More Justice Jackson surprises?

I noted last week that she dissented in Erlinger, where she not only defended the Sentencing Guidelines but questioned the wisdom of Apprendi.  

And that was just the start -- she also joined the conservative majority in Fischer v. United States, the January 6th obstruction case and wrote her own concurring opinion.  Interestingly, Justice Barrett dissented (she was joined by Kagan and Sotomayor).

Jackson: "Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis and even when the conduct alleged is indisputably abhorrent."

Slice of Miami Trial History

 By John R. Byrne

Happy Friday. Wild Miami story I had somehow never heard about. The murder trial of Candace "Candy" Mossler and her nephew, Melvin Lane Powers. They were accused of having an incestuous affair that ultimately led to Powers killing Candy's husband. The prosecution team was led by none other than Dade County State Attorney Richard Gerstein. I won't spoil the ending. Check out the article here. 

In local news, longtime AUSA Randy Hummel has retired. He had an incredible career, holding several prominent positions in the office. And, more importantly, he's a great person who gave back to our community, including through his critical efforts in support of the Court's CARE court program. He'll be greatly missed. 

“Ladies and gentlemen of the jury, this defendant, a gun toting, drug slinging three time convicted felon . . . .”

That was AUSA Abbie Waxman in her opening closing in United States v. Harrell, No. 1:22–cr– 20245 (SD Fla., Mar. 6, 2023).

Why am I quoting a random trial from 2022?  Because Justice Kavanaugh did as well in dissent in Erlinger v. United States. Erlinger held, per Justice Gorsuch, that the Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for purposes of the Armed Career Criminal Act.

In Harrell, the district judge did not bifurcate the trial, allowing the prosecutor to prove up the prior convictions during the trial itself, so Kavanaugh was making the point that maybe Erlinger won't be so beneficial to defendants.  I'm not so sure since that was the only case that was not bifurcated.  

Surprisingly, Justice Jackson also dissented in Erlinger saying she believed Apprendi was wrongly decided.  She seems fully in the Justice-Breyer-we-love-the-guidelines dojo. After all, she clerked for him and served on the Sentencing Commission.

Judge William Pryor rules for the defense

Judge Pryor, like Justice Gorsuch, has been channeling his inner-Scalia -- willing to rule for criminal defendants.  The latest is U.S. v. Harding (joined by Jordan and Brasher), which starts this way:

This appeal requires us to decide whether the district court abused its discretion by admitting evidence of drug trafficking as intrinsic evidence of a charged conspiracy that allegedly ended years earlier in a different federal district. A grand jury in the Southern District of Alabama charged James Harding with conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin. At trial, the United States introduced evidence that agents, in a separate investigation, found multiple firearms and almost two kilograms of heroin at Harding’s home in the Northern District of Alabama over two years after the alleged end of the charged conspiracy. The United States offered no evidence linking the seized evidence to other members of the charged conspiracy. The district court admitted the evidence as intrinsic evidence and ruled, in the alternative, that the evidence was admissible as extrinsic evidence under Federal Rule of Evidence 404(b). But the district court rejected Harding’s several requests for a limiting instruction. The jury found Harding guilty of both charges. Because the district court abused its discretion by admitting the evidence as intrinsic and because its alternative ruling that the evidence was admissible under Rule 404(b) cannot be affirmed in the absence of a limiting instruction, we vacate Harding’s convictions and sentence and remand for a new trial. 

Bravo.  We need more judges who don't just knee-jerk for the government in every case. 

SCOTUS Breathes Some Life into Malicious Prosecution Claims

By John R. Byrne

If you're charged with multiple crimes, arrested and detained, and it later turns out that the authorities lacked probable cause to charge you with at least one of those crimes, do you have a colorable malicious prosecution claim? After all, if probable cause still existed for charging you with the other crimes, what's the harm? The Supreme Court found that there may well be harm, reversing the Sixth Circuit, which had erected a categorical barrier to malicious prosecution claims in cases where at least one charge was supported by probable cause. 

Shout out here to the Eleventh Circuit, which had reached the same conclusion back in 2020 (Judge Pryor wrote that opinion, which the Court cites). 

The Supreme Court chose to not dip its toes into the murky causation waters: if at least one valid charge exists, how can a plaintiff establish causation? Apparently, the parties and amicus curiae proposed three different views on how one might prove causation. Opinion below.

Big game tonight for the Panthers against the Edmonton Oilers. Let's hope they can bring the cup home!

23-50_n648 by John Byrne on Scribd

Hoooo boy. NYT says SDFLA judges asked Cannon to reassign Trump case

Who is spilling the tea to the NYT;

Shortly after Judge Aileen M. Cannon drew the assignment in June 2023 to oversee former President Donald J. Trump’s classified documents case, two more experienced colleagues on the federal bench in Florida urged her to pass it up and hand it off to another jurist, according to two people briefed on the conversations.

The judges who approached Judge Cannon — including the chief judge in the Southern District of Florida, Cecilia M. Altonaga — each asked her to consider whether it would be better if she were to decline the high-profile case, allowing it to go to another judge, the two people said.

But Judge Cannon, who was appointed by Mr. Trump, wanted to keep the case and refused the judges’ entreaties. Her assignment drew attention because she has scant trial experience and had previously shown unusual favor to Mr. Trump by intervening in a way that helped him in the criminal investigation that led to his indictment, only to be reversed in a sharply critical rebuke by a conservative appeals court panel.

The extraordinary and previously undisclosed effort by Judge Cannon’s colleagues to persuade her to step aside adds another dimension to the increasing criticism of how she has gone on to handle the case.

So who is the source? Who is the second judge? 

One question too many

 By John R. Byrne

How many jury questions can a magistrate judge answer if a district judge assigns the MJ to receive a jury verdict and neither party timely objects to that assignment? According to the 11th Circuit, 0.  The court just reversed a $4.95 million jury verdict where a district judge assigned a magistrate judge to receive a verdict and the magistrate judge, while presiding, answered jury questions. 

It all started with a district judge trying to catch a plane. The court asked the parties if they were o.k. having the paired magistrate judge "take my place in terms of receiving the verdict from the jury." Neither party objected. If the story ended there, we wouldn't be here. The "mere acceptance of a jury verdict and the polling of a jury constitute no more than ministerial tasks that a magistrate judge may properly perform" (and that's true whether or not the parties consent). But this jury was inquisitive. Questions and notes. Six of them. And, as the Eleventh Circuit explained, responding to jury questions is a "critical stage" of a trial that requires either a presiding Article III judge OR the parties consenting to the MJ performing such a task. This case had neither, so reversal was required. 

Not a fun way to lose a verdict after a 16-day trial!

PB Legacy by John Byrne on Scribd

New podcast episode For The Defense -- CNN's Kaitlan Collins

FOR THE DEFENSE -- SEASON 6, EPISODE 2 KAITLAN COLLINS Cross examining witnesses is one of the hardest things criminal defense lawyers do.  There's a lot to be learned from journalists who do it live on the air with difficult politicians.  And CNN's Kaitlan Collins is one of the best at doing it.  In this episode, we discuss how she prepares for her interviews, how she deals with difficult interviews, as well as lots of other interesting topics -- from cameras in the courtroom to covering high profile trials and so on.  This podcast episode is a recording from my White Collar Law class at the University of Miami School of Law.  I think you'll agree after listening that Kaitlan is terrific.  Listen on your computer here, or on Apple and Spotify. And I've posted the raw video on YouTube. 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

Judge Roy Altman leads by example (with unrelated updated)

Jewish-owned business targeted by hateful vandalism. Miami mayor @FrancisSuarez and federal judge Roy Altman show up to help clean it up. Story on @nbc6 starting at noon. pic.twitter.com/ybgWz1tGJb

— Ari Odzer (@ariodzernbc6) June 17, 2024

In an unrelated update, the Supreme Court granted cert today in another fraud case, Kousisis v. United States: In order to get work, the defendant used as a front a company that qualified as a “disadvantaged business enterprise,” though the company performed no actual work. His claim on appeal is that his actions did not constitute mail or wire fraud because they were not intended to cause economic harm. The 3rd said it was enough for fraud* and the High Court granted cert:

 (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”

 *Note to district courts and appellate courts -- it's okay to dismiss indictments and find that prosecutors overcharge.  The Supreme Court keeps reversing these fraud cases.  You can too!

You be the judge

How much time should Donald Trump receive for his conviction in New York for falsifying business records?

What about Hunter Biden in Delaware for being an addict in possession of a firearm?

Both should get probation.

After all, both are first time, non-violent offenders.   And there were no victims in either case. 

But I suspect both will get some jail time.

I'm setting the over under at 6 months in each case. 

What would you do if you were the judge and what do you predict they will actually receive?

SDFLA closed tomorrow (Thursday)

U.S. District Courts in South Florida will be closed tomorrow, due to the weather and hazardous conditions. The sentencing hearing in the matter of U.S. v. Frenel Cenat, Case No. 24-CR-60016 has been re-scheduled for June 18 at 10:00 a.m. before Senior Judge James I. Cohn in Fort Lauderdale.

Chiquita Hit with $38.3 million Judgment

 By John R. Byrne

There's now a jury verdict in a case that's been hanging around for years. In a trial up in West Palm, a jury found that Chiquita knowingly funded a Colombian paramilitary group called Autodefensas Unitas de Colombia, which has been designated a terrorist organization by the United States. The lawsuit was brought by the families of eight Colombian men killed by the AUC. Chiquita had claimed that the AUC effectively extorted payments from Chiquita to protect Chiquita's workers. CNN covers it here.

Young Thug

 What's going on in Atlanta state court is insane.  Criminal defense lawyer Brian Steel was held in criminal contempt yesterday and ordered to serve 10 weekends in jail because he asked the judge about an ex parte communication he had with a witness and the prosecutor, and then had the audacity to refuse to reveal his source about the meeting.  The judge has totally lost control of the trial and the proceedings. 

Judge Jacqueline Becerra's formal investiture

Congratulations to Judge Becerra.

It was a packed house and a really warm event.  Interestingly, all of the speeches were by women.

 

 

Judge Newsom and AI

 Hooooo boy.  You gotta read this concurrencethis concurrence by Judge Newsom about the use of AI in legal opinions.  It starts this way:

I concur in the Court’s judgment and join its opinion in full.  I write separately (and I’ll confess this is a little unusual1) simply to pull back the curtain on the process by which I thought through one of the issues in this case—and using my own experience here as backdrop, to make a modest proposal regarding courts’ interpretations of the words and phrases used in legal instruments.  Here’s the proposal, which I suspect many will reflexively condemn as heresy, but which I promise to unpack if given the chance:  Those, like me, who believe that “ordinary meaning” is the foundational rule for the evaluation of legal texts should consider—consider—whether and how AI-powered large language models like OpenAI’s ChatGPT, Google’s Gemini, and Anthropic’s Claude might—might—inform the interpretive analysis.  There, having thought the unthinkable, I’ve said the unsayable. Now let me explain myself.

1. Even for me. 

Wowsa. You gotta read the whole opinion.  He goes through the pros and cons of using AI and also shows how he used it in this particular case.  It's a very interesting read.

Meantime, I asked Co-Pilot (Microsoft's AI program) to write a blog post about Judge Newsom's use of AI.  This is what I got back:

Circuit Judge Proposes Using AI-Powered LLMs to Interpret Legal Texts

In a recent concurring opinion during an insurance dispute, U.S. Circuit Judge Kevin Newsom suggested that courts might benefit from using artificial intelligence programs to interpret legal texts. This idea, which he described as “unthinkable,” could revolutionize the way we understand and apply the law1.

The underlying case involved a dispute between a landscaper and his insurance company over whether his installation of an in-ground trampoline fell under the term “landscaping” in his insurance policy. The district court noted that because the term “landscaping” was not defined in the policy, whether or not the landscaper’s activities were covered by the insurance policy hinged on whether the installation of the trampoline fell within the common, everyday meaning of the word “landscaping.”

Judge Newsom took the opportunity to express his thoughts about artificial intelligence’s possible role in future disputes after “hours and hours (and hours) laboring over the question [of the ordinary meaning of ‘landscaping’ in the context].” He recounted that querying ChatGPT (an AI-powered LLM) about the ordinary meaning of “landscaping” resulted in an explanation that “squared with [his] own impression.” ChatGPT’s definition included “the process of altering the visible features of an area of land, typically a yard, garden, or outdoor space, for aesthetic or practical purposes.” It also listed activities such as planting trees and installing paths and water features as part of "landscaping"2.

Judge Newsom evaluated the pros and cons of using LLMs to interpret legal texts. Some of the pros included the fact that LLMs are trained on a vast range of ordinary-language data, from literature to online discussions. However, he also noted that LLMs cannot capture “pure offline” usages—those that do not occur online or are not eventually digitized. Despite this limitation, LLMs can understand context, are accessible, and have advantages over other empirical interpretive methods, like dictionary research2.

In conclusion, Judge Newsom’s proposal opens up exciting possibilities for the legal field. While he never reached a definitive conclusion due to the panel’s “off-ramp” approach, his experimentation with generative AI suggests that LLMs might indeed be useful when interpreting legal texts3. It’s a fascinating development that could shape the future of legal analysis.

Disclaimer: The views expressed in this blog post are based on Judge Newsom’s opinion and do not constitute legal advice. Consult a qualified attorney for specific legal matters.

2: Circuit Judge Proposes Using AI-Powered LLMs to Interpret Legal Texts 1: Federal Judge Proposes AI to Decode Legal Texts: A Revolutionary Approach or Risky Gamble? 3: Eleventh Circuit Judge Experiments With ChatGPT

News & Notes

1. There has been a flood of complaints against Judge Cannon to the 11th Circuit. The problem is that they don't actually complain about anything. So Chief Judge Pryor rightfully dismissed them and said no mas. Here's his order. To the people filing 1000s of complaints, it reminded me of William Shatner's line "Get a Life" on Saturday Night Live.

2. Apparently the viral story (that was also blogged about on this platform) was totally bogus:

It turns out all those stories, however, were based on a falsehood. Harris' license had been reinstated years prior and was only registering as suspended due to a clerical error. As of this writing, there has been no spate of additional articles, corrections, or a reinvigorated news cycle based around this information, because the truth here doesn't lend itself to virality and engagement.

That's a good indication that this never should have been a national story to begin with, which would be true even if Harris had been driving on a suspended license. A man in Michigan driving allegedly when he wasn't supposed to is not newsworthy enough to deserve coverage in the most influential outlets in the U.S. (and beyond). Good for a social media laugh? Sure. Justifying its own news cycle? No.

3. Judge Newsom and Judge Rosenbaum are going at it in this appeal that ends up holding that a grant program for Black women is discriminatory .  The writing from both is great and worth a read.  

Judge Newsom introduces the case in his majority opinion:

In this appeal from the denial of a preliminary injunction, we are asked to decide whether the Fearless Strivers Grant Contest, an entrepreneurship funding competition open only to businesses owned by black women, violates 42 U.S.C. § 1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts.  We must also decide, as a threshold matter, whether the plaintiff, the American Alliance for Equal Rights, has standing to challenge the contest.   After careful review, and with the benefit of oral argument, we hold (1) that the Alliance has standing and (2) that preliminary injunctive relief is appropriate because Fearless’s contest is substantially likely to violate § 1981, is substantially unlikely to enjoy First Amendment protection, and inflicts irreparable injury.  We therefore affirm the district court’s determination that the Alliance has standing to sue but otherwise reverse its decision and remand with instructions to enter a preliminary injunction.  

Judge Rosenbaum's dissent starts this way:

No one doubts the sincerity of an Arsenal (soccer) player’s desire to beat Tottenham.  But he can’t be allowed to try to win by flopping on the field, faking an injury near Tottenham’s goal.  For those not in the know, the object of flopping is to manufacture a foul that the player hasn’t actually experienced to manipulate the referee into inappropriately exercising his power to award a penalty kick in the box, where it’s likely to result in a goal.  Referees’ vigilance prevents players who have a sincere desire to defeat their opponents—but who try to do so through manufactured fouls— from commandeering referees to improperly exercise their adjudicatory authority to award unwarranted penalty kicks. 

Article III’s standing requirement—which comes from the Constitution’s limitation on the Judiciary to hear only “[c]ases” and “[c]ontroversies”—prevents the legal version of flopping.  Among other things, standing seeks to ensure that a party has a genuine and personal stake in the matter—a real alleged injury.  That way, the court’s decision is not an impermissible advisory opinion but instead addresses a “real need to exercise the power of judicial review in order to protect the interests of the complaining party.”  Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974).  As the Supreme Court has explained, “The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of  representative government.”  Id. at 222 (citation and quotation marks omitted). 

Here, no one doubts the sincerity of American Alliance for Equal Rights’s desire to challenge what it views as “distinctions and preferences made on the basis of race and ethnicity.”  Compl. ¶ 6.  American Alliance seeks to do so by challenging the Fearless Foundation’s Striver’s Grant Contest (the “Contest”) designed to help Black women in the business world, where they are grossly underrepresented as business owners.1  But as American Alliance has portrayed its members’ alleged injuries, it has shown nothing more than flopping on the field.2   Although three of American Alliance’s members pay lip service to the idea they are “ready and able” to participate in Fearless’s Contest, their declarations show, in context, that none has a genuine interest in actually entering the Contest.

For the Defense, Season 6: Todd Blanche for Former President Donald Trump

FOR THE DEFENSE -- SEASON 6, EPISODE 1 TODD BLANCHE FOR FORMER PRESIDENT DONALD TRUMP In perhaps the biggest trial in American history, Todd Blanche defended Former President Donald Trump in New York. In this wide-ranging interview, he discusses how he got the case, how decisions were made, how the war room was stocked, whether he got along with prosecutors, why Melania wasn't there, and so on. No matter how you feel about Trump, it's fascinating to hear the ins and outs of the first trial of a former U.S. President. Todd is a good guy and this really comes across in the interview. Watch on Youtube here or listen on your computer here, or on Apple and Spotify.  CNN included a clip from the podcast last night, which was pretty cool. 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