Debate

If you're interested, I'm debating Andrew Fleischman over at Simple Justice (Scott Greenfield's blog) on whether rich defendants face disadvantages in the criminal justice system.

Here's his opening post:

David Oscar Markus recently wrote an editorial on behalf of his clients, the family of Ghislaine Maxwell, in which he said that “the rich do not enjoy enormous advantages in a federal criminal case.”1 If anything, they are greatly disadvantaged.” I’d love to live in a world where this was true. But justice ain’t cheap, and the tools a criminal defendant needs to rebut the presumption of guilt our system heaps upon them often require significant investment.
First off, there’s choosing the correct lawyer. Justice Roberts was not exaggerating when he wrote that a defendant’s inability to pay for their counsel of choice “raises substantial concerns about the fairness of the entire proceeding.”

Few things could do more to ‘undermine the criminal justice system’s integrity,’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.

But the grim reality for Kaley, a woman whose money for her lawyer was forfeited by the State, is a fact of life for the vast majority of criminal defendants who have no say in who will represent them. It can mean an experienced advocate who knows all the local players or a real estate attorney on a side hustle. It’s the difference between a lottery ticket and a paycheck.

Here's the intro to my response:

The criminal justice system crushes people. Men and women. Black and white. Rich and poor. A federal criminal case impacts your liberty, your family, your finances, your mental health, and every other aspect of your life whether you are rich or poor. Each broad category of defendants faces their own hurdles in the system. There is no question that poor defendants face enormous challenges in trying to mount an effective defense again a government with unlimited resources, what Andrew rightly calls “a bit like [fighting] a grizzly bear.” There’s an unfortunate perception out there, however, that the governmental grizzly bear isn’t as interested in gobbling up the rich. But that perception is wrong. This particular bear loves plump and shiny prey.

Michael Sherwin appears on 60 Minutes...

 ... and does a great job discussing the Capitol Riots.

Prosecutors have not yet charged any Capitol rioters with sedition. But asked whether he anticipates those charges, federal prosecutor Michael Sherwin says, “I believe the facts do support those charges.” https://t.co/QttmisXpO1 pic.twitter.com/CLq0xYdAzh

— 60 Minutes (@60Minutes) March 21, 2021

You can watch the whole thing here.

Should Justice Breyer retire?

 There's been a big push by some liberals because they see a tight window for Biden to get a Justice confirmed and they don't want another RBG situation.  Here's the AP covering the story:

Forgive progressives who aren’t looking forward to the sequel of their personal “Nightmare on First Street,” a Supreme Court succession story.
The original followed Justice Ruth Bader Ginsburg’s decision to forgo retirement from the high court, located on First Street in Washington, when Democrats controlled the White House and the Senate during six years of Barack Obama’s presidency, until 2015.
Despite some pointed warnings of what might happen, Ginsburg remained on the bench until her death last year at age 87. President Donald Trump replaced the liberal icon with a young conservative, Justice Amy Coney Barrett, and cemented a 6-3 conservative majority on the court just over a month before he lost his bid for a second term.
In the updated version, 82-year-old Justice Stephen Breyer plays the leading role. He is the oldest member of the court and has served more than 26 years since his appointment by President Bill Clinton.
With spring comes the start of the period in which many justices have announced their retirement. Some progressives say it is time for Breyer to go, without delay. Other liberal voices have said Breyer should retire when the court finishes its work for the term, usually by early summer.
“He should announce his retirement immediately, effective upon the confirmation of his successor,” University of Colorado law professor Paul Campos wrote in The New York Times on Monday.
Campos’ plea stems from the Democrats’ tenuous hold on power.
A Democrat, President Joe Biden, lives in the White House and his party runs the evenly divided Senate only because the tie-breaking 51st vote belongs to Vice President Kamala Harris.
But there is no margin for a senator’s death or incapacitating illness that could instantly flip control to Republicans. Campos noted that the party composition of the Senate has changed more often than not in each two-year session of Congress since the end of World War II.
Breyer has remained mum about his plans, at least publicly. His last comment on the topic of retirement was made to Slate’s Dahlia Lithwick in an interview published in December. “I mean, eventually I’ll retire, sure I will,” Breyer said. “And it’s hard to know exactly when.”

More judges on the way?

 The judicial conference is recommending 3 more district judges in the SDFLA.  But there's a real question of whether any judges will be confirmed right now, with the JNC not being supported by Rubio or Scott.  Rubio apparently has his own JNC.  Scott wants nothing to do with that either.  So will any judges get blue slips going forward?  There's a real concern with people I'm speaking with that no judges will be confirmed unless President Biden and the Democratic Senate get rid of the blue slip process in Florida.  We shall see.

Here's a recent TBT article about the back and forth on the JNC:

Florida’s two Republican senators, Rick Scott and Marco Rubio, are refusing to participate in a longstanding, bipartisan system for nominating federal judges that Florida legal insiders say has produced non-political, competent judicial nominees for decades.

Both Scott and Rubio have said they won’t participate with Florida House Democrats who are setting up Florida’s federal Judicial Nominating Commissions — even though bipartisan cooperation has long been typical.

Scott and Rubio called it an infringement on the Senate’s exclusive right to confirm judges.

Instead, the two senators say they’ll rely on their own sources for recommending judicial nominees, as well as on senators’ traditional prerogative to single-handedly block nominees in their home states.

Podcast Season Finale -- Michael Tigar for Terry Nichols

What a season!  I hope you had as much fun as I did with Season 2.  And we have a great final episode for you.  Who would represent Terry Nichols, one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.  You can check it out on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. 

After listening, you may want to check out Tigar's memoir, available here.

Some other important items:

If you are a Florida lawyer, you will receive 11.5 CLE credits for listening to Season 2.  The code is at the end of this episode.

If you've enjoyed Seasons 1 and 2, please subscribe and leave a review.  This is the only way we can gain momentum for Season 3.

The original music you will hear in this episode is by Omondi Nyong'o.  The song, A Call to Arms, is really inspirational. Check out his work here.

Michael Tigar putting his hands on Terry Nichols' shoulders during closing argument.
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I'd also like to thank the previous guests of Season 2: 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.
• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.  Listen here.
• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell. Listen here.
• David Gerger (Robert Kaluza/Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza. Listen here.

It's not too late to catch up on Season 1 if you missed it, which included the following lawyers: 

Donna Rotunno, 

Roy Black, 

Tom Mesereau, 

Marty Weinberg, 

H.T. Smith, 

F. Lee Bailey, 

and Hank Asbill.  

Please send me your feedback -- and of course, subscribe, like and comment!  If you would like to receive these updates, please sign up here. 

Thank you for a great Season! --David

Hosted by David Oscar Markus and produced by rakontur

"Hell no."

 That's the response from over half of Florida's corrections officers when asked whether they would get the COVID vaccine.  Sigh....

From CBS4:

A Florida correctional officer polled his colleagues earlier this year in a private Facebook group: "Will you take the COVID-19 vaccine if offered?"

The answer from more than half: "Hell no." Only 40 of the 475 respondents said yes.
***
At FCI Miami, a federal prison in Florida, fewer than half the facility's 240 employees had been fully vaccinated as of March 11, according to Kareen Troitino, the local corrections officer union president. Many of the workers who refused had expressed concerns about the vaccine's efficacy and side effects, Troitino said.
In January, Troitino and FCI Miami warden Sylvester Jenkins sent an email to employees saying that "in an act of solidarity," they had agreed to get vaccinated and encouraged staff to do the same. "Even though we recognize and respect that this motion is not mandatory; nevertheless, with the intent of promoting staff safety, we encourage all staff to join us," the Jan. 27 email said.
Only 25 employees signed up. FCI Miami has had two major coronavirus outbreaks, Troitino said: last July, when more than 400 prisoners out of 852 were suspected of having the disease, and in December, when about 100 people were affected at the facility's minimum-security camp.

"The rich do not always enjoy legal advantages"

That's the title of my latest op-ed, which was run in the Jerusalem Post.  From the introduction:

Ghislaine Maxwell’s case has led to many uninformed takes about the American criminal justice system. One common theme is that rich people are treated better than the poor by the system.

Clemence Michallon's piece "What Ghislaine Maxwell's case teaches us about rich people justice," is just one example, but this argument misunderstands the American justice system in profound ways. As a lawyer as well as spokesperson for Ghislaine's family, I felt obligated to respond.

Contrary to the premise of the article, the rich do not enjoy enormous advantages in a federal criminal case. If anything, they are greatly disadvantaged.

Ghislaine Maxwell's case is a perfect example.

One of the reasons stated by the judge for denying bail is her wealth. Any other person charged with stale, 25-year-old allegations would be out on bail right now.

Ghislaine is being held in torturous conditions because the Bureau of Prisons deems her not to be a normal inmate permitted to be in the general prison population.

She is the target of relentless media attacks because of her wealth and fame. Reporters almost seem delighted in reporting that she is not being permitted to sleep and that she is losing her hair. Imagine the uproar if we treated anyone else like this.

Prosecutors in that case only offered her a deal after they were caught engaging in misconduct. Michallon points to the Lori Loughlin case as an example of "rich people justice." Absurd.  

Loughlin had a real defense and stood a good chance of being found not guilty at a trial, but prosecutors have so much power that they were able to bully her into pleading guilty or risk facing decades in prison. Her wealth and fame only fueled the prosecution; it certainly did not shield her.

Jurors are predisposed against wealthy defendants. Schadenfreude – enjoyment obtained from the troubles of others – abounds.

So too regarding judges who do not want to appear to be giving any benefits to those with money. ...

UF Law E-Discovery Conference

 I don't usually post about CLE events, but this one is free, remote, has lots of credits, and looks interesting.  It's UF's 8th annual e-discovery conference and our very own Judge Matthewman will be speaking.

Law.com also covers it here:

Just how active should judges be in the e-discovery process? It’s something that’s been pondered for years—perhaps most notably in the debates leading up to the 2015 e-discovery amendments to the Federal Rules of Civil Procedure.
Judges are often the guardians of justice for society. Thus, it’s reasonable to ask whether they should be forced to waste their time with games of rock-paper-scissors to settle discovery disputes between litigants in overzealous combat.

Chief Justice Roberts on an island?

 Check out this Linda Greenhouse piece in the NY Times:

Anyone who still needs proof of how the Supreme Court is changing need look no further than the single decision the justices handed down this week. The court held that a dispute that had become moot in the usual sense of that word — the problem was resolved before the case even went to trial — could be litigated nonetheless, because there was still something at stake: the one dollar the plaintiffs were seeking as damages for an asserted violation of their First Amendment right to free speech.

The holding was surprising in its generosity to the plaintiffs, as was the 8-to-1 vote, but that’s not what made Uzuegbunam v. Preczewski remarkable. Rather, it was the identity of the lone dissenter: Chief Justice John Roberts.

In more than 15 years on the court, the chief justice had never before filed a solitary dissenting opinion. In fact, he has rarely voted in dissent at all, and has written dissenting opinions even less frequently. During the term that ended last July, he was in the majority 97 percent of the time. No chief justice since Fred Vinson, during the 1949 term, has displayed that degree of alignment with his court. To the extent that the Roberts court had a center of gravity, Chief Justice Roberts was it.

Justice Amy Coney Barrett’s arrival in late October changed all that, and quickly. A few minutes before midnight on the night before Thanksgiving, the court issued an order suspending the indoor attendance limits that Gov. Andrew Cuomo had placed on religious services in areas of New York with high rates of Covid infection.

Merrick Garland confirmed

 And 20 Republicans joined in to confirm.

CNN covers it:

The Senate voted to confirm attorney general nominee Merrick Garland on Wednesday, sending the appellate judge on his mission to uphold the integrity of the Justice Department after its actions over the past years threatened to undermine it.

Garland was confirmed in a 70-30 vote.

The former chief judge of the US Court of Appeals for the DC Circuit has been praised by members of both parties. He pledged in his nomination hearing last month to "fend off any effort by anyone" to politically influence the Justice Department's investigations, and that his first priority would be to fully prosecute the "heinous" crimes committed in the attack on the US Capitol on January 6.

"America can breathe a sigh of relief that we are finally going to have someone like Merrick Garland leading the Justice Department," said Senate Majority Leader Chuck Schumer, a Democrat from New York. He called Garland "someone with integrity, independence, respect for the rule of law and credibility on both sides of the aisle."

New Podcast Episode: David Gerger for Robert Kaluza (Deepwater Horizon)

The Deepwater Horizon explosion was arguably the worst environmental disaster in United States history.  In its effort to assign blame, the government pointed the finger at a number of individuals who turned out to be scapegoats, including Robert Kaluza, the off-duty rig supervisor who was filling in for a few days.  David Gerger discusses his successful defense in this episode of For the Defense.

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

Robert Kaluza, a well site manager for BP during the 2010 explosion on board the Deepwater Horizon oil rig, center, arrives at federal court with his attorneys Shaun Clarke, left, and David Gerger, right, in New Orleans, Louisiana.
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Previous episodes this Season include: 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.
• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.  Listen here.
• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell. Listen here.

Coming up on For the Defense:

• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season).

Please send me your feedback -- and of course, subscribe, like and comment!  If you would like to receive these updates, please sign up here. 

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

CONTACT: info@rakontur.com, dmarkus@markuslaw.com

Senators Durbin and Grassley introduce bill to prohibit judges from using acquitted conduct at sentencing.

The bill is here. And it has bi-partisan support:

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.

As the senators say, it's un-American.

Let's hope the bill passes.

Ariana Fajardo Orshan resigns, effective March 27, 2021

 Here's her letter:

Debate with Rumpole about using archaic legalese in motions

COMES NOW Defendant Cross-Plaintiff David Markus (hereinafter referred to as “Defendant” or “Cross-Plaintiff” or “Mr. Markus”), by and through undersigned counsel, who hereby files this motion for summary judgment (the “motion” or “MSJ” or “summary judgment” ) pursuant to Federal Rules of Civil Procedure (hereinafter “the Rules”) and states as follows. 

Oy vey.  Did that introduction help in any way to persuade you of anything? Of course not. But Rumpole laps up the legalese in this post over at his blog, which is usually wonderful, but is very wrong on this point.

We no longer write motions on a typewriter with carbon paper.  We don’t rent videos from Blockbuster.  We don’t take film to a camera store to be developed.  We don’t use curled up paper in a fax machine.  Or even a fax machine at all.  

Likewise, we don’t need words like COMES NOW, hereby, herein, aforementioned, inter alia, heretofore, know all men by these premises, and so on. If the goal of legal writing is to persuade, we should do away with archaic legalese.  Plain and easy to understand English is the way to go.  Phrases like COMES NOW do not add anything to a motion.  They are not persuasive.  They are meaningless. 

Bryan Garner, the legal writing authority, says the term COMES NOW should be banned and asks whether lawyers who use such terms “think that the phrase made them sound more thunderous and authoritative?” Justice Scalia started this plain English trend at the Supreme Court.  And it has taken root with the best legal writers across the courts.  From Robin Rosenbaum and William Pryor in the Eleventh Circuit to Alex Kozinski, former Chief Judge of the Ninth Circuit.  

Rumpole wants to stick to tradition, but this is a tradition that needs to be abandoned.  Lawyers also used to wear wigs to court.  Saying things like: I’ve received the your blog argument and “ hereby acknowledge same” doesn’t sound lawyerly.  It sounds like you’re a wanna-be lawyer.

Rumpole, PLEASE GOVERN YOURSELF ACCORDINGLY.  

Okay, don’t use that one either!

BREAKING -- Federal JNC is formed (UPDATED with a correction from Sen. Rubio's office)

The South Florida Federal JNC is:

Vivian de las Cuevas-Diaz

Larry Handfield

Retired Judge Ilona Holmes

Eduardo Lacasa

Victoria Mesa-Estrada

Burnadette Norris-Weeks

Retired Justice Barbara Pariente

I've been told that 5 Dem picks, two Rubio picks (update, this is incorrect; see below), and that Scott refused to participate.  These 7 people will make recommendations for federal judges and U.S. Attorney.  More to follow.

Updated with this statement from a spokesperson for Sen. Rubio to the blog:

“Senator Rubio is not a participant in this JNC.  Due to his longtime working relationship with Congresswoman Wasserman Schultz, at her request he provided the names of Republicans who have served on his JNC in the past. However they are not his appointees. As he has done his entire time in the Senate, he will continue to rely on his own bipartisan commission to assist in fulfilling his role in the Senate’s constitutional duty to provide advice and consent on judicial nominees. And as he has done in the previous two Congresses, he will make decisions on U.S. Attorneys and U.S. Marshals directly.” 

Horrific conditions exist in our prisons.

Read the thread below. How do we allow this?

In Texas prisons, food is so bad the staff are finding mold on it. This photo came w/a leaked email a shocked official sent to every unit.

“If there is mold on the bread don’t make a sandwich w/it,” he wrote.

Here’s a THREAD on more internal emails abt the food situation. pic.twitter.com/JyMmUUb7BF

— Keri Blakinger (@keribla) March 3, 2021

New Podcast episode: Abbe Lowell for John Edwards

Typically a federal trial about election law doesn't involve extramarital affairs, the National Enquirer, and a Presidential candidate.  You'll get all of that in today's episode of For The Defense, in which I discuss the John Edwards trial with the great Abbe Lowell.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

John Edwards and Abbe Lowell
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Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.
• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.  Listen here.

Coming up on For the Defense:

• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season).

Please send me your feedback -- and of course, subscribe, like and comment!  If you would like to receive these updates, please sign up here. 

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

"What's next for U.S. District Judge Roy Altman?"

 That's the title of this nice piece about Judge Altman in the DBR. Here's a cool shout-out to his grandfather:

And when Altman had one of his last conversations with his grandfather in Caracas, Venezuela, those American historical figures and what they stood for was the basis of a topic of discussion. At the time, his grandfather was dying from cancer. The two men were playing several games of chess on the balcony of his grandfather’s apartment overlooking tens of thousands of protestors.
That afternoon was a few weeks after Hugo Chávez, the president of the island nation in which corruption had become increasingly more widespread, padded the Venezuelan Supreme Court with loyalists in his party so he could seek unlimited terms in office.

Altman expressed to his grandfather his intentions to apply to law school as people took to the streets to protest the “gross violation of their constitutional charter.”
“One of the last things my grandfather said was: ‘This is what happens to a country when good people don’t serve it. When the worst people become public servants. If you’re going to be a lawyer, remember to be the right kind of lawyer that serves its country, so this never happens in America,’ ” Altman recounted. “ I carried those words with me. That story was my essay for my application to Yale Law School.”
And as Altman was nearing graduation from Yale in New Haven, Connecticut, he had no doubt in his mind that he wanted to return to Miami to start his legal career.
“This is the community that brought my family in when we came here from Venezuela,” Altman said. “We built a life here, we built friendships here, and I owed this community, I still do, for taking us in.”

Former U.S. Attorney Willy Ferrer said: “I would not be surprised to seeing Roy sitting on the U.S. Supreme Court,” Ferrer said. “He’s got everything that it takes to be elevated in the U.S. court system.”

Rumpole's Rules of Court (Updated)

 He posts his 10 Rules here, which he says apply via Zoom or in person.  I like them.  Check them out, especially young lawyers.  One quibble with Rule #4 -- are you really standing up during Zoom court?

Updated -- one rule Rumpole should think about adding is that clients shouldn't show up while performing surgery.  This plastic surgeon thought it was a good idea to appear for trial during while his unconscious patient was on the operating table. 

Speaking of Zoom court, I'd like to see the statistics for Zoom sentencings.  Are judges giving more significant downward variances because of the pandemic? Or are sentences higher because it's harder to humanize the client over Zoom?  

My experience has been that most judges recognize the difficulties in presenting arguments during a Zoom sentencing as well as the challenges of custodial sentences.  They have been giving the "Zoom discount." It depends, of course... for some judges, it's business as usual.  But overall, I have seen better (lower) sentences over the past year.  

My hope is that these slightly lower sentences start to become normalized and don't change once the pandemic is over.  If Biden can prioritize judges and appoint some progressives to the bench, we may even start to see real change in sentencing.  Let's see.

What will President Biden do with the Sentencing Commission

 Sentencing Guru Douglas Berman writes about it here.  From his conclusion:

Diverse nominees to the Commission should help ensure this agency pursues an ambitious reform agenda. But President Biden should also expressly request the Commission conduct a comprehensive assessment of the entire federal sentencing system—and perhaps even our whole nation’s many sentencing systems—with a particular focus on modern mass incarceration and mass punishment. The American Law Institute’s recent revision of the Model Penal Code’s sentencing provisions wisely recommends that sentencing commissions regularly “perform an omnibus review of the sentencing system,” which should include “a comparative review of the experiences of other jurisdictions with similar sentencing and corrections systems.” An across-the-board review of the federal sentencing system is long overdue, and the U.S. Sentencing Commission has the staff and resources needed to conduct a systematic, evidence-based nationwide analysis in order to identify those modern sentencing systems and practices that best advance public safety and equitable justice while minimizing the number of persons subject to penal custody and supervision.

Calls for reviving and reorienting the work of the U.S. Sentencing Commission are coming from many quarters: a task force of the Council on Criminal Justice has stressed the need to “reinvigorate the U.S. Sentencing Commission,” for example, and the Biden-Sanders Unity Task Force on Criminal Justice Reform recommended that the Commission be tasked “with conducting a comprehensive review” of federal sentencing law and practices. But even with a chorus of voices and strong political will for significant sentencing reforms, President Biden must prioritize making appointments that can enable the U.S. Sentencing Commission to effectively lead the way.

What will the new SDFLA U.S. Attorney do about prosecutorial misconduct?

 That's a question that should be asked of all potential candidates for U.S. Attorney.  In SDNY, for example, the office has dismissed cases where there is misconduct, even after a conviction (unlike here).  From the WaPo:

Federal prosecutors in New York acknowledged telling a “flat lie” to a criminal defendant’s legal team while trying to downplay their mishandling of evidence in the botched trial of a businessman accused of violating U.S. sanctions on Iran.

The embarrassing revelations about what many consider the U.S.’ top criminal investigating office were contained in a dozens of private text messages, transcripts, and correspondence unsealed Monday, over the objection of prosecutors, at the request of The Associated Press.

The release of the records followed a ruling last week in which U.S. District Judge Alison Nathan urged the Justice Department to open an internal probe into possible misconduct by prosecutors in the terrorism and international narcotics unit in the U.S. Attorney’s Office for the Southern District of New York.

While Judge Nathan found no evidence that prosecutors intentionally withheld evidence from lawyers representing an Iranian banker, Ali Sadr Hashemi Nejad, she said they made a “deliberate attempt to obscure” the truth and attempted to “bury” a key document that might have helped the defense.

The mistakes were serious enough that even after winning a conviction, prosecutors dropped all charges against Sadr.

The whole article is worth a read as it details incredible, but not uncommon, misconduct. The New York judge was upset with the government and urged OPR to investigate.  We know what OPR will do.  But at least SDNY dismissed after the jury verdict of guilt.  That's not true in other officers or especially here, where there is a long line of misconduct cases, which the office tries to defend even after misconduct is exposed.  It will be interesting to see if that changes under the new administration.  

So, hopeful U.S. Attorney candidates -- feel free to email me your plan to address prosecutorial misconduct and I will post your answer in full.

In the meantime, we still need judges to check prosecutors when they cross the line.  

Jayne Weintraub for Yahweh Ben Yahweh

Today's episode of For The Defense is a doozy.  Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended Yahweh Ben Yahweh who some called a cult-leader and others called a savior.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

Yahweh Ben Yahweh, center.

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Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.

Coming up on For the Defense:

• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season.).

I would really appreciate it if you could subscribe and comment on the podcast!  If you or a friend would like to receive these updates, please have them sign up here. 

Hosted by David Oscar Markus and produced by rakontur

RIP Bobby Lee Cook

 It's always sad to say goodbye to great trial lawyers.  And Cook was one of the best  From ACJ:

Bobby Lee Cook, one of the premier trial lawyers in America and perhaps Georgia’s most famous attorney, died Friday at his mountain home in Cloudland. He was 94....the stories of Cook’s ingenuity, antics and legal prowess abound. Many have been repeated so many times over the years, lawyers take them as gospel although some are hard to completely verify. Like the time Cook was defending a man accused of murder and the state’s star witness testified he was certain Cook’s client had fired exactly two shots. Expecting this testimony, Cook stationed a friend outside the courthouse and had him fire off six rounds. When asked how many shots had just been fired, the state’s witness couldn’t say for sure. Cook’s client walked. Or the time in a moonshine case where Cook was cross-examining the local sheriff. When Cook accused the sheriff of not arresting another moonshiner because he’d been accepting bribes from him, the sheriff threw a Coke bottle at Cook, narrowly missing him. Cook dragged the sheriff down from the witness stand and began pummeling him. After a few moments, the trial judge told Cook to let the sheriff get up off the floor, saying, 'I think he’s had enough.' The jury acquitted Cook’s client in that case, too.

Rubio backs Markenzie Lapointe for U.S. Attorney

The Herald article is titled: "Rubio backs Haitian-American lawyer for Miami U.S. Attorney.  But candidate field is growing."  The intro:

Although the Republican Party lost the presidency and the power to pick U.S. attorneys, Florida Sen. Marco Rubio still can wield considerable influence over the selection of the next top federal prosecutor in South Florida.

In a key move, sources close to Rubio say, the senator has privately signaled support for a Haitian-American lawyer considered the Biden administration’s front-runner — Markenzy Lapointe, a Black Miami lawyer and Marine veteran who once worked in the U.S. Attorney’s Office.

But Lapointe isn’t the only candidate to emerge. There are at least four others interested in the job — all also qualified and with a history of practicing law in both the public and private sectors. Among them are former South Florida federal prosecutors Jacqueline Arango, Andres Rivero and David Buckner, along with Palm Beach County State Attorney Dave Aronberg. 

 

Readers of the blog knew of this slate when it was posted here on the blog first back on December 11, 2020.

Should courts be having in person hearings?

Forget about trials for a moment, which are postponed until May.  Here's an email from Paul Petruzzi that just went around about a state court probation violation hearing:

So, many of you know I share space with Jerry Cariglio. Our office also has staff and a lawyer with health conditions that place them at greater risk for serious complications were they to contract Covid. As an office, we have all been very careful to avoid exposing ourselves and then the rest of the office. Over Jerry’s objection, Judge Fernandez decided to conduct a PVH in person rather than waiting for things to become more safe. The hearing started yesterday and was to resume today. It won’t resume today because the bailiff tested positive for Covid. In the meantime, Jerry had very close contact with the bailiff for several hours yesterday and now has had contact with half the people in our office suite.
I encourage the judicial powers that be in state court to rethink their current plans.
Paul P.

"Just Let People Have Cellphones in Prison"

 That's the title of this great piece by Hannah Riley at Slate.  And of course we should let folks have their phones, especially during the pandemic lockdown in prisons where they can't leave their rooms for most of the day.  From the conclusion (and I recommend checking out prison TikTok):

It’s not all grim, though. A scroll through prison TikTok will reveal everything from how to MacGyver loose electrical wires to boil water to recipes for “prison pizza”—and then there are, of course, the TikTok dances. People are risking retaliation to show that they too have joy, in the midst of darkness.

The desire to punish is a deeply human one, but we should know by now that policies based on revenge never end well, especially when we know that those policies actually result in more harm. Access to cellphones—that is, access to love, connection, transparency, and a window to the outside world—is one simple but vital step to reduce those harms. Those who believe incarceration should be maximally harsh and devoid of joy or connection must reckon with reality: The more we isolate and torture people in cages, the less safe we all become.

 

Season 2, Episode 4: Rob Cary for Sen. Ted Stevens

It's prosecutorial misconduct on this week's episode of For The Defense.  The podcast features Rob Cary of Williams & Connolly, who represented Sen. Ted Stevens in his federal trial in which there was widespread prosecutorial misconduct.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

From left are Sen. Stevens, his lawyers Rob Cary and Brendan Sullivan, prosecutor Joseph Bottini, Judge Emmet Sullivan and government witness Bill Allen.

Sen. Stevens and Rob Cary

Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.

Coming up on For the Defense:

• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.
• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (we have applied for Season 2).

Please send me your feedback -- and of course, subscribe, like and comment!  If you or a friend would like to receive these updates, please have them sign up here. 

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur

Latest trial order from Chief Judge Moore (spoiler... trials continued till May)

The order is below. Although trials are technically continued until May, it's going to be longer than that. There is a pilot civil jury trial scheduled for May now (as reported earlier), but juror summons go out about 8-10 weeks in advance. So assuming that May pilot trial goes well and the Court decides to open things up again, we are looking at July before we get back in earnest.

2021-12 Coronavirus Public Emergency - Eighth Order Concerning Jury Trials and Other Proceedings 02-10-21 by David Oscar Markus on Scribd

Mark Lapointe front runner for U.S. Attorney in SDFLA

 Jay Weaver covers the story here:

With sweeping turnover in the U.S. justice system under way in the new Biden administration, a Black lawyer has emerged as the leading candidate for the high-profile job of U.S. Attorney in Miami.

If President Joe Biden nominates Markenzy Lapointe, 53, for the influential post, it would be an historic choice in one of the most dynamic federal prosecutor’s offices in the nation.

Not only would his nomination be a first in the Southern District of Florida, but it would also signal Biden’s nod to the Black vote that helped him defeat Donald Trump in November’s presidential election. Lapointe is the only candidate to be interviewed by the White House counsel so far for the U.S. Attorney’s job, reflecting the strength of his prospects.

This is so great.

Prof. Ron Sullivan for Aaron Hernandez

Welcome to Episode 3 of For the Defense, Season 2. 

This week, we have Harvard Law Professor Ron Sullivan (pictured below, left) to discuss the Aaron Hernandez trial (available on Apple and all other platforms). Sullivan tried the case with Jose Baez (last week's guest, who discussed the Casey Anthony case -- available on Apple here and other platforms here).  Hernandez already had been convicted of murder, and this was his second murder trial where no one gave him a shot.  Enter Sullivan and Baez...

Here's a short clip (via Twitter) of Prof. Sullivan discussing the prosecutor's attempt to use Hernandez's tattoos in closing argument:

Two TDs for Gronk in the Super Bowl. Brady’s former TE, Aaron Hernandez, had two murder trials. In today’s episode of #ForTheDefense, I speak to Prof. Ron Sullivan about the 2nd trial. In this clip, he discusses Aaron’s tattoos and their use at trial. https://t.co/HaF2A4rnxY pic.twitter.com/xcDY4kj5dy

— David Oscar Markus (@domarkus) February 8, 2021

In other news, we are going to have a new U.S. Attorney very soon.  According to this CNN article, President Biden will be asking all Trump hold-overs to resign, including in the SDFLA. According to the article, there are a few exceptions -- including Michael Sherwin in D.C. who is doing a great job handling the insurrection cases.  

Black Lives & Medicine program at the Court (virtually)

 To attend, all you need to do is send an email by February 19, 2021, to: FLSD_Program@flsd.uscourts.gov.

 

"Restoring the Historical Rule of Lenity as a Canon"

 Shon Hopwood has this new piece about the Rule of Lenity.  It's especially important with all of the white collar cases that charge people who are in a gray area.  From the abstract:

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes. As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts. If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

Pilot civil jury trial set for May in SDFLA

The judges voted yesterday to have a pilot civil jury trial in May.  I'm told it was a spirited debate and it passed 10-8.  If that goes well, other civil and criminal trials could resume as soon as the summer.  

For the pilot trial in May, there are a number of protocols and standards that will have to be met before it can go forward.  It will be interesting to see where we will be with the variants and vaccine roll-out at that time.  

I posted about the issue a few weeks ago here.