For the Defense, Season 4 Premiere with Bruce Rogow for 2 Live Crew

 

FOR THE DEFENSE SEASON 4
BRUCE ROGOW FOR 2 LIVE CREW

We're back! Season 4 of For the Defense launches today.  For the Defense is a podcast I started with Rakontur two years ago with the idea of getting in depth about the most fascinating trials with great trial lawyers. This season starts with Bruce Rogow, who will be discussing the 2 Live Crew trial.  (Episode on Apple here). Season 4 will continue with new episodes every other Tuesday featuring the following guests:  

• Mark Geragos (Susan McDougal)
• Juanita Brooks (John DeLorean)
• Gerry Goldstein (Deep Throat)
• Geoffrey Fieger (Dr. Jack Kevorkian)
• Brian Heberlig (Ali Sadr)
• Ed Shohat (Carlos Ledher)
• John Gleeson (Holloway Project)

As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

 

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.

Linda Lopez (S.D. Cal.) confirmed

A big congrats to Miami native Linda Lopez for her confirmation as a U.S. District Judge in the Southern District of California. The vote was 48-25.  Judge Lopez started her career as a paralegal here in Miami and then became a criminal defense lawyer.  She moved to San Diego to work at the Federal Defender's Office.  She then became a magistrate judge, where folks on both sides of the aisle enjoyed appearing before her.  And now she's a district judge.  What a cool story. 

Happy Holidays!

 So sorry for the slow blogging this week.  I was in trial with Margot Moss and Todd Yoder before Judge Jose Martinez.  The charge: illegal dredging under the Rivers & Harbors Act of 1899.  We got a two-word verdict to start the holiday season!  There is still nothing better.  I'll be back next week with regular posts.

Help Wanted

By Michael Caruso 

Federal courts regularly appoint receivers upon request by the Securities Exchange Commission, Federal Trade Commission, United States Department of Justice, and other interested parties to assist in resolving complex problems. The receiver’s role may involve marshaling, maintaining, managing, and safeguarding the assets of the receivership estate. The goal is often a subsequent distribution of these assets under the court’s supervision.

 

There has been a particular lack of diversity in federal equity receiverships across the country. Adding to the problem is the fact that receiverships do not happen as frequently as other cases, meaning there are fewer opportunities to be appointed and gain experience.

As a small step to address this issue, our local federal Diversity and Inclusion Practitioner’s Committee is hosting a panel discussion “Demystifying Receiverships in the Southern District of Florida.” The webinar will take place on January 26, 2022, from Noon-1:30 and is FREE.

The all-star panel features the Hon. Darrin P. Gayles, District Judge for the Southern District of Florida, Eric I. Bustillo, Director of the Miami Regional Office of the SEC, Corali Lopez-Castro, Kozyak Tropin & Throckmorton, and Naim S. Surgeon, Stroock. The moderator will be Julie Braman Kane, Colson Hicks Eidson.

 

If you are interested in these opportunities, please register here! 

"Union Says Staffing Shortages Within Federal Bureau Of Prisons Leading To More Violence"

 That's the title of this Forbes article by Walter Pavlo, who does a lot of good work in this space.  You'll see a number of references to what's going on at FDC in the piece, which is worth reading:

A grievance was recently filed with the Occupational Safety and Health Administration (OSHA) over a recent incident involving an inmate attacking a BOP staff member. Eric Speirs, President of AFGE Local 501 in Miami, said wrote that, “Federal Detention Center (FDC) Miami, FL officials continue to place law enforcement personnel in harms way by understaffing housing units at the facility.” Speirs stated to OSHA that an inmate at FDC Miami, Horrace Harris, who was in custody on murder and carjacking charges, attacked a corrections officer with a metal shank inside a housing unit where there were 116 inmates and a sole corrections officer. The officer was wearing a protective jacket but did sustain puncture wounds. Speirs told me, “If he had not been wearing a vest, we would be dealing with a homicide.”

Attacks on staff at FDC Miami are not new Speirs said. Since 2019, there have been 23 incidences of staff being the target of inmates seeking to harm them … none of those have resulted in additional criminal prosecutions. Speirs told me in an interview, “It is frustrating when passengers on airlines can be punished, rightly, for having an altercation with a crew member, but corrections officers seem to be exempt from the same sort of protection under the law.” In October 2019, rapper Kodak Black (Bill Kapri) was involved in an incident that sent a prison corrections officer at FDC Miami to the hospital and black to a transfer center in Oklahoma. President Donald Trump commuted Black’s sentence shortly before leaving office in January 2021.

Speirs was also frustrated by the fact that the corrections officer involved in the most recent incident had only been on the job for 8 months with his previous experience being a screener at with the Transportation Security Administration (TSA) at Miami International Airport. “It is not that he was new that bothers me as much as he had so little training,” Speirs said of the corrections officer injured in the attack, “but this guy had not even been to the training courses at the Federal Law Enforcement Training Center in Glynco Georgia.” In a letter to US Representative Fredica Wilson (D-FL), Speirs wrote, “Our new personnel only receive 2 weeks of in-class training and 3 weeks hands-on at FLETC, Glynco, GA. Most State and County corrections receive 6 months of training. Officer (name withheld) was on the job for 8 months and still had not been to FLETC! Some new employees have been working around 100+ [inmates] of all security level inmates for 2 years without being to FLETC due to Covid-19 even though other federal law enforcement agencies continued training.” The BOP has been criticized for augmenting staff shortages by using non-traditional corrections officer staff to supervise the inmate population.

In addition to the most recent attack at FDC Miami, a corrections officer at the detention center was injured this morning while chasing an inmate holding a cell phone down a stairwell.

The Long Way Home

By Michael Caruso

If you were a criminal defense lawyer in our district in the early 2000s, you undoubtedly had a client incarcerated at FCI Tallahassee. And if you did, your client certainly knew Katina Smith, who befriended many other women who were serving time there.  Ms. Smith's son—former NFL receiver Demaryius Thomas—passed away yesterday due to a medical issue stemming from a car accident. 

When I heard of his passing, I first thought of a client who was very close to Ms. Smith at FCI Tallahassee. I then recalled this fantastic piece of journalistic storytelling about Ms. Smith and her son.  The story reveals much about their family and our federal criminal legal system.

A little more than a year after the publication of this story, President Obama commuted Ms. Smith's 24-year sentence, and Ms. Smith finally got to see Demaryius play football—in the Super Bowl. 

This is not, however, a story about football but of a family's devastation, struggle, and perseverance. And because of President Obama's commutation, Ms. Smith and Demaryius were reunited and able to be a family again.

According to the Department of Justice, nearly 18,000 clemency petitions are currently pending. As December is traditionally the month in which Presidents issue pardons and commutations, here's hoping that President Biden uses his powers wisely and other families are reunited.

Do dems secretly want Roe to get overturned?

 That's the question that keeps coming up at every holiday party and cocktail event.  If Roe gets wiped away, will that turn the tide in the next election and help the Democrats keep the House/Senate and retake the Supreme Court?  Is that worth it since it appears that the party is in neutral? 

Meantime, Ruth Marcus wrote this piece in the Washington Post about the oral argument:

The vision of getting the courts out of the abortion-deciding business sounds so reasonable, so alluring.

It is also wrong, misleading and dangerous.

Mississippi Solicitor General Scott Stewart laid out the argument during the oral argument last week — urging the justices not only to uphold his state’s ban on abortion after 15 weeks but to overrule its decisions finding that the Constitution protects a woman’s right to choose.

“The Constitution places its trust in the people,” Stewart said. “On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”

Justice Brett M. Kavanaugh amplified Stewart’s argument, presenting it as the position of one side but leaving little doubt how much it resonated with him.

The Constitution, Kavanaugh posited, is “neutral” on abortion, “neither pro-life nor pro-choice.” Consequently, “this Court should be scrupulously neutral on the question of abortion … rather than continuing to pick sides.”

How superficially appealing all this is. Who could be against neutrality, especially scrupulous neutrality? Who disagrees with leaving choices to “the people” in a democracy?

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

The Constitution instructs that the majority cannot force its preferred religion on the minority; in fact, it must respect and accommodate individuals’ free exercise of their own religious beliefs. The Constitution teaches that the majority cannot choose to shut down or punish speech that it finds disagreeable or even offensive. It means that “the people’s” decisions about how to reduce gun violence are limited by the court’s interpretation of the Second Amendment.

Conservative justices have had no difficulty taking this disempowering of “the people” to sometimes questionable extremes.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.


***

Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”

Stewart, the Mississippi lawyer, blithely assured the justices that the court’s abortion cases are unique, and that its other precedents, on contraception, gay rights or same-sex marriage wouldn’t be next in line if Roe and Casey fell. But why not? Maybe conservative activists have no burning desire to overrule Obergefell v. Hodges, the 2015 same-sex marriage ruling, but as a logical matter the right, without a basis in history or tradition, should be at least as vulnerable as abortion.

“I’m not sure how your answer makes any sense,” Justice Sonia Sotomayor told Stewart. “All of those other cases … rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong, according to your theory.”

***
And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.

Is it time to add more Justices to the Supreme Court?

 President Biden's Supreme Court Commission can't come to an agreement on this point.  Here's the report.  Here's the CNN coverage of it:

A controversial commission set up by President Joe Biden to explore changes to the US Supreme Court concluded in a draft final report Monday that there was "profound" disagreement over whether to add more seats to the bench but suggested more consensus for term limits for the justices without taking a final position on the issue.

The report -- which was widely criticized before its release because it would not offer concrete recommendations to the President -- spans hundreds of pages and also tackles issues such as the court's emergency docket and the current state of confirmation hearings. The draft report was compiled by a commission with more than 30 members, who are expected to vote Tuesday to make the report final.

The report from the commission, which was established last April, comes as polls show that public approval of the Supreme Court has dropped in recent months, especially since September, when the justices allowed a Texas ban on abortions at roughly six weeks of pregnancy to take effect. More recently, after oral arguments in a Mississippi abortion rights case, it appeared the justices were on the cusp of eviscerating the core of Roe v. Wade, the 1973 landmark ruling that made abortion legal nationwide.

Instead of (or maybe in addition to) adding seats, we should impose term limits on Justices.  18 years sounds about right.

"How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"

 That's the title of this NY Times editorial, which is a question that the criminal defense bar has been pressing for decades. From the conclusion:

There is no principled reason for federal prosecutors to avoid the accountability expected of all public servants. Their exemption from the general rule was adopted in 1988 as a favor to Dick Thornburgh, who was then the attorney general and had tried to derail the creation of an inspector general for the Justice Department. Years later, Mr. Thornburgh admitted he had been wrong. “This is a highly professional operation that goes where the evidence leads and is not directed by the way the political winds are blowing,” he said at a gathering marking the law’s 25th anniversary in 2014. “I’ve come to be a true believer.”

So have large numbers of Republicans and Democrats in Congress, a remarkable fact at a moment when the parties can’t agree on the time of day. Their fix is straightforward: Eliminate the loophole in the 1988 law and empower the inspector general to review claims against federal prosecutors, just as the office currently does in cases involving other Justice Department employees. A Senate bill co-sponsored by Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would do exactly this. Yet Attorney General Merrick Garland is continuing in the tradition of his predecessors by opposing any change to the existing system.

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

“To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

By Michael Caruso:

This story is both remarkable and not. In 1982, Anthony Broadwater was convicted of raping the author Alice Sebold when she was a student at Syracuse University. He served 16 years in prison. Two weeks ago, a court vacated his conviction after prosecutors reexamined the case.

Sebold wrote in 1999′s “Lucky” of being raped and then spotting a Black man in the street several months later who she believed was her attacker. Sebold, who is white, went to the police. An officer said the man in the street must have been Broadwater, who had supposedly been seen in the area. After the police arrested Broadwater, Sebold failed to identify him in a police lineup, picking a different man as her attacker because she was frightened of “the expression in his eyes.”

But prosecutors put Broadwater on trial anyway. He was convicted based largely on Sebold identifying him as her rapist on the witness stand and testimony that microscopic hair analysis had tied him to the crime. That type of analysis has since been deemed junk science by the U.S. Department of Justice.

Broadwater always insisted he was innocent and was denied parole several times for refusing to acknowledge guilt. He took two polygraph tests, decades apart, with experts who determined that his account was truthful.

In a statement, Sebold wrote to Broadwater that she was truly sorry for what he’d been through.“I am sorry most of all for the fact that the life you could have led was unjustly robbed from you, and I know that no apology can change what happened to you and never will,” she wrote.

She wrote that “as a traumatized 18-year-old rape victim, I chose to put my faith in the American legal system. My goal in 1982 was justice — not to perpetuate injustice. And certainly not to forever, and irreparably, alter a young man’s life by the very crime that had altered mine.”

Broadwater said he was “relieved that she has apologized.” “It took a lot of courage, and I guess she’s brave and weathering through the storm like I am,” he said. “To make that statement, it’s a strong thing for her to do, understanding that she was a victim and I was a victim too.”

This story is not remarkable in that a man suffered a wrongful conviction because of a misidentification and the introduction of junk science at his trial. The story is remarkable as an example of our capacity to forgive grievous wrongdoing. A lesson for all of us. 

We're doomed.

 That's the feeling of Roe supporters after the Supreme Court argument yesterday.

SCOTUSblog covered the oral argument:

Sotomayor is also prepared to put the case in stark perspective.

“Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices,” she says, adding that the same was true about a separate Mississippi law, passed earlier this year and not before the high court, that would ban abortion after six weeks of pregnancy.

“Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” Sotomayor says.

I’ll confess that I thought I heard her say “political hacks,” as if she were playing on the phrase Justice Amy Coney Barrett used during a speech this summer, when she insisted the justices are not “a bunch of partisan hacks.” But a close listen to the recording seems to confirm what is in the transcript: “political acts.” There was no mistaking, though, that Sotomayor said “stench,” a strong word not often heard in this courtroom.

Stewart has an answer for her.

“Justice Sotomayor, I think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text, structure, history, and tradition, and that carefully goes through the stare decisis factors that we’ve laid out,” he says.

“Casey did that,” she replies.

“No, it didn’t, Your Honor, respectfully,” he says.

The chief justice, as he has done before, decides to interrupt Sotomayor after she has gone on at some length. (She will come back a few minutes later with, “May I finish my inquiry?”)

Roberts asks Stewart how fetal viability was addressed in Roe, noting that Justice Harry Blackmun, the author of that decision, revealed with the release of his personal papers that the viability line was “dicta.”

Roberts calls the papers, released five years after Blackmun’s 1999 death, “an unfortunate source.” Later in the argument, Roberts says the release of the Blackmun files “is a good reason not to have papers out that early.” So I think we will be waiting for the Roberts papers for a good long time.

Rikelman, who argued and won June Medical Services v. Russo in 2020, which struck down Louisiana’s abortion restrictions, takes to the lectern and tells the court, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent.”

After a few questions from Thomas, the chief justice zeroes in on Mississippi’s 15-week ban. Fifteen weeks is well before the point of fetal viability, which occurs around 24 weeks of pregnancy.

“If you think that the issue is one of choice — that women should have a choice to terminate their pregnancy — that supposes that there is a point at which they’ve had the fair choice … and why would 15 weeks be an inappropriate line?” Roberts asks. “Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

Rikelman says that, among other reasons, “without viability, there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy.”

Justice Samuel Alito presses Rikelman on a more philosophical question.

“What is the philosophical argument, the secular philosophical argument, for saying [viability] is the appropriate line?” he says. “There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics. But viability is dependent on medical technology and medical practice. It has changed. It may continue to change.”

“No, Your Honor, it is principled,” she says, “because, in ordering the interests at stake, the court had to set a line between conception and birth, and it logically looked at the fetus’ ability to survive separately as a legal line because it’s objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake.”

Prelogar, arguing for the United States in support of Jackson Women’s Health, says, “The real-world effects of overruling Roe and Casey would be severe and swift. Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest. … If this court renounces the liberty interests recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”

A Place at the Table

By Michael Caruso

Earlier this week, David posted an article that lamented Judge Charles Bryer's status as the sole member of the United States Commission (USSC). But that description is not entirely accurate. Judge Breyer is the sole voting member of the USSC. There are currently two “ex officio” members of the USSC. Both ex officio members are employees of the Department of Justice—a designee of the Attorney General of the United States and the Chairperson of the United States Parole Commission. 

Since the creation of the USSC in 1984, and despite persistent efforts, there never has been an ex officio representative from the Federal Defender community.  Unlike the USSC, the majority of state sentencing commissions have a public defender representative to provide them with advice and input at crucial stages of the decision-making process. Because we represent over 65% of those charged in federal criminal cases, a public defender representative would improve transparency and accountability in sentencing policy and provide the Commission with an internal defense perspective and balance.

Today, Senators Booker and Durbin introduced legislation to repair this long-standing structural issue. The self-described mission of the USSC is “to reduce sentencing disparities and promote transparency and proportionality in sentencing.” These are laudable goals, and this reform undoubtedly will further that mission. Congress hopefully will act expeditiously. 

Can prosecutors get an automatic 6 month extension under the statute of limitations for any reason they want?

 That's the issue in United States v. B.G.G., which I will be arguing in the 11th Circuit in January.  I will be defending Judge Middlebrooks' order, which Jay Weaver covers in this lengthy Herald article.  The Herald is covering the issue again because since B.G.G. was decided, Judges Ruiz and Altman have issued orders coming out the other way.  From the Herald:

When the coronavirus pandemic gripped the nation, the federal court system also largely ground to a halt. Not only did trials get postponed but grand juries could no longer meet to consider indicting criminal defendants. In South Florida, as idle criminal cases ranging from healthcare to financial fraud piled up, prosecutors did what some critics called an end-run around the grand jury process — normally a critical step before charging defendants. They filed a document known as an “information” to avoid missing the five-year deadline to bring charges under the statute of limitations — but without obtaining the constitutionally required consent of defendants to give up their right to be charged by a grand jury indictment. This story is a subscriber exclusive Now, a federal appeals court is going to hear oral arguments in January that will spotlight conflicting decisions on this crucial matter by U.S. district court judges in South Florida: Two found that prosecutors in the U.S. Attorney’s Office acted lawfully, but one concluded they did not when they filed an information as a place keeper to stay within the statute of limitations without the approval of the defendant. Much is riding on the outcome in the 11th U.S. Circuit Court of Appeals — which covers the states of Florida, Georgia and Alabama — because a ruling could decide whether about 10 defendants will still face charges for crimes that both sides acknowledge happened more than five years ago. “Three judges in our district have written thoughtful opinions addressing an issue brought about by the pandemic and caused by the absence of grand juries,” prominent Miami white-collar defense attorney Jon Sale told the Miami Herald. “These decisions are a law professor’s delight,” said Sale, a former federal prosecutor in the Southern Districts of New York and Florida. “They look to the meaning of words going all the way back to the times of our Founding Fathers. It is up to the Eleventh Circuit to resolve the relationship between the plain meaning of a statute and the Fifth Amendment’s guarantee of the right to be charged by a grand jury within the statute of limitations.” 

Back at it

Hope everyone had a nice Thanksgiving break.

I am thankful for judges who work with lawyers on scheduling and grant continuances.

I can't imagine Judge Breyer is thankful about the status of the Sentencing Commission.  From Reuters:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum. Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed. Armstrong and Raskin cited his potential departure as another reason to act.

Elizabeth Holmes takes the stand

 Unfortunately we can't watch it (as we did with the Rittenhouse trial).  How absurd.

So, we need to rely on short news stories about the drama in court, which of course, are always skewed toward the government.  Here's NBC News:

Theranos founder and former CEO Elizabeth Holmes returned to the witness stand Tuesday, confirming key aspects of the prosecutor’s allegations behind the 11 counts of fraud she faces, but asserting that there was nothing wrong in what she did.

The prosecution has repeatedly shown jurors lab reports emblazoned with logos of the pharmaceutical companies Pfizer and Schering-Plough. Witnesses from those companies who worked with Theranos testified that the use of the logos was unauthorized and they were unaware of it at the time.

Holmes admitted that she was the one who had added the logos to Theranos lab reports and sent them to Walgreens as she pursued a deal to put her blood-testing startup's diagnostic machines in the pharmacy's retail stores.

Holmes acknowledged that in some cases, Theranos used third-party devices, rather than its own equipment.

“This work was done in partnership with those companies and I was trying to convey that,” she said by way of explanation. "I wish I had done it differently,” she added.

Addressing another key point made by the prosecution, Holmes said that when Theranos switched from using on-site analyzers to process samples to a centralized lab approach, it used third-party devices rather than its own equipment as an “invention” because there were too many samples to handle. Witnesses have testified that Theranos' signature blood-testing machine repeatedly failed quality assurance tests and delivered erroneous results. Holmes said the company didn’t tell its business partners about this arrangement because it was a trade secret.

She rebutted the prosecution's arguments about some of the alleged misrepresentations she made to investors, the media and business partners, affirming that she had received specific positive reports from employees and outside experts and believed their statements to be true.

And we can't even see images of the courtroom... we get sketches instead.  

Anyway, I hope all of you have a Happy Thanksgiving... even you Rumpole.

Biden pardons two turkeys...

 ...but we are still waiting on the first human pardon.

Not a good look for a President who said he would be open to criminal justice reform.  

The New York Post covers Biden's response to the question of when to expect some real pardons:

As if there was any doubt — “Peanut Butter” and “Jelly” will not be on the Thanksgiving dinner table this year.

President Biden pardoned turkeys named after the common kids lunch ingredients Friday, continuing a pre-Thanksgiving tradition in the Rose Garden after he laughed off a question about whether he would also pardon human beings — as clemency advocates asked him to honor his pledge to free “everyone” in prison for marijuana offenses.

“Will you be pardoning any people in addition to turkeys?” The Post asked Biden as he returned to the White House after receiving a physical and colonoscopy at Walter Reed Medical Center outside Washington.

Biden, wearing aviator sunglasses, pointed at a reporter and joked, “Are you — you need a pardon?” In response to a follow-up question about whether he would free pot inmates, whom he vowed to release during the 2020 Democratic presidential primary, Biden said, “just turkeys.”

This is why we really need judges to grant more compassionate release motions and issue large variances.  There's no reason why America should lead the world in people imprisoned and lead the world in length of sentences.   

One reason we see these numbers is the "trial tax."  Clark Neily from CATO just wrote an important piece about how rare trials are and how we need to get back to the basics in our criminal justice system -- the right to a trial without fear of an enormous sentence.  The intro:

The most remarkable thing about the Kyle Rittenhouse trial is that there was a trial at all.

The vast majority of criminal prosecutions in our system are not resolved by trial but instead by an ad hoc and often extraordinarily coercive process that we refer to euphemistically as “plea bargaining.” Because of the way it unfolded, however, the Rittenhouse case sheds important light on our decision to generally substitute plea bargaining for constitutionally prescribed jury trials, in open defiance of the Founders’ deliberate and very wise decision to make citizen participation integral to the administration of criminal justice. The lesson here is clear: We can be certain that other prosecutions would collapse as spectacularly as Rittenhouse’s if we reined in the government’s ability to spackle over weak cases with coerced pleas.

Former UM professor Bruce Bagley sentenced to 6 months

One of the country's most thoughtful sentencing judges, Jed Rakoff, had the case.  From the NY Times:

Prosecutors had argued for a sentence below guidelines of 46 to 57 months, but did not specify exactly how much lower. In court papers this month, prosecutors said that although Dr. Bagley’s age and health should be taken into consideration, some incarceration was necessary to serve as a deterrent.

In court on Tuesday, Judge Rakoff said that a sentence of up to five years, as recommended by federal guidelines, would be “irrational” and “overly punitive,” according to The A.P. But like prosecutors, the judge said some incarceration was needed. The judge recommended that Dr. Bagley’s sentence be served in a medical facility, according to a Justice Department spokesman.

According to prosecutors, Dr. Bagley opened a bank account in Florida under his company’s name, Bagley Consultants, in 2016. But there was hardly any activity in the account until a year later, when he started receiving large deposits from bank accounts in the United Arab Emirates and in Switzerland.

Those accounts ostensibly belonged to a food company and a wealth management firm but were actually controlled by a Colombian national whose money came from “the proceeds of foreign bribery and embezzlement stolen from the Venezuelan people,” according to an indictment.

Dr. Bagley knew the source of the money and entered into “multiple sham contracts” in order to conceal it, according to the indictment.

After each deposit, Dr. Bagley would go to his bank and get a cashier’s check for about 90 percent of the money, which he would then give to another individual, and wire the rest to his personal bank account, the indictment said.

In October 2018, the bank closed the company’s account because of suspicious activity, according to the indictment. But Dr. Bagley opened another account in his name that December and continued the scheme until April 2019, receiving at least 14 illegal deposits, prosecutors say.

Though Dr. Bagley lives in Florida and the laundered funds were sent to Florida banks, prosecutors said they were prosecuting the case in Manhattan because the money passed through New York City as it came from abroad.

 Law360 also covered the case, and included this awesome statement by Judge Rakoff:

Prosecutors asked for prison time below Bagley's non-binding federal guidelines range of 46–57 months, while the defense had asked for time served, citing the 75-year-old's age, pulmonary nodules, diabetes and hypertension in a heavily redacted sentencing submission.

The judge said prison was warranted to send a message of deterrence, but also acknowledged Bagley's health problems as he quipped that "some might describe" the Federal Bureau of Prisons' repeated assurances that it can handle any medical issue as "a repeated fraud on the court."

Say it ain't so

 The CARES Act is expiring on 11/25/21.  Unless it gets extended again, there will be no more video conferences for criminal proceedings.  That's bad news!  

Zoom hearings for various criminal proceedings has been really efficient and beneficial for criminal defendants and lawyers.  Here's hoping that we find a solution and that Zoom can continue for some of our proceedings.

In other news, Rumpole's blog turns 16 today.  That's an incredible run for a blog.  Head over there and wish him well.

"Why the Supreme Court needs an ethics code"

That's the title of this interesting piece by Nicholas Rostow. The introduction:

President Joe Biden’s Supreme Court reform commission has had a tumultuous past month. A draft report’s warnings about court-packing upset liberals, while two conservatives resigned for reasons that remain unclear.

Ultimately, these issues symbolize the American people’s warped views of the “highest court in the land.” Too many Americans expect justices on their “team” to legislate from the bench, rather than simply interpret the law as the Constitution requires.

The answer to this polarization is not court-packing or confirming more pro-life judges. Instead, Congress should pass an ethics code for the Supreme Court.

A code of conduct for the justices would be fair, practical, and effective. Such a nonpartisan reform would not change the fundamental structure of the court. But it would constrain the justices from conducting partisan or unethical activities that undermine public faith in the court and the law. A code of conduct could have held Chief Justice John Roberts accountable when he did not recuse himself from a 2016 case involving a company in which he owned stock. And ethical guidelines could have penalized Justice Ruth Bader Ginsburg after she told The New York Times in 2016, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”

The reality is that the American people are losing faith in the Supreme Court as a neutral arbiter. In October, the court’s approval rating sunk to 40 percent, the lowest since Gallup began tracking this statistic in 2000. Over half of Americans disapprove of the court’s job performance. But an ethics code could rebuild public faith in the judiciary at this critical time.

Our friend Fletcher Peacock

By Michael Caruso 

Our friend and colleague Fletcher Peacock has passed away. Sadly, we all have far too many reminders that life is fragile and fleeting. But this is a real gut punch. The lesson we should take and rarely do, but that Fletcher exemplified, is not to waste a moment and embrace life completely. And to Fletcher, that meant treasuring each other, whether family, friends, or colleagues.

I first met Fletcher while clerking and had the privilege to see him in action defending his clients that came before Judge Zloch. His commitment to his clients and his zealous advocacy stood out and cemented my desire to join the office.

When I first started at the FPD, I tried my first case as "lead counsel" with Fletcher by my side. Before trial, we had decided that Fletcher would direct our client. But, that morning, a critical defense witness who lived in Delray Beach--and who was going to testify after our client--had no way to get to court. Fletcher said he would get her, and I would put our client on the stand. Fletcher surely saw the look of terror that overcame me at this suggestion. But, he explained that this was best for our client and the case, and I was ready. Of course, he was half-right. I always will remember his willingness to do--without hesitation--what was best for the client and his confidence in me. 

For most of his time in Miami, Fletcher had the office next to our boss--now Judge Kathleen Williams. It was a testament to Fletcher's personality and friendship (and not the box of Goldfish he always had at the read) that his office routinely overflowed with colleagues for brainstorming or other less lawyerly exchanges. In most offices, the person who occupies the office next to the boss is quite lonely. Not Fletcher.

After Fletcher left to become the FPD in the Middle District, running into him at a conference or seminar was a highlight. He always was a welcome face, whether we would talk family, trade war stories, or celebrate/lament the Gators. Sitting next to Fletcher at these events was a prime spot because you not only obtained his insight as a seasoned lawyer and manager, but you also laughed yourself silly at his dry wit.

We were very, very fortunate to have Fletcher come back to our office. Although older, he was still the same committed and zealous advocate, but more importantly, the same friend. Rest in peace, Fletcher. 

News and notes

1. The Rittenhouse trial.  Lots of talk about the defendant taking the stand and the tongue lashing that the state is getting throughout the trial.  But how about the judge not understanding how zooming works on an ipad.  Oh boy: 

The man responsible for overseeing the Kyle Rittenhouse murder trial has some questions about how iPad's pinch-to-zoom feature works, and he’d really like an expert witness to explain it to him. On Wednesday, Judge Bruce Schroeder disallowed Kenosha County prosecutor Thomas Binger from showing evidence on an iPad that would require the use of the built-in zoom feature. The reason? Well, as Judge Schroeder tried and failed to articulate, maybe pinching and zooming, you know, does stuff to change the image?

"What [the defense is] saying, I think, and I know less than anyone in the room, I'm sure, about all of this stuff, but I'm hearing him to say that they are actually artificially inserting pixels into there, which is altering the object which is being portrayed," observed the judge.

This, as anyone who uses a modern smartphone knows, is not how pinch-to-zoom works. But, in the hopes of explaining it to the judge, we reached out to Apple for its thoughts on this technical dilemma.

We received no immediate response. Which is too bad, as Judge Schroeder really wanted someone to explain it to him.

"You're the proponent," he told the prosecutor, "and you need to assure me before I let the jury speculate on it that [pinch-to-zoom] is a reliable method that does not distort what is depicted."

The judge's dumbfounding technical obliviousness kicked off when Rittenhouse’s defense attorney, Mark Richards, also admitted he didn’t understand what he was talking about. You can watch the jaw-dropping exchange, starting around the the 5 hour, 2 minute and 26 second mark, in the below video uploaded by the Washington Post.

 

"iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms," he told the judge. 

 

Again, this was in service of Richards' effort to prevent the use of pinch-to-zoom.

2. Blogs matter.  Congress is investigating a law clerk's "a history of nakedly racist and hateful conduct."  Jerry Nadler and Hank Johnson have sent the following letter to Chief Justice Roberts.  Footnote 1 of the letter cites to posts at Above the Law about the clerk.

3. Finally, defense lawyers are trying to keep Al Sharpton out of the Ahmaud Arbery trial gallery.  Another oh boy:  

An attorney representing one of three men on trial in the deadly shooting of Ahmaud Arbery made a bizarre request Thursday afternoon when he called for the judge in the case to ban Black pastors from the courtroom gallery.

“We don’t want any more Black pastors coming in here,” Kevin Gough, who represents William “Roddie” Bryan, told the judge before the jury returned from their lunch break.

The Brunswick attorney for the man who recorded the cellphone video of Arbery’s death has repeatedly taken issue with the ongoing demonstrations on courthouse grounds during the widely publicized, racially charged trial.

Gough was referring to an appearance by the Rev. Al Sharpton, who sat in on some of Wednesday’s court proceedings and held a lunchtime prayer vigil outside the courthouse. During his remarks on the courthouse steps, Sharpton criticized the racial composition of the nearly all-white jury overhearing the case, calling it “an insult to the intelligence of the American people.”