Breaking -- 6 Magistrate Judge candidates for two slots

 The judges will vote on this list at the next meeting:

Ellen DeAngelo

Christian Dunham

Yeney Hernandez

Marlene Fernandez-Karavetsos 

Enjolique Lett

Stephanie Turk

An important and timely event. I hope everyone can make it.

 

BREAKING -- WH nominates Embry Kidd to the 11th Circuit

 Here's the release:

1. Judge Embry J. Kidd: Nominee for the United States Court of Appeals for the Eleventh Circuit

Judge Embry J. Kidd has been a United States Magistrate Judge for the U.S. District Court for the Middle District of Florida since 2019. Judge Kidd previously served as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the Middle District of Florida from 2014 to 2019. From 2009 to 2014, Judge Kidd worked as an associate at Williams & Connolly LLP in Washington, D.C. Judge Kidd served as a law clerk for Judge Roger L. Gregory on the U.S. Court of Appeals for the Fourth Circuit from 2008 to 2009. He received his J.D. from Yale Law School in 2008 and his B.A. from Emory University in 2005.

Spy Game or National Origin Discrimination?

By John R. Byrne

Last July, Florida passed a law restricting certain "foreign principals" from six countries of concern (including Venezuela and Cuba) from owning property in the state. The most significant restrictions are directed at those domiciled in China who don't hold either US Citizenship or permanent residency. Sponsors of the law assert that Chinese nationals have been buying up property in the United States, posing risks to national security, including concerns about spying. Now plaintiffs are filing lawsuits in federal court challenging the law on the basis that it discriminates on the basis of national origin in violation of the Fair Housing Act and the Florida Constitution. One of the cases landed in front of Judge Gayles. Complaint is below. And the New York Times covers the law--and the recent lawsuits--here. 

In other news, the Trump criminal trial down here has been pushed pending resolution on how to address classified documents at trial. ABC News covers it here.

Complaint by John Byrne on Scribd

13 federal judges, including Judge Branch, refuse to hire clerks for anyone attending Columbia undergrad or law school

Wow, how strange.  They aren't refusing to hire students who disrupted class or who signed the silly letter saying to cancel class.  They are refusing to hire all students from Columbia.  

This takes the question in the prior post to a whole new level! And it doesn't make much sense -- they won't hire a Jewish student who was victimized by the protests? And why limit it to Columbia? 

NEW: 13 federal judges say they will no longer hire clerks from Columbia Law School OR Columbia College after the university allowed an encampment on its lawn to spiral into a destructive occupation of a campus building.

This is the first clerkship boycott to hit undergrads.🧵 pic.twitter.com/Ex3GlqBUtK

— Aaron Sibarium (@aaronsibarium) May 6, 2024

Columbia law students want exams canceled

 Here's their statement saying they are too shaken up after the events this week to sit for exams. They are rightfully getting crushed online for the ask. 

Would you hire them? 

New episode -- For the Defense with Judge Kevin Newsom

I am very excited to share this bonus episode with you -- an interview with my law school classmate, Judge Kevin Newsom. I think you'll really enjoy hearing from Judge Newsom, who is both whip-smart and completely engaging. You'll recall we've had other 11th Circuit judges on the show before, including Chief Judge Pryor, Judge Rosenbaum, and Judge Abudu, as well as District Court Judges Charles Breyer, Jed Rakoff, and former Judge John Gleeson. I went into these interviews of our federal appellate judges thinking they might be hard to approach and difficult to connect with. But Judge Newsom is another example of a wonderful person who is extremely down to earth.


You can access it on Apple, Spotify, or any other platform from our website here. I hope you enjoy the episode with the terrific Judge Kevin Newsom.

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

"The notion that '[n]o man is above the law and no man is below it' is fundamental to our democratic republic’s continuing viability."

 That's not a judge or Justice in one of the Trump cases.  It's how Judge Rosenbaum started her opinion in U.S. v. Victor Hill, but I suspect she was thinking about the immunity case before SCOTUS last week.

In any event, the rest of the intro:

That principle applies equally to sheriffs (and other officers of the law) and detainees. And 18 U.S.C. § 242 vindicates that principle. It imposes criminal liability on anyone who, under color of law, willfully deprives another person of their constitutional rights. Under § 242, a jury convicted Victor Hill, the former Sheriff of Clayton County, Georgia, of using his position as the Sheriff to deprive detainees in his custody of their constitutional rights. Hill now appeals.

Hill oversaw the Clayton County Jail. At that jail, officers used restraint chairs for “safe containment” of pretrial detainees “exhibiting violent or uncontrollable behavior.” But six times, Hill ordered individual detainees who were neither violent nor uncontrollable into a restraint chair for at least four hours, with their hands cuffed behind their backs (or, in one instance, to the sides of the chair) and without bathroom breaks. Each detainee suffered injuries, such as “open and bleeding” wounds, lasting scars, or nerve damage. Based on these events, a jury convicted Hill of six counts of willfully depriving the detainees of their constitutional right to be free from excessive force, in violation of § 242.

Hill challenges that conviction on three grounds. We reject each one. First, Hill had fair warning that his conduct was unconstitutional—that is, that he could not use gratuitous force against a compliant, nonresistant detainee. Second, sufficient evidence sup-ported the jury’s conclusion that Hill’s conduct had no legitimate nonpunitive purpose, was willful, and caused the detainees’ inju-ries. Third, the district court did not coerce the jury verdict but properly exercised its discretion in investigating and responding to alleged juror misconduct.

So after careful consideration, and with the benefit of oral argument, we affirm Hill’s conviction.

Will there be a Trump surprise?

Pundits are already predicting how the Trump jury will decide his case. On MSNBC, commentators are saying that it’s hard to imagine anything but a guilty verdict based on how they see the case. On Fox, viewers are told that it’s going to be tough for Trump to walk because New York is so heavily weighted Dem. So how will folks react if Donald Trump is found not guilty? It got me thinking about the biggest "surprise" verdicts in American history.

 

  

 

Who else you got?

Second Chances

By John R. Byrne

Nice article by Jay Weaver in the Herald yesterday about Darryl Richardson, a man who turned his life around after being sentenced to 30 years in prison by Judge Seitz back in 2006. Richardson, whose sentence was shortened to 17 years, was released in 2021 and took advantage of the district's CARE court program. CARE stands for “Court-Assisted Re-Entry court.” The program, created by Judge Seitz and currently being overseen by Judge Williams and Judge Reid, has been operating since 2016. It helps participants, who are on supervised release, re-enter the community, connecting them with resources that help them with financial literacy, employment, and medical resources. 

Richardson recently graduated from Miami Dade College’s Culinary Institute, crediting Care Court for pushing him to succeed. I know a lot of effort goes into the program from the Court, probation, and the US Attorney and Federal Public Defender’s offices. It’s cool to hear about those efforts paying off.

Opening statements in New York v. Donald Trump

If you were giving the opening statement for the prosecution, what would your first line be?

And if you were representing Donald Trump, what would it be?

I imagine that the prosecution will start with something like -- No one is above the law.  Even former Presidents.  Donald Trump illegally interfered with the election by doing X, Y, and Z. 

And the defense will start with something like -- Prosecutions should not be political and that's all this is; President Donald Trump is innocent.  He did not interfere with the election.  He was shaken down by a stripper and he paid her.  There's nothing illegal about that. 

How would you do it?

The Second Time Around

 

Guest Blogger Oliver A. Ruiz:

By now, you are no doubt aware that Taylor Swift's new album was released at midnight. Unless you don't have a smartphone, radio, or TV. 

Speaking of TV, some will recognize that to also mean "Taylor's Version," a reference to the albums that Ms. Swift has re-recorded in recent years. You may even know that she has two such albums left to re-record (or maybe just one more, if Reputation TV was also released last night, or very soon as rumored; h/t Kelly Malloy). 

But why do musical artists re-record albums? You may be wondering if this is permitted by copyright law? What does this mean for agreements with record labels? All good questions, and hopefully, this will be your chance to impress a Swiftie in your life. 

Basically, there are a few types of copyrights associated with musical works. Relevant here, these are the compositions (lyrics and melody) and the sound recordings (the original performance, or master recording). This circular talks about the difference. Commonly, the artist will own the copyright in the composition, but music labels negotiate to obtain the rights to the sound recordings. The rights to the sound recordings are typically very lucrative and come with the right to, among other things, license those recordings. The agreements between the artists and the record labels typically have a restriction on re-recording for a period of years, to avoid having the artists re-record the works.

In Taylor Swift's case, the restrictive time period lapsed a few years ago, opening the door for her to re-record her early albums. For some artists, there may be little to gain in doing so, but for a world-renowned artist with a major following like Ms. Swift, it has been a successful endeavor. 

Other artists have done the same, albeit for different reasons. See, for example, Def Leppard.

For more information on Ms. Swift's re-recordings and a discussion on copyright law and the dynamics of record deals, you may be interested in reading this law review article:

Justin Tilghman, Exposing the "Folklore" of Re-Recording Clauses (Taylor's Version), 29 J. Intell. Prop. L. 402, 406 (2022).

"Not guilty means not guilty."

That was Sentencing Commission Chair, Judge Carlton W. Reeves.  From FD.org:

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines (USSC press release available here).

“Not guilty means not guilty,” said Commission Chair Judge Carlton W. Reeves.

The U.S. Supreme Court last year sidestepped the question of whether the practice was unconstitutional, with several justices saying they would wait for the Sentencing Commission to first decide whether to address the issue.

The Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.

The Commission also passed a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age.

The amendments passed by the Commission today are available here. If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.

Rest in Peace, Senator Graham

By John R. Byrne

Senator Bob Graham passed away yesterday. He was a great leader for Florida and our country during his years as a state representative, state senator, Governor of Florida, and, most recently, as a United States Senator from 1986 to 2005. 

During his nearly 20 years in the Senate, the Harvard Law graduate helped select numerous district and circuit court federal judges, many of whom are still serving today.

Graham was well-respected on both sides of the political aisle, reflected by key positions he held, including as chairman of the Senate Intelligence Committee in the aftermath of the 2001 terrorist attacks. And he was a true Floridian, born and raised in Coral Gables and attending the University of Florida as an undergraduate.

The Herald covers his incredible life and career here. If you hit a paywall, here is the AP write up. 

Rest in peace, Senator Graham.

Should Trump be excused from his state trial…

 … so that he can attend his son's high school graduation and the U.S. Supreme Court argument in his case?

Despite your views of Trump, isn't this a no-brainer? Why is the judge giving him a hard time on these things? 

Meantime, Trump apparently fell asleep during trial. But we don't have cameras to see it. Just ridiculous. 

We've all seen judges and jurors nod off during trials. The Supreme Court has said that it's not ineffective for a lawyer to fall asleep during trial... what about a defendant?

In other news, it looks like the Supreme Court is going to reverse another conviction because of prosecutorial overreach.  I enjoyed this exchange with Lisa Blatt:

But Justice Sonia Sotomayor pointed out that the statute applies to rewards only "in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more," she said.

"I'm sorry, doesn't the nexus requirement get rid of most of this?" she asked.

"The doctor who removes your wart, fine. But the doctor who takes your gallbladder out or does your face, like my plastic surgeon, no, that's worth over $5,000," Blatt answered, drawing laughter in the courtroom.

News & Notes

1.SCOTUS will hear Fischer v. United States on Tuesday, which will impact the January 6 cases as well as others. The issue: Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence. 

 The WaPo has more here, as does SCOTUSBlog. Many are expecting, yet again, for the Supreme Court to say that prosecutors and lower courts have stretched statutes too far.

2. Speaking of SCOTUS, here's a nice AP piece about Lisa Blatt from Williams & Connolly, who has argued almost 50 cases before the High Court. A snippet:

She can be strikingly informal, in one case referring to the highest court in the land as “you guys.” She is often blunt, once telling Justice Elena Kagan that her question was factually and fundamentally wrong. She has resorted to the personal, in one case where she felt her Harvard-educated opponent was being condescending. “I didn’t go to a fancy law school, but I’m very confident in my representation of the case law,” the University of Texas graduate said.

“Texas is a fine law school,” Justice Ruth Bader Ginsburg said, just as the arguments were ending and before the court handed Blatt a unanimous win.

Blatt also can be hyperbolic, cautioning last year that a decision against her client, a Turkish bank, would be “borderline, you know, cataclysmic.” A ruling that recognized a large swath of Oklahoma as tribal land would have “earth-shattering” consequences, she said in 2018. The justices risked causing “madness, confusion, and chaos” if they ruled for a high school student who was suspended from the cheerleading squad over a vulgar social media post.

3. Linda Greenhouse has this op-ed about whether the Supreme Court needs to get along or not. From the conclusion:

The Supreme Court and other appellate courts are categorized in the judicial literature as collegial courts. “Collegial” in that usage is a term of art. It doesn’t mean that the judges necessarily get along. It means that these multimember courts act as collectives, when a majority coalesces. In a forthcoming memoir, “Vision,” Judge David Tatel, who recently retired from the U.S. Court of Appeals for the D.C. Circuit, offers as good a definition of judicial collegiality as I have seen. “Judicial collegiality,” he writes, “has nothing to do with singing holiday songs, having lunch or attending basketball games together. It has everything to do with respecting each other, listening to each other and sometimes even changing our minds.”

Years ago, Mark Alan Stamaty used a “Washingtoon,” his cartoon that ran regularly in The Washington Post, to depict the Supreme Court justices walking in single file, each carrying a bundle. “The Supreme Court Goes to the Laundromat” was the title. I thought it was so funny that I kept it for years tacked to the New York Times cubicle in the Supreme Court pressroom. It portrayed, to be sure, a collegial Supreme Court.

But it was a cartoon.

4. And finally, there's a little trial starting tomorrow in NYC. So many people are saying that Trump has no chance because it's in NY. I still have faith in our jury system. I discuss it with Katie Phang on her show here:

COURT IS IN SESSION: @domarkus explains the importance of jury selection in the NYC interference trial/ hush money case. Watch full video below! pic.twitter.com/EVSSVfoXU2

— The Katie Phang Show (@katiephangshow) April 13, 2024