Podcast interview with Judge Robin Rosenbaum

 

Dear Friends,

I hoped you enjoyed the premiere episode of Season 3 of For the Defense last week with Judge Charles Breyer from San Francisco.  This week, we have another fantastic guest -- 11th Circuit Judge Robin Rosenbaum.

You can access it on Apple, Spotify, or any other platform from our website here.

Judge Rosenbaum currently serves on the court of appeals, but she also has been a district judge, a magistrate judge, a federal prosecutor, and a law clerk.  So she has a really interesting perspective on the criminal justice system and the courts in general.  I think you'll really enjoy hearing from her.

Next week, we will conclude the mini-season with Chief Judge William Pryor, the Chief of the 11th Circuit, who resides in Alabama.  A great and fascinating guest!

It's not too late to catch up on Seasons 1 and 2 if you missed them (both of which are approved for CLE credits in Florida).  This mini-season with judges also has been approved for CLE, and I will give out the code at the end of the third episode next week.

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

Hosted by David Oscar Markus and produced by rakontur

There's a new Chief in town

 And her name is Cecilia Altonaga. 

Congrats to Judge Altonaga -- our first woman Chief -- on the new position.  And a big thank you to Judge Moore for leading the Court over the past 7 years and through the pandemic.

Not only is Judge Altonaga the first woman Chief Judge of the Southern District of Florida, I believe this is the first time in this District that a Chief Judge was a law clerk to the former Chief Judge (in this case, Edward B. Davis).  Judge Altonaga is Judge Davis' second favorite law clerk.

I asked Judge Altonaga what her goals were as the new Chief and she said: "My initial goal is to learn to juggle all the new administrative responsibilities with those attendant to being a district court judge.  The next goal is to steer the Court to a safe resumption of jury trials and in-person proceedings.  Beyond that, I simply hope to be a careful listener and wise administrator, in keeping with the Court's fine tradition and reputation."

In one of her first Administrate Orders, Altonaga extended the speedy clock till Labor Day in this order. Interestingly, the order references 703 cases currently awaiting trial.

Congrats again and good luck!  It can't be easy to try and navigate a bunch of federal judges....

Michael Avenatti sentenced to 30 months in prison (UPDATED)

His guidelines were 9 years at the low end.

This is a good example for judges around the country about how the guidelines make no sense.  Many judges would have given him the high end of the guidelines after a trial for a lawyer who, the judge found, abused the trust of his client.  

But the guidelines made no sense.  Even for someone who went to trial.  Even for a lawyer.  Even for someone who had other cases pending.  Even for someone who had a number of the piling-on enhancements (like sophisticated means, abuse of trust, and so on).

The fraud guidelines make absolutely no sense, and the judge in N.Y. (and it wasn't even Judge Rakoff) said so.  Good.

Miami's very own Scott Srebnick handled the sentencing.

Here's an article about it:

Michael Avenatti was sentenced to two and a half years in prison Thursday after being found guilty of an extortion scheme against Nike, just one of the criminal cases against Stormy Daniels's former lawyer and the onetime left-wing media darling.

The Justice Department’s indictment against Avenatti charged him with extortion and wire fraud, saying he tried to extort at least $22.5 million from the sporting apparel company. His three-week trial began in late January 2020, and he was found guilty the next month.

Judge Paul Gardephe of the Southern District of New York, the presiding judge during Avenatti’s 2020 trial, sentenced him to an aggregate sentence of 30 months. The judge said in the New York City courtroom on Thursday, “Mr. Avenatti’s conduct was outrageous. He hijacked his client’s claims, and he used those claims to further his own agenda — which was to extort millions of dollars from Nike to enrich himself.” The George W. Bush appointee added: “Mr. Avenatti had become drunk on the power of his platform, or what he perceived the power of his platform to be. He had become someone who operated as if the laws and rules that apply to everyone else didn’t apply to him.”

UPDATE -- three factors that helped sway the judge to give a below-guidelines sentence were (1) Avenatti's remorse, (2) the failure to charge co-conspirator Mark Geragos (which caused a disparity), and (3) the conditions of his pretrial confinement (during COVID at MCC).  From NBC:

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon.

Breaking — Sen. Rubio JNC announces interview schedule

 Here’s the list. More to follow shortly. 

Judge Charles Breyer joins For the Defense Podcast for premiere of Season 3

 

FOR THE DEFENSE SEASON 3 LAUNCH U.S. District Judge Charles Breyer We're back! In this third season of For the Defense, I will be speaking with three fascinating and experienced judges who have a lot to say about the criminal justice system.  We launch today with Judge Charles Breyer.  You can access it on Apple, Spotify, or any other platform from our website here. In the first two seasons, we spoke with great criminal defense lawyers around the country about their most fascinating cases, including the late F. Lee Bailey, Alan Dershowitz, Roy Black, Michael Tigar, Tom Mesereau, Donna Rotunno, and so many others.  Then there was a bonus episode with Judge Jed Rakoff (S.D.N.Y.), which was a big hit.  So I decided to do this mini-season in which I speak to three judges about the criminal justice system from their perspectives.  After Judge Breyer (who hails from San Francisco), next week Robin Rosenbaum joins the show.  She sits on the 11th Circuit Court of Appeals and lives in South Florida.  And then we'll conclude the mini-season with Chief Judge William Pryor, another 11th Circuit Judge, who resides in Alabama. It's not too late to catch up on Seasons 1 and 2 if you missed them (both of which are approved for CLE credits in Florida).  This mini-season with judges also has been approved for CLE, and I will give out the code at the end of the third episode. Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.  Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

Happy Birthday to the Southern District of Florida Blog!

Happy 16th (!!) Birthday to the Southern District of Florida Blog!  

Sixteen years ago in 2005, on the July 4 weekend, I started this blog and it's been a fun run of over 4,000 posts and over 5.2 million page views.  

I'm really proud of this project I started all these years ago and am so grateful for all of the connections and friends I've made through the blog.  This is a great legal community and it's really like a family that I am happy to be a part of.

To put the 16 years in perspective, when the blog was started:

The Wilkie Ferguson courthouse was not yet open.

Judge Zloch was Chief Judge of the District.

Mel Martinez was one of our Senators.

Alex Acosta had just been named Acting U.S. Attorney.

The Supreme Court had seven different Justices: Rehnquist, Scalia, Stevens, Souter, Kennedy, Ginsburg, and O'Connor.

There was no Twitter.

There was no podcasting.  (I now have one of my own, called For the Defense).

There was no Zoom.

My firm had one lawyer, me (it now has 6).

I had one daughter (I now have 3 and one headed to college!).

We still don't have a Floridian serving on the Supreme Court, which was the very first post! But that may change with Ketanji Brown Jackson as the leading candidate to replace Justice Breyer if he retires.

Thanks again to all of you for reading and for the tips. As Brian Tannebaum pointed out to me, the blog is now old enough to drive! I still very much enjoy keeping tabs on the most interesting and exciting District in the country.

“Bill Cosby is free; Ghislaine Maxwell should be too.”

 That’s the title of an op-ed I just wrote for the New York Daily News in light of the Cosby ruling.  From the conclusion to the piece:

The case against Ghislaine Maxwell is extremely weak — based on 25-year-old, uncorroborated allegations made only after Epstein died. A jury should reject those flimsy and stale charges. But in the event of a conviction, she should get relief on appeal for the same reason Cosby did — prosecutors should have to live up to the deals they make. As that court explained: “A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.”

The Cosby case reaffirms that a prosecutor is bound to act with integrity and the public must be able to rely on his word. What a concept.

"Thank God that juries are smarter than judges."

That was criminal defense lawyer Frank Carson after he was charged with murder, went to trial that lasted 17 months, and was acquitted by a jury.  It's an amazing (and very sad) story, covered by the L.A. Times in these three articles, here, here, and here.  

Above is his mug shot, where he wouldn't give the prosecution the satisfaction of looking grim. Carson loved to stick it to the man.  And he believed that was payback after a long career of fighting and winning.  Sadly, he died shortly after winning his own trial, but not before he got to try another case as a lawyer.

This is how the third installment from the L.A. Times starts:

They were a year into the preliminary hearing with no visible end, and Frank Carson was close to despair. He was trapped where so many of his clients had been, alone in a chilly cell in a Stanislaus County jail. He had rebuffed every overture to cut a deal, to plead, to inform on codefendants in exchange for lenience.

But guilt pierced him. He blamed himself for the plight of his wife and stepdaughter, out on bail but charged in the so-called murder plot he had supposedly masterminded. He blamed himself for the continued incarceration of three other codefendants, former highway patrolman Walter Wells and Pop N Cork liquor store owners Baljit “Bobby” Athwal and brother Daljit “Dee” Atwal. All of them had refused to implicate Carson, telling prosecutors they had nothing to say.

“Boys,” Carson said one day, sitting before them in a courthouse holding room.

He had found a solution, he explained. He would take the blame, so they could go free. There seemed no other way out. He was in his 60s, with no kids; they were younger men, and fathers. The D.A. wanted him. What he did not tell them was that he had knotted up a sheet to keep under his pillow, to hang himself before they put him on a bus to prison.

“No, Mr. Carson,” his codefendants said. The brothers were Sikhs from the Punjab region of India. To let Carson take the blame for something he hadn’t done would dishonor the family, they explained — they’d be killed if they returned to their village.

Where is the Biden administration on the CARES Act and prisoners who were released during the pandemic?

 During the Trump administration, about 4,500 at-risk inmates were released during the pandemic.  But in the last few days of his presidency, Trump's DOJ said everyone needed to go back in when the crisis ended. It was a really weird decision.  Many have thought Biden would rescind that order, but he hasn't and has rightfully faced a lot of criticism because of it.  

In the meantime, BOP is doing BOP things... here's an article by the WaPo about a 76-year old grandmother who was released but taken back into custody because she was taking a class on word-processing and didn't immediately answer her phone.  Our system is so messed up... 

In the year she was out of prison, Gwen Levi, 76, was thriving.

After serving 16 years in different federal facilities for dealing heroin, Levi was allowed to leave last June and finish her 24-year sentence in home confinement under the supervision of federal prison officials. She moved in with her 94-year-old mother in Baltimore and volunteered at prisoner advocacy organizations, hoping for a paying job to come along. She was also building her relationships with her sons and grandsons.

But Levi’s season on the outside ended June 12 after she attended a computer word-processing class in Baltimore’s Inner Harbor. A Federal Bureau of Prisons incident report said she was out of contact for a few hours with the officials supervising her.

Levi is now at the D.C. jail awaiting transfer to a federal facility, according to her attorney, Sapna Mirchandani, of Maryland’s Office of the Federal Public Defender.

“There’s no question she was in class,” Mirchandani said. “As I was told, because she could have been robbing a bank, they’re going to treat her as if she was robbing a bank.”

Also, your favorite blogger was on 20/20 Friday night.  Here's a short clip from the two hour episode if you are interested. 

Fane Lozman to take on Department of Justice...

 ... and my money is on Fane Lozman.  The guy has gone to the Supreme Court twice and won twice.  It's pretty amazing.  This time, DOJ is hounding him about a floating home on his property.  Here's the letter he received:

Here is the home at issue:

I spoke to Mr. Lozman and he told me that he was going to respond to the DOJ with a letter that basically says "F*** off."  And that he did just that.  Here's the intro to his response:

Dear Brandon

Your letter, attached below, is a sloppy attempt to intimidate me.  Let's start with my answer to your settlement offer, that would require me to remove my floating residential structure from my homesteaded, private property in ten days. 

I am never moving my floating home off of my private property!

Your request is Un-American.  What country do you represent?

My floating home is not fill, which is usually rock and sand that is placed in submerged lands to create dry land.  Instead my floating home is the legal equivalent of a residential house built on land, as recognized by the State of Florida with my homestead designation, and the U.S. Supreme Court in its opinion, Lozman v. Riviera Beach. 568 U.S. 115 (2013). Both of my cases were argued at Georgetown's Supreme Court Moot Court program.  Did you really graduate from Georgetown law school, because that is hard to believe given the multiple grammatical errors in your letter and lack of comprehension as to what is Supreme Court precedent.  

And it concludes this way:

So go for it, criminally charge me along with pursuing a civil enforcement case, that you can set for trial.  Both the district judge and jury will think that you and Sydney are bullies and have wasted their time with your nonsensical pleadings. By the way, does Attorney General Merrick Garland know that you threatened me with your bullshit letter? Your flippant attitude for SCOTUS precedent, and lack of comprehension as to the limitations of 33 U.S.C.§ 403, reflects poorly on the Department of Justice.  I and others will make sure that it is formally addressed with Attorney General Garland and those in your direct chain of command.

All the best,

Fane Lozman

Chief Judge Pryor channels his inner rapper

 Check out this opinion, involving T.I.:

This appeal is about an initial coin offering of cryptographic tokens promoted by celebrities to fund a new movie-streaming platform. The platform never launched, and the value of the tokens plummeted a few months after the offering. After the limitations period had run, a purchaser, Kenneth Fedance, brought a putative class action for the sale of unregistered securities against Ryan Felton and Clifford “T.I.” Joseph Harris Jr., the purported co-owners of the company that issued the tokens. Fedance asserted that fraudulent concealment equitably tolled the limitations period, but the district court dismissed the complaint as untimely. We affirm.

That's the intro... but then the opinion gets fun, citing to T.I. lyrics throughout.  From CourthouseNews:

In a playful opinion littered with puns referencing Clifford “T.I.” Harris’s songs, a unanimous panel of 11^th Circuit judges upheld the dismissal of a class action securities lawsuit against the rapper and ended investors’ attempts to recoup money they say was lost on worthless cryptocurrency investments.

In a 21-page opinion embellished with no fewer than seven references to T.I.’s oeuvre, a three-judge panel of the Atlanta-based appeals court ruled that the lawsuit failed to plausibly allege that the rapper or his business associate Ryan Felton fraudulently hid information which would have allowed the investors to assert claims under sections of the Securities Act.

***

“Anyone in Fedance’s position could say ‘You Know What It Is,’” U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote on behalf of the panel, referring to T.I.’s 2007 hit featuring Wyclef Jean.

“In conclusory fashion, Fedance alleges that neither he nor putative class members could bring claims for the sale of unregistered securities within the one-year limitations period because Felton and Harris fraudulently concealed the facts necessary to reach the legal conclusion that FLiK Tokens were securities. But you cannot make fraudulent concealment mean “Whatever You Like,'” Pryor wrote, quoting another song title.

Good stuff! A further note -- I interviewed Judge Pryor for my podcast, For the Defense, and his episode will be airing in mid-July.  I think you'll really enjoy hearing him discuss writing, appellate courts, and his background.

It's the first day of summer

Woohooo!

In the old days of Miami, many law offices would close and there would be no trials.  Many Miami courtrooms would close the entire month of August.  

This year on the first day of summer, we have Prime Day.  Any good deals you're looking at?

We also have the Supreme Court finishing the Term.  The WaPo says there is some tentative good news regarding Amy Coney Barrett... that she may be in the Roberts' wing of the conservative court and not the Alito/Thomas wing.  We shall see.

Michael Avenatti's sentencing is coming up next week in SDNY.  Scott Srebnick is representing Avenatti.  Professor Berman over at the Sentencing Law and Policy blog has an interesting post about the guidelines in the case and how the parties seem to agree that they really don't apply.  

Speaking of the Guidelines, Judge Jed Rakoff continues his fantastic real-world critique of how they work.  In his latest sentencing decision, he states: "It appears to me that there has never been a case where the guidelines have been more irrational, silly and ridiculous than in their application to this case."  Reuters covers it here, where he sentences two defendants to 30 and 15 months in a $100 million fraud case. If you want to hear him discuss the Guidelines at length, check out our podcast discussion here.

David Lat is back to full time writing, this time on Substack.  He does a great job, as usual.

A&E's new show Under Oath covers the decision to call Katie Magbanua to testify.  She is represented by the great trial team of Chris DeCoste and Tara Kawass.  

Finally, it was a good weekend for the cruise industry.  Middle District of Florida Judge Steven Merryday in a 124-page ruling held that the CDC could not enforce its coronavirus restrictions and rules for cruise ships in the state. 

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