Mickey Strikes Back

 

By John R. Byrne:

Everyone’s talking about the Trump indictment but, since it’s Friday, we’re going with some lighter fare. Disney!

You may have read about Governor DeSantis's takeover of the Reedy Creek board, which governs the district where Walt Disney World operates. But, apparently, on the eve of the takeover, the old board significantly curbed the new board's powers by having the district enter into a Declaration of Restrictive Covenants in favor of Walt Disney Parks. 

As one of the new board members said, “This [document] essentially makes Disney the government. This board loses, for practical purposes, the majority of its ability to do anything beyond maintain the roads and maintain basic infrastructure.” 

The new board has hired multiple law firms to look into undoing the covenants. 

As a side note, remember the Rule Against Perpetuities? You know, that rule you learned for the bar exam and then promptly forgot about after the test? It makes an appearance in the Declaration! The restrictive covenants are in place "in perpetuity" unless that violates the Rule Against Perpetuities, in which case they will be in place "until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration." I think that works. 

If you're interested in reading the Declaration, the Orlando Sentinel includes it in their article.

Enjoy the weekend and go Canes!

Oath Keepers juror speaks

 Wowee.  You should read this entire Politico article about the deliberations, but there's this:

Ellen indicated that she and another juror who happened to be a lawyer helped spearhead a lot of the deliberations. Some jurors, she said, did not seem to have followed every twist and turn of the trial. Others, she said, seemed to have preconceived notions against convicting anyone regardless of the facts — which the jury had to overcome to arrive at its verdict. And when she completed her service, after a five-week trial and lengthy deliberations, Ellen came away with a conclusion: If she were ever on trial, she would waive her right to a jury and instead let the judge decide her fate.

“I would never want my fate in the hands of people who are mostly completely ill-equipped to understand what’s going on,” she said.

Ellen described the extraordinary volume of evidence jurors had to sift through as they considered the 34 counts against the six defendants — part of prosecutors’ video evidence trove that is unparalleled in American history. She said she grew exasperated at times with some jurors’ insistence that they had to rely only on direct evidence to reach a conviction, rather than circumstantial evidence that can point to someone’s guilt. But despite these frustrations, she ultimately compared the experience to “12 Angry Men” and a “made-for-TV movie” in which jurors understood the gravity of their charge and the significance of the case they had just witnessed.

Ellen indicated that of the four defendants who took the stand “three did harm to themselves by testifying.” One of them, she said, was Bennie Parker, whose testimony she said helped convince the jury that there was a plan to storm the Capitol even before the group arrived at the building. That testimony, she said, damaged other defendants, including Parker’s wife Sandra, who was convicted on several counts for which Parker — who didn’t enter the building — was acquitted.

***

Ellen saved her harshest remarks for some of the defense lawyers in the case, who she said at times acted in ways that perplexed and even upset the jury. For example, the lawyer for one defendant, Laura Steele, didn’t put on a case for his client but noticeably laughed repeatedly throughout the trial, Ellen said.

“I was horrified,” she said.

 

Justice Gorsuch dissents from cert denial

 It's the well-known Donziger prosecution, which involved a lawyer being held in contempt.  Justice Kavanaugh joined the dissent, which explains:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.

***

However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.  In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.

News & Notes

1. Thank you Michael Caruso for a great post on Friday.

2.  Hope everyone enjoyed their spring break.  Back to the crazy traffic.

3. Go CANES.

4. What's going on with the Israel Supreme Court.  CNN explains here:

For months, hundreds of thousands of Israelis have been taking to the streets across the country to protest far-reaching changes to Israel’s legal system some say threaten the country’s democratic foundations.

At its core, the judicial overhaul would give the Israeli parliament, the Knesset, and therefore the parties in power, more control over Israel’s judiciary.

From how judges are selected, to what laws the Supreme Court can rule on, to even giving parliament power to overturn Supreme Court decisions, the changes would be the most significant shakeups to Israel’s judiciary since its founding in 1948.

The proposed reforms do not come out of nowhere.

Figures from across the political spectrum have in the past called for changes to Israel’s judiciary.

Israel has no written constitution, only a set of quasi-constitutional basic laws, making the Supreme Court even more powerful. But Israel also has no check on the power of the Knesset other than the Supreme Court.

5.  Will Trump be indicted this week?  Should he be?  Rumpole discusses bail over at his blog.  

Triple Crown Winner

By Michael Caruso

As David noted in a prior post, Judge Williams and I had the privilege of speaking at Magistrate Judge Augustin-Birch's investiture last week. In addition to telling the audience what a wonderful person and lawyer the Judge is, we both noted the "firsts" she's accomplished–the first judge of Haitian-American descent on our court and in the 11th Circuit and the first career public defender on our bench.

Because this is Women's History Month, I wanted to note some (but not all) other relevant judge "firsts."*

Chief Judge Altonaga–the first Cuban American woman federal judge in our country and the first woman Chief Judge in our district.

Judge Barkett–the first woman on the Florida Supreme Court.

Judge Cooke–the first African American woman in our district.  

Judge Lagoa–the first Cuban American woman on the 11th Circuit, Florida Supreme Court, and Third DCA.

Judge Maynard–the first African American woman Magistrate Judge in our district. 

Judge Nesbitt–the first woman in our district.

Special mention to Judge Seitz–the first woman Florida Bar President.  

But the Triple Crown belongs to Judge Susan Black of the 11th Circuit Court of Appeals–Judge Black was the first woman to be a county court, circuit court, and federal judge in Florida. (Judge Black was also the first woman ASA in our state). Quite the accomplishments! 

If you're interested in reading more about women "trailblazers," I highly recommend this ABA oral history series– https://www.americanbar.org/groups/senior_lawyers/women_trailblazers_project_listing 

At this site, you'll find fascinating interviews with Judges Barkett and Kravitch, Justice Quince, Janet Reno, and many others. 

*I gathered this information from public sources; please let me know if incorrect. 

 

Magistrate judge in Denver has never heard of Brady v. Maryland

I hate gotcha moments but wow, you gotta watch district court nominate (and current magistrate judge) Kato Crews bomb this question about Brady v. Maryland. 

There are so few trials that *judges* do not even know what Brady is. This is a magistrate judge, who hears discovery disputes among the parties… and who is also supposed to order disclosure of Brady material at arraignment per Rule 5.

And he’s been nominated to the district bench. Ouch. 

Here’s the story about the nominee, Kato Crews.

And here’s a video of the exchange  

Penny Birch's investiture

 A big congrats to Magistrate Judge Birch, who had her formal investiture last week.  Judge Kathy Williams, FPD Michael Caruso, and her family members spoke.  Sadly, one of her mentors Judge Brannon was not there to see it. But his wife, Dr. Pamela Brannon, gave one of Judge Brannon's robes to Judge Birch in a touching moment.  

Judge Brannon's portrait hanging

Judge Brannon’s portrait was hung in the West Palm Beach federal courthouse last week.  It was an informal setting but according to several sources, there was an incredible turnout.  Dr. Pamela Brannon, his surviving spouse, flew in for the occasion.  Judge Matthewman gave remarks focused on how much Judge Brannon loved his job and how fortunate everyone was to have known him.

His portrait was created by the Court’s portrait artist, Cyd Wicker, and he was involved in the process before he passed.  It was important to Judge Brannon that his portrait be hung in the West Palm Beach courthouse where he devoted many years of service as an Assistant Federal Public Defender and Magistrate Judge.  Judge Brannon  chose to include his U.S. Coast Guard pin in his portrait as a tribute to his USCG days, which he loved.  In fact, his final resting place will be the USCG Academy in New London, CT.   His wife was wearing the pin at the ceremony.