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.
Closing - opinion says closing. It makes it much more acceptable.
ReplyDeleteWin at all costs mentality.... someone toots her horn...
DeleteIt’s fascinating to watch the evolution of AUSA Waxman from
ReplyDeletea bleeding heart Public Defender in State court to a ruthless, win at all costs, AUSA in such a short period of time………..
It’s almost like lawyers are paid advocates
DeleteWinners gonna win, win, win.
ReplyDeleteYou think being that effective happens without caring about the result?
Looser.
The majority makes clear that bifurcation is necessary and the SG acknowledged that they will agree to bifurcation . Here we had a rogue prosecution and an outlier judge. Hopefully if the case is on appeal the government confesses error.
ReplyDeleteto 12:05 and 12:27
ReplyDeleteThere is a big difference betweenbeing a zealous advocate and caring about the result and a "win at all costs "mentality. Espcially when you are trying to put someone in prison.
9:29 - am I missing something? Was the conviction reversed, a new trial granted? The Supreme Court cited the argument as an example of what will be said as a result of their ruling - in other words, what is to be expected.
ReplyDeleteI disagree with the dissent's naive view somewhat - defense lawyers are not going to try the "occurrence" issues unless there is good reason to...just like felon in possession cases.
I don't love the argument she made - it is crass and overly emotional....eventually, she will lose a case or two because of mis-placed passion (which really isn't becoming). These performances by prosecutors turn off more jurors than they win over.
In a close case, it will come back to bite her.
But, in 95% of the cases that the US Attorney's Office tries, a second grader could win by asking "what happened next", and foregoing closing argument...their antics don't really matter....in fact, they are more likely to screw up a case than bring it home.
But saying there is something improper about it, is a bit too far.
David, why the lax fact-checking? This statement came in closing, after the evidence of the defendant's priors (including drug and gun convictions) came in. It was not made in opening. And it went unobjected to by a very capable defense attorney, from our (quite strong) FPD's Office.
ReplyDeleteNot sure why my comment from this morning was not posted. First time doing this. Did I need to sign anonymous?
ReplyDeleteAbbie is a smart and fair, not “ruthless” or "rogue," prosecutor who has earned the respect of adversaries and judges alike. The remark, quoted by a Supreme Court Justice (and the blog writer) was made after the district court judge denied the defense motion to bifurcate the trial (so the jury would not hear about the defendant’s prior offenses), effectively approving the comment. That judge was the former Southern District of Florida Federal Defender, hardly an "outlier." The ruling was consistent with Eleventh Circuit caselaw. Defense counsel made no objection to the comment. Query if the remark will be argued as a basis to reverse the defendant’s conviction on appeal.
Abbie’s dad
Not sure why my comment from this morning was not posted. First time posting. Did I need to sign anonymous? Trying again:
ReplyDeleteAbbie is a smart and fair, not “ruthless” or "rogue," prosecutor who has earned the respect of adversaries and judges alike. The remark, quoted by a Supreme Court Justice (and the blog writer) was made after the district court judge denied the defense motion to bifurcate the trial (so the jury would not hear about the defendant’s prior offenses), effectively approving the comment. That judge was the former Southern District of Florida Federal Defender, not an "outlier." The ruling was consistent with Eleventh Circuit caselaw. Defense counsel made no objection to the comment. Query if the remark will be argued as a basis to reverse the defendant’s conviction on appeal.
Abbie’s dad
An intellectually honest US Attorney's Office would concede error since the SG represented that they would agree to bifurcation. Query whether the AUSA's position in this case conflicted with USAO/DOJ policy on these issues.
ReplyDeleteWith all due respect to Abbie's dad the trial judge was the only judge in the country not to bifurcate. That does seem to meet the definition of an outlier.
ReplyDeleteHi Abbie's dad. It's kind of you to defend your daughter, and I agree with you that the court approved commenting on his prior convictions.
ReplyDeleteBut I wonder, did the court approve the racially charged language used to describe Mr. Harrell? It's interesting the verbs she chose. Seems to me, a former PD and "smart and fair" trial lawyer like Abbie, would be aware of the racial connotations of using phrases like "gun toting" and "drug slinging."
Dangerously armed, multi convicted, drug dealer would appear to get the same point across without dipping into the dangerous waters of invoking the pernicious and damaging stereotypes invoked by the language Abbie chose instead.
“Gun-toting” like John Wayne or Chuck Connors? “Drug-slinging” like Walter White? Sounds like a tall white guy to me. You all with your everything is racially motivated thinking really need help.
Delete“You all”!?! Racist much?
Delete2:26 - I got a picture of Kid Rock in my head when I read it.
ReplyDeleteJohn Wayne or Chuck Connors? What was the average age of the jury? 100?
ReplyDeleteYeah, 2:26 is your prototypical sensitive lib.
ReplyDelete226 is completely out to lunch. There is NOTHING about "gun toting" or "drug slinging" that has ANY racial connotation. Incredible.
ReplyDeleteI mean, really, it is not like she said:
ReplyDelete"Just as in a previous generation, we had an organized effort against the mob. We need to take these people on. They are often connected to big drug cartels; they are not just gangs of kids anymore. They are often the kinds of kids that are called super predators. No conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel."
Who did say that anyhow? Must have been some rightwing lunatic.
Anyhow, the AUSA still has time to work it into a closing...I am sure the 11th Cir. would affirm.
AUSA Waxman was appropriately mentioned because her closing was referenced in a Supreme Court opinion, but I hate to see the discussion turn into criticism of a specific line prosecutor. That has generally not happened on this blog and probably shouldn’t. For what it’s worth, I had a hotly-contested matter with AUSA Waxman last year, and while I strongly disagreed with her and the Office’s position, she was always completely professional and cordial, and she represented her client (the United States) well. I don’t think it’s fair to criticize her — or anyone else — for being equally tenacious on both sides, any more than we’d criticize a former prosecutor for being zealous as a defense attorney. AUSA Waxman is tough and can take the criticism, but I hate to see it here. …. Plus kudos to Abbie’s dad. I don’t think I’d be as diplomatic if my daughter were the topic.
ReplyDeleteShe wants to be a judge. And so she went to the US Attorney's Office. You can't blame her. She'll be a sure thing for appointment to the state bench by DeSantis after all this. I couldn't do it - switch sides and put black/brown people in prison - but not all PD's or defense attorneys believe the system is racist, discriminatory and unfair. Some just love doing trials and getting courtroom experience.
ReplyDeleteAmazing to me how the commenters on this blog are basically silent that Justice Jackson didn’t join Justice Gorsuch in Cunningham calling for 12 person juries, and here Justice Jackson says Apprendi was wrong and it should be easier to give defendants longer sentences but still no real comments. But yes let’s celebrate because she was an AFPD for a minute.
DeleteOn the other hand, people can’t fathom prosecuting this career criminal (“I couldn't do it - switch sides and put black/brown people in prison”) and play the race card. The difference in positions is really quite ridiculous and wholly lacking credibility.
I don’t understand your comment. Or, maybe I do and am just astounded at your stupidity.
ReplyDeleteSome black and brown people don’t also commit crimes? Only white people do?
Or, nobody is guilty, but it is okay to lock up white people because of….?
Or, only white criminals should go to jail. Black or brown criminals should not be locked up too.
I don’t fault Abbe taking a job as a prosecutor. Being a prosecutor was the best job I ever had. I loved it and I feel proud to have worked for an office that strived to do justice. Criticism of her for that is unfair. I’ve felt being a prosecutor made me a better defense attorney- and given my last verdict I still need plenty of improvement.
ReplyDeleteI don’t like the comment she made. I think it’s a bit beyond what is appropriate. But who amongst us in trial has not pushed the edge of the envelope? She is a very good lawyer and despite my uneasiness with that phrase I believe her to be honest, ethical and fair. She has long ago shown by her own actions as a lawyer the apple does not fall far from the tree. Having taken a job as a prosecutor we cannot expect her not to try her level best (my favorite Janet Reno phrase) to do her job as well as possible and win a hard fought trial.
I’m not smart enough to quote case law like David. So all I can do is quote Sgt Hulka in Stripes “lighten up Francis”.