Aileen Cannon nomination hearing is tomorrow (UPDATED)

You can watch, Wednesday at 10am, at this link.

She's up for the Fort Pierce seat.

Good luck!

UPDATE -- in other news, Judges Luck and Lagoa denied a motion to recuse in the felon voting rights case.  Here is an article covering the motion and order.

Two of President Donald Trump’s appointees to a federal appeals court have refused calls to recuse from a case that advocates say would affect the right of approximately 750,000 Florida residents with previous felony convictions to vote.

Voting rights advocates are challenging a Florida law that requires former felons to pay any outstanding legal financial obligations before they can vote, even if they can’t afford it. These obligations include the several hundred dollars in court fees and costs that are imposed in felony cases, as well as fines and restitution orders that can run in the thousands or even millions of dollars. Challengers argue a “pay-to-vote” policy is unconstitutional and the same as a prohibited poll tax.

The challengers argued Judges Barbara Lagoa and Robert Luck of the US Court of Appeals for the 11th Circuit should disqualify because they were involved in a related legal fight as state supreme court justices. In an opinion released Monday morning, Lagoa and Luck disagreed and said they would stay on.

The Florida case is one of the biggest voting rights fights pending in federal court with less than 100 days until the November presidential election. A federal district judge in Tallahassee ruled in May that the state could not condition voting rights on fines and fees that people with past convictions could not pay. The full bench of the 11th Circuit is scheduled to hear arguments on Aug. 18, the same day as Florida’s primary election.

Federal judge rightly upset over wrongful jailing of Michael Cohen

That's the title of my latest piece in the Hill.  Please click on the link for the whole article and let me know your thoughts.  Here's the intro:

Federal district judge Alvin Hellerstein was rightly outraged that a probation officer acting on behalf of the Bureau of Prisons had Michael Cohen arrested because he was writing a book about President Donald Trump and because Cohen would not agree to give up his First Amendment rights as part of his supervised release. The judge found that “the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others."
It is almost unheard of to see a federal judge get upset with a probation officer or the Bureau of Prisons. That’s because there is a fiction in the criminal justice system that a probation officer is an “arm of the court.” Criminal law practitioners, however, know the truth about probation officers — they often are advocates for the executive branch (prosecutors) and can push harder than even prosecutors do for draconian prison sentences.
Look at what happened with Cohen — he was arrested without approval from a judge and without his lawyers having the ability to argue his position with a judge before the arrest. And what was the supposed justification by the arresting officer? Cohen was “antagonistic” and did not want to sign a document outlining conditions of his ongoing release.
DOJ tried to come to the defense of the prison system and probation, arguing that Cohen’s lawyer was trying to “haggle” with the probation officer about wearing an ankle monitor. The judge made quick work of that argument: “What’s an attorney for if he is not going to negotiate an agreement with his client?”
You might be thinking that it is outrageous for a probation or prison officer to have this much power. If so, it’s even worse than you think. Although prosecutors and defense lawyers are not permitted to speak to the judge without the other side present, probation officers typically meet with judges alone, making their recommendations in secret without the parties getting a chance to be heard. And judges often defer to prison officials.

Judge finds Michael Cohen’s detention was wrong and orders him released

Good for Judge Alvin Hellerstein. The probation officer had Cohen detained when he wouldn’t agree to a gag order (because he was writing a book about President Trump). Cohen sued and said the arrest was retaliatory and violated the First Amendment. The judge agreed. From the Washington Post:

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” Hellerstein said in a scathing ruling issued Thursday morning. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release, I have never seen such a clause.”

 The judge also made quick work of Cohen’s lawyer fighting for various conditions:

Assistant U.S. Attorney Allison Rovner argued that Cohen’s lawyer Jeffrey Levine tried to haggle with the probation officer on his requirement that Cohen wear an ankle monitor, saying it was a condition reserved for “violent” convicts. There was nothing wrong with Levine trying to negotiate for his client, the judge said, and the attempt to debate the terms should not have been cause to imprison him.
“What’s an attorney for if he is not going to negotiate an agreement with his client?” the judge said.
A spokesman for the U.S. attorney’s office declined to comment on whether prosecutors intend to appeal.
Danya Perry, one of Cohen’s attorneys, called the ruling a victory for the First Amendment. “This principle transcends politics and we are gratified that the rule of law prevails,” Perry said.
Cohen’s legal team also includes lawyers from the American Civil Liberties Union.

"Alabama’s history of enacting laws designed to suppress people of color is well-documented."

That's Judge Gayles, sitting by designation in the 11th Circuit, in dissent in this voting rights case:

Alabama’s history of enacting laws designed to suppress people of color is well-documented. See Lynch v. Alabama, No. 08-S-450-NE, 2011 WL 13186739, at *12–18 (N.D. Ala. Nov. 7, 2011) (detailing Alabama’s extensive history of legislation designed to disenfranchise and limit the power and influence of its Black citizens), aff’d in part, vacated in part, remanded sub nom., I.L., 739 F.3d 1273. The majority opinion essentially argues that we should not penalize Alabama’s legislators for Alabama’s past; rather, we should start with a clean slate when reviewing the Photo ID Law. But this is not what the law commands us to do. Alabama’s history of voter suppression is relevant here and provides a wealth of direct and circumstantial evidence that should be considered at trial.14
For these reasons, I respectfully dissent. 

Judge Branch wrote the majority opinion, joined by Judge Carnes:

At the end of 2015, advocacy groups and individual Plaintiffs filed this lawsuit against Alabama’s Secretary of State, John Merrill, challenging Alabama’s 2011 Photo Voter Identification Law (hereinafter, the “voter ID law”), passed by the Alabama legislature as House Bill 19 and codified at Ala. Code § 17-9-30. The voter ID law took effect in June 2014 and requires all Alabama voters to present a photo ID when casting in-person or absentee votes. Plaintiffs allege the law has a racially discriminatory purpose and effect that violates the United States Constitution and the Voting Rights Act (the “VRA”). Specifically, Plaintiffs claim the law violates the Fourteenth and Fifteenth Amendments of the Constitution; Section 2 of the VRA, 52 U.S.C. § 10301; and Section 201 of the VRA, 52 U.S.C. § 10501. Based on these allegations, Plaintiffs seek declaratory and injunctive relief to prevent the enforcement of Alabama’s voter ID Law. Secretary Merrill denies that the law is discriminatory, arguing that Alabama accepts so many types of acceptable IDs that most Alabamians already possess photo ID and voters who do not have one can obtain one easily.
Secretary Merrill filed a motion for summary judgment on all counts, while Plaintiffs moved for partial summary judgment on one claim and one issue.1 The district court granted Secretary Merrill’s motion and Plaintiffs-Appellants timely appealed.
Because Plaintiffs have failed to identify any genuine disputes of material facts and because no reasonable factfinder could find, based on the evidence presented, that Alabama’s voter ID law is discriminatory, we affirm the district court’s order granting summary judgment in favor of the Secretary of State for the State of Alabama.

Judge Federico Moreno is now senior status

As of July 17, Judge Moreno took senior status.  He served the District for 30 years.  A big thank you and congratulations to one of the longest (THE longest?) active serving judges in our District.  In addition to his service, he will also be remembered for his legacy of championing his clerks and having them appointed as judges and other important positions.  His judging tree (like Belichick's coaching tree) is extremely impressive. 

Although we do not yet have an official nominee for Judge Moreno's seat, it is widely known that David Leibowitz is being vetted for that slot.  Leibowitz is a great and very smart guy, so hopefully that process can move forward. 

Will Florida felons be permitted to vote?

It's a huge fight.

Even though Florida voters passed a Constitutional Amendment saying felons get to vote, there has been a lot of wrangling to stop this from happening.  A district judge said that the State was putting up too many hurdles for voting.  So all looked okay... but then the 11th Circuit stayed that order. Up to the Supreme Court it went.  And, shocker, Justice Thomas, denied the motion to vacate the stay.

There were three dissenters (Sotomayor, Ginsburg, and Kagan; we need more women on the Court).

So the likelihood is that the 11th Circuit won't get to this one before the November election and 1.4 million people won't be allowed to vote, which is a tragedy.  But there is still hope for the next election.

And there is still quite a bit of litigation to follow.  The latest is this motion to recuse Judges Luck, Lagoa, and Brasher. 

Reminds me of Omar Little:

Miami is new epicenter of corona

That’s the headline everywhere this morning.
Getting much less attention is how that affects the jails and prisons in South Florida.
Criminal defense lawyers know that the local facilities are a true disaster right now.
Clients are on 24-hour lockdown, unable to see family or counsel.
They are locked in their small cells with two other inmates and not permitted to leave.
There is extremely limited testing.
There are no masks.
It’s like being in a Super-Max while the virus creeps around the building.
Here’s one article that at least is covering the issue:

"The virus has already spread inside," Troitino said. "I am highly concerned for public safety. Our facility is in the middle of a community, a very vibrant community."

Internal documents NBC 6 obtained showed that on Tuesday, 11 inmates had the virus. Troitino says there was a big jump, indicating trouble.

"Yesterday alone we discovered in one area that held 60 inmates over 22 tested positive and that’s only after testing 28," he said. "We don’t know where this is going to lead but it looks catastrophic at the moment."

Troitino said officers were given inferior PPE gear. Warden Sylvester Jenkins denied that claim in an email.

Our judges have let a few folks out for compassionate release, but a lot more needs to be done. And Judges Williams and Cooke tried to deal with state and immigration facilities. But how about granting bail? Or contested CR motions? Waiving the 30-day administrative waiting requirement? And so on.

This was not a liberal Supreme Court Term

There's been a lot of commentary that the Supreme Court has shifted to the left with some decisions by Justices Roberts and Gorsuch.  But as Leah Litman points out in this Washington Post commentary, that is wrong.  Here's a portion of her piece:

The conservative legal movement obtained equally significant wins in a series of decisions involving religious freedom, simultaneously requiring that government treat religious institutions equally with nonsectarian ones and exempting religious entities or those with religious concerns from otherwise applicable rules, such as anti-discrimination laws.In one case, Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled that anti-discrimination statutes such as Title VII and the Americans With Disabilities Act do not apply to religious teachers at religiously affiliated schools — dramatically broadening an exemption that had previously applied to those in the role of “ministers.” In another case involving access to contraceptive coverage, Little Sisters of the Poor v. Pennsylvania, the court held that the Trump administration could exempt employers with religious or even moral objections from the minor requirement that they notify their insurance providers about their objections to providing coverage.The court’s approach augured future wins to conservatives that will limit the scope of civil rights protections. For example, the court this year held that Title VII’s prohibition on job discrimination because of sex extends to gay and transgender workers. But the other rulings strongly indicate that the court will be wary about extending that protection in situations where employers claim religious objections.Even as the court expanded religious entities’ ability to opt out of anti-discrimination legislation, it widened the government’s obligation to provide public support for religious entities. In Espinoza v. Montana Department of Revenue, the court, again in an opinion by Roberts, ruled that a program that provided scholarships for private schools had to make those scholarships equally available to religious schools.Previously, the court had held that a government program that provided help to private schools for playground resurfacing had to be made available to religious schools as well. The Montana case represented a dramatic expansion of requirements for direct funding of religious education, which the court said was mandated by the constitutional protection for free exercise of religion. The combined effect of the religion decisions is to require government support for institutions that are not required to comply with legal prohibitions on discrimination.Even in cases where the conservative argument lost, Republican politicians won. The court’s seemingly progressive decisions on social issues were electoral gifts to Republican politicians up for reelection. The public largely supports women’s ability to have an abortion, protection against deportation for the young immigrants known as “dreamers” and anti-discrimination rights for LGBTQ employees. The Supreme Court’s decisions on these issues prevent Republican politicians from having to defend unpopular rulings by Republican-appointed justices in the lead-up to the election.

Big day at SCOTUS

And I'm not talking about the tax return cases.  It's the "Indian country" case where Justice Gorsuch wrote in a 5-4 opinion that most of Oklahoma is mostly "Indian country," meaning that Oklahoma could not prosecute Jimcy McGirt for raping a child. 

Justice Gorsuch's conclusion:

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes towithdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.The judgment of the Court of Criminal Appeals of Oklahoma is
Reversed.

 And Chief Justice Roberts' dissent intro:

In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison.  Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt — on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt.  Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma.  The rediscovered reservations encompass the entire eastern half of the State — 19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.
Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.  On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.  The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.
None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the “well settled” approach required by our precedents. Nebraska v. Parker, 577 U. S. 481, ___ (2016) (slip op., at 5).

Chief Justice Roberts got a few stitches last month...

... and people are freaking out even though he is fine. From the WP:

Chief Justice John G. Roberts Jr. suffered a fall at a Maryland country club last month that required an overnight stay in the hospital, a Supreme Court spokeswoman confirmed Tuesday night.

The 65-year-old chief justice was taken by ambulance to a hospital after the June 21 incident at the Chevy Chase Club, which was serious enough to require sutures. He stayed at the hospital overnight for observation and was released the next morning.

Roberts has twice experienced seizures, in 1993 and in 2007, but Supreme Court spokeswoman Kathleen Arberg said doctors ruled out that possibility in the latest incident. Doctors believe he was dehydrated, she said.

Roberts did not publicly disclose the matter, and the court’s confirmation came in response to an inquiry from The Washington Post, which received a tip.

I'm sure the conspiracy theorists who are disappointed in his recent rulings will blame the fall for his joining the moderate justices in June Medical and others.

Meantime, in the 11th Circuit, new Chief Judge William Pryor issued this order concerning oral arguments, which includes the possibility of video oral arguments being streamed. Good stuff!

Burying documents

Prosecutors are in trouble again, this time in SDNY.  But this time, at least they dismissed the case -- even after trial (something most prosecutors, including in this District, refuse to do after misconduct has been proven).  Even though they have agreed to dismiss, the judge wants answers and strangely, the prosecutors are saying that their actions weren't all that bad.  From NPR:

Federal prosecutors under scrutiny for failing to turn over favorable evidence to a defendant told a judge they didn't act in bad faith, even as they disclosed internal emails in which they discussed whether they might try to "bury" a document they were giving to defense lawyers in a stack of other papers.

Prosecutors in the Manhattan U.S. Attorney's Office made the disclosure in a letter to Judge Alison Nathan, who had demanded answers about the prosecution's failings and whether she had the power to impose sanctions against them.

The newly revealed email message described how one of the prosecutors found out that an important document hadn't been turned over to the defense, suggesting: "I'm wondering if we should wait until tomorrow and bury it in some other documents."

Prosecutors now say the document was not, in fact, "buried" because they turned it over less than 24 hours after the email discussion.

Their July 2 letter said the prosecutor who wrote the email was "endlessly chagrined about this chat" and added that "we believe it would go too far to condemn her for a Friday night lapse in thinking regarding a document that was in fact disclosed Saturday afternoon."

Defense lawyers for Ali Sadr Hashemi Nejad, who was charged with violating American sanctions laws against Iran, told the court they are "surprised and disappointed."

Attorney Brian Heberlig accused the prosecutors, and an official in the U.S. attorney's office who's tasked with promoting professional responsibility, of trying "to minimize, deflect, and deny, avoiding any acknowledgment or acceptance of responsibility for the government's obvious, repeated failures and its notable lack of candor," in his own letter to the court.

Squabbles over turning over documents, known as discovery, are common in federal criminal cases. But it's rare for a judge to demand that the government identify lawyers and supervisors involved in evidence-sharing lapses.

And it's even more rare for prosecutors to acknowledge such serious faults that they moved to dismiss a case they had already won.

"Any new trial would necessarily require a new team of (assistant U.S. attorneys) who would have to become familiar with every aspect of the investigation — not an easy task, particularly in a case that has already suffered from multiple breakdowns in communication that contributed to significant disclosure failures," prosecutors wrote to explain their rationale for abandoning the conviction.

Aside from the discussion of whether to "bury" a government exhibit, Sadr's lawyers said the prosecution team had engaged in even more "egregious wrongdoing" by misrepresenting a search of emails before the March 2020 trial began.

If a defendant had engaged in this behavior, a prosecutor would have no qualms charging him and seeking an enhancement for obstruction, and a judge would give it in a heartbeat.

Happy 4th! (UPDATED -- and happy birthday to the blog!)

UPDATE -- I almost forgot! The blog turns 15 this weekend. The first post of the longest running Florida legal blog was way back on July 4th weekend, 2005 (calling for a Floridian to be appointed to the Supreme Court, which still hasn't happened!). HowAppealing and SCOTUSblog started things off and are still kicking, but most legal blogs have folded in favor of Twitter and other social media.  The blog has had over 3800 posts and over 4.6 million page views. I'm not sure how much longer I'll do this, but it's been a fun ride! Thanks to all the tipsters and readers over the years.  I really appreciate it.

ORIGINAL POST: For your reading pleasure, here's an article about judges behaving badly.  None of our judges made the list.  Here's my favorite one:

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

Some sad stats:

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Is Justice Alito going to retire?

The rumor mill is in high gear right now.  Check out this article suggesting that the retirement is coming.

And it's July 1, and we don't have all of the Court's opinions yet.  The poor dears can't start their summer vacay yet because there is still work to do.  More opinions on Monday, but in the meantime, the Court granted cert today on whether the Mueller report would be released in total... after the election.  Via Scotusblog:

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices added another high-profile case to their docket for the fall, involving a dispute over efforts by members of Congress to obtain secret materials from the investigation by Special Counsel Robert Mueller. Mueller submitted a report last year to Attorney General William Barr on possible Russian interference in the 2016 election, and Barr released a redacted version of that report in April 2019. In July 2019, the House Judiciary Committee went to federal court in Washington, D.C., seeking an order that would require the disclosure of the redacted portions of the Mueller report, as well as grand jury transcripts and materials that had been kept secret, for use in its impeachment investigation. The committee relied on a provision in a federal rule of criminal procedure that allows a court to authorize the disclosure of grand jury materials that would otherwise be kept secret “in connection with a judicial proceeding.”

The 11th Circuit, though, is working hard — cranking out opinions every day.  And it just granted en banc review in the very big felon voting rights case.

Sam Rabin is a legend. (UPDATED)

Corrected: This is what Sam Rabin wore to court today:

The original post said Sam was ordered to appear, but that was not accurate. He could have Zoomed into the sentencing hearing (as the prosecutor did), but he wanted to be sitting next to his client during the hearing.

UPDATE -- for those of you who think this was over the top, here's the latest from FDC-Miami:

Ivan Gonzalez Ramirez, 68, was awaiting trial for a drug offense at a federal prison in Miami. He had long-term, pre-existing medical conditions. The BOP just announced that he died on Sunday from COVID-19.

Read that again: Awaiting trial for a drug offense. Now he’s dead. pic.twitter.com/O1oAA0wHn5

— Vanita Gupta (@vanitaguptaCR) June 30, 2020

“Fortunately for me, we have just a fabulous clerk of the court in Kiry Gray. She’s so street-smart and really knows her job."

That was then-Chief Judge of the Central District of California, Cormac J. Carney, about the clerk of court, Kiry K. Gray. He has since stepped down as Chief of that District.  From the LA Times:

The chief judge for the Central District of California, the nation’s largest federal court jurisdiction, which includes Los Angeles and its neighboring counties, has stepped down from that post, citing his racially insensitive comments regarding the court’s top administrative official, a Black woman.

U.S. District Judge Cormac J. Carney, who began a four-year term as chief district judge June 1, announced his decision to step down from the top post but remain a judge in an email Friday to court staff and fellow judges, and offered a public apology to Kiry K. Gray.

A federal court employee for 35 years, Gray in 2015 became the first Black woman appointed to be the Central District’s executive and clerk of court, a job that entails working closely with the chief judge to oversee court operations.

“I have apologized to Ms. Gray, but I have concluded that a simple apology will not put this matter to rest. There will be division in the Court, unnecessary, negative and hurtful publicity, and a diversion from the Court’s essential mission of administering justice if I were to continue serving as the Chief District Judge,” Carney wrote in the email, which The Times reviewed. “I cannot allow the Court to become politicized and embroiled in controversy.”

All jury trials and grand juries in the SDFLA are continued until October 13, 2020

That's the latest administrative order from Chief Judge Moore.

Thanks for all the tipsters who have emailed the Order to me.  I will post it as soon as it is on the Court's website.

DOJ’s stunning admission in the Roger Stone case shows unfairness of criminal justice system

Assistant United States Attorney Aaron S. J. Zelinsky’s opening remarks before the House Judiciary Committee sets out his argument that Roger Stone received preferential treatment because of his friendship with President Trump.  Most would agree that similarly situated criminal defendants should be treated the same, regardless of their relationship with the President.  But what if that means treating everyone unjustly?

That’s the shocker in Zelinsky’s testimony — he admits that the Department of Justice always seeks to penalize those, like Roger Stone, who proceed to trial. He says: “For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of.”

A quick history.  The Federal Sentencing Guidelines were enacted in 1984. The stated intent of the Guidelines were to bring uniformity to criminal sentencings.  A defendant who robbed a bank in New Hampshire should get the same sentence as the defendant who robbed a bank in Texas.  The system was point based — use a gun, get more points.  Recruit others into the scheme, add some more.  For a while these Guidelines were not guidelines at all — they were mandatory, and judges were forced to impose the calculated sentence absent very rare exceptions.  On first blush, that goal of consistency seems admirable.

But the Guidelines have been a complete disaster.  Judges had no discretion and complained that they were mere calculators, adding and subtracting points.  What were these points even based on? 

Until the Supreme Court stepped in, judges were not even permitted to consider mitigation evidence.  Had the defendant led an otherwise good life?  Served in the military?  Raised a family on her own? Was she elderly or sick? None of it mattered.  Unsurprisingly, sentences dramatically increased in the wake of the Guidelines.  

In addition to sentences shooting up, the number of trials sank.  Before the Federal Sentencing Guidelines were enacted in 1984, about 20% of criminal cases proceeded to trial and 80% pleaded guilty.  After the Guidelines, the number of trials decreased every year and now only about 3% of cases proceed to trial. Judge Jed Rakoff pointed out that even innocent people were pleading guilty. Former Judge Gleeson explained that “the Department of Justice got in the habit long ago” of “strong arming guilty pleas” in part by using urging judges to impose “excessively harsh sentencing ranges” for defendants who have the temerity of proceeding to trial.

Roger Stone’s case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the Guidelines. And had he met with prosecutors and cooperated, he likely would have been sentenced to probation. Because he had the audacity to go to trial, his guideline range jumped to 7-9 years even though he was a first-time non-violent offender.

Zelinsky, without any sense of horror, says everyone who goes to trial should get this severe punishment determined by some made up point system, while at the same time not taking issue with the fact that the judge in sentencing Stone determined that the Guidelines were way too harsh.  He concedes that the Department of Justice advocates for these absurdly high sentences in every single case where a defendant proceeds to trial with no exception.  That’s the true injustice of our system and that is what needs to be reformed.  Prosecutors should never be seeking 7-9 years for an old, first-time, non-violent offender.  Zelinsky is right that everyone should be treated the same, but that should be with compassion, not with a hammer. 

"As the writer of the Sparks opinion, I regret my error and appreciate the Court’s correction of our Circuit’s jurisprudence."

That was Judge Rosenbaum, concurring in this en banc opinion which abrogated United States v. Sparks, 806, F.3d 1323 (11th Cir. 2015).  I'm certainly in favor of having an open mind and re-evaluating past decisions. It's just that I've never seen a judge apologize for an earlier mistake.  Refreshing! Judges can make mistakes. And even acknowledge them!

Justice Jackson had a nice way of putting it when he made mistake:

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court * * *.' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

I got that Jackson quote from a Twitter comment in response to a tweet I had posted earlier about the decision.  I've been thinking for a long time about switching form the blog to Twitter full time.  Thoughts?  Isn't Twitter easier to follow than a blog?

Anyway, the actual en banc decision is summarized in the first paragraph by Judge Newsom:

Sometimes courts make simple mistakes. And simple mistakes call for simple fixes. Just so here. In United States v. Sparks, we held that a suspect who “abandons” his privacy or possessory interest in the object of a search or seizure suffers no “injury”—and thus has no standing—in the Article III sense, and, accordingly, that an argument asserting the suspect’s abandonment is jurisdictional, nonwaivable, and subject to sua sponte consideration. 806 F.3d 1323, 1341 n.15 (11th Cir. 2015). Sitting en banc, we now overrule Sparks and hold, to the contrary, that a suspect’s alleged abandonment implicates only the merits of his Fourth Amendment challenge—not his Article III standing—and, accordingly, that if the government fails to argue abandonment, it waives the issue 

D.C. Circuit orders Flynn case dismissed

The 2-1 decision is here.

It’s right on, as I have argued in the Washington Post, USA Today, The Hill, and in this debate hosted by The Federalist Society.

The majority concludes this way:

Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority. This is not a case about whether “a district judge may even hold a hearing on a Rule 48(a) motion.” Dissenting Op. 11 (emphasis omitted). Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives. On that, both the Constitution and cases are clear: he may not.

The dissent starts like this:

It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection. I therefore respectfully dissent from the majority’s grant of the writ.

What will happen when the SDFLA reconvenes grand juries and starts having jury trials again?

Will it be business as usual?

In New York, there is a huge backlog of criminal cases.  According to the New York Times:

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.

Certain precautions that are being considered may raise legal issues. “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.

“Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.

“If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books.

And grand juries are also presenting a problem, but not as much in the smaller offices:

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis. Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip. And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.

But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Take the capital case of the Uzbek man accused in a 2017 terrorist attack that killed eight people on a Manhattan bike path. More than 1,000 prospective jurors had come in to fill out jury-selection questionnaires, but later were dismissed after Judge Vernon S. Broderick postponed the trial indefinitely because of the pandemic. The process would have to be redone.

At a teleconference in April, a jury official explained that bringing in so many potential jurors might take three days “with things being normal.”

But, with social-distancing guidelines, she added, “I don’t know what the new normal would be.”

Thought experiment

What would have happened if President Obama had Attorney General Eric Holder fire SDNY U.S. Attorney Preet Bharara because Bharara was investigating Obama and members of Obama’s inner circle?

I mean, remember the reaction when Bill Clinton said hello to AG Lynch on the tarmac...

It is a shame that Berman resigned.  It would have been interesting to see the legal showdown between him and Barr/Trump.  This really was a script from Billions...

This is not The Onion.

This is your President:

Do you get the impression that the Supreme Court doesn’t like me?

— Donald J. Trump (@realDonaldTrump) June 18, 2020

When they rule for Trump, he says it's the greatest Supreme Court -- and of course, he takes credit for it. When they rule against him, he cries.

Justices are people too. And they can’t be pegged into ruling exactly one way or the other on all cases — except Justice Alito, of course, who is always on brand.

Law clerks unite

This is a great story about a law clerk rightfully taking on a very powerful federal appellate judge in a group email and winning.  So great.  The whole article is worth a read, but here’s the intro with the law clerk’s responsive email:

The battle over renaming U.S. bases that currently honor Confederate officers broke out in the U.S. Court of Appeals in Washington, D.C., on Monday. But the argument was not in the courtroom; rather, it was launched, and settled, over email. In an email sent Circuit-wide on Sunday, Judge Laurence Silberman, a Reagan appointee, lambasted Sen. Elizabeth Warren, D-Mass., for her amendment to the National Defense Authorization Act requiring the military to strip the names of rebel officers from any military assets. “Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”Silberman’s post, which went out widely to scores of Court staff and judges, sat unanswered over the next day, until the first volley was sent back not by a fellow judge but by a clerk: courtroom employees who work directly with judges to research and write their opinions. “Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”

[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.

The correspondence was provided to The Intercept by a member of the Court staff on the condition the identity of the clerk (who was not the source) and judges who replied be kept confidential. 
 

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

That was Justice Gorsuch for a 6 Justice majority today (including Chief Justice Roberts) in Bostock v. Clayton County.  This was another slap down for the 11th Circuit, which has tilted WAY too far to the right.

Justice Kavanaugh was completely wrong in his dissent, but at least he wasn’t a jerk about it — unlike Alito.  Look at the difference in tone:

Kavanaugh at least acknowledged “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

Alito, on the other hand, said Gorsuch’s opinion “is virtually certain to have far-reaching consequences” which will “threaten freedom of religion, freedom of speech, and personal privacy and safety.” He said that Gorsuch was “irresponsible,” because his opinion “greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution.”

Meantime, the 11th Circuit has a couple of 2-1 decisions. First is a reversal of the Metro-West injunction related to corona. Newsom and Martin square off, with a visiting district judge joining Newsom.

The second is a reversal of a suppression order, with Branch and Marcus in the majority. Kudos to Judge Ungaro for dissenting:

While the evidence is that the three men and Mrs. Yarborough were secured near the porch of the house and, as emphasized by the majority, Officer Monroy’s re-entry was swift and his search was cursory, the only conclusion I can reach from the record is that Officer Monroy made the sweep, no doubt for officer safety, because the arrest scene was proximate to the house and he had a concern that the house, like any structure, could have concealed the presence of a dangerous individual. In other words, Officer Monroy conducted the sweep based on speculation, rather than articulable facts.

Tennessee v. Garner

You'll be hearing a lot about that old 1985 case in the coming weeks.  It's interesting to re-read the case and to listen to oral argument (which you can do here).

The case, per Justice White, held: Under the Fourth Amendment, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Here, a state police officer shot and killed Garner as he was fleeing the scene of the crime. Despite knowing that Garner was unarmed, the police officer believed that he was justified in shooting him to prevent his escape. Garner's father brought a constitutional challenge to the Tennessee statute that authorized the use of deadly force in this situation. The state prevailed in the trial court, but the state appellate court ruled that the statute was unconstitutional. The Supreme Court decided that when a non-violent felon is ordered to stop and submit to police, ignoring that order does not give rise to a reasonable good-faith belief that the use of deadly force is necessary, unless it has been threatened.

Justice White was joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens.

Justice O'Connor wrote the dissent and was joined by Justices Burger and Rehnquist.

One local connection -- former UM Law Professor, Steve Winter, argued for Garner.  Winter is now at Wayne State University Law School.

"Cellphones haven't stopped cops from lying — only courts can do that"

That's the title of my latest piece in The Hill.  Here's the intro:

A 75-year old man was injured when he “tripped and fell.” That was the scenario the Buffalo police department released to the public before it knew that there was a video showing two officers shoving the old man to the ground and then walking over him while blood poured out of his head.

Many express shock that police officers would misrepresent — even lie — with such impunity. Those people naively ask what would happen if there wasn’t a video of the whole affair. Criminal practitioners know exactly what would happen — because, sadly, it’s what has been happening in courtrooms around the country every day for years. Too many officers are known to lie under oath, and there are judges and prosecutors who let them get away with it. This dirty secret is a true epidemic in the criminal justice system; it’s called “testilying,” and it has been around a long time.

Please let me know your thoughts. Have a nice weekend!

Flynn OA day

You can listen here at 9:30am. 

Also, check out SDNY Judge Nathan's order in a case where the Government obtained a conviction at trial and then moved to dismiss post-trial because of all of the Brady violations.  Judge Nathan says not so fast... you need to explain yourself first via a response to the defense motion for new trial, as the defense has requested and then dismiss with prejudice. This is a  big difference from Flynn where the parties have agreed.  Judge Nathan is doing the right thing.

Justice Sotomayor slaps 11th Circuit

Thanks to helpful readers in the comments yesterday and through email, I saw Justice Sotomayor issued this statement yesterday just crushing the 11th Circuit on its unique (and awful) practice of how it handles successive habeas petitions.  Although cert wasn't granted, congrats to Brenda Bryn and FPD's office for getting the Court's attention.

Part of the intro:

Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application. In re Williams, 898 F. 3d 1098, 1102 (2018) (Wilson, J., concurring). Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F. 3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc). That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture. The Eleventh Circuit has published several of its orders denying permission to file a second or successive petition, and determined that all future litigants (including those on direct appeal) are bound to the holdings of these orders unless and until an en banc Eleventh Circuit or this Court says otherwise. See 909 F. 3d 335, 346 (2018). These factors make out a troubling tableau indeed. Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process. The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case. In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.

Here's some coverage by NLJ:

In the Supreme Court petition denied Monday, Michael St. Hubert had sought authorization from the circuit court, as required by federal law, to file a second or successive habeas petition. To be successful, the prisoner must show that the habeas petition will be based either on new evidence sufficient to establish that no reasonable fact-finder would have found the defendant guilty or on a new constitutional rule made retroactive on collateral review.

Sotomayor, contrasting the Eleventh to other circuits, said the Eleventh publishes "far more" denials of authorization (45 from 2013-2018 compared to 80 from all circuits combined); mandates a decision within 30 days; requires prisoners to state their legal argument on a form with space for fewer than 100 words; does not grant oral argument in noncapital cases; generally does not require briefs from the prisoner or government, and often decides the merits of the habeas claims when the circuit court is only to decide whether the prisoner's application meets the authorization requirements.

"Surprisingly still," Sotomayor wrote, the circuit court has published a number of authorization denials stating that all future litigants, even those on direct appeal, are bound by the orders until overruled by the en banc court or the Supreme Court.

In opposing review, U.S. Solicitor General Noel Francisco said some members of the circuit court "expressed concerns" about publishing and giving precedential weight to certain denials of authorization.

"Yet, in the course of those opinions, no member of the court addressed the possible application of the Due Process Clause," Francisco told the justices. "Given the court of appeals’ active internal deliberation about the proper treatment of published orders on applications for leave to file second or successive Section 2255 motions, that court should decide in the first instance whether or to what extent due process principles should affect the court’s approach."

Sotomayor ultimately agreed with the government's recommendation. "The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case," Sotomayor wrote. "In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative."

What upppppp?

The federal courts are extremely slow.
No jury trials.
No grand juries.
Prosecutors have been told to work at home whenever possible.
It's slow.

In the meantime, here is some reading material.

• Professor Ricardo Bascuas and I, along with Jeffrey Green from Sidley, filed this NACDL amicus brief in support of the Rule 48 motion to dismiss the Flynn case.

• The DBR covers John Couriel's appointment to the Florida Supreme Court:

Born in 1978, Couriel grew up in West Miami. In his application to the Florida Supreme Court, Couriel said he was the son of hardworking Cuban immigrants that sacrificed their income to support their son’s educational endeavors. Couriel was always interested in the law and excelled academically.
In high school, Couriel’s interest in law led him to participate on the debate team. Debate was more than just a means to sharpen his speaking skills — in the final round of one particularly competitive showdown, Couriel was pitched against his future wife, Rebecca L. Toonkel. Ultimately, he triumphed in the debate, and they would later connect during their undergraduate years at Harvard College.

• Trump is tweeting crazy theories about the 75-year old Buffalo man who was shoved and injured by police officers:

President Donald Trump put forth an unsubstantiated conspiracy theory Tuesday about the 75-year-old protester in Buffalo who suffered head injuries after he was pushed to the ground by police and hit his head on the sidewalk.

"75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment," Trump said in a morning tweet. Citing a report on conservative news network OANN, Trump said, "I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?" He said Gugino "could be" an anarchist "provocateur" but provided no evidence for that assertion. Two suspended Buffalo police officers were charged with assault and accused of intentionally pushing Gugino, who bled from the back of the head after he hit the sidewalk.

News & Notes

1.  NACDL says that it isn't safe to have jury trials right now and issues a number of guidelines for courts on how and when to reopen:

Compromising accused persons’ constitutional and fundamental rights -- like the right to counsel, the right to confront witnesses, the right to due process, and the right to a speedy and public trial by a jury culled from a fair cross section of the community -- for the sake of public safety results in grave injustice. NACDL recognizes that there is no way to fully reconcile these core constitutional rights with the public safety considerations arising from this pandemic. There are, however, fundamental principles that can minimize the constitutional burden while protecting the public and all the stakeholders who must come together for our courts to function.

2. An Ohio federal judge had ordered the release or transfer of over 800 inmates from a high risk prison. Justice Sotomayor issued a stay. SCOTUSblog covers it:

Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

3. How broken is our criminal justice system? Clark Neily from Cato says it's rotten to the core:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts. And the most relevant fact is that America’s criminal justice system is rotten to its core. Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response. If America is burning, it is fair to say that America’s criminal justice system—which is itself a raging dumpster fire of injustice—lit the fuse.
***
As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government. Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

4. The Sentencing Commission just released some data, which shows how this broken system is disproportionately affecting minorities: Of those in federal prison, 34.3% are Black, 33.7% are Hispanic, 28.2% are White, and 3.8% are other races.

Chief Judge Bill Pryor

Today was Judge Ed Carnes’ last day as chief. Judge Bill Pryor takes over. The 11th Circuit website already has been updated.

This anonymous account is a great follow on Twitter for judicial updates. Here’s his thread today:

Bruce Bagley pleads guilty

The Miami Herald has the story of the UM professor and money laundering expert pleading guilty to money laundering in the SDNY:

University of Miami professor Bruce Bagley pleaded guilty on Monday to two counts of money laundering after being charged with using bank accounts in his name and in the name of a company he created in Florida to launder over $2 million in proceeds from a Venezuelan bribery and corruption scheme.

Bagley, recognized as an international scholar on drug cartels and money laundering, pleaded not guilty soon after his arrest in November 2019 in the New York case linked to South Florida, but filed a notice in March indicating that he planned to change his plea.

“Bruce Bagley (…) went from writing the book on crime — literally writing a book on drug trafficking and organized crime — to committing crimes,” said Geoffrey S. Berman, the United States Attorney for the Southern District of New York, in a press release. “Professor Bagley admitted today to laundering money for corrupt foreign nationals — the proceeds of bribery and corruption, stolen from the citizens of Venezuela. Bagley now faces the possibility of a long tenure in prison.”

“There is no such thing as rock bottom. So, assume that the worst is yet to come.”

I try to keep this blog apolitical, but wow, what a piece by George Will in the Washington Post.  Here's how it ends:

In life’s unforgiving arithmetic, we are the sum of our choices. Congressional Republicans have made theirs for more than 1,200 days. We cannot know all the measures necessary to restore the nation’s domestic health and international standing, but we know the first step: Senate Republicans must be routed, as condign punishment for their Vichyite collaboration, leaving the Republican remnant to wonder: Was it sensible to sacrifice dignity, such as it ever was, and to shed principles, if convictions so easily jettisoned could be dignified as principles, for . . . what? Praying people should pray, and all others should hope: May I never crave anything as much as these people crave membership in the world’s most risible deliberative body.

A political party’s primary function is to bestow its imprimatur on candidates, thereby proclaiming: This is who we are. In 2016, the Republican Party gave its principal nomination to a vulgarian and then toiled to elect him. And to stock Congress with invertebrates whose unswerving abjectness has enabled his institutional vandalism, who have voiced no serious objections to his Niagara of lies, and whom T.S. Eliot anticipated:

We are the hollow men . . .

Our dried voices, when

We whisper together

Are quiet and meaningless

As wind in dry grass

or rats’ feet over broken glass . . .

Those who think our unhinged president’s recent mania about a murder two decades ago that never happened represents his moral nadir have missed the lesson of his life: There is no such thing as rock bottom. So, assume that the worst is yet to come. Which implicates national security: Abroad, anti-Americanism sleeps lightly when it sleeps at all, and it is wide-awake as decent people judge our nation’s health by the character of those to whom power is entrusted. Watching, too, are indecent people in Beijing and Moscow.

Jury trials and grand juries continued till August 31

Not too long ago, all of the Miami courthouses informally closed for the summer.

Now it’s official. Because of corona, there will be no juries or grand juries this summer. We will regroup in September. Chief Judge Moore’s order was issued last night. I will post it shortly.

In the meantime, go read Rumpole's blog who is doing a lot of good coverage of what's going on in the community with the protests. 

And Udonis Haslem is trying to bring people together. 

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.