Tone it down

That was Chief Justice Roberts' message at a 4th Circuit Conference this week.  From the NY Times:

On the day after the Supreme Court issued a decision that sharply curtailed the power of federal judges to block Trump administration policies, Chief Justice John G. Roberts Jr. spoke before a hotel ballroom filled with them.

He didn’t say a word about it.

The chief justice on Saturday gave a public interview with Judge Albert Diaz, the chief judge of the U.S. Court of Appeals for the Fourth Circuit, at a judicial conference in Charlotte attended by lower court judges who will be expected to parse and follow the Supreme Court’s directive limiting their ability to block executive branch policies nationwide.

During the discussion, the chief justice hinted at the stress of the end of the court’s term, which concluded on Friday, a time that he described as “a lot of sharp division and some sharp adjectives.”

***

The chief justice called threats against judges “totally unacceptable.” He said he viewed it as dangerous when “it becomes wrapped up in the political dispute that a judge who’s doing his or her job is part of the problem.”

“The danger, of course, is somebody might pick up on that, and we have had, of course, serious threats of violence and murder of judges just simply for doing their work,” Chief Justice Roberts said. “The political people on both sides of the aisle need to keep that in mind.”

Meantime, The Hill is covering F bombs from politicians. 

What's going on at FDC?

 From the NYT:

The authorities are investigating the death of a Canadian citizen who died Monday in the custody of U.S. Immigration and Customs Enforcement, the agency said in a statement.

The man, Johnny Noviello, 49, was found unresponsive on Monday at around 1 p.m. at the Bureau of Prisons Federal Detention Center in Miami, according to the statement, which was released on Wednesday. Medical staff administered cardiopulmonary resuscitation, automated external defibrillator shock and called 911, ICE said. Mr. Noviello was pronounced dead by the Miami Fire Rescue Department at 1:36 p.m., the agency said.

ICE said that it had notified the Canadian consulate of Mr. Noviello’s death. The Canadian consulate did not immediately return phone and email requests for comment on Thursday.

Ed Artau's first Senate hearing

 He was sitting next to Emil Bove, who drew most of the Senate's fire.

But Senator Blumenthal had some questions for Judge Artau.  From Law360:

One was Florida state appellate Judge Edward L. Artau for the Southern District of Florida. The others were for the Middle District of Florida, U.S. Magistrate Judge Kyle Dudek, Florida state appellate Judge Jordan Pratt and Florida state appellate Judge Anne-Leigh Gaylord Moe.

During Trump's first term, Pratt was counsel and then senior counsel at DOJ's Office of Legal Policy and deputy general counsel at the U.S. Small Business Administration, according to his LinkedIn profile.

In his prehearing questionnaire, he said while at DOJ, "I worked on various policy issues and worked to secure the confirmation of federal judges."

In February, Judge Artau was on the three-judge panel that ruled Trump could sue the Pulitzer Prize Board members in a defamation lawsuit following reporting that Trump colluded with Russia to win the 2016 presidential election.

Sen. Richard Blumenthal, D-Conn., brought up this ruling during the hearing and argued that in the judge's concurrence, he "essentially parroted" Trump's talking points by "incorrectly calling the Russia story a 'now-debunked allegations'" and questioning the U.S. Supreme Court's decision in New York Times v. Sullivan , a landmark case protecting press coverage of public figures. Having said that, Blumenthal asked Judge Artau if litigants can expect him to be unbiased, especially when the federal government is a party.

"I've been a judge for 11 years. Nobody's ever questioned my integrity," he replied. "I know what you're getting at in terms of the issue, but I had no communications or expectations that I was even under consideration by the White House when I issued that opinion." He added he follows the Florida judicial canons very carefully.

Blumenthal then asked if had had spoken with the Florida senators about a federal judgeship prior to that ruling. Judge Artau said he spoke with Sen. Rick Scott, R-Fla., a few years ago about that, noting he is friends with Scott's general counsel.

This past November, when in Washington, D.C., the judge said he "paid him a courtesy visit like I do every year." In more of a back-and-forth, Blumenthal got him to say that he had been in talks with Scott's office for several years about a possible judicial nomination, and Blumenthal asked why he didn't recuse himself from the Pulitzer case.

Judge Artau pointed to the Florida judicial canons and said he didn't meet the requirements to recuse himself.

Alligator Alcatraz

Desantis is talking about building a detention center in the middle of the Everglades.  Oh boy...

Can you imagine having to visit a client out there.  

From the Herald:

The latest plan by Florida Gov. Ron DeSantis to crack down on undocumented immigrants would involve emergency construction of a 1,000-bed detention center deep in the Everglades on swampy land owned by Miami-Dade County. On Monday, the county’s Democratic mayor attempted to slow the state’s efforts on the controversial idea. Without explicitly opposing the overall concept, Mayor Daniella Levine Cava ticked off a string of barriers to the idea being pushed by both DeSantis and his former top aide, Florida Attorney General James Uthmeier, who has branded the proposed facility as “Alligator Alcatraz” for its remote location. “Due to the location of this parcel in a critical area, the conveyance of this parcel requires considerable review and due diligence,” Levine Cava wrote in a Monday letter to Kevin Guthrie, the state’s emergency management director under DeSantis. It “is also imperative that we fully understand the scope and scale of the proposed use of the site and what will be developed, as the impacts to the Everglades ecosystem could be devastating.”

Politico covers SDFLA nominee Ed Artau

Here's the piece.  From the intro:

A Florida state judge was lobbying for a seat on the federal bench. After he sided with the president in a defamation case, Donald Trump gave him one.

Ed Artau, now a nominee to be a district court judge in Florida, met with staff in the office of Florida Republican Sen. Rick Scott to angle for the nomination less than two weeks after Trump’s election last fall, according to a new Senate disclosure obtained by POLITICO. In the midst of his interviews, Artau was part of a panel of judges that ruled in Trump’s favor in the president’s case against members of the Pulitzer Prize Board.

About two weeks after the court published his opinion — which called for the overturning of a landmark Supreme Court case that made it harder for public officials to sue journalists — he interviewed with the White House Counsel’s Office. In May, Trump announced his nomination to the federal judiciary.

Critics raised concerns about Artau’s impartiality at the time of the announcement, in light of his ruling in the Pulitzer case. But the overlapping timeline of that decision with his meetings with Senate staff and the White House Counsel’s Office has not previously been reported.

Artau did not respond to a request for comment. In a statement, Harrison Fields, a White House spokesperson, said Trump had full confidence in his nominee and anticipated Artau’s confirmation.

The Sun-Sentinel recently raised these concerns in an editorial (that the Politico article cites above).

Sigh... (UPDATED)

UPDATE BELOW.

Who puts gum underneath a court table?  GROSS.

And do we really need an order to show cause about it?

Oy vey...

Show Cause for Gum Sticking 1750211788 by David Oscar Markus on Scribd

 

 UPDATE -- CHECK OUT THE COMMENTS FOR THE RESPONSE TO THE ORDER TO SHOW CAUSE (Filed by John Adams!)

Judge Williams holds Florida AG in civil contempt

From the conclusion:

Over a century ago, author and sometime logician Lewis Carroll guided readers through the looking glass. Among the adventures there, we encounter a character who boasts of his mastery of words: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” The answer then, as now, is no. Litigants cannot change the plain meaning of words as it suits them, especially when conveying a court’s clear and unambiguous order. Fidelity to the rule of law can have no other meaning. 

Therefore, it is ORDERED AND ADJUDGED as follows: 

1. The Court finds Uthmeier in civil contempt of the Court’s April 18th Order (DE 49) requiring Defendants to provide actual notice of the TRO to any law enforcement officer with power to enforce S.B. 4-C. 

2. Uthmeier shall FILE BI-WEEKLY REPORTS detailing whether any arrests, detentions, or law enforcement actions pursuant to S.B. 4-C have occurred, and if so, how many, when, and by which law enforcement agency. The first report shall be filed on or before July 1, 2025. Further, If Defendants learn of any arrests pursuant to S.B. 4-C, Uthmeier shall file notice informing the Court of the details of the arrests immediately. Uthmeier may seek modification or termination of this reporting requirement after six months.

 Here's the order:

Judge Williams holds AG Uthmeier in civil contempt by David Oscar Markus

Trials

Another healthcare not guilty.  This one was before Judge Williams. Defense lawyers were Franklin Monsour and Adam Fels. Another example of why we need more trials.  Here's the Herald article about the verdict.

Meantime, in SDNY, the district judge is really hurting the defense in the Diddy trial. The latest ruling was dumping an African-American juror over strenuous defense objection. Via TMZ:

Friday, Diddy's attorney Xavier Donaldson stood up and said the court was taking a big step backward by getting rid of a juror of color ... asking the judge to bring him back into the court to give him the chance to explain.

During the jury selection phase, Juror No. 6 revealed he was a 41-year-old Black Hispanic man who works for the New York State Department of Corrections and Community Supervision. One of the main reasons the defense said they didn't want him dismissed is because he's one of the few Black jurors.

And shortly after that juror was dismissed, another juror ended up in the hot seat, according to TMZ:

Diddy's trial is on the verge of another jury shakeup due to one of them getting a strange text message that's left the judge with concerns this juror is talking about the case outside of court.
Sources with direct knowledge tell TMZ the juror alerted the court on Friday about the text message, from a phone number he didn't recognize, asking him if HE was Juror No. 6 -- who'd already been in the news as someone Judge Arun Subramanian might dismiss.
We're told this other juror wanted the judge to know about the mystery text and, indeed, Judge Subramanian did have lots of questions for him about the message and the phone number from which it came.
Our sources say, although the juror said he didn't recognize the phone number ... the judge has concerns he might be discussing the trial with people who are NOT on the jury -- which, obviously, would be a major violation of the judge's instructions.

Guest Post by Laura Bea and Adam Stolz, Esq. – Ames v. Ohio Dep’t of Youth Servs. (2025)

 

Guest Post by Laura Bea and Adam Stolz, Esq. – Ames v. Ohio Dep’t of Youth Servs. (2025)

Ames v. Ohio Department of Youth Services:

Sixth Circuit Reversed in Applying Higher Burden to Reverse-Discrimination Claims 

Last week, SCOTUS ruled unanimously in favor of a straight woman who claims she was subjected to reverse discrimination. In an opinion that may come to impact corporate hiring policies, practices, and procedures—and accelerate the ongoing wave of DEI/reverse discrimination lawsuits in the U.S.—the Court held that Title VII of the Civil Rights Act does not impose a heightened evidentiary burden on majority-group plaintiffs in employment discrimination cases. As further discussed below, the Court reaffirmed its longstanding framework established in McDonnell Douglas as the benchmark for all Title VII discrimination cases, which the Eleventh Circuit generally follows, so we shouldn’t expect much change locally. But a concurrence by Justice Thomas questions the legitimacy of the entire McDonnell Douglas framework, so a seismic shift could potentially lie ahead.  

The underlying facts of Ames are relatively straightforward. Marlean Ames, a heterosexual woman, had worked for the Ohio Department of Youth Services since 2004. In 2019, she interviewed for a new management position, but the agency ultimately hired another candidate who happened to be a lesbian woman. Shortly afterward, the agency demoted Ames from her role as program administrator and hired a gay man to replace her. So, not only did she get passed over for the promotion, but she was also demoted to a former position where her hourly salary was just over half what she had recently been earning. Ames then filed a federal lawsuit against the agency under Title VII, alleging that she had been the victim of employment discrimination based on her sexual orientation as a heterosexual person.

The district court granted summary judgment for the employer, applying the Sixth Circuit’s modified McDonnell Douglas framework and finding Ames failed to show background circumstances suggesting bias against majority-group members. The Sixth Circuit affirmed, holding that its precedent indeed required Ames, as a heterosexual person in a majority group, to provide evidence beyond the standard prima facie requirements.

The Supreme Court resolved a circuit split by rejecting the notion that majority-group plaintiffs must provide additional “background circumstances” to support the suspicion that the defendant is “that unusual employer who discriminated against the majority”—such as showing that a minority group member made the allegedly discriminatory decision or that the employer has a pattern of discriminating against the majority. The Court explained that “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone” because the text of the federal law at issue bars discrimination against every “‘individual’—without regard to that individual’s membership in a minority or majority group.” Accordingly, Ames’ case was remanded to be reevaluated under the first prong of the McDonnell Douglas framework as it would be for any other discrimination case—i.e., whether plaintiff [Ames] made a prima facie showing that defendant [the agency] acted with a discriminatory motive. The Court’s decision will have the most immediate impact in the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, all of which previously applied the heightened “background circumstances” standard.

As previewed, Justice Thomas also wrote a concurring opinion joined by Justice Gorsuch that challenges the legitimacy of the McDonnell Douglas framework and invites litigants to petition the Court to revisit and potentially overrule it. Setting aside the merits of the position, Justice Thomas’s eagerness to expound on legal philosophies beyond the issue on certiorari may be reminiscent to some of his concurrence last year in Trump v. United States where he challenged the constitutionality of the special counsel role. In any event, the implications of judicial officers inviting issues to be brought before them and previewing their rulings raises legitimate concerns about the potential erosion of stare decisis.

For now, however, Ames will require employment defense attorneys to take reverse discrimination cases more seriously even if such claims are, or at least have historically been, far less common than lawsuits brought by minority-group plaintiffs.

 

Will the Harvey Weinstein case have to be tried a third time?

 It sure looks like it after a wild couple of days of deliberations and a split verdict. From Deadline:

 Under personal and judicial duress, the jurors just informed Judge Curtis Farber that they have reached a split verdict: guilty on Count 1 of a criminal sexual act in the first degree against Miriam Haley, not guilty of the same charge involving Kaja Sokola and no verdict on Jessica Mann. In this retrial, each count of first-degree criminal sexual act carries a maximum sentence of 25 years.

***

The jury revealed its partial ruling at the request of Judge Farber, who sent the panelists home early today to allow them time away from one another before they resume their deliberations tomorrow on the last remaining, undecided charge involving Mann. In the return to deliberations, it appears the judge is going to have a court officer take the worried foreman to the jury room.

This afternoon, the group including the judge, the foreman and lawyers including defense lawyer Arthur Aidala and Manhattan Assistant District Attorney Matthew Colangelo, left the courtroom for more than 20 minutes for the interview with the foreman. The foreman told the judge in his chambers that another juror said to him, “Oh, we will see you outside” because he was refusing to change his opinion — which he didn’t disclose — and that he was “concerned for my safety,” according to a transcript of the private hearing released this afternoon by court officials. 

After excusing the juror, Farber said to the lawyers that the dispute sounded to him like “schoolyard nonsense,” echoing comments from another juror who had complained on Friday of “playground” behavior, including some jurors “shunning” one another and talking behind another juror’s back.

When the judge and the lawyers finally returned to the courtroom — without the foreman, and with the rest of the jury still waiting outside the courtroom — Farber said, “In a nutshell, there does appear to be be some fighting in the jury room.” 

Farber said he was inclined to send the jury home early to “give them a chance to get some air, cool down,” but he also said he would ask them if they have reached a verdict on any of the counts. 

As these near-unprecedented circumstances unfold, Weinstein himself addressed the judge this morning and asked for a mistrial. “Your honor, this is a profile in courage moment for you,” Weinstein, seated in his wheelchair, began, sounding like he was in pitch mode. “This is my life that’s on the line, this is not fair,” said the defendent, who saw his 23-year sentence from a 2020 conviction dismissed by an appeals court last year. “I’m not getting a fair trial,” the ailing, 73-year-old added to Judge Farber.

As he has before, the judge rejected the request for a mistrial.

 

11th Circuit sides with Judge Williams and rebukes state AG

 The blog has covered this case -- the one where the state decided it didn't have to follow Judge Williams' order. The State appealed Judge Williams and lost.  

Law & Crime covers it here:

 The U.S. Court of Appeals for the 11th Circuit delivered a sharp rebuke on Friday to Florida Attorney General James Uthmeier over the state’s new immigration enforcement law — scolding him for making “a veiled threat” to defy a judge’s order blocking local immigrant arrests, while ruling to leave the order in place.

“Whether he is right or wrong about his control over other law-enforcement officials, the Attorney General has not made a ‘strong showing’ on this issue,” wrote Judges Embry Kidd, Kevin Newsom and Jill Pryor in a 16-page ruling. The appeals court denied a request for a stay made by Uthmeier and his office in a May 7 motion, which claimed the state’s new immigration enforcement law (SB 4-C) was being followed “to aid the United States in curbing illegal immigration within the state’s borders.”

***

The 11th Circuit called out Uthmeier for his resistance on Friday, saying “the equities seem to cut against the Attorney General — and in any event do not cut in his favor — given his seemingly defiant posture vis-à-vis the district court.” The judges also chided him for condemning what he calls a “universal” injunction, in reference to Williams’ order, noting how he “does not meaningfully contest the propriety of the class certification” in the stay motion.

The court said that even if the AG is correct in claiming that Florida’s law-enforcement officers are totally separate entities over which he has no meaningful control, it still doubts that Uthmeier has Article III standing to appeal the portion of the district court’s order enjoining other state law-enforcement officials, as he alleges.

 

Should defendants be required to remain stoic throughout their trial?

I've been doing some commentary on the Diddy trial.  One thing that struck me last week was the judge scolding Diddy for reacting to testimony and threatening to exclude him from the courtroom.  Shouldn't a defendant be permitted to react to the testimony and look at the jurors.  After all, prosecutors prep witnesses on how to behave on the stand.  And one of their witnesses last week was sobbing.  

 

The judge wrongfully scolded Diddy this week for nodding and looking at jurors while the prosecutor is able to put on witnesses who are sobbing. Another example of how trials are so slanted towards the prosecution. I discussed on @CNN with @jessicadean pic.twitter.com/dvHaJ2ssws

— David Oscar Markus (@domarkus) June 8, 2025

Meantime, Diddy's lawyers have moved for a mistrial because they say that they have proof one of the prosecution's witnesses lied. TMZ covers it here.

Guest Post By Itiel Wainer – Barnes v. Felix (2025)

Guest Post By Itiel Wainer – Barnes v. Felix (2025)

My sincere gratitude to David Oscar Markus and John R. Byrne for allowing me to submit this guest post. In it, I briefly examine the Supreme Court’s recent ruling in Barnes v. Felix, one of two SCOTUS cases that were the focus of the 2025 Gibbons National Criminal Procedure Moot Court Competition. My teammate, Sydney Stark, and I were honored to represent the University of Miami School of Law at that event. You can read Sydney’s discussion of the competition’s other issue here. I also want to extend a heartfelt thank you to our exceptional coaches, Adam Stolz, Esq. and Luis Reyes, Esq. whose support continues to be immeasurable.

Barnes v. Felix is SCOTUS’ latest opinion on excessive force cases and reinforces that there are no short cuts for considering the “totality of the circumstances” when evaluating whether one’s use of deadly force was reasonable under the Fourth Amendment. The case arises from a routine traffic stop that turned fatal. The police officer, Roberto Felix, pulled over Ashtian Barnes in a rental car for unpaid toll violations. When, moments later, Barnes tried to speed away, Felix drew his weapon, stepped onto the moving vehicle’s doorsill, and within seconds fired two shots, killing Barnes. The body camera footage of the incident is available here for those who wish to personally witness the encounter.

Barnes’ mother filed suit under § 1983 against Officer Felix for using excessive force against her son in violation of his Fourth Amendment rights. The district court ultimately granted the officer summary judgment. It did so under a theory that the court’s reasonableness inquiry of the officer’s conduct must be limited to the precise moment an objectively reasonable officer would have perceived a threat. In effect, the court limited its “reasonableness” inquiry to the two seconds before Officer Felix fired his gun and did not consider other factors, like the officer’s decision to jump on the moving car or the basis for pulling over Barnes being mere toll violations.

The Fifth Circuit affirmed on appeal, explaining that the circuit has adopted a “moment of threat doctrine,” which narrows the Fourth Amendment reasonableness inquiry in deadly force cases. Interestingly, the judge who authored the majority opinion also filed a separate concurrence criticizing the doctrine, arguing that the moment of threat doctrine conflicts with the totality of the circumstances standard that has long governed Fourth Amendment reasonableness.

The Supreme Court granted certiorari to address the validity of the moment of threat doctrine and the supposed circuit split on the doctrine. Yet, in both his briefing and oral arguments, the respondent, Officer Felix, declined to defend the moment of threat doctrine. Instead, Felix argued that the moment of threat doctrine, as defined by the Fifth Circuit, does not actually exist. Felix pointed to a circuit split over whether courts may consider an “officer-created danger” as part of the totality of the circumstances as the real issue in the case. He framed the Fifth Circuit’s moment of threat doctrine, to the extent it exists, as a shield against an officer-create danger theory: that Officer Felix’s decision to jump onto Barnes’s car rendered Felix’s subsequent use of force unreasonable.

In a succinct, nine-page unanimous opinion penned by Justice Kagan, the Court rejected the moment of threat doctrine. The Court clarified that while “the situation at the precise time of the shooting will often be what matters most,” there is no hard and fast time limit on the totality of the circumstances inquiry. Thus, the Court explained, the moment of threat doctrine applied by some courts directly contradicts the mandate that trial courts examine the totality of the circumstances. Because the Fifth Circuit’s time-restricted analysis foreclosed scrutiny of Officer Felix’s decision to leap onto Barnes’ car, the Court declined to consider his officer-created-danger argument and left that question open for another day—i.e., whether an officer’s use of force could be deemed excessive if the officer’s conduct “unjustifiably” creates or escalates a situation that leads to a deadly confrontation, even if the force used was objectively reasonable at the time it was deployed.

Ultimately, the Supreme Court’s decision in Barnes v. Felix is a narrow holding clarifying that the totality of the circumstances inquiry has no temporal restriction. Ordinary principles of relevancy and causation likewise guide the analysis, further necessitating a result that continues to afford leeway to trial courts in conducting such a fact-specific, contextual inquiry. The narrow holding is also one way to avoid the morass of whether the moment of threat doctrine even exists. Nevertheless, by sidestepping the officer-created danger question, the Court left the most significant question unanswered for the time being.