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.