11th Circuit says no to death by firing squad

Anthony Boyd, sentenced to death, asked for his punishment to be carried out by firing squad or hanging.  The 11th Circuit, per Judge Marcus, said no. He will now be executed by lethal injection.  From the AJC:

Boyd had challenged Alabama’s new lethal injection protocol, alleging it violates his Eighth Amendment right to be free from cruel and unusual punishment.

Instead, he noted, legislatures in Utah and Oklahoma have approved the firing squad, which has a good track record of “speed and certainty for the condemned.” In the alternative, hanging is an option that has been approved by lawmakers in Delaware, New Hampshire and Washington. And Alabama is “fully capable” of approving those execution methods as well, the appeal said.

The 11th U.S. Circuit Court of Appeals, in a ruling written by Judge Stanley Marcus, said Alabama gives condemned prisoners the choice between two methods of execution: lethal injection and electrocution.

Also, Marcus wrote, the law is clear. Inmates challenging a method of execution must prove there is an alternative method of execution “that is feasible, readily implemented and in fact significantly reduces the risk of pain posed by the state’s planned method of execution,” he said.
“The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution,” Marcus wrote.

“But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses and unconstitutional risk of pain,” he noted. “Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.”

Marcus added, “Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution.”

Judge Wilson concurred in the result only but wrote separately to explain his disagreement with binding law.

In other news, tomorrow is the District's Bench and Bar conference. All of the judges will be forced to mingle with the hoi polloi. Good times, good times...

Ted Cruz v. Sally Yates

Sally Yates wins:

Victory for BBX, Alan Levan and Gene Stearns

Trial #2 goes to Bank Atlantic, Alan Levan and their lawyer Gene Stearns. A really big win for them over the SEC. From the DBR:

A federal jury on Monday ruled in Fort Lauderdale banker Alan Levan's favor on all claims filed by the Securities and Exchange Commission.

The SEC alleged Levan had misled investors about the health of certain real estate loans in Fort Lauderdale-based BankAtlantic's portfolio leading into the recession. The agency also claimed Levan's company BBX Capital Corp., which sold the bank in 2012, failed to properly account for loans in public disclosures.

It was the second SEC trial for BBX and Levan on the same claims. The first trial in 2014 ended with some jury findings against the defendants, a temporary ban on Levan running a public company and millions of dollars in fines. The appellate court overturned some pretrial rulings and sent the case back for another six-week trial in Miami before U.S. District Judge Darrin Gayles.

Levan and BBX also settled an earlier case brought by shareholders.

"I am pleased this regrettable nine-year ordeal is finally over and has ended in complete exoneration," Levan said in a statement. "This frivolous action by the SEC was clearly motivated either by incompetence or by malicious self-interest so the agency could say it did something to somebody other than watch the banking system collapse under its nose. I am ready to move on and build on the considerable success we have enjoyed at BBX Capital, which has prospered despite the unfair and unwarranted burden imposed on us by this SEC witch hunt."

Monday News & Notes

1. Trump is going to nominate Kevin Newsom to the 11th Circuit this week. Newsom, a law school classmate of mine, is well-qualified (former Alabama SG, former Souter clerk). He is one of nine nominations set to occur this week, via NY Times.

2. Prosecutors have plagiarized a blog post in amicus brief on death penalty case (via Jacksonville Times). Doh!

The Florida Prosecuting Attorneys Association apparently copied a defense attorney’s blog post in a critical brief dealing with whether prosecutors have the right to reject the death penalty.

The brief signed by Buddy Jacobs, an attorney and the longtime lobbyist for the prosecutors association, argued that an Orlando prosecutor deserved to have first-degree murder cases taken away from her after she said she wouldn’t seek the death penalty. The brief was signed by Jacobs and two other attorneys in his Fernandina Beach law firm.

Part of that brief is exactly copied from Richard Hornsby, an Orlando defense attorney. Hornsby posted last month on his blog why he thought Gov. Rick Scott was justified in his decision to re-assign capital murder cases away from State Attorney Aramis Ayala.

3. The Corrine Brown trial is set to go to closing today, via Florida Times-Union. That's up in Jacksonville. Apparently she cried on the witness stand on Friday. Any thoughts on whether she will walk?

Carlos López-Cantera to Chair Statewide Panel Vetting Federal Judicial Candidates

Florida's Federal Judicial Nominating Committee (referred to as the JNC) is going to be reconstituted. That was in question after the Trump election. But Sen. Rubio issued this press release today:

U.S. Senators Marco Rubio (R-FL) and Bill Nelson (D-FL) will once again constitute the Florida Federal Judicial Nominating Commission (JNC) to identify highly qualified individuals as finalists to become U.S. district judges in each of the three judicial districts in Florida. Today, it was announced that Carlos López-Cantera will serve as statewide chair of Florida’s Federal JNC.

“I am extremely pleased to have Carlos López-Cantera serve as statewide chair of Florida’s Federal Judicial Nominating Commission,” said Rubio. “Carlos is well-suited for this position and I am confident he is dedicated to this important process and will successfully lead the commission in identifying exceptional candidates to serve on the federal bench in Florida. I look forward to reviewing the commission’s selections and working with Senator Nelson and the president to ensure that these critical positions are filled.”

“I am honored to be selected to serve as the statewide chair of Florida’s Federal Judicial Nominating Commission,” said López-Cantera. “This is an extremely important process and I am committed to ensuring that the commission identifies for our senators’ consideration the most qualified applicants to serve as U.S. district judges. I am looking forward to working with all of the members of the commission to evaluate candidates based on their qualifications, experience, character, and integrity.”

Background:

The commission will invite applications for U.S. district judges and after a thorough and careful review of the applicants will select finalists who have the professional qualifications, character, integrity, experience, and temperament to perform the duties of a federal district judge and to uphold the public trust.

The commission will send the names of the finalists to Senators Rubio and Nelson for their individual and independent review and, if neither senator objects, those names will be forwarded to the White House for the president’s consideration.

Both senators reserve their constitutional rights to render advice and consent on any candidate or nominee.