"It is the Court’s belief that the vast majority of the unvaccinated adults are uninformed and irrational, or—less charitably—selfish and unpatriotic."

That's Judge Scola in this Order:

[I]n light of the recent Omicron surge of Covid-19 cases in Miami-Dade County, the Court advised counsel that all members of the prospective jury panel must be vaccinated. Counsel for the Plaintiff did not object to the Court’s procedures. Defense counsel, claiming they did not want to exclude unvaccinated jurors from the trial, objected to the Court’s use of only fully vaccinated prospective jurors. 

All of us who participate in the justice system have a shared obligation to protect those who enter the courthouse. This grave obligation is particularly pronounced as to jurors and witnesses, who are present only under legal compulsion. See 28 U.S.C. § 1866(g).

         Just as the Court and the legal profession have an obligation to protect those who enter the courthouse, all of us have an obligation to consider the safety and well-being of our community. The vast majority of adults in Miami-Dade County have met this obligation. Over 94% of Miami-Dade County adult residents have been vaccinated. See Miami-Dade County Covid-19 Daily Dashboard, dated January 17, 2022, available at www.miamidade.gov/information/library/2022-01-17-covid-dashboard.pdf. It is the Court’s belief that the vast majority of the unvaccinated adults are uninformed and irrational, or—less charitably—selfish and unpatriotic. The Court believes that these individuals have given a distorted meaning to the COVID-19 vaccine, rather than recognize the vaccine for what it is—an effective and safe means of minimizing transmission and illness.

Whether uninformed and irrational or selfish and unpatriotic, no citizen is excused from considering their obligation to the health and well-being of their community. Else, the health, welfare, and safety of society would be subordinated to a substantial minority. Over one-hundred years ago, the Supreme Court upheld a State’s compulsory vaccination program and noted that nothing in our democracy grants an “absolute right in each person to be . . . wholly freed from restraint.” Jacobson v. Commonwealth of Mass., 197 U.S. 11, 26 (1905). The Court held that individuals may be called upon, and even compelled, to protect their community, whether by means of vaccination or by conscription. Id. at 29. “[O]rganized society could not exist” otherwise. Id. at 26.

In a way, the jury is a microcosm of organized society. It “lies at the very heart of the jury system” that “those eligible for jury service are to be found in every stratum of society.” Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946). Old and young, disabled and immunocompromised, all are called to jury service. The Court will not abdicate its duty and obligation to ensure the protection of these witnesses and jurors by exposing them to risks, particularly when those risks are heightened by the Omicron variant. While the Court does not believe that excluding unvaccinated jurors in the middle of a pandemic is legally impermissible, it nonetheless does not want to create an appellate issue.

         The specially-set jury trial beginning on February 7, 2022 is cancelled.

Meantime, the Supreme Court isn't immune from these sorts of fights. Justice Gorsuch refused to wear a mask even though his Chief asked him to in order to protect his fellow Justice Sotomayor.  He refused. What is going on?! From NPR:

It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers.

Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone.

Juanita Brooks for John DeLorean

 

FOR THE DEFENSE SEASON 4, EPISODE 3
JUANITA BROOKS (center) FOR JOHN DELOREAN (right)
 

Season 4 of For the Defense continues today with Juanita Brooks for John DeLorean.  You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) 

We launched a few weeks ago with Bruce Rogow for 2 Live Crew and Luther Campbell and followed up with Mark Geragos for Susan McDougal. 

At the end of the season, I will post the Florida CLE code.   

We will have new episodes every other Tuesday.  Upcoming episodes include:

• Gerry Goldstein (Deep Throat)
• Geoffrey Fieger (Dr. Jack Kevorkian)
• Brian Heberlig (Ali Sadr)
• Ed Shohat (Carlos Lehder)
• John Gleeson (Holloway Project)

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

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur
 

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

MLK Day

Federal Courts are closed today in honor of Martin Luther King Jr. Day.

If you are looking for something to read, check out this article from the Washington Post about workplace misconduct in the federal court system:

Leaders of the federal judiciary have had to backtrack after nearly three dozen law clerks and judge assistants affirmed in an informal survey that they had “witnessed wrongful conduct in the workplace.”

The Administrative Office of the U.S. Courts said officials removed the question from a training registration form, sent last week to thousands of judiciary staffers who work for federal judges, but not before 34 of about 40 employees — nearly everyone who responded — indicated that they had observed some form of inappropriate behavior.

“This was an unfortunate administrative error. No more — no less,” David Sellers, a spokesman for the office, said in an email, adding that the question was too broad to elicit any meaningful information and that the number of responses was too small to reveal a trend. Some, Sellers said, referred to situations before employment with the federal court system.

The judiciary wants employees to “feel comfortable reporting any instances of wrongful conduct,” he said. “But a registration form was not the proper place to ask that type of question.”

Concerns about how the judiciary handles allegations of sexual harassment, discrimination and other misconduct in courthouses have for the past several years been part of Chief Justice John G. Roberts Jr.’s annual report on the federal judiciary. In his 2021 year-end report, Roberts acknowledged ongoing scrutiny from Congress but said the independent judicial branch is best positioned to resolve workplace complaints.

The judiciary has put in place a robust reporting system, expanded the Office of Judicial Integrity and hired workplace relations directors in each of the federal circuits, Roberts said. He noted that a previous internal study “recognized the seriousness of several high-profile incidents, but found that inappropriate workplace conduct is not pervasive within the Judiciary.”

Congrats to Judge Raag Singhal!

He finally had his investiture today (he's been a federal judge since 12/19, but COVID delayed this event) and it was lovely. Judge Singhal is one of the good guys and it was evident from the glowing speakers and really wonderful turnout on a Friday afternoon of a holiday weekend during COVID. Sadly, my selfie game didn't really improve all that much.  Congrats, Judge!

A Conversation About the Constitution

By John Byrne

Interesting and fun conversation yesterday afternoon in Chief Judge Altonaga's courtroom.  Judge Altman interviewing Yale Professor Akhil Reed Amar about his book, "The Words That Made US:  America's Constitutional Conversation, 1760-1840."  Takeaways--George Washington, not James Madison, was the true Father of the Constitution, and Professor Amar should get royalty checks for scripting portions of the movie Air Force One and The West Wing.  Chief Judge Altonaga, Judge Altman, and Judge Becerra were all students of Professor Amar at Yale Law School.

Chief Judge Altonaga issues new CARES Act Order

 You can read it here.

Basically it allows for video and telephonic hearings, but only for out of custody clients.  It does not continue jury trials.  The order is good for the next 90 days.

Congrats to your newest Magistrate Judge, Melissa Damian

Woohoo! This is great.

 

SDFLA Cert Grant

 This morning I posted some Supreme Court news, but I missed the big cert grant from this District.  Congrats to Andy Adler and Michael Caruso.  The case is Kemp v. United States. 

 The issue presented is: "Whether Federal Rule of Civil Procedure 60(b)(1) authorizes relief based on a district court’s error of law."

The 11th Circuit opinion ruling against the defendant is here.   

This isn't their first trip to SCOTUS.  Adler argued last term in Terry v. United States.

Justice Sotomayor calls for Sentencing Commission to be formed

 She does so (joined by Justice Barrett) in this statement respecting the denial of certiorari. 

It is the responsibility of the Sentencing Commission to address this division to ensure fair and uniform application of the Guidelines. Cf. Braxton v. United States, 500 U. S. 344, 348 (1991). In March 2021, I wrote concerning an unresolved Circuit split over the proper interpretation of a Guideline. See Longoria v. United States, 592 U. S. ___. The Sentencing Commission lacked a quorum of voting members then, and it still does today. At this point, the Sentencing Commission has not had a quorum for three full years. As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants’ sentences. I hope in the near future the Commission will be able to resume its important function in our criminal justice system.

Best wishes to JJO

 Magistrate Judge John O'Sullivan officially retired today, after serving on the bench since 1999 (before that, he was a prosecutor, where he led the Court Broom case).  

One of the good guys on the bench, that's for sure.  Despite COVID, there was a nice reception for him at the Ferguson building this afternoon.  Judge O'Sullivan was drinking from a huge mug of beer with ice. 

My selfie game wasn't on point though:

Lend A Helping Hand

BY MICHAEL CARUSO

 

As David’s loyal readers know, Judge Seitz (and Judge Ungaro and now with Judge Reid) has presided over the district’s CARE Court for the last several years. The “Court Assisted RE-entry” program recognizes that the transition from prison to the community is challenging. The program’s mission is to ensure returning citizens’ successful reentry into the community, reduce recidivism, and enhance public safety. CARE works to achieve these goals by educating the community on the complex issue of returning citizen reentry and by forming collaborative partnerships with service providers. The program seeks to address the many complex barriers returning citizens face when reentering society in such areas as employment, housing, education, medical and mental health, substance abuse, family reunification, and social networks.

Work and employment are crucial to success. Returning citizens need work for the same reasons as everyone else: to support themselves and their loved ones, pursue life goals, and strengthen their communities. To this end, many try to start their own businesses. 

Over the holidays, I came across this cookie company started by a person who honed his baking skills in prison. My order—Nutella Chocolate Chip—was fantastic. Many other companies were founded or employ returning citizens. In the new year, consider patronizing these businesses and lend a helping hand. 

Also, in the new year, you could do worse than following this advice from the late Joan Didion:

“I’m not telling you to make the world better, because I don’t think that progress is necessarily part of the package. I’m just telling you to live in it. Not just to endure it, not just to suffer it, not just to pass through it, but to live in it. To look at it. To try to get the picture. To live recklessly. To take chances. To make your own work and take pride in it. To seize the moment. And if you ask me why you should bother to do that, I could tell you that the grave’s a fine and private place, but none I think do there embrace. Nor do they sing there, or write, or argue, or see the tidal bore on the Amazon, or touch their children. And that’s what there is to do and get it while you can and good luck at it.”

 

For the Defense, Season 4, Episode 2: Mark Geragos for Susan McDougal

 

FOR THE DEFENSE SEASON 4, EPISODE 2
MARK GERAGOS (left) FOR SUSAN McDOUGAL (center)

HAPPY NEW YEAR!

Season 4 of For the Defense continues today with Mark Geragos for Susan McDougal.  You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.)  We launched a few weeks ago with Bruce Rogow (2 Live Crew and Luther Campbell) 

We will have new episodes every other Tuesday.  Upcoming episodes include:

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

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. Or if you are tired of getting these updates (I hope not!), then there is a link to unsubscribe at the bottom of this email.

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

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

A new hope.

 The Chief Justice issued his year end report here.  It starts with a feel-good story about the judiciary and former Chief and President Taft. Then, Justice Roberts discusses 3 areas that the judiciary is focused on for 2022: 1) financial disclosure and recusal obligations; 2) inappropriate behavior in the judicial workplace; and 3) judicial assignment and venue for patent cases.  I wonder how many of you were waiting on pins and needles for that third one!  I bet it keeps you up at night, doesn't it?

 Meantime, we have lots of work to do in the criminal justice system.  As an example, 10 years is certainly better than 110.  But 10 years for an accident is still obscene.  From CNN:

Colorado Gov. Jared Polis is commuting the sentence of a truck driver who was sentenced to 110 years in prison for an interstate wreck that killed four people, he announced Thursday, calling the sentence "highly atypical and unjust."

Rogel Aguilera-Mederos will now serve a 10-year sentence and will be eligible for parole on December 30, 2026, according to a clemency letter Polis wrote to him.

Rogel Aguilera-Mederos will now serve a 10-year sentence and will be eligible for parole on December 30, 2026, according to a clemency letter Polis wrote to him.

Aguilera-Mederos was convicted in October on four counts of vehicular homicide and 23 other charges related to the fiery crash, according to Colorado's First Judicial District Attorney's Office.

He was driving a semi tractor-trailer in April 2019, traveling at 85 mph, when the brakes failed, he told investigators at the time. He tried to pull over to the shoulder to avoid stopped traffic, but another semi had already stopped there, according to an arrest affidavit.

The crash led to a 28-car pileup that left four dead, the Lakewood Police Department said at the time. Killed were Miguel Angel Lamas Arellano, 24; William Bailey, 67; Doyle Harrison, 61; and Stanley Politano, 69.

"The length of your 110-year sentence is simply not commensurate with your actions, nor with penalties handed down to others for similar crimes," Polis wrote in the clemency letter.

The lengthy sentence had drawn national scrutiny, with celebrities like Kim Kardashian West calling for a lesser penalty. More than 5 million people signed a petition asking the governor to reduce Aguilera-Mederos' sentence.

In his letter, Polis wrote the "arbitrary and unjust" sentence was "the result of a law of Colorado passed by the legislature and signed by a prior Governor and is not the fault of the judge who handed down the mandatory sentence required by the law in this case."

During Aguilera-Mederos' sentencing hearing earlier this month, Colorado District Court Judge A. Bruce Jones said he was bound to the mandatory-minimum sentencing laws in the state, according to CNN affiliate KMGH.

Happy New Year!

 I hope everyone has a healthy and safe new year's weekend.  Here are some of the things I'm wishing for in 2022:

1.  Judges who are flexible with schedules since COVID has messed everything up.

2.  Prosecutors who are open to self-surrender even when a defendant is not cooperating.

3.  Early exhibit lists.

4.  Early Jencks.

5. Searchable discovery.

6.  Appellate judges who find errors not always harmless.

7. Defense lawyers who represent cooperators not saying "you know I can't let him speak to you."

8. Variances.  Big ones.

9.  Judges willing to dismiss B.S. cases and not "letting the jury decide."

10. Less stress.

A guy can hope.  Anyway, thanks for your tips, your comments, and for reading.  Onward!

"The Constitutional Right We Have Bargained Away"

That's the title of this piece by Carrisa Byrne Hessick. Read the whole thing. It starts like this:

The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.

But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times longer than those of defendants who plead guilty. This practice is so common that it even has a name: the “trial penalty.”

The executive branch of government has followed the courts’ lead; many prosecutors pressure defendants to bargain away their right to a jury. They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea. Plea bargains dominate the system. Only 3 percent of convictions are the result of a trial—the rest come from guilty pleas. As the Supreme Court put it, “Criminal justice today is for the most part a system of pleas, not a system of trials.”Legislators, too, help prosecutors gut the right to a trial by passing new laws with mandatory minimum sentences. Those laws give prosecutors more leverage in plea bargaining because they can offer defendants a deal in which they plead guilty to a lesser charge that doesn’t have a mandatory minimum. In some cases legislators have admitted that they voted for those mandatory minimums in order to give prosecutors greater sway. For example, in 2015, Senator Chuck Grassley successfully blocked efforts to lower the mandatory minimum sentences for federal drug crimes. Grassley opposed changing those sentences, because he thought the harsh drug laws served the “intended goal” of pressuring defendants to cooperate with law enforcement.

The pressure that defendants face can take the form of years in prison. For example, when Mohamed Taher was accused of importing and distributing marijuana in upstate New York, prosecutors offered him a 10-year sentence in return for a guilty plea. Taher turned down the plea bargain, and prosecutors responded by filing new charges carrying a mandatory minimum sentence of 22 years. Taher went to trial, and although he had been unarmed and committed no violent crimes, he was sentenced to 25 years in prison. In effect, Taher received an additional 15 years in jail for insisting on his right to a jury trial.

If government actors tried to put people in jail because they exercised other rights—such as the right to free speech, the right to belong to a church, or the right to vote—judges would quickly step in and stop that practice. Yet not only has the Supreme Court allowed the trial penalty and plea bargaining; it has actually encouraged them.

Some proponents say that the trial penalty doesn’t punish people for exercising their right to a trial; it just grants a benefit (a shorter sentence) to those who are willing to plead guilty. Personally, I don’t see how putting someone in jail for longer because she insisted on her right to a jury trial can be recharacterized as a benefit to some other defendant who pleads guilty. But even if it were a benefit, that shouldn’t make a difference as a constitutional matter. The courts don’t usually let government officials force you to waive your constitutional rights in order to get something in return. If, for example, the federal government told you that you have to give up your right to vote in order to get Social Security benefits, judges would say that was an “unconstitutional condition” and declare the practice unlawful. But judges haven’t extended their unconstitutional-conditions doctrine to plea bargaining or the trial penalty.The reason that the Supreme Court gives for carving out the jury-trial right from its ordinary constitutional rules is simple: resources.

Another Christmas miracle...

 This time it's the White House filling a judicial vacancy in the 11th Circuit.  Well, it's only a nomination, but still.  Here's the scoop:

Nancy Gbana Abudu: Nominee for the United States Court of Appeals for the Eleventh Circuit

Nancy Gbana Abudu is the Deputy Legal Director and Interim Director for Strategic Litigation at the Southern Poverty Law Center, where she has worked since 2019. Abudu was previously the Legal Director for the American Civil Liberties Union of Florida from 2013 to 2019 and a staff attorney at the American Civil Liberties Union Voting Rights Project from 2005 to 2013. Ms. Abudu served as a staff attorney for the United States Court of Appeals for the Eleventh Circuit from 2002 to 2004. She was an associate at Skadden, Arps, Slate, Meagher & Flom LLP from 1999 to 2001. Ms. Abudu received her J.D. from Tulane University School of Law in 1999 and her B.A. from Columbia University in 1996.

If confirmed, she will be the first Black woman on the 11th Circuit.

A Festivus for the rest of us.

 Enjoy.  And see you next year! 

Happy Holidays from Merrick Garland

Better late than never!  Just in time for the holidays, AG Merrick Garland said that DOJ would reverse course and allow many prisoners who were released to home confinement during the pandemic stay on home confinement and not have to go back to prison.  From The Hill:

Attorney General Merrick Garland announced on Tuesday that the Department of Justice would allow some prisoners who were released to home confinement during the pandemic to stay out of prison, reversing a legal stance adopted in the last days of the Trump administration.

 

"Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules," Garland said in a statement. "We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

 

Garland cited a memo from the DOJ's Office of Legal Counsel (OLC) released on Tuesday that found that the relief bill enacted in the early days of the pandemic known as the CARES Act authorizes the department to use its discretion in allowing those on home confinement to stay out of prison.

 

The new memo overrides the legal position that had been in effect since January, which was that the thousands of inmates on home confinement must be returned to prison once the pandemic was declared over.

 

The Biden administration had been facing pressure for months to reverse the position and avoid re-incarcerating people who had spent months reconnecting with their families and integrating back into their communities. Some criminal justice reform advocates had called on President Biden to use his clemency powers to avoid a mass influx of returning prisoners.

Kevin Ring, the president of Families Against Mandatory Minimums, applauded the DOJ's reversal on Tuesday.