"Prosecutors will decide..."

That was the catch-phrase in John Oliver's take on why the criminal justice system is in shambles. He ticks through a bunch of the problems that result from letting prosecutors control the system: the trial tax, what discovery is produced, no accountability for misconduct, and so on.  One example:

“Prosecutors typically get to decide whether something is relevant to the defense, which seems inherently flawed,” said Oliver. “You can’t just count on an adversary to voluntarily expose all of their weaknesses. In Star Wars, the rebels had to steal the Death Star plans. The Empire didn’t just email it to them with the subject line FWD: GIANT STUPID WEAK SPOT (VERY DUMB, GO TO TOWN).”

It's below and definitely worth a watch.

In the Manafort trial, the judge is actually standing up to the prosecution team and trying to limit irrelevant evidence. But the prosecutors aren't used to someone else deciding. So they have resorted to disrespect and anger. From Politico's article "Manafort prosecution's frustration with judge leads to fiery clashes":

For days, U.S. District Court Judge T.S. Ellis has been cracking the whip at prosecutors in the Paul Manafort fraud trial, prodding them again and again to keep the case moving forward and to drop matters he considers irrelevant.

Prosecutors’ frustration with those exhortations spilled out publicly Monday in a series of prickly clashes in which Ellis snapped at one of special counsel Robert Mueller’s prosecutors, Greg Andres, and Andres sometimes lashed back at the judge — something lawyers rarely do.

The day’s first significant altercation came as Andres sought to question Manafort’s former deputy, Rick Gates, about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

***

Ellis said he wanted to give Andres an “opportunity to educate me” about the usefulness of the testimony about Ukraine’s political system and why wealthy individuals were paying millions of dollars to back Manafort’s work as a political consultant.

“I don’t see any earthly relationship” between testimony about “political contributions” and the alleged tax evasion on Manafort’s part, the judge said.

Andres took issue with calling the payments political contributions, and he appeared to fault Ellis for minimizing the significance of the payments in his comments in front of the jury

“These people are not making political donations,” the prosecutor said. Calling the donors “oligarchs” — a term Ellis banned the government from using in front of the jury last week — Andres explained that their livelihood was completely dependent on government-granted monopolies.

“That makes it even clearer to me” that it’s not relevant, the judge interjected. “It doesn’t matter whether they’re good or bad or oligarchs or crooks or mafia or whatever. … You don’t need to throw mud at these people.”


At that point, Ellis noted that Andres was looking at the lectern. “You’re looking down as if to say, ‘This is B.S.,’” the judge complained.

Andres seemed angered by the accusation and said the judge was leaping to conclusions. “We don’t do that to you,” the prosecutor said.

When the judge mentioned an earlier complaint he made about lawyers rolling their eyes, Andres interrupted again and the atmosphere grew tense. “I find it hard to believe I was both looking down and rolling my eyes,” he said.

Andres pressed on with his argument that the payments to Manafort were not political contributions, this time adding the charge that every time the government tried to elicit testimony about why the payments were made, “Your Honor stops us.”

“The record will reflect I rarely stopped you,” Ellis insisted.

“I will stand by the record,” Andres snapped.

“And you will lose,” the judge shot back.

Interesting state court issue concerning the Governor's power to appoint judges

Florida Circuit Judge Robert Foster is due to retire on January 7, 2019, due to mandatory retirement. That would mean that Gov. Scott's successor would appoint his replacement. So Judge Foster said he will retire on Dec. 31, 2018, to allow Scott to appoint his replacement. The First District agreed that this was permissible. But the Florida Supreme Court (4-3) has stayed the order pending further briefing. It's an interesting battle, covered more in depth by this article.

There's no good solution to how we select our judges. Appointments are by their nature political. And elections are not based on actual judicial qualifications since they are not permitted to campaign or debate. I'm not sure what the right answer is here.

11th Circuit panel not happy about the new “panel published order” rule created by another panel

So the Johnson litigation produced lots of angry opinions back and forth by various wings of the 11th Circuit. One wing got the upper hand by quickly publishing a bunch of orders within 30 days days (based on pro-se pleadings under 100 words, without government responses, and without oral argument). And in those orders, the right wing of the court said that they are binding on future panels. Judges Wilson, Martin, and Jill Pryor are rightfully not happy about it. And said so in two concurrences in this order.

From Judge Wilson’s concurrence:

These applications are often decided without counseled argument from the petitioner, and are always decided without an opposing brief from the government, except for death-penalty-related applications. We also rarely have access to the whole record. See generally Jordan, 485 F.3d at 1357–58 (describing the limitations we face when deciding these applications). When making these determinations, therefore, the panel typically races to issue an unappealable order based solely on the arguments of a pro se prisoner constrained to a little over one page per ground.
Conversely, when we decide a merits appeal, we have essentially unlimited time to decide the case, there are usually attorneys on both sides, we have extensive briefing, and we have the entire record in front of us (including an order from the court below). And the large majority of our published merits opinions come from our oral argument calendar, where attorneys for each party argue for at least fifteen minutes. Of course, after a merits opinion issues, aggrieved parties may petition for panel rehearing, for rehearing en banc, or for a writ of certiorari.
Despite this stark contrast in process, published panel orders and published opinions now enjoy the same precedential heft, equally binding future panels of this court unless and until overruled by the court sitting en banc. In fact, published panel orders perhaps have greater weight, because they may not be appealed to the Supreme Court and they may not be the subject of a petition for rehearing en banc. We should not elevate these hurriedly-written and uncontested orders in this manner.

RIP John Hogan

Sad day for the Miami legal community as it says goodbye to John Hogan. From the Miami Herald obit:

John Hogan — an influential lawyer who prosecuted racially charged police shootings during an era of riots in Miami and also advised Janet Reno during her tenures as Miami-Dade state attorney and U.S. attorney general — has died at age 68.

Hogan — who after his career in public service went on to lead the litigation section at Holland & Knight, one of Florida’s biggest law firms — died on Saturday from complications of a bone-marrow transplant at a Houston hospital.

Holland & Knight’s Miami office notified employees of his death on Monday morning, describing Hogan as a “lawyer’s lawyer” who devoted his life to putting others before himself.


“His exemplary public service was a testament to his selfless approach throughout his professional career,” the firm’s managing partner, Steven Sonberg, wrote to Holland & Knight’s employees. “Wherever he worked, John was recognized as a ‘lawyer’s lawyer,’ that is, he was known both for his keen intellect and for his ability to offer practical solutions to complex problems.

Electronics in court

The Manafort trial is starting up, and the lawyers involved in the case are filing motions requesting the ability to bring in their laptops (apparently they won’t be able to bring in their phones). Jurors, witnesses, reporters, and observers won’t be able to bring their phones into the proceedings. The electronics policy is just absurd. At least lawyers can bring in their phones here in the Southern District of Florida. But the public should be able to bring their phones as well. It denies the public access to the courts and it also is more unsafe to deny people their phones in case of emergency. Phones are permitted in state court and the sky hasn’t fallen.