An open letter to former prosecutors outraged about the Flynn dismissal

I wrote a letter in the Hill to my friends who are former prosecutors who are upset about the Flynn dismissal.  It starts this way:

There are fair-minded people who are concerned about the Department of Justice’s decision to dismiss the Michael Flynn case. And for many, it’s more than concern. For example, a group of former prosecutors were so outraged by the decision, that they wrote a letter asking for the Attorney General’s resignation because the motion to dismiss, they believed, “undermined [DOJ’s] mission to ensure equal justice under the law.”
For prosecutors legitimately concerned about equality under the law — to be sure, a hallmark of any legitimate justice system — there are bigger issues to be angry about than the dismissal of one case charging a relatively minor crime.

Let me know your thoughts.

News & Notes

1. David Ovalle covers Zoom hearings in Miami here.  I like Phil Reizenstein's quote. Many people don't know that Phil is an avid poker player:

“There are subtle in-person clues you can’t pick up when you’re questioning someone during an online hearing. It’s the difference between playing poker at a table versus online,” said Miami defense lawyer Philip Reizenstein, who by mistake appeared recently in an online court hearing in front of a virtual background created by one of his children: a pink-and-purple Minecraft cartoon house.

Scott Fingerhut also makes an important point about Zoom:

Lawyers also worry about witnesses being coached by people off screen, or looking at notes. “You need a full shot of a witness,” said lawyer H. Scott Fingerhut, who teaches criminal procedure at Florida International University’s law school. “How else do you know if they are holding a phone for texting for advice, or a script nearby?”

2.  The SDFLA is now soliciting feedback on Magistrate Judge Patrick Hunt for his reappointment.  I urge all of you to support Judge Hunt here.

3.  I will be debating Professor Carissa Hessick about judicial power and the Flynn case next Friday at 2pm at this Federalist Society Event.  Clark Neily of Cato will be hosting.  Should be fun.  It's free and via Zoom.  You can register here.

Florida Supreme Court gets two South Florida appointees

Former AUSA John Couriel and Palm Beach Circuit Judge Renatha Francis are the two newest members of Florida’s highest court.  Couriel is a good guy and a smart lawyer.  He has been at Kobre Kim for some time now.  I don’t know Francis personally, but she has a very good reputation as a judge, and I really like the addition of the first Jamaican American to the bench.  She won’t be able to take the bench till September when she has 10 years under her belt as a member of the bar.  Congratulations to both.

RIP Luis Perez (updated with funeral arrangements)

I was planning on a lengthy post-long weekend post this morning, but unfortunately, I have some sad news to pass along.  Longtime prosecutor Luis Perez has passed away.

Luis has been battling cancer for many years and passed away this morning.  He was an Assistant United States Attorney for as long as I can remember.  Most recently he was the chief of economic crimes.  He always seemed to be around, whether walking the streets of downtown Miami during the lunch hour or in court or in a case meeting.  We didn’t always agree on cases obviously, but he was a nice guy, always friendly, and a dedicated public servant.

UPDATED — The service will take place this Thursday at 1:00 p.m. and will be live streamed: http://church.stamiami.org/ . The church is not allowing open physical attendance. For those of you who are interested in making donations, they can be made in Luis’ memory and honor to Sylvester Cancer Center (pancreatic cancer).

More on the Michael Flynn case.

This time I have a debate with the USA Today editorial board.  Here is their piece.  And here is a link to mine, which starts this way:

Chief Justice John Roberts said judges, like umpires, are there “to call balls and strikes and not to pitch or bat.” The Justice Department and Michael Flynn agree that their contest is over, so Judge Emmet Sullivan should not force the parties to keep playing.

And the conclusion:

In our system, each side is responsible for its own case. Judges ensure that government treats the defendant fairly. They have no interest in forcing prosecutors to prosecute. The parties have resolved their dispute, so there is nothing left to judge. As Justice Roberts put it, “Nobody ever went to a ball game to see the umpire.”

Mackenzie Garrity selected for the UM School of Law Stuart A. Markus award

Friends and readers of the blog know that my family set up an award in my Dad's name at the University of Miami School of Law after he passed away.  The Stuart A. Markus Award recognizes an individual student each year for outstanding work in one of the School of Law’s in-house clinics. The winner is selected by vote of the in-house, live-client clinic directors.  The first award went to Bethany Bandstra.  Other winners include Lindsay MacDonald, Brittany Hynes, Sarah Bujold, and Romney Manassa.

This year the Markus Award goes to Mackenzie Garrity.  I received this letter from Professor Kele Stewart summarizing her accomplishments:

In the fall 2019, the Innocence Clinic received the State’s response to a federal habeas petition filed in the United States District Court for the Northern District of Florida. Mackenzie naturally emerged as the leader of the group, while dealing with the time pressure and learning about a case the Clinic had been litigating since 2012. The specific law involved in federal habeas petitions is complex, which added to the pressures of the case. Mackenzie remained calm and focused in her work and kept the team calm and focused. Her research and writing on the project was excellent. Her ability to work with other students, while learning the area of federal habeas law was exemplary. She identified the weaknesses in the State’s arguments with a logic that far exceeded her status as a 2L. While this project took the majority of the semester to complete, Mackenzie performed other clinic duties with great detail, care and timeliness.
Mackenzie was also assigned to draft a Petition for Writ of Mandamus in case where the clinic had been waiting for a year to get a ruling on a 3.850 motion. Based on her draft of the Petition, the First District Court of Appeal issued a show cause order which in turn prompted the court to issue its long overdue order. 

The challenges posed by COVID-19 did not diminish Mackenzie’s dedication. She was assigned a case in which the Clinic has represented the client since 2013. The case has been hard-fought and an evidentiary hearing remains to be scheduled due to COVID-19 court restrictions. Mackenzie drafted a motion for the compassionate release of our elderly client who will be 80 in August and has diabetes among other ailments. This puts him at risk of death from COVID-19 according to the CDC. Mackenzie not only drafted the motion, but recognized the time sensitivity and drafted it  expeditiously. While there is no Florida law on the subject, she was able to find some authority and
analogize current federal law on the issue. After the motion was filed, the Judge ordered the State to respond and also ordered a response from the Department of Corrections. Most importantly, the Clinic was contacted by the prosecution to discuss a resolution that would result in the client’s release. Mackenzie has already drafted a response to the State’s forthcoming and anticipated response. Once the State’s response is received, her draft will be edited and a reply will be filed within hours.

Super Impressive.

My dad practiced law in Miami for over 50 years.  Throughout his career, he fought hard for his clients in every area of the law.  He never turned away a person in need, and helped countless people with practical, hands-on advice and representation that went far above and beyond the norm.  The Markus Award is given annually to a student who shares that caring spirit, and who has made a meaningful difference in someone’s life – which is something my dad did every day.

Congratulations to Mackenzie! 

And thanks to Professor Ricardo Bascuas and Georgina Angones for their help in both setting up this award and for looking after it every year.  It means a lot to me and my family.

RIP Albert Krieger (UPDATED with incredible stories from the judiciary and the bar in the comments)

UPDATE -- please take a moment and read the comments, which have wonderful stories and touching memories from judges and lawyers who saw Albert in action (including from Scott Srebnick, Judge Federico Moreno, Judge Milton Hirsch. Marty Weinberg, Jeffrey Kay, and many others).

This is a really sad one... Albert Krieger, one of the founding fathers of criminal defense, has passed away at 96.

After I saw him in court for the first time, I said to myself: "I could never be that good."  His voice.  His demeanor.  The way he crushed cooperating witnesses.  And he was so engaging out of court.  Happy to sit down with young lawyers and guide them.  If you had to craft a criminal defense lawyer, it would be Albert. He inspired so many of us. He will be missed.

He has defended some of the biggest cases in America, including John Gotti and Sal Magluta.  In the Gotti case, he was opposite John Gleeson, the lawyer that was just appointed in the Flynn case.

Check out Albert in this Charlie Rose interview. Classic Albert.  At the 9:30 mark, he explains why he decided to represent Gotti.  And at the 16 minute mark, he explains why maximum security prisons are unacceptable in a civilized society. He will fire you up! The guy was the best.



I will be posting stories and memories of Albert as they come up.  Please either email them to me at dmarkus@markuslaw.com or post them in the comments. 

News & Notes

1. Judge Singhal wrote this interesting and well-written order saying that it wasn't for courts to get involved in the decisions regarding the pandemic, which is left to other branches of government. Unlike the Wisconsin Supreme Court, Judge Singhal said it's up to the government, not the judiciary:

There are no manuals on how to handle crises. However, there is a framework that provides an answer to who handles them. To govern is not the court’s role; rather, the power of judging must be separated from legislative and executive powers. See generally The Federalist, No. 47 (Hamilton). Under our system, leaders elected by the will of the people are entrusted with awesome responsibility. They must act within the framework set forth in our Constitution, using reasonable measures to further public health while safeguarding the citizenry’s inalienable rights. It is a balance, no doubt. And so long as the people’s elected leaders are working within the confines of the people’s constitutional rights, courts are not here to second-guess or micromanage their already unenviable jobs guiding us through profoundly unprecedented challenges.

2. Speaking of well-written and interesting, here's an article that Federal Defender Michael Caruso wrote about the awesome Cathy Wade:

At every court investiture and ceremony, no matter the honoree or occasion, there is one common denominator: a big shout out to Cathy Wade Babyak for making the event a success. But, Cathy, the Court’s Executive Services Administrator, does much more than plan courthouse functions—she is the person who is integral to the successful and smooth operation of one of the busiest federal judicial districts in the country.

There are also some good stories:

As you may imagine, Cathy has some stories to tell about the courthouse. One night at 10 p.m., Cathy received a call from the Warden of the Federal Detention Center. The
warden wanted to know why there were semi-trucks being parked around the courthouse. Apparently, a film crew had been given permission to film a movie in the ceremonial
courtroom. Little did anyone know that the crew would take over the entire 2nd floor of the Courthouse as well as the surrounding streets. In her typical fashion, Cathy stepped in, coordinated with the movie crew, and actually directed the director to be quiet because they were disturbing court. The highlight for Cathy was meeting and
spending time with Bill Murray.

 3.  My friend Lawrence Zimmerman has this thoughtful post on the presumption of innocence on Don Samuel's new blog. You know Don... he's the guy who writes the 11th Circuit Handbook (our federal cheat sheet in court).  The post is worth reading, and the blog is worth following.  Here's the conclusion:

We have a duty to educate the public when we can and not allow the media machine to cloud the public’s view of the trial process - with their instinct to condemn, convict and move on to another story. By failing to give these men accused of heinous crimes a fair trial, we will deprive the community of the justice that was already denied Arbery. Despite the clamor of the rightfully outraged public for a rush to judgment it is our job to uphold the Constitution. And it may take time.

4.   Finally, we have some really great magistrate judges.  One of them is Patrick Hunt who is up for re-appointment.  Jon Sale is heading up the committee.  Please make sure to send him your positive feedback at FLSD_MagistrateJudgeRecruitment@flsd.uscourts.gov