Biden has been a big disappointment on criminal justice reform so far

 I'm still hoping he can turn things around.  But he has been extremely tepid with criminal justice reform.  The latest is this potential action -- commuting sentences only for low level drug offenders who were temporarily released from BOP custody during the pandemic.  There has been a big push not to have any of these low level offenders go back in.  Why only drug offenders? Makes no sense.  

From the N.Y. Times:

In interviews, officials have subsequently confirmed that focus. As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.

The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category. She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison. Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law.

“There are many things that go into a retirement decision."

 That was Justice Breyer in the N.Y. Times.  The whole article is worth a read... but here are some snippets:

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.

The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”

***

He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.

“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.”

Latest COVID order from SDFLA.... (UPDATED)

 ...is here.  It allows for the use of Zoom-hearings under the CARES Act.  There was some rumbling about whether jury trials (or grand juries) would be suspended again, but that didn't happen.  It's all systems go despite the all-time high COVID numbers.  There's also an order requiring all court employees to be vaccinated or tested twice weekly. I like it.  Unfortunately, though, this does not apply to the CSOs or Marshals.  

Even if there is no general order continuing trials, some judges are doing it on their own.  See this order from Judge Cooke:

Mistrial in the Michael Avenatti trial due to Brady violation

 Wow, this is a big one.

Another "taint team" and Brady problem in federal court. 

Reporter Meghann Cuniff is doing a really nice job covering what's going on in court:

Selna: "Shortcomings there may have been, but I find no misconduct, intentional or otherwise, on the part of the taint team."
Selna: "For all those reasons, I grant a new trial." It's official: Mistrial in Avenatti's wire fraud trial.

— Meghann Cuniff (@meghanncuniff) August 24, 2021

Here is the defense motion,

Govt response,

and the recent filing by the defense outlining the issues. 

COVID issues plaguing trial in Ft. Pierce

 This is a civil trial in which counsel has tested positive for COVID.  Developing.

Swintelski v. American Medical Systems de 168 by David Oscar Markus on Scribd

RIP Maria Shohat

 A really great person and lawyer, this is a sad one.  Maria and Ed Shohat made such a wonderful team.  And she was always the life of a party or a bar function.  But she has been battling Alzheimer's for a while now (here is the link to the fundraising page detailing the walk for Maria that is scheduled for November).  I will post the funeral arrangements on this page when I hear of them. 

Does this cross the line?

 I'm a big fan of sharp writing, but does it cross the line to compare your colleagues to a career offender because they've been reversed so many times it looks like a rap sheep?  Here's the 9th Circuit case in which Judge VanDyke does just that.

Apparently, AboveTheLaw didn’t like it: https://abovethelaw.com/2021/08/newsflash-unqualified-federal-judges-are-unqualified/

Bonus Podcast Episode with Billy Corben and Alfred Spellman

We've had defense lawyers.  We've had judges.  And today, I'm excited to let you know that we have a bonus episode of For the Defense with filmmakers (and my good friends and producers of this podcast!) Billy Corben and Alfred Spellman about their latest rakontur production -- Cocaine Cowboys: The Kings of Miami.  

If you haven't seen the docuseries on Netflix yet, you really should check it out. It's about the rise and fall of Willy Falcon and Salvador Magluta, also known as Los Muchachos or the Boys.  It's an only-in-Miami story -- Billy and Alfred's specialty.  

Lawyers will love it because it details the numerous trials in the case and there are lots of great interviews with federal prosecutors and defense lawyers (including Albert Krieger, Rod Vereen, Pat Sullivan, Chris Clark, Richard Klugh, and others).  Non-lawyers will love it for all of the craziness involved in the cases, detailed by none other than Jim Defede, who covered the cases in his New Times articles:  

And the latest version:



You can check out the bonus episode on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. 

Speaking of which, it's not too late to catch up on Seasons 1-3 of For The Defense.  While you are doing so, please subscribe, like, and comments.  We need you! (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