How will SDFLA's Rocket Docket proceed when jury trials restart

SDFLA practitioners know that most of our judges push cases to trial.  

The median time in our district from the beginning to the end of a criminal case is 5.2 months. (!!)  By way of comparison, in SDNY, it's 14.1 months.  In EDNY, it's higher: 20.5 months. Also, our median number from indictment to plea is 5 months and 9.7 months for a trial. Now that the district seems to be opening up again, will judges relax these numbers (pretty please!) to be more in line with other districts? 

In other news, the Supreme Court is finishing its Term.  A big one came out this morning -- No standing for the Republicans to overturn Obamacare... You can follow all of the big cases at SCOTUSblog. 

SCOTUS affirms two 11th Circuit cases

 The most conservative Supreme Court in decades (ever?) affirmed the most conservative appellate court (the 11th) in two criminal cases yesterday.  SCOTUSblog covers them:

Justices reject sentencing reductions for some crack-cocaine offenders ("The court in Terry v. United States ruled 9-0 that, based on the text, a Trump-era law making retroactive Obama-era sentencing reductions does not apply to low-level offenders.")

 

Court limits new trials for people with felon-in-possession convictions ("In Greer v. United States, the court unanimously curtailed the retroactive application of its 2019 ruling in Rehaif v. United States regarding felons in possession of a firearm.") 

Justices file financial reports

 If you're interested in the Justices' side gigs -- like adjunct teaching and book writing -- this report is for you.  SCOTUSblog summarizes it all here:

Sotomayor and Gorsuch reported healthy outside income from book advances and royalties. Sotomayor has several books under her belt, including her 2013 memoir My Beloved World and books for middle schoolers and younger children, that last year yielded her $212,181 in advances and royalties – just short of her salary of $265,600. Gorsuch reported $623.92 in royalties from Princeton University Press, presumably from his 2009 book on assisted suicide and euthanasia, as well as $100,000 in royalties from Penguin Random House for his recent book, A Republic, If You Can Keep It.

Luck (and Carnes) v. Marcus

 Woah, this opinion a doozy.  Thanks to my commenters for pointing it out to me.  Apparently it's been the talk of the (appellate) town and I initially missed it.

I don't even know how to describe it... you must read this opinion -- about a mansion in Palm Beach -- for yourself.  It's 136 pages of back and forth between two of the most conservative judges in the country (Luck in the majority, joined by Carnes, against Marcus in dissent).  And it gets really personal.  Here's the first salvo to give you a flavor:

The “irony today” is not, as the dissenting opinion says, that we have done as the Supreme Court has instructed and conducted an independent examination of the whole record relating to Burns’s constitutional claims. Dissenting Op. at 73. The “irony today” is that it is the dissenting opinion that goes beyond the “whole record” in this case, the record developed by the parties and put before the district court. The dissenting opinion consults extra-record sources and draws from them the “facts” that it determines support its conclusion. Throughout the dissenting opinion, it laments the “incomplete record” and the “limited record” that’s before us. Id. at 74, 123 n.5. So, the dissenting opinion escapes the confines of the record to look for evidence that the parties never put forward and the district court never considered.  

I'm no civil lawyer, so I can't tell you who is right.  And I'm no architect or student of these types of homes, so I don't know who has the better of the argument here (maybe renaissance man Rumpole can help) even though both opinions have pictures and tons of historical references.

I'm just here for the food fight! Just to give you a sense, the majority opinion references the dissent 98 times.*  I wonder how Judge Marcus felt when he read Judge Luck's opinion saying that he (Marcus) didn't understand "the way appellate review works."  

The opinion is also noteworthy because just a few months ago, Judge Luck joined an opinion by Judge Newsom criticizing Judge Rosenbaum for being too personal.  As I explained here, I thought that criticism was way off and that Judge Rosenbaum was anything but personal in her dissent.  

So something must be going on to get Judge Luck so upset in this pretty mundane civil dispute.  Anyone know the backstory?

*I simply did a find "dissent" and got 98 hits, so that number may be slightly off.  But you get the idea.

Trials are coming back!

 Judge Ruiz is ready to go.  He's picking a pilot jury this week... 

“Federal prisoners hold $100 million in government-run accounts, shielded from some criminal scrutiny and debt collection“

 That’s the title of this WaPo article. From the intro:

Federal prison inmates are keeping large sums of money — in some cases more than $100,000 each — in government-run deposit accounts effectively shielded from court orders for things like child support, alimony or other debts, and not subject to the same scrutiny as accounts owned by non-incarcerated citizens, according to court documents and interviews.
Within the Federal Bureau of Prisons system, which houses roughly 129,000 inmates in facilities throughout the United States, there are more than 20 inmate accounts holding more than $100,000 each for a total exceeding $3 million, a person familiar with the program told The Washington Post. In all, the combined value of such inmate accounts recently topped $100 million, this person said, speaking on the condition of anonymity to discuss details of the program that have remained out of public view.
The program run by the Bureau of Prisons has long frustrated and angered law enforcement officials from other agencies, who say it poses significant risks for abuse, money laundering and corruption, yet the agency, already plagued with staffing and management problems, has for years resisted efforts to change it because its leaders maintain they are already diligent about making inmates pay what they owe.

What the article fails to mention is that many inmates have no choice but to use the prison bank account because the government has forced banks to close all private accounts. This is one of the many awful consequences of merely being charged with a crime. Even without a conviction, banks will refuse you as a customer if you’ve been convicted or after you’ve served your time. 

UM Law School

 There's been a lot of drama over at the University of Miami School of Law and the firing of the Dean.  I haven't covered the story, but it's making national press.  Here's the latest from the Miami Herald:

Meeting with tenured law school faculty after abruptly firing the law school dean last week, University of Miami President Julio Frenk doubled down on his decision to dismiss Anthony Varona after less than two years on the job, much of that time during the pandemic when schools have been struggling.

Frenk, who met with the professors Wednesday night, did not provide a detailed explanation for removing Varona, saying he didn’t find that appropriate, according to sources who attended the meeting over Zoom.

Rather, he told the group that the dean reports to him and he has the power to remove him, the sources said. Frenk reports to the university’s Board of Trustees, who named Laurie Silvers, the vice chair and a 15-year member of the Board, as the new chair last Thursday.

Silvers, a graduate of Miami Beach High, the University of Miami (Class of ‘74) and UM School of Law (Class of ‘77), replaced Hilarie Bass, a prominent Miami attorney whose two-year term expired in May.

Frenk, who was named UM president in 2015, didn’t apologize for not consulting faculty regarding Varona’s termination, a procedure stipulated in the university’s faculty manual. He did say, however, he would stay in touch with the professors as he makes future decisions.

“As he shared with tenured faculty at the law school last night, President Frenk is committed to consultation as we proceed with next steps,” UM spokeswoman Megan Ondrizek said in an email Thursday.

Read more here: https://www.miamiherald.com/news/local/education/article251873708.html#storylink=cpy

 

Read more here: https://www.miamiherald.com/news/local/education/article251873708.html#storylink=cpy

 

Read more here: https://www.miamiherald.com/news/local/education/article251873708.html#storylink=cpy

 

Read more here: https://www.miamiherald.com/news/local/education/article251873708.html#storylink=cpy

Guest post by Roy Black about F. Lee Bailey

 BY ROY BLACK: David invited me to write a few words about my old friend Lee Bailey and at first I hesitated but decided I owed it to Lee to tell his story. Francis Lee Bailey Jr., who for some reason preferred F. Lee Bailey, captured the imagination of all the young criminal defense lawyers back in the 60's and 70's. Some even adopted the affection of initializing their first name in homage to Bailey. Bailey did things differently right from the start. He didn’t undergo some type of apprenticeship, but instead started with a bang – an unbelievable string of major trial successes. Just one year out of law school he took on the case of Dr. Sam Sheppard who had just been convicted of killing his wife in a trial surrounded by outrageous poisonous publicity. Bailey took it all the way to the Supreme Court and Sheppard v. Maxwell, 384 U.S. 333 (1966), became a landmark ruling reversing Sheppard's conviction in an 8-1 decision because of the "carnival atmosphere" of the trial. Tell me another lawyer who beats that career start.

And it got better. Sheppard became the inspiration behind "The Fugitive" hit television series and later into The Fugitive film starring Harrison Ford. I don’t have the space to go into all his trial best hits but I suggest you read about the trials of another doctor, Carl A. Coppolino. It became the best book on trials I have ever read, No Deadly Drug by John D. MacDonald. Most of Bailey's examinations and arguments are completely reproduced and are a golden resource for young criminal lawyers. A must read.

One side effect of following Bailey's career was the number of great books it spawned. This is long before youtube videos and trial lawyer dvds full of practice tips. When I was a PD I learned trial advocacy by reading about trials in books. Of course I read all of Bailey’s practice manuals. His best were the early ones co-authored with Henry Rothblatt: Investigation and Preparation of Criminal Cases (1970); and Successful Techniques for Criminal Trials (1971) but there were plenty of others. I read them so often the pages began to fall apart. I wanted to be like Bailey. All the books and articles he and others wrote on his trials was just one way his career had a significant impact on young aspiring criminal lawyers. They were far better than the measly one criminal law course available then in law school. I spent many hours dissecting his cross examinations and trial strategy writing my conclusions as marginalia in the books. 

Then the OJ Simpson case hit the national consciousness. Lee was brought in by his old friend and colleague Bob Shapiro. For some reason the case caused them to hate each other. Bob became the major adverse witness against Lee in the federal contempt case and the Florida Bar disbarment action. The intense publicity, televised mayhem and brutal backlash of the OJ trial, like the curse from King Tut's tomb, cratered legal careers.

Bailey was given the toughest assignment of the OJ trial, the cross-examination of LAPD detective Mark Fuhrman. Bailey intensely questioned Fuhrman and at the time I thought he hadn't really damaged him. Little did I know. By the end of the trial the defense unearthed further evidence corroborating Lee’s cross and caused the utter destruction of Fuhrman's credibility. Fuhrman and Lee’s cross became the focal point of Johnnie Cochran's fabulous final argument, especially the controversial Hitler comparison. It was Bailey's work that made this possible. The OJ trial crosses we still remember are Fuhrman by Bailey and Wong by Barry Sheck.

But this fabulous career came to a crashing end.

No matter what the obits say Lee Bailey died the day he was disbarred by the florida bar.  Once florida disbarred him Lee lost his reason for being. He was a trial lawyer and lived for the battle. He couldn’t survive as a non-combatant. During his last ditch effort to get re-admitted in Maine he told me he was gearing up to defend a criminal case for a police officer and he felt like a young lawyer again. Yet Maine decided it was bound to follow florida's lead and ended the dream of a comeback. The great career was finished.

Lee spent thousands of hours teaching at bar CLE courses throughout the country. He never turned them down. Even during the Patty Hearst trial he took a weekend off to teach a course. But when he needed help with the bar all he got was a knife in the back. None of the great names showed up for him. We criminal lawyers are treated with disdain all the way to the bitter end.

Roy Black, Esq.

RIP F. Lee Bailey

 So sad to hear this news.  He was one of the absolute best.  He just finished a book about the O.J. trial and was so proud of it.  I'm sad that he won't be able to see it out there.  Here are some great pictures of him from two of the biggest trials in history (both wins):

 

I'm glad that I had the opportunity to recently interview him.  What a character.  What a lawyer.  

This exchange shows the fire he still had at 88 years old, and I hope he had the chance to pee on this guy's grave!

Here is the gunslinger Bailey explaining what he told the newspaper editor who had it out for Sheppard, including the threat to pee on his grave: pic.twitter.com/cVefhkI1Wg

— David Oscar Markus (@domarkus) December 1, 2020

SCOTUS reverses 11th Circuit in Van Buren

This is a biggie... and it's an interesting 6-3 split reversing the 11th Circuit, with Justice Barrett writing the majority.  Here's the opinion and the split:  

BARRETT, J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.

From the intro:

Nathan Van Buren, a former police sergeant, ran a license-plate search in a law enforcement computer data-base in exchange for money. Van Buren’s conduct plainly flouted his department’s policy, which authorized him to obtain database information only for law enforcement purposes. We must decide whether Van Buren also violated the Computer Fraud and Abuse Act of 1986 (CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” He did not. This provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.

 And the conclusion:

In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him. The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could. Van Buren accordingly did not “excee[d] authorized access” to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose. We therefore reverse the contrary judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion.

All SDFLA jury trials continued until July 19

 This is expected to be the last order of its kind.  I'll post the administrative order as soon as it goes up on the court website.

UPDATED -- here's the order.

June in SCOTUS

It's June. The country is re-opening.  Everyone is getting back to work, vacations, travel, in person court hearings, and jury trials.  It's cool to see.  Two things are closing for the summer -- school and the Supreme Court.  All outstanding opinions will be issued this month.  Here are some things to watch at the end of the Term, according to USA Today:

After mostly avoiding controversy for the past eight months, the Supreme Court is heading into the final, frenzied few weeks of its 2020-21 term with a docket full of outstanding cases and rampant speculation about one its most senior justices.

From health care to voting to a dispute pitting LGBTQ rights against religious freedom, the nation's highest court will soon start churning through blockbuster cases, dropping decisions that will reshape the law – and the political landscape.

Twenty-six cases – all of which were argued virtually because of the COVID-19 pandemic – remain on the docket. 

 "This term is a lot like the first few episodes of a new TV show," said David Lat, a court observer who founded a legal newsletter and website called Original Jurisdiction. "It's really just setting the stage. Sometimes you wish you could just fast forward through it, but it's still important because we're getting to know the characters...and we're getting to know the issues."

After the flurry of opinions, attention is sure to shift to Associate Justice Stephen Breyer, who at 82 is under pressure from progressives to retire so that President Joe Biden can name his replacement while Democrats hold their tenuous majority in the Senate. When justices step down, they often do so at the very end of the term.

Judge Ungaro says farewell to the bench

It was a really nice event (moderated by former clerk and soon-to-be magistrate judge Melissa Visconti). It's good to start seeing folks again! Chief Judge Moore and incoming Chief Judge Altonaga spoke.  Two of her law clerks, Rachel Furst and Frank Maderal, gave nice speeches.  And Judge Ungaro spoke beautifully about her time on the bench, including her close relationship with Kathryn (her courtroom deputy) and Bill (her court reporter).  Bill even delivered a wonderful poem.  I didn't know about the daily lunch scrabble games with staff and the clerks.  I wonder whether law clerks when they first start feel any pressure to let Judge U win.  

Breaking— Congressional JNC recommends 6 names for two open judicial seats (UPDATED WITH U.S. ATTORNEY FINALISTS AND MARSHAL)

 I’m being told from multiple sources that the finalists for the two open district judge seats are:

Michael Caruso

Miguel de la O

Samantha Feuer

Ayana Harris

Shaniek Maynard

Detra Shaw Wilder

*These have been confirmed.  Congrats to the finalists.

UPDATED -- The finalists for Marshal are:

Amos Rojas and Gadyaces Serralta

The finalists for U.S. Attorney are:

Jackie Arango

Michael Hantman

Markenzy Lapointe

Judge Singhal denies CNN's motion to dismiss Dersh's defamation lawsuit

Law & Crime covers the interesting case here:

Harvard Law professor emeritus Alan Dershowitz on Tuesday secured a significant procedural victory in federal court against CNN as part of his ongoing defamation lawsuit against the network.
CNN’s attorneys filed a motion to dismiss the $300 million lawsuit for failure to state a claim last November. The U.S. District Court for the Southern District of Florida was not convinced, and the parties will now move on to the discovery phase of proceedings.
“Looking forward to deposing the commentators and heads of CNN and of the truth coming out,” Dershowitz told Law&Crime in an email.
The famed celebrity attorney sued the liberal media outlet last September after CNN aired an edited clip of his defense argument in favor of then-president Donald Trump during the latter’s 2020 Senate impeachment trial over the Ukraine phone call affair.

Here is the well-reasoned order by Judge Singhal.

"He loves his job."

 That was Judge Chuck Breyer (N.D. Cal.) about his brother, Justice Stephen Breyer.  Per Bloomberg:

U.S. Judge Charles Breyer won’t say whether his older brother Supreme Court Justice Stephen Breyer plans to retire.
“I think we’ll find out at some point,” the California trial court judge said with a laugh when asked by Bloomberg Law about his brother’s plans. “I will tell you one thing: He loves his job.”
Justice Breyer, 82, has come under intense pressure from Democrats to retire this term and make way for President Joe Biden to name his successor. There was some speculation that Breyer’s announcement might come before the end of the term, but his decision to hire a full slate of clerks, as reported by legal blogger David Lat, diminished some liberals’ hopes.
Judge Breyer, who is three years his brother’s junior, has already switched to part-time work as a semi-retired judge on the U.S. District Court for the Northern District of California. He was appointed to the court in 1997 by Bill Clinton and took senior status in 2011, which allows a judge to vacate their seat and take on a lower number of cases.

Judge Breyer is really fantastic.  He is part of an upcoming mini-season for my podcast, For the Defense, on judging.  We'll also have Judges Pryor and Rosenbaum, following up on the reception of the Jed Rakoff episode.  I'm pretty excited about it. 

Dave Aronberg not pursuing U.S. Attorney gig

 Jay Weaver covers the story here:

A half-dozen Miami lawyers have made the cut for interviews with a state congressional nominating commission to be the next U.S. attorney in the Southern District of Florida.
But a notable seventh candidate did not submit an application to the House nominating commission: Palm Beach State Attorney Dave Aronberg.
In a letter to a handful of South Florida politicians, Aronberg said he was “honored by reports” that he was being considered for the U.S. Attorney’s position but he did not apply because of his “love” for his current job, which he has held since 2013.

The Congressional JNC will do its interviews next week.  Should be interesting. 

News & Notes

1.  Terrible news -- CA11 Judge Beverly Martin is retiring in September.  She's been a bright light on the 11th Circuit and she will be very missed.  Let's see if Biden can get it right with her replacement. 

Martin, one of the 11th Circuit’s more liberal members, noted that a person of color has yet to fill one of the court’s four judgeships allotted to Georgia. “I’ve read that the president is committed to diversity, so I’m happy to give him that opportunity here,” she said.

As for what’s next, Martin said she wants to do what she can to help reduce the nation’s prison population.

“There are too many people incarcerated who shouldn’t be,” said Martin. “It costs way too much.”

This includes many who are elderly, she said.

“Every year I’ve been here I’ve heard the stories of incarcerated people and I go to bed at night thinking about them,” Martin said. “We really do need to reevaluate who needs to be in prison and who doesn’t need to be there.”

2.  Marco Rubio has asked his separate JNC to provide finalists for Judge, U.S. Attorney, and Marshal.  Here's his letter to Carlos Lopez-Cantera.

3.  Meantime, the competing Congressional JNC is interviewing next week.  Here's a link to the list of interviewees and times.

RIP Magistrate Judge Dave Lee Brannon

 Man, this is a sad one.  Judge Brannon was such a good guy.  I knew him back from his federal defender days.  Always willing to share a story or advice or his time.  And such a compassionate and nice judge.  Awful news.

There has been a ton of really nice comments on the CJA listserv.  Here's one from Richard Klugh:

I wanted to share one memory of working with Dave Lee Brannon when we were AFPDs.   We had adjacent offices in Miami (starting in June 1986) and then in Ft. Lauderdale four years later. It was in that later period that he and I wrote the first of what became an FPD staple—songs about our defense work. The song, The Christmas Guideline Song, performed at the FPD Holiday party by Celeste, Pat Hunt, and others, was eventually followed by the songs Pat Hunt, Jackie Shapiro, Celeste, Daryl, and Neison wrote for seminars. The guideline song was mostly Dave’s idea.  It went through each section of Chapter 2 of the manual from A to X, beginning with “‘A’ is for assaultive, mean behavior. ‘B’ is when you burgle steal or rob ...”   To paraphrase, put them all together they spell, ‘Dave was just a really great guy.’

 

Unanimous jury requirement non-retroactive

 So says the Supreme Court in the new 6-3 conservative lineup.  I don't get this one.  Here's ScotusBlog trying to explain it with other Supreme Court news:

The Supreme Court on Monday ruled by a vote of 6-3 that inmates whose convictions became final before last year’s decision in Ramos v. Louisiana, holding that the Constitution’s Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, cannot take advantage of it on federal collateral review. The geographical impact of Monday’s decision is limited to Louisiana and Oregon – the only two states that have allowed non-unanimous jury verdicts in recent years. The decision means that hundreds of people who were found guilty by non-unanimous juries in those two states before Ramos will not get to seek to have their convictions overturned. Monday’s ruling, issued on the same day that the court announced it would take up a challenge to a Mississippi ban on abortion that could upend Roe v. Wade, also left the justices divided over the issue of respect for their prior precedent.
The dispute over nonunanimous jury verdicts dates back almost 50 years, to the court’s 1972 ruling in Apodaca v. Oregon, holding that although the Sixth Amendment guarantees a right to a unanimous jury in federal criminal cases, that right does not apply to defendants in state trials. The justices were deeply divided in reaching that conclusion: Four of them would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four different justices would have ruled that the Sixth Amendment guarantees a right to a unanimous jury in both federal and state trials. That left the ninth justice, Justice Lewis Powell, to decide the outcome. He wrote that the Sixth Amendment protects the right to a unanimous jury for defendants in federal criminal trials, but not those in state criminal trials.
In 2020 in Ramos, the Supreme Court – by a vote of 6-3 – overturned its ruling in Apodaca. In an opinion by Justice Neil Gorsuch, the majority explained that there was a long history of a right to a unanimous verdict when the Sixth Amendment was adopted. Gorsuch also stressed that both Louisiana and Oregon had imposed the non-unanimous jury rule for racist reasons. But the Ramos opinion left open the question of whether the decision applied retroactively.
The case decided by the court on Monday, Edwards v. Vannoy, was that of Thedrick Edwards, who was convicted and sentenced to life in prison, without the possibility of parole, in Louisiana nearly 15 years ago for a series of crimes that included armed robbery, rape and kidnapping. The only Black juror at Edwards’ trial voted to acquit Edwards, who is also Black, on all counts. Edwards’ conviction became final in 2011.
In a decision by Justice Brett Kavanaugh that was joined by the court’s other conservative justices, the court explained that the ruling in Ramos announced a “new rule” because “many courts interpreted Apodaca to allow for non-unanimous jury verdicts in state criminal trials.” Under the Supreme Court’s case law, Kavanaugh wrote, a decision that establishes a new rule of criminal procedure generally does not apply retroactively to cases in which inmates are seeking federal post-conviction relief. The court has recognized an exception to this general presumption, Kavanaugh acknowledged, for rules that are so significant that they rise to the level of “watershed” rules. But, Kavanaugh observed, the court has not actually found such a rule in the last 32 years, and it has indicated that it is “unlikely” to recognize such a rule in the future.
“Continuing to articulate a theoretical exception that never actually applies in practice,” Kavanaugh suggested, “offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.” Therefore, Kavanaugh concluded, it is “time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.”

And for those out there who don't understand the toll a federal indictment takes on a person, here's a sad story about a man who committed suicide after a federal verdict. 

Judge Ursula Ungaro leaving federal bench...

 ... for Boies Schiller.  Congratulations to Judge Ungaro and a bigger congrats to BS who land a fierce advocate for their firm.  

The news has been making the rounds for the past few days in local legal circles.  But it's finally official.  

From Reuters:

It’s never too late to blaze new trails. Just ask Senior U.S. District Judge Ursula Ungaro.
After 34 years on the bench in Florida, the Miami-based jurist submitted her resignation on Friday to join Boies Schiller Flexner as a partner on June 1.
She is 70 years old - and she’s not slowing down.
“I like the idea of a challenge,” Ungaro told me. “I wanted to see what it would be like with the credentials I have behind me, to see if I can build a practice and generate business and mix it up in court again.”

No doubt she will be able to mix it up in court again!  I've always liked that Judge Ungaro tells you what's on her mind.  She doesn't hold back.  It's refreshing.  For example, in classic Judge Ungaro form, not pulling any punches, she said this about her new firm:

“I’m very aware - I’m not an ostrich - that the firm has had a lot of departures,” Ungaro said. Boies Schiller, as I previously reported, saw about 60 partners exit in 2020.

“I think they have a great base to restructure,” Ungaro said. “I have all the respect in the world for David Boies and the other lawyers” including her old friend Stephen Zack, a Miami-based partner and member of the executive committee, and Stuart Singer, a fellow executive committee member who is based in Fort Lauderdale.

“I’d like to be part of the restructuring,” she said, adding that “the chemistry should be right.”

Ungaro and Zack met in the mid-1970s, when both were associates at (now defunct) Frates Floyd Pearson Stewart Richman & Greer.

“We suffered together,” joked Zack, who previously served as president of the American Bar Association.

My first assignment as an assistant federal defender was with Judge Ungaro.  She pushed young lawyers and didn't suffer fools.  I am definitely a better lawyer after my stint as a new public defender in her division.  It will be fun to watch her deal with her former colleagues when they don't grant a continuance or agree on an evidentiary point.  I'll be there for that! :)

Congrats again to Judge Ungaro!

Breaking — Melissa Visconti is your new magistrate judge

 

Wonderful news.  She'll be great.  A former Judge Ungaro clerk and former AUSA, she knows the federal system well.  She's also practiced civil and appellate litigation.  Importantly, she's a nice and good person.  A graduate of Princeton and then UM law. Congratulations to Melissa!

Update: Judge Ungaro had this comment: “No one can be another John O’Sullivan. But Melissa will do the district proud. She is whip smart. But more important, she has heart and a deep and sincere desire to serve this diverse community. And, of course, she has great affection for the court. “

Jury has case in civil pilot trial (updated with verdict)

Well, that was quick.  A two day civil trial before Judge Ungaro.  I didn't hear of any issues... thank goodness.  

The only item that I did hear about was that lawyers were required to wear masks when speaking in court -- even when examining witnesses and doing openings/closings.  I think that certainly takes away from the ability to effectively examine a witness and from giving a moving opening/closing.  

Maybe it doesn't matter all that much in a short civil trial, but I don't see many criminal defense lawyers agreeing to trying a case with a mask on.  

Some folks in state court who have tried cases with masks on have said that everyone forgets about it pretty quickly, but I have my doubts... I suspect we will see criminal trials opened back up in the Fall.  My only request to judges is to be understanding with lawyers' schedules, which are going to be insane.

UPDATE— jury verdict before 5pm for Plaintiff for full amount of claim. Plaintiff was represented by Katie S. Phang and Jonathan S. Feldman, a husband and wife team trying their first case together.  It also happened to be their anniversary today. What a nice anniversary gift!! 

11th Circuit shows again that it is an outlier and the most conservative federal appellate court -- by a lot.

 This time the case is United States v. Thomas Bryant, a 2-1 decision, that holds -- contrary to 7 unanimous Circuit Court rulings -- although the First Step Act allows courts to decide compassionate release motions, they are not permitted to decide what compelling and extraordinary circumstances are.  Only BOP can do that, says the lone two judges in the country (Brasher wrote the opinion and Luck joined), who make up the majority opinion in this case.  

Judge Martin rightfully dissents and explains in her intro:

Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”). Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act. And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.1 The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement. Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it. With all respect due, I dissent. 

Let's see if the 11th Circuit takes the case en banc, which it obviously should when it is the one in a 7-1 split, or if the religious freedom issue is the only time a defendant will be able to get en banc review in the 11th.