SDFLA to start live-streaming hearings

Well, this should be interesting! SDFLA is one of 13 pilot districts to try it out. This is a no-brainer in my book (especially after Covid), so I love the move.

From Courthousenews.com:

In announcing Tuesday it will give the public access to noteworthy cases via audio livestream, the federal court system will move a few rungs closer to the 21st century — at least in 13 districts.

These livestreams will be available on the courts’ designated YouTube channels in real-time, the U.S. Courts said Tuesday.

“While the pilot temporarily suspends a prohibition on broadcasting federal court proceedings in the designated courts, the livestreams may not be recorded or rebroadcast,” the federal judiciary said. The Judicial Conference of the United States adopted a prohibition against “broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto” in 1972 for both criminal and civil cases.

U.S. District Judge Audrey Fleissig chairs the courts’ national policy-making body, which authorized the test program earlier this year. Its purpose, she said in a statement, is to study the livestreaming civil proceeding audio from policy, technical, operational, budgetary and administrative perspectives.

The pilot is also a nod to the federal judiciary’s commitment to transparency and increasing public access to court proceedings, Fleissig said, noting this is “an issue that has taken on even greater importance in the last year” as many courts have been forced to restrict in-person public access to courthouses due to the Covid-19 pandemic.

“At the same time, we want to develop the best practices for the process and ensure that any new practices do not compromise the integrity of federal court proceedings. That is why we are taking a measured and deliberative approach by working with volunteer pilot courts,” Fleissig said.

The move is a big one for reporters across the country who will have a much easier time covering high-profile cases, said Genelle Belmas, an associate journalism professor at the University of Kansas. The Kansas Federal Court is participating in the program.

“This is a big step in the right direction for making material available, making content available to reporters,” she said in a phone interview, adding that federal courts are just beginning to “dip a toe in the water” when it comes to expanding virtual proceedings in line with the appellate courts.

“Journalists complain a lot about not having sufficient access and this makes it so that there are fewer excuses,” Belmas said.

11th Circuit affirms dismissal of Parkland shooting case

 Here's the opinion (which affirms Judge Bloom) by Chief Judge Pryor.  The intro:

This appeal requires us to decide whether the district court erred when it dismissed a civil-rights action filed by students present at the Parkland school shooting. The students sued Broward County and five public officials on the theory that their response to the school shooting was so incompetent that it violated the students’ substantive rights under the Due Process Clause of the Fourteenth Amendment to the Constitution. The district court dismissed this claim with prejudice because it was an impermissible  shotgun pleading and, in the alternative, because it failed to state a claim and leave to amend it would be futile. On the merits, the district court reasoned that because the students were not in a custodial relationship with the officials and failed to allege conduct by the officials that is “arbitrary” or “shocks the conscience,” the students could not maintain a claim that the officials violated their substantive right to due process of law. The students appeal this decision, but settled caselaw makes clear that official acts of negligence or even incompetence in this setting do not violate the right to due process of law.
Because we agree with the district court that the students failed to state a claim of a constitutional violation and that leave to amend would be futile, we affirm.

“Social media is mightier than Gov. DeSantis's guns“

 That’s the title of this piece I just wrote for The Hill.  You can read the whole thing here: https://thehill.com/opinion/criminal-justice/529939-social-media-is-mightier-than-gov-desantiss-guns

From the introduction:

You would think we’ve all gotten used to seeing crazy things caught on camera and posted to social media. But, no… it seems every day there’s something more outrageous and jaw-dropping than the day before. The insane video for this week shows law enforcement officers pointing guns at a scientist’s husband and two small children inside their home.

That’s right — a battery of police officers in bullet proof vests drew their guns at Rebekah Jones’s house on Monday morning while executing a search warrant to seize her electronics.

Jones, a former employee of Florida’s Department of Health, must have been suspected of some pretty bad stuff to necessitate this drastic action, right? Murder? RICO? Robbery?

Nope.

She has been accused of sending an unauthorized email to the State Emergency Response Team that said: “Speak up before another 17,000 people are dead. You know this is wrong. You don’t have to be a part of this. Be a hero. Speak out before it’s too late.” Jones denies sending the email. But even if there were irrefutable proof that she had, this “investigation” involved a non-violent “crime” and a non-violent “suspect.” I put those words in quotes because… come on. This doesn’t seem like a real investigation into a real crime. It seems a lot more like pay back (more of which in a moment). Even a high-ranking and life-long Republican stepped down from his political post because of this “case.”

Who will be the next U.S. Attorney in the SDFLA? (UPDATED)

 The rumors are already swirling around town.  But there doesn't seem to be any procedure in place for applying or for vetting.  And it's unclear how Sens. Rubio and Scott will work with the Biden White House on the U.S. Attorney (and on judges for that matter).  In any event, the names I've heard so far for for the next United States Attorney for the Southern District of Florida:

1.    Jackie Arango, partner at Akerman (former AUSA)

2.    David Buckner, partner at Bucker + Miles (former AUSA).

3.    Markenzy Lapointe, partner at Pillsbury (former AUSA).

4.    Curt Miner, partner at Colson Hicks (former AUSA).

5.     Andres Rivero, partner at Rivero Mestre (former AUSA).

6.     Joan Silverstein, current AUSA (chief of the criminal division).

UPDATED -- 7. Marianne Curtis, partner at Berger Singerman (former AUSA). 

I think that's a really good slate.  All extremely smart, respected, and qualified, with lots of experience.

Have you heard any other names?

11th Circuit makes quick work of election lawsuits

 Here’s one that was published over the weekend. Judges that were appointed by three different Presidents (including Trump SCOTUS short-lister Barbara Lagoa) ruled unanimously. Chief Judge William Pryor, another previous Trump short-lister for SCOTUS) wrote the majority. It starts like this:

This appeal requires us to decide whether we have jurisdiction over an appeal from the denial of a request for emergency relief in a post-election lawsuit. Ten days after the presidential election, L. Lin Wood Jr., a Georgia voter, sued state election officials to enjoin certification of the general election results, to secure a new recount under different rules, and to establish new rules for an upcoming runoff election. Wood alleged that the extant absentee-ballot and recount procedures violated Georgia law and, as a result, his federal constitutional rights. After Wood moved for emergency relief, the district court denied his motion. We agree with the district court that Wood lacks standing to sue because he fails to allege a particularized injury. And because Georgia has already certified its election results and its slate of presidential electors, Wood’s requests for emergency relief are moot to the extent they concern the 2020 election. The Constitution makes clear that federal courts are courts of limited jurisdiction, U.S. Const. art. III; we may not entertain post-election contests about garden-variety issues of vote counting and misconduct that may properly be filed in state courts. We affirm

Greatest lineup ever

One of the fun parts of doing the podcast For the Defense is hearing follow-up stories about the lawyers and cases. I've received a lot of feedback on the Roy Black interview about the Luis Alvarez case.  

Here's one bit of information I did not know before the interview -- there was a photo lineup conducted where witnesses were asked to identify the shooter (Officer Alvarez).  Alvarez had a mustache, so the folks putting together the lineup got a bunch of pictures of police officers and others with mustaches.  But they needed one more (Alvarez is #4) and couldn't find a usable picture.  So they asked a familiar face to join the lineup in picture # 6 below:

Any guesses?  I'll put the answer in the comments so it's not spoiled here.

"Civility is overrated"

 That's the title of this Atlantic article.  And here's another article, this time by the N.Y. Times, about the traps of telling your opponent to be civil:

Mannered civility, in other words, can operate as a trap: order without justice, comity without commitment. It can pit you against an opponent who will happily fight dirty while insisting that you abide by Queensberry Rules.

Today's 11th Circuit en banc denial, in which Judges W. Pryor and Newsom attack Judge Rosenbaum's opinion for not being civil, reminded me of these articles. Judge Rosenbaum wrote a dissent in which she states her view, which was joined by three other judges (Wilson, Martin, and J. Pryor).  She wasn't being personal, and she even feels the need to apologize to Judges Pryor & Newsom and says that her dissent isn't personal:

I am truly sorry that Chief Judge Pryor and Judge Newsom seem to have taken my concerns personally. I do not believe this dissent to be personal. I have great respect for all my colleagues, and I value this Court’s collegiality. But I also have great respect for the rule of law and the need for our Court to maintain its legitimacy. And I don’t agree that defending these things or pointing out what I think is wrong with Keohane and explaining why I view it as such a big problem makes me “[un]collegial[]” and “[un]charitable,” see Newsom Op. at 22, or is an “attack[ on] . . . the integrity of judges or their commitment to the rule of law . . . [or] the legitimacy of this Court,” W. Pryor Op. at 5. Nor do the labels and characterizations the W. Pryor and Newsom Opinions feel a need to impose provide a good enough reason to remain silent in the face of the threat Keohane represents to our judicial norms. I am aware of no other way to oppose what I see as the failure of our Court to require the Keohane panel to comply with the prior-precedent rule, other than by writing a dissent that candidly discusses that problem and its significance.

I respect Judges Pryor and Newsom a great deal.  They are two of the smartest judges in the country.  And they are beautiful writers who often use colorful language.  So I don't see why they are so upset that Judge Rosenbaum uses the very same words and arguments that they have used in numerous opinions.  Do they feel the same way about Justice Scalia's opinions when he went after Justice Ginsburg or his other colleagues?  Here are some examples from the L.A. Times of Scalia's opinions:

When the U.S. Supreme Court ended its term July 1, Justice Antonin Scalia was more vindictive and isolated than ever. As the court’s most publicly confrontational justice, he repeatedly berates his colleagues. “The court must be living in another world,” as he put it. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”

*** Besides biting personal rhetoric, Scalia’s opinions sound certain constant refrains. Positions he disagrees with are typically derided as “demonstrably false,” “incoherent” and “terminal silliness.” They are invariably debunked as acts “not of judicial judgment, but of political will.” He is just as likely as GOP presidential contenders Patrick J. Buchanan or Bob Dole to decry the Supreme Court’s “judicial dictatorship"--in spite of the fact that seven justices were appointed by Republican presidents.

Attacks against an opponent's writing style or arguing for civility is just a distraction from the merits. 

 

 

Fighting for compassion, a guest post by Mikayla Espinosa

Fighting for Compassion

Guest Post by Mikayla Espinosa

In a recent article, the Wall Street Journal highlighted efforts by former federal judge John Gleeson and Marisa Taney—a former law clerk to Judge Kathleen Williams—to obtain compassionate release for certain individuals convicted of violating the federal firearm law, § 924(c).

The work is part of a national sentencing reform movement, designed in part to address racial disparities in the criminal justice system. The WSJ reports that “[a]bout 94% of the people convicted of multiple counts under section 924(c) in fiscal year 2016 were Black or Hispanic.”

Their strategy takes advantage of two provisions of the First Step Act, a 2018 law that itself was a major step in sentencing reform. First is a provision allowing inmates whose requests for compassionate release are denied by the BOP to appeal the decision to a federal judge. Second is the Act’s reduction of mandatory sentences for people convicted of multiple § 924(c) counts after the statute was passed.

Gleeson and Taney have filed motions on behalf of several inmates who were convicted before the statute’s passage, seeking compassionate release from their sentencing courts. As the WSJ puts it, they “began interpreting ‘extraordinary and compelling’”—the standard for granting compassionate relief—“in an expansive way: Harsh mandatory sentences, since eliminated, are a valid reason for compassionate release.” The novel interpretation has been uniformly opposed by the government, which views it as an end-run around Congress’s decision not to make the First Step Act retroactive.

One of Gleeson and Taney’s motions was filed in the Southern District of Florida before Judge Dimitrouleas earlier this year on behalf of William Kinsey (99-cr-08078). Kinsey and his co-defendant committed a series of armed robberies in which no one was harmed. His co-defendant was found to be “equally culpable” for the robberies. He pled guilty, testified against Kinsey, and ultimately received an adjusted sentence of 10 years. Kinsey was sentenced to 137 years. The discrepancy resulted in large part because the government dismissed most of the co-defendant’s counts and none of Kinsey’s. Thus, Kinsey received the mandatory, consecutive sentences imposed by the court.

At the time Gleeson filed the motion on Kinsey’s behalf, Kinsey had already served 20 years in prison and was a model inmate. Judge Dimitrouleas quickly denied the motion, concluding that Kinsey’s requested relief would be available only if Congress amended the First Act to apply retroactively to multiple § 924(c) convictions.

Gleeson and Taney have had better luck elsewhere: They’ve helped win the release of 11 inmates so far.

The full article is here:

https://www.wsj.com/articles/former-judge-seeks-to-shorten-mandatory-prison-terms-he-once-imposed-11606859191

Episode 6, For the Defense: F. Lee Bailey for Sam Sheppard

 I'm really excited about this week's podcast episode of For the Defense. You'll hear legendary criminal defense lawyer F. Lee Bailey discuss his representation of Sam Sheppard (which includes going all the way to the Supreme Court and then for a new trial).  At the time, there was no bigger case in the history of American criminal law -- it even inspired the TV show and movie, The Fugitive. These pictures show a young Bailey with Sheppard, and of course the picture at the bottom of this post is Bailey with O.J. Simpson and Johnnie Cochran as the verdict was read. You can catch this episode and all episodes on our podcast website here. The Apple platform is available here, and all other platforms can be accessed here.

This is the finale of Season 1 of the podcast. I have really enjoyed doing the interviews and speaking to such great lawyers.  I've also enjoyed hearing from so many of you about your own trial experiences and other take-aways from the interviews.

Season 2 is already in the works and we plan on launching sometime in mid-January with the premiere episode with Alan Dershowitz.  We will also have a bonus/holiday episode with Hank Asbill discussing the fascinating trial and appeal involving Virginia Governor Robert McDonnell that will likely air on December 22.  I need your help to continue the momentum of the podcast, so please subscribe and leave comments!

If you're new to the podcast, you can learn more from this CourtTV spot about it. If you or a friend would like to receive email updates, please sign up here.

Thank you again for your continued support! --David

Hosted by David Oscar Markus and produced by rakontur

Van Buren in the Supreme Court

 This is the case out of the 11th Circuit dealing with the Computer Fraud and Abuse Act.  Although the 11th Circuit vacated Van Buren's conviction for honest services fraud, it ruled against him on the computer fraud issue.  The question presented is:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

SCOTUSBlog has a preview of the case:

Nathan Van Buren was a police officer in Georgia authorized to search computerized records about license plates for law-enforcement purposes. Falling for a sting conducted by the FBI, he searched those records for private purposes (at the request of an FBI informant who offered to pay him several thousand dollars for the information). The government charged Van Buren in federal district court with two counts of fraud: computer fraud under the CFAA and honest-services wire fraud under another statute. A jury convicted him of both counts. The U.S. Court of Appeals for the 11th Circuit vacated the wire-fraud conviction but upheld the conviction under the CFAA. Van Buren appealed to the Supreme Court last December.

All agree that the case turns on the vague language of the CFAA, which sanctions any person who “exceeds authorized access” on a computer. The statute defines that term as meaning “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.” Van Buren argues that the statute applies only if the defendant obtains information that he was under no circumstances entitled to obtain. From Van Buren’s perspective, a defendant who obtains information that he had a right to obtain from the computer for certain purposes (like the license-plate records at issue here) should not face federal criminal sanctions solely because the particular way in which he obtained the information was inappropriate (as it was here). Van Buren doubtless faces sanctions for violating the police department’s computer-use rules, but that is a matter for the department, he says, not for a U.S. attorney.

The government argues that Van Buren’s reading of the CFAA eliminates the word “so” from the relevant statutory phrase, which criminalizes obtaining information that the defendant “is not entitled so to obtain or alter.” For the government, the inclusion of “so” in that phrase means it is a crime if, as is the case here, the defendant was not entitled to obtain (or alter) the information in the particular way that the defendant did. A potential problem with that reading as a textual matter is that nothing in the earlier phrases of the statute suggests that “so” is meant to incorporate into the CFAA the kinds of limitations on computer access that are at issue here (and in numerous other prosecutions under the CFAA) – specifically, access limitation that derive from employment contracts, terms-of-use policies or other private agreements.

A failed example of jury trials during Covid

 One federal court in the Eastern District of Texas tried to conduct a jury trial.  13 people now have COVID-19.  From Above the Law:

An Eastern District of Texas breach of contract case between plaintiff ResMan LLC and defendant Karya Property Management LLC and presided over by Amos L. Mazzant II has been sidelined by an outbreak of the novel coronavirus, as reported by Law360. How bad is the outbreak? Well, at most recent count 13 people. Yikes:

David O’Toole, clerk for the Eastern District of Texas, told Law360 on Tuesday that the number of trial participants who tested positive for coronavirus had increased from at least seven on Friday to 13 confirmed positives Tuesday. The positive cases include two jurors, at least three members of the defense team, a “handful of folks” on the plaintiff’s team, and three or four court staffers.

The outbreak occurred after testimony in the trial had begun:

Jury selection was held on Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Nov. 9, according to court records.

After lunch on Nov. 9, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.

The judge then suspended the trial and asked participants to get tested and provide the court with results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.

As a result there are only five jurors currently willing to continue with the trial, and the defendants aren’t willing to move forward with less than six jurors, so… yeah, Judge Mazzant declared a mistrial.

OY!

For the Defense Episode 5: H.T. Smith for Aubrey Arthur Livingston

This week in For the Defense, we have the wonderful H.T. Smith, a criminal defense lawyer, activist, and founding director of the trial advocacy program at FIU Law School.

In this episode, H.T. discusses what it means to be a criminal defense lawyer in the context of an unspeakably grisly first-degree murder case in which his client, Aubrey Arthur Livingston, was accused of participating in the killing of five people, including two small children.

H.T. tried the case before a Broward County, Florida judge who appeared to be looking forward to sending Smith's client to "Old Sparky," the electric chair in Florida that was used to inflict the ultimate punishment. Smith fought two trials and an appeal all the way to the Florida Supreme Court as the only barrier between his client and electrocution. 

You can catch this episode and all episodes on our podcast website here. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on here.

I'm extremely grateful that the podcast is starting to gain traction, which is because of your great feedback and comments (please continue to subscribe and leave comments!). A few days ago, CourtTV picked it up and did this segment. Check it out!

 

Thanks again for your continued support of this project.

If you or a friend would like to receive these updates, please sign up here.

11th Circuit in 2-1 decision strikes down conversion therapy ban

 Here's the opinion, which was written by Judge Grant and joined by Judge Lagoa.  Judge Martin dissented. (Judge Rosenberg was the district judge.)

The Sun-Sentinel covers it here:

A federal appeals court struck down Boca Raton’s ban on conversion therapy for gay adolescents struggling to come to terms with their sexuality, calling the ban an infringement on the First Amendment rights of the teens and the counselors who try to treat them.

Licensed family therapists Robert Otto and Judy Hamilton sued the city for the right to talk to their juvenile clients about conversion if the clients had “unwanted” attraction to members of the same gender or “confusion” about their gender identity.

The city’s ordinance prohibited conversion therapy as harmful to the health and emotional development of lesbian, gay, bisexual, transgender and other youth. A district court upheld the law, but Otto and Hamilton appealed, backed by religious-liberty advocates at Liberty Counsel.

A three-judge panel at the Eleventh Circuit Court of Appeals in Atlanta overturned the earlier decision by a 2-1 vote. “We understand and appreciate that the therapy is highly controversial,” wrote Judge Britt Grant. “But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”

Luckily Rudy Giuliani wasn't arguing the case as he could not answer questions about strict scrutiny last week.

Hysterical video from fed judges in Texas

$20k a day.

 That’s what Rudy G. is apparently asking for from the Trump campaign.  Sounds a lot like what the drug lawyers were asking for in the 80s and 90s...

From The NY Times:

Rudolph W. Giuliani, who has helped oversee a string of failed court challenges to President Trump’s defeat in the election, asked the president’s campaign to pay him $20,000 a day for his legal work, multiple people briefed on the matter said.

The request stirred opposition from some of Mr. Trump’s aides and advisers, who appear to have ruled out paying that much, and it is unclear how much Mr. Giuliani will ultimately be compensated.

Since Mr. Giuliani took over management of the legal effort, Mr. Trump has suffered a series of defeats in court and lawyers handling some of the remaining cases have dropped out.

A $20,000-a-day rate would have made Mr. Giuliani, the former New York City mayor who has been Mr. Trump’s personal lawyer for several years, among the most highly compensated lawyers anywhere.

In local news, the 11th Circuit has been conducting Zoom arguments all week. You can watch them live-streamed from a link on the website.  It’s a great opportunity to see appellate arguments.  I presented oral argument today on Zoom and did one a few months ago (via phone, not Zoom).  Zoom is definitely much better than phone.  And although I really dislike Zoom for some district court proceedings like sentencings or evidentiary hearings, Zoom seems to work well for appellate arguments.  There’s nothing like doing it in the courtroom and I hope we go back to it soon, but appeal by Zoom isn’t so bad. It’s certainly a lot less stressful. 

For the Defense, Episode 4: Marty Weinberg for Bill Moran

Episode 4 of For the Defense is out. In this episode, I interview Marty Weinberg, one of the great criminal defense lawyers of our day, about his representation of Bill Moran, who was accused of being in-house counsel to the Cali Cartel. I think you'll enjoy hearing Marty tell the story of this insane only-in-Miami federal trial where prosecutors weren't satisfied with going after the leaders of the Cali Cartel; they wanted the criminal defense lawyers as well. This episode is especially appropriate for this blog as the trial occurred here in the Southern District of Florida before William Hoeveler. The prosecutors were Ed Ryan and Bill Pearson.  In addition to Weinberg, Moran was represented by the great Albert Krieger.  Co-defendant lawyer Mike Abbell was represented by the Srebnick brothers.

You can catch this episode and all episodes on our podcast website here. Last week's episode with Tom Mesereau made some news with his description of what it took to get Jay Leno to testify in the Michael Jackson trial, as did the episode with Donna Rotunno (Harvey Weinstein's lawyer) about being referred to as the anti-Gloria Allred.

If you're enjoying the podcast, I would *really* appreciate it if you could subscribe and post a review. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on here.

If you are interested in receiving updates about podcast episodes, please sign up here.

Thank you! --DOM

What's going to happen when we have jury trials again in April 2021?

 Assuming we have trials again in the Spring, how is it going to work?  Are we going to be able to get enough jurors?  Will judges accommodate all of the scheduling nightmares that lawyers are going to have? Will everyone still be required to wear masks during the trial?

Meantime, grand juries are supposed to start up on Tuesday in SDFLA.  There will be two different grand juries and each one will meet once a week (one on Tuesday and one on Thursday).  Apparently, cases for in custody defendants will proceed first.  Then cases with statute of limitations issues.  But with such limited grand jury time, it will be interesting to see how it works.  Will the grand jurors even show up?  How will prosecutors actually schedule the time?  Will there be shortcuts?

In other parts of the country, defendants have been asking for -- and receiving -- discovery regarding the grand jury process.  Who is being excused?  Why? Is it a fair cross-section?  An so on.

Hopefully, the pandemic has changed our idea of bond.  The truth is, almost no one flees.  Ever.  And yet, we hold so many people no bond pre-trial.  During the pandemic, more people were released on bond than ever before... and unsurprisingly to defense lawyers (and prosecutors), no one fled.  Still, we held so many people in pre-trial detention.  In Texas, 80 percent of inmates who died from COVID-19 had not been convicted. These are people who were presumed innocent.  Sickening.  Our district is particularly bad when it comes to bond pending appeal.  Other districts freely grant bond pending appeal, even after trial, in white collar cases.  Why don't we?

And in other news, Justice Alito thought it was a good idea to go and give a political speech at the Federalist Society.  Very on brand for him and we know this is how he feels, but does he really need to go out there and say it?  From the Boston Globe:

“This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

“I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again.

As this WaPo editorial wonders, why is he so angry when his side is winning?

Alito spoke quite a bit about liberty and justice in his address, but he is literally the most right wing Justice in a generation on the 4th Amendment and other criminal justice issues.  He's all in for the Second Amendment and Religious liberty... the other rights, not so much.

OPR finds no misconduct by Alex Acosta

The executive summary of the report is here.  Now I put absolutely *no* credence in anything OPR does because they literally *never* find misconduct, BUT they got this one right.  In this old article at the Hill, I explain why OPR should have spent its time investigating real prosecutorial misconduct. And in this old Herald op-ed, I explain that Acosta was unfairly criticized for the Epstein case.

I wrote that two years ago, and additional facts have come out, but I still don't get it.  With the amount of actual misconduct in the administration, I don't understand why a 10-year old decision regarding a plea agreement -- that everyone knew about when Acosta became Labor Secretary and where he was doing a good job with no scandals -- cost him his job.  Even if you believe that Epstein should have received more time, as Acosta's then first-assistant Jeff Sloman wrote here, that does not mean that Acosta and others acted unethically.  

OPR spent tons of time and resources investigating a really old plea-deal that was struct by lawyers who are no longer prosecutors where the defendant has died.  Had they found any misconduct, what were they going to do?  I'm wondering when they will look at actual prosecutors who have committed real prosecutorial misconduct that actually infringes on a defendant's rights.  Sigh...

Aileen Cannon set for final vote Thursday (UPDATED -- Cannon confirmed)

According to the Senate Cloakroom Twitter account: On Thursday, November 12th, under the regular order, at 12:00pm the Senate will proceed to a vote on the motion to invoke cloture on Executive Calendar #863 Aileen Mercedes Cannon to be U.S. District Judge for the Southern District of Florida. If cloture is invoked, at 1:45pm on Thursday, November 12th, the Senate will proceed to a vote on confirmation of the Cannon nomination.

 UPDATED -- Cannon, now Judge Cannon, was confirmed 56-21.

FOR THE DEFENSE, EPISODE 3 TOM MESEREAU DISCUSSES HIS DEFENSE OF MICHAEL JACKSON

 

FOR THE DEFENSE, EPISODE 3
TOM MESEREAU DISCUSSES HIS DEFENSE OF MICHAEL JACKSON

There wasn't a bigger star than Michael Jackson. And there wasn't a bigger trial than People of the State of California v. Michael Jackson, the four and a half month case in Santa Maria, California.

The King of Pop needed the absolute best trial lawyer he could find as the stakes couldn't have been higher. Stars lined the audience and the witness stand in a trial with wall-to-wall coverage. The question to be answered at trial: Was Neverland Ranch the site of childhood fantasy or unthinkable nightmares?

Everyone had an opinion on how Jackson and his lawyer should defend the case. Tom Mesereau had to put aside the noise and trust what got him there -- his trial lawyer instincts. From picking the jury to cross examining the complaining witnesses to deciding whether to call Michael Jackson himself to the stand, Mesereau made the right decision each and every time despite enormous criticism along the way.

We will discuss those interesting calls with Tom Mesereau on this week's episode of For the Defense.I really appreciate the feedback I've received about the first two episodes (with Donna Rotunno, the lawyer that represented Harvey Weinstein, and Roy Black for his representation of a Miami police officer who shot and killed a young Black man leading to riots). Please keep the comments coming.

Also, it would be really helpful if you could subscribe and give feedback on the podcast platforms as well. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on this website.

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

SDFLA closed tomorrow (Monday) for ETA

 From the clerk:

Message posted 11/8/2020 @ 2:45 p.m. 

CLOSURE OF MIAMI, FORT LAUDERDALE, WEST PALM BEACH, FORT PIERCE AND KEY WEST FEDERAL COURTHOUSES, INCLUDING BANKRUPTCY AND PROBATION, ON MONDAY, NOVEMBER 9, 2020

During inclement weather periods, the safety of the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close.  In light of the announced closures of public schools in Miami-Dade, Broward, Palm Beach, St. Lucie and Monroe Counties, the federal courthouses in Miami, Fort Lauderdale, West Palm Beach, Fort Pierce and Key West will be closed on Monday, November 9, 2020.  A closure in any division includes the Bankruptcy Court and Probation, if any, in that Division.  The courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge K. Michael Moore. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:

- The Court’s website: www.flsd.uscourts.gov

- Recorded telephone messages at each courthouse

- Broadcast messages sent to CM/ECF e-filers

- Television announcements

Please note that if the Court’s website is unavailable, the Administrative Office of the US Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

News & Notes

I've had enough election coverage.  Here's some other interesting tidbits:

1.  Magistrate Judge Alicia Valle is up for re-appointment.  Jon Sale leads the re-appointment committee here.  Please send him comments.  

2.  People's Court Judge Marylin Milian and her husband, former AUSA and Circuit Judge John Schlesinger had some fun promoting at home court here.

View this post on Instagram

Get to know Judge Milian’s husband, Judge John Schlessinger who you’ll be seeing a lot of this season!

A post shared by The People’s Court (@thepeoplescourttv) on Sep 10, 2020 at 11:13am PDT

 

3.  ACB is already asking questions.  Pretty interesting.

4. Some folks have asked me if the prosecutors or judges have responses to the podcast episodes so far on Harvey Weinstein (with Donna Rotunno) and Luis Alvarez (with Roy Black).  But this is a podcast for criminal defense lawyers about their work.  I'm happy to post any rebuttal though.  If the prosecutors or judges would like to comment, please send me your comments and I will post them in full.  

Have a great weekend everyone. 

Recreational drug use is a winner on election day (UPDATED WITH SAD NEWS)

 Lots of controversy still swirling... but one thing both sides agree on -- recreational drugs should be legalized.  Here's an article on BuzzFeed, titled: "The Real Winner of the Election? Drugs."

In New Jersey, Arizona, Montana, and South Dakota, residents voted to legalize recreational cannabis.

Mississippi and South Dakota voted to legalize the medical use of cannabis in-state. And, for the first time in US history, Oregon decriminalized hard drugs, like cocaine, heroin, oxycodone, and methamphetamine. The state also voted to legalize psychedelic mushrooms.

This is all to say that — despite the anxiety of not yet knowing who's been elected president by Wednesday — the country took historic and progressive steps in destigmatizing drug use and drug-related offenses.

 

UPDATE -- some very sad news -- Pat Trese has passed away.  He was only 50 and a really nice guy.  I just met him last week during a two-day zoom hearing in federal court.  Rumpole has more at his blog.  Awful news.  2020...

FOR THE DEFENSE, EPISODE 2 ROY BLACK DISCUSSES HIS DEFENSE OF LUIS ALVAREZ

Happy Election Day!  One of the big issues in this election is criminal justice and especially racial justice.  George Floyd, Breonna Taylor, Ahmaud Arbery, Tamir Rice, and so on.  Back in the early 80s, Miami was going through a similar time of racial tension. 

This episode of the podcast will take us back to that time and examine a case where Roy Black represented a Hispanic police officer, Luis Alvarez, who was charged with the killing of a young Black man, Nevell Johnson.  

This episode is available now on all podcast platforms including Apple, Spotify and Google.

I think you'll enjoy hearing from famed criminal defense lawyer Roy Black (who has represented William Kennedy Smith, Rush Limbaugh, Helio Castroneves, and Marv Albert just to name a few).  This was the case that thrust Roy into the national spotlight, and he didn't disappoint.  Check it out!

And a big thanks to those of you who listened to the premiere episode last week with Donna Rotunno, the lawyer that represented Harvey Weinstein (which is still available on Apple, Spotify, and Google). 

As the kids say, please like and subscribe to the podcast! It would really help me to get the word out!  THANK YOU!

Of course there's already a problem in Miami with the election

 The Feds are investigating what's going on with piles of ballots sitting at post offices in Miami.  The Herald is covering it here:

Two days after inspectors found dozens of undelivered ballots sitting in a post office in South Miami-Dade County, the U.S. Postal Service Office of Inspector General is preparing to sweep other mail facilities in Miami-Dade for ballots that haven’t reached their destination ahead of the Nov. 3 election.

Scott Pierce, the special agent in charge for the USPS Inspector General’s Southern Area Field Office, confirmed to the Miami Herald on Sunday afternoon that special agents “will be busy over the next couple of days conducting several station visits” at mail distribution centers in Miami-Dade.

Pierce wouldn’t disclose which locations or how many would be searched.

“Our investigation continues and, at this time, we aren’t releasing any additional statements,” he said.

On Friday night, agents discovered 48 ballots in the Princeton post office near Homestead after State Rep. Kionne McGhee tweeted a video that showed a backlog of undelivered mail piling up at the facility. McGhee said the video was shared with him anonymously by a concerned USPS employee.

Ugh, this is crazy to me.  All of us really need this election to be over already.  And with stuff like this going on, I'm concerned that we won't have an answer Tuesday night.  Fingers crossed. 

A day off to vote

What a cool concept from Adam Rabin.  He explains it on his FB page:

A Day Off to Vote is set up to encourage law firms, professional practices, and businesses of all types to support their employees with time off to vote on or before Election Day.

Some firms and businesses are accommodating their employees by giving them the whole day off on Election Day so their employees can volunteer as poll workers or in other ways. Others are giving their employees an extra hour or two to cast their ballots in person or drop off their mail ballots to an approved drop box.

As of this week, we have 58 firms and businesses participating. We also had our first commercial real estate brokerage and management firm, our first statewide law firm, and our first law firms in Miami-Dade and Broward counties join the cause.

The Daily Business Review covers it here.

Zoom hearings... so much fun.

NEW PODCAST SERIES “FOR THE DEFENSE,” CHRONICLING FAMOUS DEFENSE ATTORNEYS AND THEIR MOST FASCINATING TRIALS, DEBUTS TODAY

 I am very excited to announce my new podcast, For the Defense, which is being produced by rakontur.  Here's the release.  Please let me know what you think:

NEW PODCAST SERIES “FOR THE DEFENSE,” 
CHRONICLING FAMOUS DEFENSE ATTORNEYS 
AND THEIR MOST FASCINATING TRIALS, DEBUTS TODAY


Hosted by David Oscar Markus and produced by rakontur

OCTOBER 27, 2020 -- David Oscar Markus, a Miami trial attorney who has been called “a reincarnation of the old school criminal defense lawyer” and has represented clients from the head of the Cali Cartel to Fortune 500 companies and their CEOs, has partnered with rakontur, the lauded storytellers behind Cocaine Cowboys, The U and 537 Votes, to launch a new podcast series called For the Defense. 

The podcast focuses on the work of the least-respected but perhaps the most important profession in America: the criminal defense attorney.  In each episode, Markus will interview a top criminal defense lawyer about one of their most gripping trials.

Sadly, the criminal defense trial lawyer is a dying breed. The Feds have manipulated the system -- which was founded on the idea of trial by jury -- to force almost everyone (occasionally including the innocent) into pleading guilty to avoid trial. If you dare to go to trial, you risk going to prison for decades longer than had you surrendered and pleaded guilty. The system has shifted from valuing and encouraging trials to punishing those who dare exercise their constitutional right to have a jury decide their guilt.  In the 1980s, over 20% of cases went to trial -- now less than 3% do so.

Having tried cases all over the United States, Markus is well-positioned to speak to other leading criminal defense lawyers in the country and explore with them the decision they made in a high-profile case to proceed to trial, including their trial strategy, the risks involved, and the clients themselves.  

In the premiere episode, available now on all podcast platforms including Apple, Spotify and Google, Markus discusses the Harvey Weinstein case with his lawyer Donna Rotunno and what it was like for her to represent the most hated man in America against an entire movement.

New episodes will be available on Tuesdays. Among the highlights of Season One:

• How did Roy Black flip the prosecution witnesses in his favor during the trial of a police officer charged with killing a black man during an altercation in an arcade?
   
• Why did Tom Messereau initially want to call Michael Jackson to the stand but ultimately decide against it? 
   
• What was going through Marty Weinberg’s head when his client, a lawyer, decided he wanted to give part of the closing argument? 
   
• How did H.T. Smith deal with a judge who was wearing handcuffs as his tie-tack?
   
• How did F. Lee Bailey, just a year out of law school, land the most followed trial of the day, Sam Sheppard (the defendant who ended up being the inspiration for The Fugitive)?  

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

RIP Alvin Entin

 Heard some really sad news this morning... Alvin Entin passed away yesterday.  He was recovering from COVID-19 and had a stroke.  He was such a good guy.  I had the good fortune of having tried a couple of cases with him.  I'll never forget one closing he did -- he started out by saying: I'm so sorry ladies and gentlemen... that closing by the prosecution was such a snoozer!  It nearly put me to sleep. Well, I'm here to wake you up with the truth -- Mr. X is not guilty!

The jury loved it and loved him.

He was also a theater guy, performing in lots of shows and on the board of a theater company in Broward.  Folks on his FB page on talking more about his theater career and his love of theater than the law, which is how we all know him.

Alvin's brother passed away a few weeks ago... what an awful time for their family.  He was married to Lois for almost 50 years.  They have 6 children.  RIP Alvin.

ACB to be confirmed Monday

 The WaPo has the story here:

Judge Amy Coney Barrett’s nomination broke through one more hurdle ahead of her all-but-assured installation to the Supreme Court as the coronavirus pandemic — which has inextricably been intertwined with the story of her nomination — once again intersected with her confirmation fight.

Senators voted around 1:30 p.m. in a rare Sunday session, 51 to 48, to advance her nomination to replace the late Justice Ruth Bader Ginsburg. The final confirmation vote for Barrett is expected Monday night, putting her in position for a first full day as a justice as early as Tuesday and as the court continues to hear election-related legal challenges ahead of Nov. 3.

“We made an important contribution to the future of this country,” Senate Majority Leader Mitch McConnell (R-Ky.) said Sunday, praising Barrett as a “stellar nominee” in every respect. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

That last quote is interesting...

Meantime, ACB was asked about the Supreme Court's "shadow docket." If you are interested, you should read this entire post from SCOTUSblog.  Here's the intro:

Near the end of two meandering days of questions at last week’s Senate hearings for Amy Coney Barrett, Sen. Richard Blumenthal (D-Conn.) asked a question that probably has never been asked at any other Supreme Court nomination hearing.

“Are you aware of the Supreme Court’s – as it’s called – shadow docket?” he asked.

Barrett, who clerked for Justice Antonin Scalia, said she was. “The shadow docket has become a hot topic in the last couple of years,” she added.

Barrett is right. In fact, in just the last few months, the court has issued emergency rulings on coronavirus policies, immigration restrictions, capital punishment, access to abortion, the U.S. census and procedures for the upcoming election. All of those rulings have been part of the court’s shadow docket.

The court itself would never use that term. Law professor William Baude coined it in 2015 to refer unofficially to the body of orders issued by the Supreme Court outside the formal opinions in the 70 or so cases in which it hears oral argument each term. Some of those orders are peripheral and procedural. But others resolve, at least temporarily, contentious policy disputes or matters of life and death. And this year, the shadow docket is taking on more significance – and getting more attention – than it ever has before.

Concerns about the shadow docket relate primarily to a special system that allows litigants to seek emergency relief from the Supreme Court in the middle of ongoing litigation. Under normal procedures, a case reaches the justices only after full consideration and final decisions by a trial court and an appeals court – a process that usually takes months, if not years. But the shadow docket gives litigants a potential shortcut: When a lower court issues a ruling (even a preliminary ruling that does not decide the full case), the losing side can ask the Supreme Court to order an emergency “stay” of that ruling. A stay, if the justices issue one, freezes the lower court’s ruling, stripping it of force while the litigation proceeds. By preserving the status quo as it existed before the lower court’s ruling, emergency stays can favor litigants who hope to run out the clock.

Traditionally, litigants must satisfy a high legal standard to earn an emergency stay. Among other things, they must show that they would suffer “irreparable harm” if the lower court’s ruling were left in place. That onerous standard is meant to reserve this form of relief for circumstances in which the court’s immediate intervention is needed to prevent extraordinary consequences. Emergency stays, everyone agrees, should not be a way to short-circuit the normal appeals process. But as the number of these requests has grown in recent years (including a flurry of such requests from the Trump administration), Justice Sonia Sotomayor has argued that the court itself has tacitly lowered the bar for litigants to receive emergency stays on the shadow docket.

News & Notes

1.    Another debate tonight.  This time with a mute button.  Fun times.

2.     Obama goes after Trump.

3.    ACB takes next step to confirmation.

4.    Wear a mask, even Chris Christie says so.

5.    Jury trials are off till April, but we're making grand juries come in starting in mid-November. Instead of 11 GJs, there will be 2.  And they will meet two days a week.  

 6.    Transitions is holding its annual fundraiser today, virtually.  They are a good group who needs your help.

 

Attorney Aaron Honaker arrested for bank robbery

Another Miami story.

Here's the Herald:

A Coral Gables attorney was called a “serial bank robber” by the FBI, which believes he robbed five banks since Sept. 30 before his Tuesday night arrest.

The agency said Miami resident Aaron Honaker, 41, was headed into a bank when Coral Gables police arrested him. Honaker’s first appearance in Miami federal court is set for Wednesday afternoon.

***

Honaker’s Florida Bar entry says he’s with the firm of Martinez Morales and has no Bar discipline cases in the last 10 years. Court documents say he previously worked at Greenberg Traurig. He joined the Bar in 2008, two years after graduating from Duke University School of Law.

Court packing

 There's been a lot of debate about packing the Supreme Court.  Most Americans are against it, and according to a recent poll, 51% of Americans want ACB confirmed. That said, here's an interesting essay from Charles Fried about why Biden should do it if SCOTUS goes too far.  It ends this way:

But before going forth on any enlargement plan, a Biden administration would do well to see if the Supreme Court might not heed the lesson of history. Consider the well-known episode indelibly judged as President Franklin Roosevelt’s “failed” court packing plan. Mr. Roosevelt waited to propose his “Judicial Procedures Reform” legislation until 1937, after his first four years in office during which the reactionary Supreme Court majority relentlessly obstructed desperately needed experiments to combat the Great Depression.

President Roosevelt’s move is viewed as a rare failure by a master politician. But was it? Immediately after his proposal was unveiled, the court ruled 5 to 4 that the Wagner Act, restructuring American labor law and relations, was constitutional, and a spate of pro-New Deal decisions followed. The very threat of court packing and the passage of time made this “nuclear option” unnecessary.

Let’s see whether the current Supreme Court majority overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.

In local news, if you are looking for Chief Judge Moore's Order postponing jury trials until April 2021, here ya go.

Who is left on SCOTUS from Bush v. Gore?

Billy Corben's and Alfred Spellman's new documentary 537 Votes has me thinking Bush v. Gore...

Only Justices Thomas and Breyer remain on the Court from that time.  But two current Justices (Roberts and Kavanaugh) and one soon to be Justice (Barrett) all worked for the Bush team.  From CNN on ACB:

Barrett wrote on the questionnaire she submitted to the Senate for her Supreme Court confirmation review, "One significant case on which I provided research and briefing assistance was Bush v. Gore." She said the law firm where she was working at the time represented Bush and that she had gone down to Florida "for about a week at the outset of the litigation" when the dispute was in the Florida courts. She said she had not continued on the case after she returned to Washington.

During her hearings this week, she told senators she could not recall specifics of her involvement.

"I did work on Bush v. Gore," she said on Wednesday. "I did work on behalf of the Republican side. To be totally honest, I can't remember exactly what piece of the case it was. There were a number of challenges."

SDFLA trials suspended until April 2021

 But grand juries are coming back in November instead of January as originally planned. That’s the word out of the judges’ meeting today but no official order yet. 

District Judge in L.A. dismisses case with prejudice for speedy trial violation

 Oh wow, this Order is worth a read.

I consider the trial by jury as the only anchor, ever yet imagined by man, by which a
government can be held to the principles of its constitution.
–Thomas Jefferson1

The United States Constitution protects our fundamental freedoms and liberties. One of the most important rights guaranteed by the Constitution is the Sixth Amendment right of the accused to a public and speedy trial. It protects against undue and oppressive incarceration prior to trial and it allows the accused the ability to defend himself against the criminal charges before evidence becomes lost or destroyed and witnesses’ memories fade. But the Sixth Amendment protects much more than just the rights of the accused. It also protects the rights of all of us. It gives each of us called for jury service a voice in our justice system. And it holds the government  accountable to the principles of the Constitution. Thomas Jefferson and the other Framers of the Constitution wisely recognized that without jury trials, power is abused and liberty gives way to tyranny. Given the constitutional importance of a jury trial to our democracy, a court cannot deny an accused his right to a jury trial unless conducting one would be impossible. This is true whether the United States is suffering through a national disaster, a terrorist attack, civil unrest, or the coronavirus pandemic that the country and the world are currently facing. Nowhere in the Constitution is there an exception for times of emergency or crisis. There are no ifs or buts about it. Sadly, the United States District Court for the Central District of California has denied Defendant Jeffery Olsen his Sixth Amendment right to a public and speedy trial on the criminal charges that were filed against him in this case. Specifically, the Chief Judge for the Central District refused to summon the jurors necessary to conduct Mr. Olsen’s trial that was scheduled for October 13th of this year, believing it was too unsafe to conduct the trial during the coronavirus pandemic even if significant safety precautions were in place. Most troubling, the Chief Judge refused to summon jurors for Mr. Olsen’s trial even though grand juries have been convening for months in the same federal courthouse in Orange County where his trial would take place and state courts just across the street from that federal courthouse are conducting criminal jury trials. Clearly, conducting a jury trial during this coronavirus pandemic is possible. Yet the Central District prevented the Court from even trying to do so for Mr. Olsen. Because the Central District denied Mr. Olsen a public and speedy trial under the Sixth Amendment, this Court now must dismiss the indictment against him.

 

 The L.A. Times covers it here:

A federal judge in Santa Ana on Wednesday dismissed an indictment against a Newport Beach physician accused in a drug distribution case, ruling that his constitutional rights to a jury trial were denied due to an order barring trials in the federal courthouse in the Central District of California during the COVID-19 pandemic. U.S. District Judge Cormac Carney dismissed the indictment against Jeffrey Dove Olsen with prejudice, so prosecutors could not just file another case against him or seek another indictment from a grand jury. Prosecutors could appeal the ruling with the U.S. 9th Circuit Court of Appeals. Olsen was indicted in July 2017 on 35 counts that alleged he prescribed and distributed “large amounts of oxycodone, amphetamine salts, alprazolam and hydrocodone to confidential sources, an undercover agent and numerous addicts without a legitimate medical purpose over the course of three years,” according to federal prosecutors who said two of the doctor’s patients died from overdoses of pain medication.

The issue came to a head this week when Olsen refused to waive any more time for his trial, but U.S. District Judge Philip S. Gutierrez, the chief judge of the Central District, refused to budge on the prohibition of jury trials at this time.

“Quite frankly, the court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse,” Carney wrote in his ruling as he noted various other federal agencies have offices that are open and that first responders still report to work, as well as employees in essential businesses.

“Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining,” Carney added. “Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors and pet groomers in Orange County are open, even indoors, with protective modifications.”

 

Judge like a champion today

Apparently, Judge Amy Coney Barrett was given a sign for her chambers from judge Don Willett that says, Judge Like A Champion Today (which is a play on the sign that Notre Dame players hit on the way onto the football field).  There's another judge that has that same sign -- Judge Like A Champion Today -- in his chambers and has had it since his law clerks got it for him in 1998: Judge Moreno.

 

7/ Judge Don Willett (5th Cir., fka @JusticeWillett) sent #AmyConeyBarrett a memorable gift for chambers: pic.twitter.com/l0BqemSGY1

— David Lat (@DavidLat) October 12, 2020