a remarkable life lived. 

Here are some photos from the event:

 

Another Section 1983 Refusal to Identify Case

By John R. Byrne

A few weeks back, we covered an 11th Circuit case involving a passenger in a car who refused to identify himself during a traffic stop and, as a result, was arrested. That case, which arose in the context of a Section 1983 claim, came out in favor of the police, with Judges Tjoflat and Brasher holding that the officer was entitled to qualified immunity (and Tjoflat going further and holding that the officer could ask the passenger to identify himself).

Last Friday, in yet another refusal-to-identify fact pattern, the tables were turned and the police lost a qualified immunity issue before the Court. Police in Alabama encountered two men working on a car in a parking lot (one of the men was Plaintiff, who was a mechanic). An officer asked the men what they were doing, with the Plaintiff responding they were working on a car and suggesting the officer call the customer. Then the officer asked the Plaintiff to give her his "ID or driver's license," which the Plaintiff refused to do, resulting in arrest.

The Eleventh Circuit held that the police did not have "arguable probable cause" to arrest the Plaintiff, pointing to the "broad background rule" that a person can refuse to answer questions from the police and "go on his way." And the Court didn't find an Alabama "stop and identify" statute applied because, while the statute allowed an officer suspecting criminal activity to ask a person provide a name/address/explanation, it did not permit the demanding of IDs/driver's licenses.  

Good recap of the "arguable probable cause" standard, with the Eleventh Circuit going out of its way to clarify what the standard means. Important reading if you do Section 1983 work.

McCabe by John Byrne on Scribd

RIP Peter Raben

 Really sad news. Peter was a good dude and a smart lawyer. Too young. 

Grisham and AI

By John R. Byrne

Famous author John Grisham appeared at the Coral Gables Books & Books yesterday to promote his new book, "The Exchange," which is a sequel to "The Firm." He was very funny and self-deprecating. He got a question from the audience about his concerns about the threat of artificial intelligence to writers. Turns out, he and several other prominent authors recently sued OpenAI (owner of ChatGPT) in federal court in SDNY over copyright infringement.

Grisham also sits on the board of the Innocence Project, so he's still got a foot in the legal world. Nice to see someone leveraging his fame and wealth to give back.

Separation of Powers

 It will be interesting to see how Judge Chutkan deals with Donald Trump when he violates the gag order she imposed yesterday.  Even the judge recognized that putting him in jail during campaign season will be a challenge. From the AP:

“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” Chutkan told Lauro. “We’re not talking about censorship here. We’re talking restrictions to ensure there is a fair administration of justice on this case.”

She also cut off Trump’s lawyer when he suggested the case was politically motivated, telling him: “Obviously, you have an audience other than me in mind.” And she rejected a defense bid to delay the trial, currently scheduled to begin in March, until after the 2024 election, saying “this trial will not yield to the election cycle.”

Lauro said Trump had not violated his pretrial conditions, and those were enough to keep him in check for the future. He told the judge, “What you have put in place is working.” Chutkan burst out laughing.

“I’m going to have to take issue with that,” the judge said.

There's another power struggle going on -- this one in the SDFLA.  I'm sure you remember the commutation Trump granted to Philip Esformes.  That was after the jury convicted him on some counts and hung on others.  Judge Scola sentenced him to 20 years and he had served about 5 when Trump ended his sentence.  The issue -- DOJ now wants to try him on the hung counts.  The Washington Post has an in depth article about the political hot potato that the case has turned into:

But Esformes’s reprieve is now in peril, thrust to the center of an extraordinary legal and political collision between two administrations pushing the bounds of executive authority. The Biden Justice Department is seeking to retry him — a move made possible because the jury that convicted him reached no verdict on six counts, including the most serious charge of conspiracy to commit health-care fraud. Because Trump’s clemency order was silent on those charges, prosecutors say they are able to take him back to court.

At stake is whether the government’s move to reprosecute the architect of one of the largest-ever health-care scams undermines Trump’s decision based on presidential powers laid out in the Constitution and historically considered the last word on a criminal conviction.

The highly unusual decision to retry a clemency recipient on hung charges has emerged as yet another flash point in the broader battle between the far right, which portrays the Justice Department as an arm of an out-of-control “deep state” opposed to anyone associated with Trump, and law-and-order proponents seeking to defend institutions of democracy against incursions by the former president and his allies. Experts say they know of no precedent for this dispute.

In recent months, House Republicans orchestrated a hearing portraying the case against Esformes as a political attack, while an array of Trump acolytes have taken to conservative airwaves and social media to denounce the Justice Department.

“In the annals of American history, no prosecutor has ever tried to reverse a presidential commutation in this manner,” co-wrote Matthew G. Whitaker, who briefly served as acting attorney general under Trump, in a Fox News column. “Does the DOJ have no sense of propriety at all?” tweeted Harmeet Dhillon, a Republican National Committee official from California, whose law firm has represented Trump.

But some former prosecutors say a retrial is a chance to correct a grievous mistake in which Trump bypassed long-standing protocols to grant clemency to a corrupt nursing home executive. If the Justice Department succeeds, Esformes could be sent back to prison, undoing Trump’s executive order that had made him a free man.

“It’s an opportunity for justice,” said Paul Pelletier, a former federal prosecutor for 27 years who led the agency’s fraud section before it criminally charged Esformes. “We use the law to hold people accountable as best as we can.”

A supreme chunk of marble

 Yikes -- a huge piece of marble fell inside the courtyard at the Supreme Court where the Justices and clerks mingle.  From the AP:

 The Supreme Court avoided a catastrophic accident last year when a piece of marble at least 2 feet long crashed to the ground in an interior courtyard used by the justices and their aides, according to several court employees.

The incident, which the court still fails to acknowledge publicly, took place in the tense spring of 2022, as the court already was dealing with death threats and other security concerns and the justices were putting the final touches on their stunning decision overturning Roe v. Wade.

Justice Elena Kagan and her law clerks had been in the courtyard earlier in the day, the employees said. 

***

The employees spoke to The Associated Press on the condition of anonymity because court policy forbids all but a small number of employees from speaking to reporters on the record.

Supreme Court spokeswoman Patricia McCabe would not provide any details about the incident or even confirm that it had taken place. Because of the coronavirus pandemic, the building was closed at the time to the public and members of the news media who regularly cover the court.

Each of the four courtyards has fountains and columns that resemble those on the outside of the building. There are tables and chairs where employees can have lunch or work on nice days.