REMORSE

            By Phil Reizenstein

          Fall brings to my religion the unseasonal concept of atonement and renewal, something usually associated with spring. There is the new year, followed ten days later by Yom Kippur- the Day of Atonement. In between is a time of introspection. Atonement is what follows remorse for transgressions. 

Federal courts have no problem considering “lack of remorse” as a valid sentencing factor: “In the instant case, the district court did not err in considering Bryant's lack of remorse and her disrespect for the law evinced by her allocution, in sentencing her to a term of imprisonment at the higher end of the Guidelines range. United States v. Bryant, 618 Fed. Appx. 586, 590 (11th Cir. 2015).

While it has been black-letter law in Florida for decades that lack of remorse was not a permissible sentencing factor, the First District en banc has had enough of  that trifling concept, recently holding that since remorse means an expression of desire to rehabilitate, lack of remorse means that the defendant may continue with their criminal ways and should be sentenced accordingly: “ For these reasons, we can no longer embrace the blanket, judge-made rule that when it comes to sentencing lack of remorse or failure to accept responsibility may not be considered.” Davis v. State, 268 So. 3d 958, 965 (Fla. 1st DCA 2019), review granted, SC19-716, 2019 WL 2427789 (Fla. June 11, 2019). The Florida Supreme Court has yet to rule on this issue although the case is fully briefed and was argued in 2019.  Considering the Court’s  new-found enthusiasm for reversing precedent, it is not looking good.

We’ve been down this path before in our country: judges and legal systems punishing defendants for a perceived lack of remorse. In at least one famous instance, the legal system blinked first.

 In May of 1961, Freedom Riders from Alabama rode into Mississippi and entered the “Whites Only” waiting room of the bus station in Jackson and were arrested (after being beaten).

 Parchman State Prison in Mississippi was and is as notorious a prison as there is in the United States. In 1961 prisoners in Parchman  were forced to work on chain gangs.  A Jackson, Mississippi state judge had the bright idea to send the Freedom Riders to Parchman, believing Parchman would put the fear of g-d into the Riders and end the rides. The Freedom Riders had other ideas. They decided to fill up Parchman and sent more buses to Jackson. Once inside Parchman the Freedom Riders began to sing: “More buses are a coming oh yeah.  Better get you ready, oh yeah.  More buses are a coming, more buses are a coming, better get you ready, oh yeah.”

Eight and ten men were placed in cells built for two. The Riders would not keep quiet and kept singing, so the guards threatened to take away their mattresses, which caused the Freedom Riders to sing: “You’re  going to take our mattresses, oh yeah. You’re going to  our mattresses oh yeah. You’re going to take our mattresses, you’re going to take our mattresses, you’re going to take our mattresses, oh yeah.”

Over 300 Freedom Riders were arrested in Mississippi in 1961, and many of them were sent to Parchman, and they never stopped singing. Sometimes a lack of remorse is not a bad thing, even in this season of atonement.

Phil Reizenstein

For The Federal Court Personal Injury Lawyer

By: Alaina Fotiu-Wojtowicz

Between forum selection clauses and defendants’ tendency to remove state law claims whenever there is complete diversity, premises liability and other personal injury cases end up in federal court more frequently than you might expect.  But even so, Judge Altman’s recent 37-page summary judgment order in the Torres v. Wal-Mart Stores East, L.P. case is unusual – not only for its length, but also for its depth of discussion on state-law, premises liability negligence issues.

Torres is in many respects the quintessential slip-and-fall, premises liability case.  The plaintiff, Nosleyki Torres, slipped and fell on a puddle of water while shopping at Wal-Mart.  The case was removed by Wal-Mart after Mr. Torres filed in Broward County Circuit Court.

Judge Altman’s order is an entertaining discussion of constructive notice, causation, and the type of disclosures required by Rule 26(a)(2) from hybrid treating physician expert witnesses who will testify as to causation at trial.  The order comes complete with citations to Eleventh Circuit precedent, both in and out of jurisdiction trial court opinions, John Adams’s correspondence, and perhaps most importantly, “Bill Nye the Science Guy.”

At its core, however, the order reiterates that, even in a federal court personal injury suit, or perhaps especially in such a case, it is the jury's role to determine questions of fact:

Who should decide whether, in weighing its important interest in reducing overhead costs against an invitee’s right to amble freely through un-puddled aisles, Wal-Mart has struck the right balance? A life-tenured judge no one elected? A jury of both parties’ peers? The answer—to us—seems clear.

. . .

If we are, as we were meant to be, a democracy—and if Adams was right in suggesting that everyday jurors are the “heart and lungs” of that democracy—then we should let jurors (not unelected judges) make these policy choices for us.

The entire opinion is worth a read and is available here.

Win for Governor DeSantis on Mask Mandates

By John R. Byrne

        This state has seen a flurry of recent litigation involving mask mandates, with numerous school districts resisting Governor DeSantis’s July 30 executive order barring schools from mandating that students wear masks at school.  Wednesday marked a victory for Governor DeSantis.  Judge Moore denied a request by parents of disabled children for a preliminary injunction that would have stopped DeSantis and others from enforcing the order.

        Judge Moore ruled that the parents failed to exhaust administrative remedies under the Individuals with Disabilities Education Act before filing suit.  You can read the order here.  DeSantis has had mixed results in the state so far.  Leon County Circuit Judge John Cooper had previously issued a permanent injunction against the order.    

        On a non-legal note, rest in peace Norm Macdonald.  A comedian's comedian.  You can go through a YouTube rabbit hole with his stuff.  The moth joke is one of the best.

Breaking -- Ariana Fajardo Orshan appointed to state circuit bench

By David Oscar Markus

Gov. DeSantis just appointed our former U.S. Attorney, Ariana Fajardo Orshan, to the state bench.  She previously served from 2012-2018 as a state judge (she was appointed by Rick Scott back in 2012) and then as U.S. Attorney from 2018-2021.   

I wonder if this is a first -- a state judge becoming U.S. Attorney and then getting re-appointed to the state bench.

Congrats to Ariana!

Trials and more

By Margot Moss 

The Operation Varsity Blues' Trial Begins

The trial of John Wilson and Gamal Abdelaziz began Monday.  The 2 men are accused of paying bribes to coaches and officials to have their children admitted to elite colleges.

The government claims that Wilson and Abdelaziz worked with fraud leader Rick Singer to portray the kids as athletic recruits when they weren't actually talented enough to compete in college athletics.  In her opening statement, the prosecutor offered, "This is not a case about wealthy people donating money to universities with the hope that their children get preferential treatment in the admissions process."  Instead, she contended that the case was about lies:  "Lies to obtain admissions spots that were bought and paid for."  As proof of these claims, the government plans to admit recordings of conversations Singer made with the parents.

The defense contends that donations is exactly what this case is about - or at least what the parents thought was happening but for Rick Singer conning them.  Wilson's attorney stated in Opening, "Rick Singer is one of the great con men of our time."  John Wilson "trusted a con man who stole his money.  That con man knows how to play people better than anybody in this courtroom."  The attorney said that the parents did not know that Singer was creating fake athletic profiles for the children applying to the schools and pocketing part of their donation money for himself.

Interestingly, the government does not plan to call Singer as a witness.  Turns out, Singer made notes at the times of the recordings with parents that the agents pressured him and "continue to ask me to tell a fib and not restate what I told my clients as to where [their] money was going - to the program not the coach and that it was a donation, and they want it to be a payment."  

So interesting.

Fifty seven people, including celebrities, business people, athletic coaches, proctors, and administrators, have been charged in the case since March 2019.  Forty six of them have pleaded guilty, and one parent was pardoned by former president Trump.  Wilson and Abdelaziz are the first to go to trial.

Meanwhile, another trial has ended early.

Arizona Federal Judge Declared a Mistrial in the Backpage Case

From Law 360:

An Arizona federal judge on Tuesday called an early mistrial in a pimping case against former executives and employees of Backpage.com, who argued that prosecutors had poisoned the jury with irrelevant stories of human trafficking.

U.S. District Judge Susan M. Brnovich ordered the do-over eight days into a trial that had lasted more than two months, dealing a win to defendants who sparred with the government for three years over admissibility of evidence in the sprawling case. Prosecutors are seeking to prove that former Backpage executives Michael Lacey and Jim Larkin and a half-dozen underlings facilitated prostitution with adult ads on the now-defunct classifieds site.

The Defense's scathing motion for Mistrial begins:

The government's opening argument was a parade of horribles about human trafficking destroying the lives of trafficked women and children, with barely any mention of charged counts and zero linkage of any Defendant to any charged count.  The opening offended the law, ignored indisputable facts, and consisted of inflammatory, unproven, and unprovable assertions that fail in any event to address what the government must prove to convict any defendant.

In the end, the judge agreed.

... and last, but not least ...

The Federal Bar Association Annual Meeting & Convention is Next Week!

Yaniv Adar, President of the South Florida Chapter of the FBA, and many others have been working extremely hard to put together what I'm sure will be a wonderful and informative event next week.  They've put together a great program, including local SDFL judges and speakers from across the country.   Register here to attend.  

 

#Womenalsoknowlaw

By Michael Caruso

Although there's a vigorous debate about the impact of social media on our lives, there's no debate that these platforms can enhance communication, collaborative learning, and creative expressions. In particular, Twitter is the home to many active law professors who write about the criminal legal system (and who also happen to be women). 

For example, Rachel Barkow (NYU/@RachelBarkow) is the author of  the recent book,  "Prisoners of Politics: Breaking the Cycle of Mass Incarceration." She's also at the forefront of advocating for systemic changes in our clemency process.  

Leah Litman (Michigan/@LeahLitman) writes on constitutional law, federal post-conviction review, and federal sentencing.  She's also the co-host of the Strict Scrutiny podcast that discusses the culture of the Supreme Court and individual cases. 

Melissa Murray (NYU/@ProfMMurray) is also a co-host of Strict Scrutiny. Professor Murray writes about criminal law as well as justice issues in our society. Many have mentioned her as being on President Biden's shortlist for the Supreme Court.  

Carissa Byrne Hessick (North Carolina/@CBHessick) heads the Prosecutors and Politics Project at UNC and will publish her book "Punishment Without Trial: Why Plea Bargaining Is a Bad Deal" next month. 

Last, but certainly not least, is our own Aya Gruber (Colorado/@AyaGruber). Professor Gruber is a former law clerk and AFPD in our district. Last year, she published her first book, "The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration" to wide acclaim. Congrats Aya! 

If you're a Twitter user and have any interest in the criminal legal system, start following these important and engaging legal minds! 

#Womenalsoknowlaw

9/11 TWENTY YEARS LATER

 

By Phil Reizenstein

September is my favorite month, especially when I can spend part of it in New York, like I did last week. Fall is beginning to poke its way into the end of summer. The air was cold enough to make a Miami lawyer shiver, while New Yorkers ( I used to be one until Janet Reno hired me in 1986) wore shorts and T-shirts and soaked up the remaining sun. Saturday, the twentieth anniversary of the  9/11 attacks,  hung over everything, mostly unspoken, but never far away.

I grew up in Brooklyn, and I watched the twin towers being built. As a child I marveled at the predictions for Battery Park and the lower west side of Manhattan. There would be apartment buildings for people to live in! In lower Manhattan! This was a strange concept in the days when only struggling artists inhabited industrial lofts in an area of Manhattan vaguely known as “SoHo”.  

Fast forward to May 26, 1977, and I am staying at my father’s loft at 100 Wooster Street. He wakes me up and drags me to the roof  where we  watched George Willig climb South Tower Two. Willig made it to the top, was arrested, and later paid a fine. For me the Towers were no longer a symbol of Wall Street- they now had a little rebel New Yorker in them- an attitude I admired, like when Springsteen sings “When they said sit down, I stood up.” in Growin' Up.

As a New Yorker, I had one very specific need for the Towers: every time I got out of a subway station in Manhattan, I would spin around until I saw the towers; then I was oriented to downtown and uptown and could set off on my journey. The first time I exited a subway station after 9/11, I instinctively did my spin and did a futile 360- they were gone. 

Make no mistake, 9/11  impacted the American legal system.  The US Patriot Act – an Orwellian named law, expanded surveillance powers of government agencies to new heights. Guantanamo Bay became and remains the failed poster child for indeterminate detention. 

In Holder v. Humanitarian Law Project, 561 US 1, (2010)  CJ Roberts, writing for the majority, in a 6-3 decision,  upheld 18 U.S.C.A. §§ 2339A & B in which Congress prohibited almost any conduct that provided “material support” to a designated terrorist organization.  In other words, say what you want, do what you want, support whom you want, unless you are speaking out for, and supporting an organization Congress does not like (which in the 1950’s included the American Communist Party). The law has frightening implications.

Maybe Roberts thought he was just calling balls and strikes when he opined “If only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II.” Holder, 561 U.S. at 38. I understand the analogy, but a bit of judicial activism crept into Roberts’ reasoning IMHO. 

The 9/11 attacks took 2,977 lives that day (many more as the years wore on). It set our nation on a course of deadly, costly and destructive wars, and it permanently altered our legal system and enforcement of Constitutional rights. Rightly or wrongly,  a “terrorist exception” was created for the Bill of Rights out of our fears in the aftermath of the attack. And yet, as James Madison wrote in Federalist 41: "Security against foreign danger is one of the primitive objects of civil society, It is an avowed and essential object of the American Union." The tension between the Bill of Rights and the issues of modern America are as prominent and taut as ever.

One last personal note. I spent my formative years in Brooklyn hanging around the fishing docks in Sheepshead Bay until the captain of the Amberjack V took pity on me one day and said “get on the boat kid” which started a decade long love affair with a job as a mate on a fishing boat. In the days after the attack,  I saw pictures of the Amberjack V- my boat- rescuing people from Battery Park on 9/11 and taking them to New Jersey- anywhere in NY was thought to be too dangerous. I could not have been prouder to have been a New Yorker and a mate on the Amberjack.

 I am not sure this post is what David envisioned when he gave a bunch of us a shot at following in his large footsteps with the blog he built. I am grateful for the opportunity, and in the coming weeks and months (and years?) I  will endeavor to bring to your Monday mornings some of my thoughts on the intersection of legal and social issues from hopefully an interesting and personal perspective. Or Maybe David just says "WTF?"  and revokes my access. 

Balls and Strikes

by Robert Kuntz 

When I was a boy, “social media” meant mostly getting together to play baseball and football, the primary “platforms” of our interactions with our peers. We played endless games on our suburban streets, in our connected backyards, in neighborhood parks and even – when local school officials were insufficiently attentive to the locks on their gates – on actual ball fields. If we had enough kids – and at the tail end of the Baby Boom, we often did – we’d play 11-on-11 or 9-on-9 as the season demanded. If too many kids were sick or grounded or on vacation, we engaged in endless personnel adjustments to make the games even. Somebody might be the designated quarterback for both sides. Or the hitting team might provide its own catcher. But there was one position that was never filled: No one was going to waste valuable playtime being the referee or the umpire.

With the exception of the occasional squabble, our honor system worked a treat. If you stepped out of bounds (that is to say, into Mrs. Scheimann's yard), you stopped where you were. If you missed the tag before Billy Miller made it to the back corner of the Buick, you said so. And if too often you didn't, you were subject to the ultimate sanction: Kids who couldn’t be counted on to call it square – on themselves most of all – found their doorbell stopped ringing, because nobody cared if Mikey could come out to play, if Mikey was a cheat.

No one wanted to be the referee, or imagined he had the authority to appoint himself the umpire, but we knew that – at least as measured over the course a summertime baseball season – we had no need of an umpire, because we were all smart enough to sort out balls from strikes, to distinguish the salient truths from the possible fictions.

Not long after those idyllic days of my suburban youth, I was a newspaper reporter. Full of the glories of Bly and Sinclair and Mencken and Woodstein, I was determinedly certain that the Fourth Estate was the key element required for a healthy republic. Over the years, writing and participating in the production of thousands of stories, we mostly got it right. And when we didn’t – when the angry subject of a story called to tell us so, or when more reporting revealed our error – we’d run the correction.

We tried to get it right not merely because getting it right was the right thing to do. No lofty J school platitudes were necessary, nor would they have been sufficient for our readers to trust us. Rather, our bosses’ business models depended on us getting it right, and our jobs depended on serving our bosses' business models. No publisher was long going to employ a reporter who generated too many corrections, because no reader wanted to read a paper that got it wrong, and no advertiser wanted to advertise in a paper that no one read – and no publisher wanted to run a paper that couldn’t make money.

Thus was the circle of accountability drawn (with the assistance of the paper across town, back when towns of any size had more than one paper, ever-eager to call out our mistakes).

But there still were no referees – at least not outside the jury in a libel trial, if you got it that wrong.

Part of the process of getting it right was fact checking. Yes, even back in the prehistoric era when the signature sound of the newsroom was a clattering teletype, and you could smoke at your desk, we had fact checkers. Smaller publications gave the task to someone in the newsroom without a pressing assignment in the moment. Large publications, especially periodicals with long lead times, often employed folks whose entire job it was to run down everything the reporter put into the story and confirm its veracity: “Sheriff Gilbert, our reporter Robert Kuntz visited with you Tuesday for an interview about the new civilian oversight committee. Did you in fact say. ‘I’m the law in this county. I’m the law. Me.’” If the sheriff, hearing his pronouncement in the voice of another, had reason to wish he hadn’t said what I said he said, he might denounce the quote to the fact checker. Then the fact checker came back to me and vetted the details. He asked to see my notes or to listen to the tape, and then made a call – subject to appeal to an editor – about whether the quote would be published or not. [Sheriff Gilbert said exactly that, by the way. I had the tape. We ran the quote.]

But like the call on whether Johnny Newman had crossed the line between the maple and the birch trees that demarcated the end zone, the fact checking process took place among the players.

Today’s professional “fact checkers” operate in an entirely different system. They sit outside the organizations they monitor, apart from the writers – professional journalists and casual Twitter tweeters alike – and they rarely if ever consult those writers or speakers before rendering their unappealable judgments: “Misinformation.” “Misleading.” “Lacks context.” “Disputed.” “Partly false.” Those judgments are then executed not merely with the generation of a correction, but often by disappearing the offending story entirely. More than that, with the flip of a switch, today’s fact checkers can silence not only the story but the story teller, and not only from a single platform, but from practically all of them.

Which might be alright, I guess, if fact checkers were selected from human stock inherently more trustworthy and less prone to bias or self-interest than adolescent ballplayers or small town reporters. But they, predictably, aren’t. And it might be alright if it didn’t turn out – as it, predictably, has – that "independent" fact checking has a business model of its own.

So when the limits of discourse are imposed from without, by the diktats of folks who make their living drafting those diktats, might it be time at least to ask qui bono?

In this month’s Harper’s Magazine, Joseph Bernstein (who, without irony, is described as a “Senior Report at BuzzFeed News”) does just that in his article “Bad News: Selling the Story of Disinformation.” In exhaustive, troubling detail, Bernstein examines the ways in which politics, culture, commerce, and technology have intersected to weaponize “fact checking” into the ultimate political power tool. (And Bernstein goes a long way to dismantling the comfortable rationalization and rhetorical off ramp that, since none of this “private action” falls under the ambit of the First Amendment, it is no legitimate cause for concern.) The piece should be required reading for anyone with even a passing interest in participatory democracy in the Twenty-first Century.

Back in the day, if one of our gang had volunteered for the job of umpire, and especially if he’d done so every time we got together to play, and most especially if he'd figured out how to fund his baseball cards and sodas by doing so, we would have been profoundly dubious, we'd have had a chat with him about his motives, and we would have kept our collective eye on how he was calling the balls and strikes.

Whatever you think of the President immediately preceding the current one, it’s probably worth at least asking if a system that bans his narcissistic, blustering bombast but platforms terror organizations’ manifestos is entirely in balance. One might, it seems, reasonably wonder if silencing every slightly heterodox voice giving consideration to something as staggeringly complex as managing a global pandemic is the very best way to vindicate the once sacred notion of a marketplace of ideas. And so on to a score of examples more or less daily.

It's a precept so old Juvenal asked it in Latin, and so timeless it's the title of a Star Trek episode: As Bernstein's piece conclusively demonstrates, barest prudence demands we pay attention to who exactly is doing the banning and the silencing and why.

Sports Cases on an NFL Opening Weekend

By John R. Byrne

For starters, I’d like to thank David for giving me the opportunity to post on his blog.  He’s created something special, and I’ll do my best to meet the high standards he has set.

Given that we already have a great group of (mostly) criminal law-focused bloggers, I plan to focus my posts on the civil side of the federal fence.  Still, today, in keeping with the theme of this post, I’m covering a few criminal cases. 

1.  Clinton Portis—the former University of Miami and NFL running back—pled guilty this week to participating in a health care fraud scheme.  The scheme involved submitting false claims to the NFL Player Health Reimbursement Account Plan.  Although the case was prosecuted in the Eastern District of Kentucky, there is a Miami nexus (the Miami FBI Field Office helped with the investigation).  Miami sports fans may recognize another defendant, Tamarick Vanover, who played at FSU and later the NFL (in one Miami-FSU classic at the Orange Bowl, he took the opening kickoff to the house).

2.  The Dolphins open the season against the New England Patriots.  Back in February of 2019, Florida state prosecutors charged the owner of the Pats, Robert Kraft, with misdemeanor solicitation (a charge that was dropped).  In late July, Palm Beach County Judge Leonard Hanser ordered the state to destroy the previously suppressed video evidence (this followed a S.D. Fla. federal court order this past January ordering the video’s destruction).  The case had many a twist and turn and Vanity Fair published a long article about it, if you’re interested in reading more.  

3. In golf news, a week or so back, Judge Ruiz issued an order granting summary judgment to the PGA Tour in a lawsuit filed by Hank Haney.  In short, Haney had blamed the PGA Tour for costing him his radio show at Sirius XM Radio (Sirius had cancelled Haney’s show after he made comments predicting a “Korean” to win the U.S. Women’s Open and going with the last name “Lee” because, if he “didn’t have to name a first name, I’d get a bunch of them right.”).  Order was picked up by ESPN and other news outlets. 

4.  Finally, and on a non-sports note, the high-profile federal criminal trial of Theranos founder Elizabeth Holmes began this past week.  You can read about the opening statements here.  Both sides seem to have the right strategy, with the defense looking to humanize Holmes and calling her "innocent" and the government portraying her as a greed-driven executive. 

 Hope everyone has a great weekend and that the Dolphins get the W.

 

Shadow Dockets

 

By Marissel Descalzo

 

Thank you David for inviting me to serve as a guest blogger.  I’m very excited for this opportunity to contribute to the community you’ve created.

 

If you’ve been following the news over the past few days, you’ve probably heard about the Supreme Court’s cryptic “shadow docket.” The “shadow docket” is a phrase coined by William Baude, a professor at the University of Chicago Law School, to describe the use of emergency orders and summary decisions by the Supreme Court without full briefing and oral argument. 

 

Shadow docket cases typically arise from emergency requests to stop a lower court’s decision where the applicant has to show “irreparable harm” absent immediate intervention. The Supreme Court has historically used the shadow docket to decide unambiguous cases (e.g., federal death penalty cases). 

 

Recently, there has been a recent shift in the type and number of cases being decided on the shadow docket. In the past 18 months, the Supreme Court has issued shadow docket decisions on issues involving the COVID-19 pandemic, restrictions on places of worship, and changes to voting rules during the pandemic.  

 

In the last week of August alone, the court decided three highly politically charged issues – the Biden administration’s eviction moratorium, the Trump administration’s “Remain in Mexico” policy, and the new Texas abortion law – all on the shadow docket. Arguably, the most controversial decision related to the Texas abortion law.  The decision was widely reported and criticized, even David blogged about it  and was reported throughout mainstream media, including was the Texas abortion law  HERE.

 

Critics claim that the “right” is using the shadow docket to push an agenda.  Steve Vladeck, a law professor at the University of Texas School of Law, strongly supports this view.  He’s been tracking the shadow docket and reports that 41 requests for emergency relief were submitted by the Trump administration, while only eight were submitted by the Obama and Bush administrations combined.  More about Professor Vladeck’s opinions can be found HERE.

 

Whatever the motivation, the use of the shadow docket is certainly troubling and downright dangerous.  Significant issues that affect our legal system and vulnerable populations are being decided without the benefit of briefing, oral argument, and public input through amicus briefing.  Here’s to hoping that these matters shift back into the light and out of the shadows!

 

 

---

 

Some good reads and great things to watch.

 By Margot Moss:

1.  “I helped destroy people.”  No - not the words of Sal Magluta during the era of the Cocaine Cowboys.  That’s FBI agent Terry Albury.  Albury says that he, along with his colleagues, “were compelled to commit civil and human rights violations.”  The story is here in this Sunday’s New York Times Magazine section.  Albury stated:  We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque, and that every newly arrived Muslim immigrant is secretly anti-American, and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I., or we take people from foreign countries where they have secret police and recruit them as informants and capitalize on their fear to ensure there is compliance. It’s a very dangerous and toxic environment, and we have not come to terms with the fact that maybe we really screwed up here,” he says. “Maybe what we’re doing is wrong.”  Albury became so convinced that it was wrong that he leaked documents to the media “exposing the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.”  For sending these documents, Albury was arrested and sentenced to 4 years in prison.  

Sometimes, the bad guys in the courtroom aren’t the defendants.  

2.  In another good read, a law review article examines the “deep flaw” of the sentencing guidelines’ loss section, which “routinely recommends arbitrary, disproportionate, and often draconian sentences.”  Not only does the loss section fail to address unwarranted disparities among similarly-situated individuals, but it “actively exacerbates them.”  Barry Boss and Kara Kapp lay out the history of the guideline, give examples of the outrageous sentences it recommends, and offers reforms that we should pay attention to. 

They point out that some courts “have called the loss tables ‘patently absurd’ and ‘a black stain on common sense’ that rely upon a ‘flawed methodology for tabulating white-collar sentences[.]’  Accordingly, courts have concluded that imposing sentences corresponding to the loss tables would ‘effectively guarantee[ ] that many such sentences would be irrational on their face.’”

Unfortunately, not all courts see it that way and continue to give guideline sentences using the 2B1.1 table.  That’s why reform is necessary.  Boss and Kapp first suggest calculating loss based on actual loss, not intended loss.  Or, in the alternative, to find that the intended loss was substantially likely to occur.  These seem like great places to start.  We all know that Medicare never pays what it’s been billed – if it pays at all.  What do blog-readers think?

3.  I’m fully aware that this is a blog largely devoted to the Southern District of Florida news and notes and other federal goings-on around the country.  But I can’t make my first post without giving a huge shout out to state Chief Judge Nushin Sayfie.  For years, I worked by her side as an APD and then looked up to her on the state bench in Miami.  She is a force and an incredible asset to our community.  And how great is it to have a former criminal defense attorney as the top dog?!  The Passing of the Gavel ceremony recognizing her election as Chief Judge of the 11th Judicial Circuit is this Friday, September 10 at 12:15.  You can watch it live here on YouTube.  Congratulations, Chief Judge Sayfie!

4.  Finally - R.I.P. Michael K. Williams, aka Omar Little, the greatest character on one of the best series on television, The Wire.  If you haven’t watched it, the show is a must-see.  I know David O. Markus likes it.  Here is Michael K. Williams/Omar in a classic scene:

Miami History Part 1

By Michael Caruso:

Thank you David for inviting me to contribute to your blog. For the last 15 years, your blog has been an integral part of our local federal court culture, and I'm flattered that you thought of me. 

For my first post, I wanted to offer an alternative to the current Netflix offering about Miami. In 1994, journalist Susan Orlean wrote an article based on her investigation of the 1994 arrest of horticulturist John Laroche and in south Florida for poaching rare orchids in the Fakahatchee Strand State Preserve.

Two years later, Orlean wrote another south Florida story. Orlean's story—The Homesick Restaurant—describes Juan Saizarbitoria and his restaurant in Miami and Havana.  Here's an excerpt:

"Saizarbitoria had grown up in the Basque region of Spain, and he had made his way to Cuba in the late thirties by sneaking onto a boat and stowing away inside a barrel of sardines. When he first arrived in Havana, he pretended to be a world-famous jai-alai player, and then he became a cook at the jai-alai club. In 1940, he opened Centro Vasco, and he made it into one of the most popular restaurants in Havana. Having lost the restaurant to Castro, in 1962, Juan Saizarbitoria moved to Miami and set up Centro Vasco in exile." 

I had not known of Saizarbitoria or his restaurant before coming across the article. Orlean reports from Centro Vasca in Miami and also visits the Havana restaurant taken away from Saizarbitoria. I fear that not much of this type of Miami history will be preserved, and I thought I'd share.

Blog changes

 I started this blog as a pet project back in 2005 as a way to keep up with our District and federal courts in general.  I didn't really think anyone would read it when I started.  But after 4044 posts and 15,104 comments over 16 years, we have 5.3 million views and lots of good tipsters.  

But now it's time to add some new voices and perspectives.  So you are going to start seeing some new authors pop up.  

Our all-star lineup includes:

John R. Byrne

Michael Caruso

Marissel Descalzo

Alaina Fotiu-Wojtowicz 

Robert Kuntz

Margot Moss  

Phil Reizenstein

I am going to continue to post (so definitely keep sending your tips), but it's way past time for the blog to open up a little bit.

Thanks for being part of the small federal family we have here in the Southern District and enjoy the new upcoming posts by our new contributors!

I'm really excited about this -- I hope you are too.

Houston, we have a problem.

 At least it's not Florida this time.  It's Texas.  It's always Texas or Florida...

The Supreme Court 5-4 last night did not take action to stop Texas' new abortion law.  From SCOTUSBlog:

Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.

The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.

The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, ...

***

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Texas case will now return to the lower courts, where litigation will continue. ***

Biden has been a big disappointment on criminal justice reform so far

 I'm still hoping he can turn things around.  But he has been extremely tepid with criminal justice reform.  The latest is this potential action -- commuting sentences only for low level drug offenders who were temporarily released from BOP custody during the pandemic.  There has been a big push not to have any of these low level offenders go back in.  Why only drug offenders? Makes no sense.  

From the N.Y. Times:

In interviews, officials have subsequently confirmed that focus. As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.

The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category. She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison. Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law.

“There are many things that go into a retirement decision."

 That was Justice Breyer in the N.Y. Times.  The whole article is worth a read... but here are some snippets:

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.

The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”

***

He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.

“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.”

Latest COVID order from SDFLA.... (UPDATED)

 ...is here.  It allows for the use of Zoom-hearings under the CARES Act.  There was some rumbling about whether jury trials (or grand juries) would be suspended again, but that didn't happen.  It's all systems go despite the all-time high COVID numbers.  There's also an order requiring all court employees to be vaccinated or tested twice weekly. I like it.  Unfortunately, though, this does not apply to the CSOs or Marshals.  

Even if there is no general order continuing trials, some judges are doing it on their own.  See this order from Judge Cooke:

Mistrial in the Michael Avenatti trial due to Brady violation

 Wow, this is a big one.

Another "taint team" and Brady problem in federal court. 

Reporter Meghann Cuniff is doing a really nice job covering what's going on in court:

Selna: "Shortcomings there may have been, but I find no misconduct, intentional or otherwise, on the part of the taint team."
Selna: "For all those reasons, I grant a new trial." It's official: Mistrial in Avenatti's wire fraud trial.

— Meghann Cuniff (@meghanncuniff) August 24, 2021

Here is the defense motion,

Govt response,

and the recent filing by the defense outlining the issues. 

COVID issues plaguing trial in Ft. Pierce

 This is a civil trial in which counsel has tested positive for COVID.  Developing.

Swintelski v. American Medical Systems de 168 by David Oscar Markus on Scribd

RIP Maria Shohat

 A really great person and lawyer, this is a sad one.  Maria and Ed Shohat made such a wonderful team.  And she was always the life of a party or a bar function.  But she has been battling Alzheimer's for a while now (here is the link to the fundraising page detailing the walk for Maria that is scheduled for November).  I will post the funeral arrangements on this page when I hear of them. 

Does this cross the line?

 I'm a big fan of sharp writing, but does it cross the line to compare your colleagues to a career offender because they've been reversed so many times it looks like a rap sheep?  Here's the 9th Circuit case in which Judge VanDyke does just that.

Apparently, AboveTheLaw didn’t like it: https://abovethelaw.com/2021/08/newsflash-unqualified-federal-judges-are-unqualified/

Bonus Podcast Episode with Billy Corben and Alfred Spellman

We've had defense lawyers.  We've had judges.  And today, I'm excited to let you know that we have a bonus episode of For the Defense with filmmakers (and my good friends and producers of this podcast!) Billy Corben and Alfred Spellman about their latest rakontur production -- Cocaine Cowboys: The Kings of Miami.  

If you haven't seen the docuseries on Netflix yet, you really should check it out. It's about the rise and fall of Willy Falcon and Salvador Magluta, also known as Los Muchachos or the Boys.  It's an only-in-Miami story -- Billy and Alfred's specialty.  

Lawyers will love it because it details the numerous trials in the case and there are lots of great interviews with federal prosecutors and defense lawyers (including Albert Krieger, Rod Vereen, Pat Sullivan, Chris Clark, Richard Klugh, and others).  Non-lawyers will love it for all of the craziness involved in the cases, detailed by none other than Jim Defede, who covered the cases in his New Times articles:  

And the latest version:



You can check out the bonus episode on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. 

Speaking of which, it's not too late to catch up on Seasons 1-3 of For The Defense.  While you are doing so, please subscribe, like, and comments.  We need you! (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

How are drugs these days getting into the U.S.?

 If you watched the most recent Cocaine Cowboys about Willy & Sal, you saw cocaine coming over in go-fast boats and planes.  But that's the old way of doing things.  According to Bloomberg, the drug trade has dramatically changed:

At a Florida port, the U.S. Coast Guard drops off $1.4 billion worth of cocaine and marijuana seized in the Caribbean and Eastern Pacific. The haul, the fruit of nearly 30 incidents and boarding operations by the U.S., Canada and the Netherlands, contains nearly 60,000 pounds of cocaine alone.

No, it’s not a reboot of “Miami Vice” — it happened last week.

Huge shipments of drugs are being captured at sea on their way to the U.S. and Europe. In 2019, U.S. authorities boarded the Gayane, a 1,000-foot container ship registered in Liberia, as it was entering a Philadelphia marine terminal at the end of a 9,300-mile voyage from Chile. The raid netted 40,000 pounds of cocaine worth $1.3 billion.

These are eye-popping numbers, even to those who have been involved in interdiction operations for decades. What is driving the trend toward huge shipments of narcotics, and how will U.S. authorities cope with it?

In the 2000s, when I headed the U.S. Southern Command (which has military responsibility for the Western Hemisphere south of the U.S.), one of our crown jewels was the Joint Interagency Task Force South. Headquartered in Key West, Florida, it is built around participation from the entire U.S. government — led by the Coast Guard but with significant support from the Department of Defense, Department of Justice, Drug Enforcement Administration, Customs and Border Patrol, FBI and CIA. Flags of 20 other nations fly in front of the Key West facility, representing liaisons from countries across Latin America, the Caribbean and Europe.

Over the years, traffickers moving cocaine up from the production zone — principally Colombia, Ecuador and northern Peru — have refined their efforts and, like any thriving business, scaled them significantly. In previous decades, they typically used many small runs on light aircraft, ultra-high-speed boats and even semi-submersibles. We captured one of the latter (often referred to in press accounts, incorrectly, as submarines), carrying 10 tons of cocaine, and put it on the lawn in front of Southern Command’s Miami headquarters as a trophy.

While those kinds of operations continue, the movement is toward more industrial notions of transport, with much larger shipments stored in huge container ships headed to the U.S. and Europe. With more than 5,000 major cargo ships globally moving 25 million containers (technically known as “20-foot equivalent units,” or TEUs) — and 11 million containers arriving annually to the U.S. alone — locating the ones carrying drugs is a needle in a haystack problem.

To deal with the traffickers’ new approach of going big, the U.S. and its allies need to update their own strategy and tactics.