Friday, September 09, 2022

Paul Huck Jr. on Trump's short list for special master

 Here's the filing.

Government’s Proposed Candidates
The Honorable Barbara S. Jones (ret.) – retired judge of the United States District Court for the Southern District of New York, partner in Bracewell LLP, and special master in In re: in the Matter of Search Warrants Executed on April 28, 2021 and In the Matter of Search Warrants Executed on April 9, 2018

The Honorable Thomas B. Griffith (ret.) – retired Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, special counsel in Hunton Andrews Kurth LLP, and Lecturer on Law at Harvard Law School.
 

Plaintiff’s Proposed Candidates
The Honorable Raymond J. Dearie (ret.) – former Chief Judge of the United States
District Court for the Eastern District of New York, served on the Foreign Intelligence Surveillance Court, formerly the United States Attorney for the Eastern District of New York.

Paul Huck, Jr.—founder, The Huck Law Firm, former Jones Day partner, former
General Counsel to the Governor, former Deputy Attorney General for the State of Florida

Wednesday, September 07, 2022

Steve Bannon set to surrender

 After being pardoned, the State of New York went after Bannon with its own investigation.  He is due to surrender tomorrow.  From the NY Times:

Stephen K. Bannon, the onetime political adviser to former President Donald J. Trump, is expected to surrender on Thursday to New York authorities to face state charges in an indictment that remains sealed, according to a person familiar with the case.

The nature of the charges was unclear early Wednesday. But Mr. Bannon called them “phony” in a statement. “They are coming after all of us,” he said. “I have not yet begun to fight.”

Danielle Filson, a spokeswoman for Alvin Bragg, the Manhattan district attorney, declined to comment.

The charges would not be Mr. Bannon’s first indictment. Mr. Trump pardoned Mr. Bannon in January 2021 before he could be brought to trial on federal fraud charges stemming from his work with We Build the Wall Inc., a fund-raising operation set up to help fulfill the former president’s promise to create a physical barrier between the United States and Mexico.

 


Monday, September 05, 2022

Judge Cannon orders appointment of Special Master

You can read the whole order here.

Random thoughts:

She asks the parties for recommendations on who the special master should be.  That will be an interesting list.

DOJ will surely appeal and ask for a stay.  Will they get it?

Are we now going to see a slew of folks filing lawsuits asking for special masters? 

 


Sunday, September 04, 2022

All rise for Judge Michael Hanzman

 A true mensch and a great judge.  The New York Times has a wonderful piece about Judge Michael Hanzman's handling of the Surfside case:

Each day, before the unusual hearings unfolded inside Judge Michael A. Hanzman’s Miami courtroom this summer, the judge’s aides would stock the judge’s bench, the lawyers’ tables and the witness stand with boxes of tissues. At some point, they knew, almost everyone would cry, and each excruciating presentation would end with Judge Hanzman offering people hugs.

The hearings in the civil case over the deadly collapse last year of a beachfront condominium tower in Surfside, Fla., gave survivors and victims’ families a chance to seek financial compensation for their enormous losses. But those involved in the proceedings also describe them as far more meaningful — something akin to catharsis — which they credit to the extraordinary handling of a case born out of calamity.

After five weeks of lengthy and emotional hearings, the court issued letters in late August, informing survivors and victims’ families of how much they would receive in damages from a settlement of more than $1 billion with insurance companies, the developers of an adjacent building and other defendants. Individual awards ranged from $50,000 for some post-traumatic stress disorder claims to more than $30 million for some wrongful death claims, Judge Hanzman said in an interview this week.

“I don’t think I have shed as many tears in my 61 years as much as I have throughout the last five weeks,” he said.

***

His first unorthodox move was to persuade the surviving members of the Champlain Towers South condo association board to appoint Michael I. Goldberg, a lawyer, as an independent party known as a receiver to handle residents’ lawsuits. That allowed the judge to corral all of the complaints and eventually have them combined into one big lawsuit. Otherwise, there would probably have been dozens of separate legal actions.

Judge Hanzman chose well-known law firms to represent the plaintiffs, though the firms knew up front that there might not be enough money recovered to pay them. Some firms turned him down, the judge said.

The legal process was not without some friction. Even before all of the victims’ remains had been found in the rubble, the judge decided that the land where Champlain Towers South had stood would be sold, to ensure the biggest possible payout. Some families wanted a memorial built there instead of selling the land for redevelopment, but the judge concluded that a fund made up of insurance proceeds alone would fall far short of adequate compensation for the victims. The nearly two-acre property was sold to a Dubai-based developer in August for $120 million.

Next, Judge Hanzman dealt with conflicts between victims’ families, who had lost loved ones, and survivors, who had lost property. He persuaded Bruce W. Greer, a renowned mediator, to try to resolve their conflicts over how much money each group deserved to receive. In February, the condo unit owners agreed to split $83 million from the land sale and from Champlain Towers South’s insurers, a total that later went up to $96 million and paid them for the appraised value of their units.

Then Mr. Greer negotiated a second settlement: more than $1 billion to be shared among families who lost loved ones in the condo collapse. That sum came from the developers, engineering consultants and security companies whom the law firms had identified as possibly at fault for the disaster, as well as their insurers. Federal investigators have still not determined the cause of the collapse.

Finally, Judge Hanzman and a retired judge, Jonathan T. Colby, a friend of 30 years, became the arbiters of how much each victim’s lost earnings — and their family’s pain and suffering — were worth.

 We need more judges like Judge Hanzman in both state and federal court.  Here's hoping we can steal him over to the feds...


Friday, September 02, 2022

Judge Cannon's hearing (UPDATE)

 To the dismay of many, it was reported that Judge Cannon had the wifi turned off in the courthouse and prohibited reporters from tweeting or otherwise reporting on the hearing from court. There was also no call-in number so members of the public and press could listen in on the hearing.  So all of the reporting came after court was concluded.  What is this, the dark ages? 

 UPDATE -- I've been told that the wifi was not turned off and instead it was just overloaded with the number of users; I've also been told that it was not Judge Cannon's new rule to prohibit reporting from inside the courtroom -- she just reminded everyone of the local rule 77.1.

Anyway, here is the NY Times coverage of the hearing:

A federal judge signaled on Thursday that she remained open to granting former President Donald J. Trump’s request to appoint an independent arbiter to go through documents the F.B.I. seized from him last month, but stopped short of making a final decision.

After a nearly two-hour hearing, the judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, reserved judgment on the question of whether to appoint a so-called special master in the case, saying she would issue a written order “in due course.”

Notably, Judge Cannon did not direct the F.B.I. to stop working with the files, which the Justice Department has said have already undergone a preliminary review by law enforcement officials.

Judge Cannon, who was appointed by Mr. Trump in 2020, also indicated that she would unseal a more detailed list of the documents the F.B.I. took during its Aug. 8 search of Mar-a-Lago, Mr. Trump’s private club and residence in Florida. She had earlier ordered the Justice Department to provide the list to Mr. Trump’s legal team at its request. It was not clear when it would become public.

During the hearing, Judge Cannon pressed the government to explain what harm could come from appointing a special master.

Jay I. Bratt, the head of the Justice Department’s counterintelligence section, told her that a special master could slow down an assessment of the risk and damage to national security being conducted by the Office of the Director of National Intelligence — as well as an assessment of whether the seized documents contain the sort of national security secrets whose unauthorized retention is a crime under the Espionage Act.

“We are dealing with over 300 records here” that had classification markings on them, Mr. Bratt said. “That process has begun. That process needs to continue.”

But Judge Cannon appeared to suggest that if she did appoint a special master, she would do so in a way that would not hinder the security risk assessment.

The judge also left unclear whether she would limit the scope of any special master’s work to setting aside a small number of documents that may be subject to attorney-client privilege.

 

Thursday, September 01, 2022

"President Trump's" reply

You can read it here.

Thank goodness the lawyers start with explaining to the reader in the first line that references to "President Trump" mean "President Donald J. Trump."

Sorry, it's a pet peeve of mine.  

Anyway, Judge Cannon will be holding a hearing this afternoon in West Palm Beach.  It will be interesting to see if she sticks to her guns and appoints a special master.  And if so, who will the judge appoint.  

More to follow.

Wednesday, August 31, 2022

DOJ strikes back

 Here's the 36 page filing.

It includes pictures of the classified documents:


Politico covers the filing here:

“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation,” Justice Department counterintelligence chief Jay Bratt wrote.

“That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” he added.

***
DOJ indicated that the “commingling” of Trump’s personal effects with classified materials is “relevant evidence of the statutory offenses under investigation.” Three classified documents were found in a “desk drawer,” prosecutors said, without providing further details. Trump’s claims that the items should be returned to him have no merit, they added.

“Any Presidential records seized pursuant to the search warrant belong to the United States, not to the former President,” Bratt argued.

The submission to a federal judge in Florida opposes Trump’s request for an independent third party to review the records the FBI seized during their Aug. 8 raid on the former president’s Florida compound. DOJ urged U.S. District Court Judge Aileen Cannon to oppose Trump’s request for a so-called “special master,” contending that his belated request was merely a bid to disrupt the investigation.

In particular, Bratt urged Cannon to reject Trump’s claim that any of the documents seized were subject to a claim of executive privilege by him — and therefore unrecoverable by the current administration.

“The former President cites no case — and the government is aware of none — in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch,” Bratt wrote.

Sunday, August 28, 2022

Here comes the Special Master

If you recall, Judge Cannon showed some skepticism over Trump's lawsuit requesting a special master and ordered Trump's legal team to beef up its request.

They did so Friday evening in this pleading.

The next day, before DOJ could respond, Judge Cannon issued a preliminary order saying that she was inclined to appoint a special master.   

The government will have a chance to respond by Tuesday and then the Court will have a hearing on Thursday.  But this all seems beside the point as Cannon will likely follow through and appoint a special master.  

Here's hoping we get special masters in any case in which sensitive or privileged material is being reviewed by DOJ. Criminal defense lawyers have long complained about  DOJ's filter process, but the 11th Circuit recently turned back a challenge to a filter team in U.S. v. Korf.  Perhaps the Trump case will make some headway with the issues of having DOJ doing its own filter of privileged or otherwise sensitive documents.

Friday, August 26, 2022

Redacted search warrant affidavit in Mar-a-lago search released

 You can read it here.

Lots and lots of redacted pages.

And here is the previously sealed government response to what should be redacted.

Career Opportunities (Let's Make Lots of Money and Then Donate?)

By Michael Caruso

Mr. Byrne's post yesterday reminded me of a recent article and our professional choices.

Let's assume we all want to "do good." Is the way you do good effective? Is the way you do good actively harmful? The "effective altruism" movement arose out of a desire to make sure that attempts to do good actually work.

For a time, the E.A. movement recommended that "inspirited young people should, rather than work for charities, get jobs in finance and donate their income." In other words, does a person do more good volunteering for Teach for America for two years after graduation or working at Goldman Sachs and donating 85% of their income to a charity with a proven record of saving lives? At TFA, a young person may impact many lives, and the ripple effect of that work cannot be quantified. But, according to Give Well, about $7 protects a child from malaria. In 2021, Give Well directed funding to the Malaria Consortium to support this program at an estimated average cost-effectiveness of $5,000 per life saved.

Because I'm paywalled, I couldn't read the DBR article linked by Mr. Byrne. But here is a chart from earlier this year reporting the associate salary pay scale. If you're a 4th-year associate making around $300,000 a year and donate "only" 50% of your gross income, you can save 30 lives in one year!

Here's another example. Vitamin A deficiency leaves children vulnerable to infections and can lead to death. Give Well attributes over 200,000 deaths to Vitamin A deficiency each year, and that about $1 will deliver a vitamin A supplement to a child in need. In 2021, the group directed funding to Helen Keller International to support this program at an estimated average cost-effectiveness of $3,500 per life saved. That effective altruist 4th year at Big Law could save over 42 lives. 

This approach has critics, of course, most notably the philosopher Amia Srinivasan. She wrote: "Yet there is no principled reason why effective altruists should endorse the worldview of the benevolent capitalist. And although [E.A.] focuses on health as a proxy for goodness, there is no principled reason, [] why effective altruism couldn’t also plug values like justice, dignity or self-determination into its algorithms. Effective altruism has so far been a rather homogenous movement of middle-class white men fighting poverty through largely conventional means, but it is at least in theory a broad church." But she conceded the basic power of the movement’s rhetoric: “I’m not saying it doesn’t work. Halfway through reading the book I set up a regular donation to GiveDirectly,” one of GiveWell’s top recommended charities.

Srinivasan and other critics have valid points. E.A. tends to focus on single actions and their proximate consequences and, more specifically, on simple interventions that reduce suffering in the short term and largely neglects coordinated sets of actions directed at changing social structures that reliably cause suffering. According to critics, this neglect is politically dangerous because it obscures the structural roots of global misery, thereby weakening existing political mechanisms for positive social change and perhaps contributing to its reproduction.

At the very least, the E.A. movement has generated a significant volume of useful information to help us make decisions as to how we spend our time and our money to "do good."

Thursday, August 25, 2022

Trump updates

 1. Magistrate Judge Reinhart orders the search warrant affidavit unsealed by noon tomorrow but with the redactions proposed by the government.  Here's the order.

2.  Judge Cannon has rightfully ordered the Trump lawyers to give her some authority on what they are proposing.  That's due tomorrow.  Perhaps I was wrong to say she was the best draw for him.  We shall see.  Here's the order.

New Firms in Town Gobbling up Associates

 

By John R. Byrne

A bunch of big national firms have recently placed their stakes in the Miami legal market. And now they're gobbling up legal talent. The DBR covers it here.

Kirkland & Ellis, Sidley Austin, Winston & Strawn, and Quinn Emanuel will bring in summer associates in 2023. King & Spalding, which also launched a Miami office, may as well.

There's also an arms race of sorts for lateral associates. Collectively, the firms have pulled in over a dozen associates from local firms, with the numbers set to grow. Looks like there will be more lawyer movement afoot in the coming months.



Tuesday, August 23, 2022

Trump files lawsuit seeking special master over search at Mar-a-lago

Trump filed this lawsuit seeking a special master to oversee the search of Mar-a-lago.  But he didn't file a motion in the Reinhart case, which is strange.  The lawsuit was filed in West Palm Beach, but was randomly assigned to Judge Aileen Cannon,* the best draw that Trump could have hoped for.  It will be interesting to see whether it is reassigned or referred to Magistrate Judge Reinhart. (The Trump lawyers did not check the box on the civil cover sheet indicating that there was a related case.) 

The case didn't get off to the best of starts for the Trump lawyers as their motions for pro hac were denied for not following the local rules.

* I deleted an earlier post suggesting that the former President was forum shopping by filing in Ft. Pierce.  I was wrong as the case was filed (correctly) in West Palm Beach and just randomly assigned to Judge Cannon.  My apologies.

Sunday, August 21, 2022

"Bruce Reinhart unsealed."

 That's the title of this CBS deep dive into Magistrate Judge Reinhart's background since he is presiding over the Trump search warrant litigation.  It's a very positive article for Judge Reinhart.  Here's the start by Arden Farhi and Robert Legare:

The third week of March 2018 was a momentous one for the Reinhart-Bell family. 

That Monday, Florida's then-Governor Rick Scott appointed federal prosecutor Carolyn Bell to serve as a state circuit court judge.

Days later, Bell's husband — Bruce Reinhart — was sworn in as a federal magistrate judge in South Florida, beating out 63 other candidates for the job.

Quite a week, but nothing compared to the week they just had — and perhaps the ones that lie ahead. 

Since Reinhart approved an FBI warrant that authorized a search of former President Donald Trump's Mar-a-Lago home, he and his family have become the target of violent threats from right-wing internet trolls seeking to discredit and intimidate the judge. 

His address and personal information were posted online. "I see a rope around his neck," wrote one poster on a pro-Trump site. Anti-Semitic threats followed.

"This is truly an awful situation and completely undeserved with someone who is just trying to do his job. And to be personally attacked is just absolutely wrong," said Michelle Suskauer, a family friend of more than 15 years.

Late last week, Reinhart unsealed the search warrant and on Thursday, heard arguments from media organizations and the Justice Department, battling over whether to release the warrant's underlying affidavit. That document explains the government's reason for seeking the search warrant and currently may be the nation's most politically charged pieces of paper.

Reinhart said he was open to unsealing at least some portions of the affidavit and asked the government for suggested redactions.

In the courtroom, a lawyer for media organizations seeking to make the affidavit public told Reinhart, "I get paid to be nosy sometimes." 

"I get paid to say 'no' sometimes," Reinhart quipped. 

Friends and acquaintances say that sort of congenial, yet quick retort is vintage Reinhart. Those who have spoken with him since last week told CBS News he remains unfazed by the political vortex swirling around him and the threats he now faces.

 

 

Thursday, August 18, 2022

Judge Reinhart orders government to prepare redactions for search warrant affidavit

 The Miami Herald covers the ruling here:

A federal judge in Florida ordered Thursday that the Justice Department propose redactions to a key document supporting the Aug. 8 search of former President Donald Trump’s Mar-a-Lago home, opening the door to its disclosure to the public. Magistrate Judge Bruce Reinhart in the Southern District of Florida told the government to propose redactions to the affidavit — which established probable cause that crimes were committed, leading to the search — by noon on Thursday, and said that he is leaning toward unsealing the document with appropriate redactions. “I’m inclined not to seal the entire affidavit,” The judge said.

The Justice Department had asked the court on Monday to keep the affidavit under seal in its entirety, warning that its disclosure could cause “significant and irreparable damage” to its criminal probe. “If disclosed, the affidavit would serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course, in a manner that is highly likely to compromise future investigative steps,” the government argued. “This investigation implicates highly classified materials.”

Monday, August 15, 2022

When will the actual search warrant affidavit get unsealed?

 That's really the most important document, by far.  It has the justification -- or the explanation of probable cause -- for the search.  

Meantime, the insane attacks on Magistrate Judge Reinhart have led to renewed calls for extra security for judges.  From Reuters:

The federal judiciary is renewing calls for Congress to pass a stalled bill aimed at bolstering judges' security after the magistrate judge who signed off on a warrant authorizing an FBI search of Donald Trump's Florida home became the subject of online threats.

The chair of a key judiciary security committee and the president of the Federal Judges Association in separate remarks on Thursday pushed for the bill after U.S. Magistrate Judge Bruce Reinhart became the target of a wave of violent, anti-Semitic threats.

***

That legislation, the Daniel Anderl Judicial Security and Privacy Act, was named for the deceased son of U.S. District Judge Esther Salas, who was killed in an attack at the New Jersey judge's home in July 2020 by a disgruntled lawyer.

That bill would allow federal judges to redact personal information displayed on government websites and bar people and businesses from publishing such information online if they have made a written request not to do so.

The Senate Judiciary Committee advanced the bill on a bipartisan 22-0 vote in December, but attempts to quickly pass it unanimously in the Senate have been blocked by Republican Senator Rand Paul of Kentucky, who says it should also cover members of Congress.

U.S. Circuit Judge Richard Clifton, the president of the Federal Judges Association, in an interview said with time running out in the current Congress to pass the bill, judges are being encouraged to contact their local lawmakers.

"The news of the last few days underscores the concern that we have," said Clifton, who former Republican President George W. Bush appointed to the 9th U.S. Circuit Court of Appeals.

Friday, August 12, 2022

Judge Reinhart Orders Unsealing of Search Warrant and attachments

 By John R. Byrne

 Hot off the presses. Here's the order. The inventory of the seized items will remain redacted. Here are the unsealed materials.

Here's a write up from the Sun Sentinel. But some notable items described in the property receipt include an "Executive Grant of Clemency re: Roger Jason Stone, Jr.,""Info re: President of France," and numerous entries for "Miscellaneous Top Secret Documents."


Thursday, August 11, 2022

Motion to unseal search warrant

 Here's the motion, signed by the U.S. Attorney (Tony Gonzalez) and Jay Bratt, the Chief of the Counterintelligence section.


NACDL hosting its annual meeting in West Palm Beach

 And it's been renamed the Albert Krieger annual meeting, which is very cool.

Other news:

1.  Trump takes 5.  Get ready for all of the bad 5th Amendment takes.

2. If the government moves to dismiss 4 counts so that the defendant can plead guilty to the remaining count, can the district court deny that motion?  Nope, says the 8th Circuit (but it can reject the plea to the remaining count).  From the opinion (h/t Sentencing Law & Policy):

The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....

The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...

Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....

For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995).  Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.”  Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).

Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.”  These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.

Tuesday, August 09, 2022

Who signed the Trump Mar-a-Lago warrant?

The Miami Herald and numerous other outlets are saying it was Magistrate Judge Reinhart.  They point to docket entries showing sealed warrants signed on 8/5 by Reinhart.  Perhaps.  

One thing that always has bothered me about search warrants is that they should not remained sealed once they are executed unless there is a real law-enforcement need to keep them sealed.  And they should almost always be made available to the party affected.  But I bet Trump's legal team hasn't even seen the actual affidavit in support of the warrant yet, which is bananas.

The warrant will likely remained sealed until (if?) an indictment is brought.  If there is no indictment, the warrant may never become public.



Monday, August 08, 2022

You Get What You Pay For

BY MICHAEL CARUSO

I assume everyone has read an opinion or order and wondered, "where did that come from?" For example, Judge Ed Carnes has quoted Bob Dyan on occasion, see, e.g., Wright v. Farouk Sys., Inc., 701 F.3d 907, 908 (11th Cir. 2012)(quoting "Not Dark Yet"), and Judge Rosenbaum has referred to a classic Star Trek scene. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1158 (11th Cir. 2017)(Rosenbaum, J., dissenting, unfortunately)(referencing the Kobayashi Maru). While some decry the use of pop culture references in judicial opinions, I enjoy them for the most part. And in my opinion, Judge Zloch wins this competition by using a line from Hilary Mantel's great novel "Bring Up The Bodies" in the context of a lawyer's ethical obligation not to present perjured testimony: “We are lawyers. We want the truth little by little and only those parts of it we can use.” 

But a recent Washington Post article provides empirical evidence of a very alarming trend in judicial opinion writing. A new paper from MIT and Maynooth University in Ireland finds that judges there routinely rely on Wikipedia articles not just for background information but for core legal reasoning and specific language they use in their decisions. In our country, the New York Times identified this trend years ago.

What? Yes, I know that once in a while, you get shown the light in the strangest of places, but Wikipedia is not a reliable source for information about legal analysis. As a user-generated source, an entry can be edited by anyone at any time and may be a work in progress, simply incorrect, or an act of vandalism.

We should be better. Many colleges and universities, as well as public and private secondary schools, have policies that prohibit students from using Wikipedia as their source for doing research papers, essays, or equivalent assignments. Perhaps The Judicial Conference of the United States should do the same for judges. After all, judicial opinions and orders are not 4th-grade book reports.


   




Friday, August 05, 2022

Sentencing Commissioners confirmed…

 …finally.

Here they are:

Judge Carlton W. Reeves: Nominee for Commissioner and Chair of the United States Sentencing Commission

Judge Carlton W. Reeves has served as a United States District Court Judge for the Southern District of Mississippi since 2010....

Laura Mate: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel....

Claire McCusker Murray: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Claire McCusker Murray served as the Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021....

Judge Luis Felipe Restrepo: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Judge Luis Felipe Restrepo has served as a United States Court of Appeals Judge for the Third Circuit since 2016....

Judge Claria Horn Boom: Nominee for Commissioner of the United States Sentencing Commission

Judge Claria Horn Boom has served as a United States District Court Judge for the Eastern and Western Districts of Kentucky since 2018....

Judge John Gleeson: Nominee for Commissioner of the United States Sentencing Commission

Judge John Gleeson is a partner at Debevoise and Plimpton LLP in New York, where he has practiced since 2016....

Candice C. Wong: Nominee for Commissioner of the United States Sentencing Commission

Candice C. Wong serves as an Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia....

Wednesday, August 03, 2022

August in Miami

It's the last stretch of summer.  

And elections are coming up.

It's brings up the age old questions about whether judges should be elected or appointed. 

There's really no good answer.

But when you look at some of the challengers to our good judges, it looks like appointment may be the better option.

Check out the Captain's post about the challenger to a really good judge -- Lody Jean. 

Hard to imagine that the challenger will win, but in a judicial race, anything is possible.

On the other end of the spectrum, Justice Jackson is gearing up for her first term in October.

Here's Empirical SCOTUS with a preview:

The overall picture from these data conform more to the picture painted by the JCS Scores than to that painted by the campaign finance scores.  The picture is of a liberal judge, not as liberal as Justice Sotomayor, and more likely a moderate with a similar ideological position to that of Justice Kagan.  Even though we lack complete information on which to formulate accurate predictions of how future justices will vote when on the Court, this more refined way of viewing Brown Jackson’s lower court record should give a more complete picture than other available methods.

 

Anyway, we have a few weeks left until school starts. Let's enjoy the last few weeks of summer.

Sunday, July 31, 2022

Justice Alito again shows his true colors

 For a sitting Justice to give remarks like this is extremely concerning.  


Here is a Slate piece discussing the bizarre remarks:

It speaks volumes about Samuel Alito that, in the face of international outrage over the impact of this ruling on the lives of millions of women, he centered himself and his own feelings. His snarky little potshots at Prince Harry and Boris Johnson were not so much “jokes” about world leaders as personal petulance over international criticism, cloaked in the insistence that Alito doesn’t care what these  world leaders think of him.

But to focus on Alito trolling American women, reproductive justice advocates, his liberal colleagues on the bench, and his international critics is to take his feeble bait. Alito is quite transparent about the fact that he delights in disapproval. He invites it! He welcomes it! His “comedy” is actually just a distraction from his gleeful effort to decimate whatever remaining legitimacy the Supreme Court still possesses in the eyes of the secular, liberal world order. Focus on that fact and there is really nothing hilarious to report from Rome at all.

For starters, there is the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court. We only found out about this speech a week later when Notre Dame released the video, because the justices have no obligation to publicize or record their public speeches. The Rome event’s sponsor, Notre Dame Law School’s Religious Liberty Initiative, was founded about four months before Justice Amy Coney Barrett joined the Supreme Court in 2020. As Gabe Roth of Fix the Court, a nonprofit that promotes judicial ethics reforms, noted in an email Thursday, RLI and its affiliated professors “have filed amicus briefs in several SCOTUS cases, and they have a near-perfect record.” (Naturally, these professors filed a brief in Dobbs v. Jackson Women’s Health Organization urging the reversal of Roe.) As Roth further pointed out, we won’t know if RLI financed the trip until mid-June 2023, when it must be disclosed under current law. For now, the image of a tuxedo-clad Alito chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.

And he wonders why our citizens don't trust the Court.

The conclusion to the Slate piece:

If you are not very frightened by the prospect of a Supreme Court justice crossing the ocean in order to quote the Gospels to religious adherents of his own faith, who have business before the court, as he excoriates all who do not share his personal view of the primacy of religion as an organizing force in a political democracy, it’s difficult to know what could alarm you. The Framers attempted to strike a careful balance between religious liberty and secular moral values. Alito would like you to know that for the foreseeable future, the latter is the enemy, and will be vanquished and mocked.

Wednesday, July 27, 2022

Judge Hanzman goes old school

Back in the day during the hot summer months in Miami state court, suits were optional.  And most judges shut down entirely in August.  We haven't gone back that far yet, but Judge Hanzman did issue this order, letting lawyers know that they could go business casual during the claims process of the Champlain Towers case (hat tip Rumpole).  Thoughts?

 

Order 7-21-2025 (1) by Anonymous PbHV4H

Monday, July 25, 2022

Congratulations to Magistrate Judge Ryon McCabe

He had his investiture in West Palm Beach last week, and by all accounts, it was a big hit. Congrats!



 

Friday, July 22, 2022

Many Roads Should Lead to the Courthouse

by Michael Caruso 


I recently had the pleasure of speaking with U.S. Attorney Tony Gonzalez to several law students participating in Judge Bloom’s Judicial Internship Academy this summer. Judge Bloom’s efforts are truly a force for good by opening this fantastic opportunity for many more law students. A judicial internship during law school provides students with a direct insight into the judicial process and is a valuable and enriching experience. The students gain practical experience by attending judicial proceedings, performing legal research, and providing other assistance to the judge. During the summer, the internship also exposes the students to practicing lawyers. And, of course, the internships may broaden the future employment opportunities of these students. I found the students to be smart, engaged, and committed. They also happened to be quite diverse.

 

A recent article published in the Notre Dame Law Review Reflection makes the case for diversity in law clerk hiring as “an imperative that basic democratic principles compel. The importance of diversity is not in demographics alone or the legitimacy that may flow from those numbers. Rather, the purpose is to ensure that the judiciary benefits from a range of perspectives that more accurately reflect those who are affected by the law.”

 

According to the article, in 2000, over 90% of all federal appellate judges were white. Today, 77% of federal appellate judges are white. “Although the past twenty-two years have brought modest changes to the racial composition of federal judges, the slight demographic shift has yet to trickle down to the law clerks that staff their chambers. Over time, the voices in those chambers remain increasingly white. In 2006, 74.5% of law clerks were white. In 2019—the most recent data available—that percentage grew to 79%.” 

 

The authors propose several changes to the law clerk hiring system. First, judges should explicitly allow for more fluidity in the application materials they request so that racially diverse applicants can provide more relevant information. Second, the federal judiciary may want to explicitly focus on law clerk hiring and how current markers of achievement are likely to limit the racial diversity of a pool of clerkship applicants. Third, judges may wish to reconsider how they sort through clerkship applicants.

 

Law schools also can make changes to increase the racial diversity of the clerkship pool by making more of an effort to educate students about clerkships early on and to level the playing field for students who may be interested. Relatedly, professors should ensure that they equally offer underrepresented students opportunities. 

 

Current and former law clerks can also help change the clerkship pipeline. Clerks who have gone through the clerkship application and interview process can offer unique insights to diverse applicants and ensure they have as much information as possible. Recently, local Miami lawyer and former law clerk, Chris Lomax organized a “Pathways to Federal Clerkships” event that did just that.

 

The authors conclude: “Judges, lawyers, and law schools must all commit to addressing the lack of diversity among law clerks while being accountable for the part they have to play in the current lack of diversity. Without owning their individual roles in creating this problem or committing to solve it, nothing will truly change—we will continue robotically requesting the same inputs and be dismayed at the same, stale outcomes. We owe it to the future of the profession to do better than what we are doing now.”

 

Judge Bloom and Chris Lomax are doing their part; we all need to step up.

 

Thursday, July 21, 2022

The Miami legal maeket is en fuego

 All the big firms are opening shops in the 305.  Chiacgo's Sidley Austin is the latest with a 40 lawyer office.  From Reuters:

  After months of recruiting lawyers from rival firms in Miami, Sidley Austin said on Wednesday it has opened a physical office in the South Florida city that has become a popular spot for large firms' expansion efforts.

Chicago-founded Sidley said it already amassed more than 40 lawyers in Miami through hiring and relocations before formally opening the office.

Lawyers from the firm are currently working out of a temporary space in the city and will move next year into a new office tower in Miami's financial district.

Miami has attracted several other big law firms this year that are following the migration of lawyers and clients in the tech and finance sectors to South Florida during the COVID-19 pandemic.

Two other Chicago-founded firms, Kirkland & Ellis and Winston & Strawn, have opened up Miami outposts in recent months. Atlanta-founded King & Spalding and Quinn Emanuel Urqhuart & Sullivan, which was started in Los Angeles, have also planted roots there.

 And Dearest Rumpole, the Verdict is great, but A Few Good Men is better:


Tuesday, July 19, 2022

'Dobbs' Will Open the Floodgates to Litigation

 That's the title of an op-ed that my oldest daughter Nicole Markus (and I) wrote about Dobbs.  The intro:

My co-author and father was born in 1972, almost 50 years ago. (Sorry, dad). The next year, in 1973, the Supreme Court ruled in Roe v. Wade that the U.S. Constitution protects the right to privacy, which includes the right to have an abortion. A few months ago, someone leaked a draft opinion in Dobbs v. Jackson Women’s Health Organization, suggesting the court was about to overturn Roe and later cases like Planned Parenthood v. Casey (which reaffirmed Roe in 1992).

Dobbs is now official, and the Supreme Court, per Justice Samuel Alito, did not change much from that draft opinion. It is now the law of the land that states can not only prohibit—but affirmatively criminalize—abortion. That means, for example, that if a woman finds out that a fetus will be born without a heart and will die within minutes of birth, a state can force her to remain pregnant for nine months and have the child, only to watch it immediately die. If a state chooses, it can force a 10-year-old rape victim only six weeks pregnant to carry a pregnancy to term (or risk being arrested for traveling to another state, as one such victim allegedly had to do after Ohio’s total ban on abortions took effect in the aftermath of Dobbs).

In Justice Brett Kavanaugh’s Dobbs concurrence, he offered the wishful thought that the court is now free from deciding further abortion cases. Boy, was he wrong. It already is clear that Dobbs is going to lead to an avalanche of litigation.

Would love your thoughts.



Monday, July 18, 2022

Judging in Times of Crisis

                                  


Washington Reviewing the Western Army, by Kemmelmeyer, Fred., 1796-99

By John R. Byrne

That's the subject of Judge Altman's forward to the recent issue of the University of Miami Law Review. He covers the role judges have played in various domestic crises, from Justice James Wilson authorizing President Washington to use force to put down the Whiskey Rebellion to Chief Justice Taney's ruling that President Lincoln's suspension of the writ of habeas corpus--done to facilitate the seizure of a confederate sympathizer--was unconstitutional. Most relevant to our district, he discusses how the COVID-19 pandemic posed its own set of challenges to the judiciary, including how to resolve whether the Court's suspension of grand-jury proceedings meant that defendants indicted after the expiration of the statute of limitations must have those indictments dismissed (Judge Altman and Judge Ruiz held "no" and Judge Middlebrooks "yes"). The Eleventh Circuit is set to weigh in on that issue soon. Interesting read!

Sunday, July 17, 2022

RIP Jerry Shargel

 Legendary criminal defense lawyer Gerald Shargel (left, with Bruce Cutler and John Gotti) passed away over the weekend.  From the New York Times:


Mr. Shargel argued that he was no more aggressive in defending his clients than the government was in prosecuting them.

Referring to the extortion and robbery case against John Gotti Jr., a son of the reputed mob boss, he said, “The Government’s campaign reminds me of something that Gregory Scarpa” — a deceased member of the Colombo crime family — “once was heard to say,” he told The New York Times in 1999. “After he killed a particular person, he was heard saying that he hated the guy so much that he wanted to dig him up and kill him again. The Government hates John Gotti, the father, so much that they’re trying him again, through his son.”

“Clients hire me,” he told The New Yorker in a 1994 profile, “because I’ll do anything that the law will allow, without concern for how it’s gonna make me look.”

Tuesday, July 12, 2022

“6-3 is the new SCOTUS 5-4“

That’s the title of this interesting post by Adam Feldman over at Empirical SCOTUS.  It starts:

What this means? The Court’s most common split vote this term was six justices in the majority and three justices in dissent. The most frequent six justices in the majority were the Court’s conservative justices and the most frequent in the dissent were the three liberal justices.

Why this matters? The Court’s biggest cases came in the 2021/2022 Term came down to this vote. This includes Dobbs (abortion), NY Rifle (guns), Kennedy and Carson (religious liberty) and WV v. EPA (Clean Air Act).  When at least five of the conservative justices voted together there was no opposing vote that could decide the outcome to a case. These big cases though all had a supermajority of six votes.

What do the numbers show? 13 of the 18 six to three decisions this term came down along ideological lines. This is up from 10 of 18 six to three decisions last term. Last term also had much less ideologically charged cases on the docket with the biggest cases dealing with voting rights issues (Brnovich), campaign donations (Americans for Prosperity Foundation), and unions (Cedar Point).

Monday, July 11, 2022

"Artist Behind Banana Taped to Wall Can’t Escape Copyright Suit"

 That's the title to this Bloomberg article about Judge Scola's case involving this "art" from Art Basel a few years ago:


Here's the intro to the article:

The artist behind a viral sculpture featuring a banana taped to a wall at the 2019 Art Basel fair in Miami was unable to immediately shake a lawsuit claiming he copied the artwork from another artist.

The idea of a banana duct-taped to a wall is uncopyrightable, but the specific “selection, coordination, and arrangement” of the various elements of the sculpture can receive a degree of protection, Judge Robert N. Scola Jr. said in his Wednesday opinion.

At this early stage of the suit, artist Joe Morford sufficiently argued that the Art Basel exhibit, known as “Comedian,” was substantially similar to his work, called “Banana & Orange,” which he registered with the Copyright Office in 2000.

“Comedian,” created by Italian artist Maurizio Cattelan, garnered significant international press, commentary, and controversy. Cattelan sold three copies of the work and two proofs for more than $390,000. Morford, who represents himself, sued for copyright infringement in 2021.

The judge, writing for the US District Court for the Southern District of Florida, found that Morford has also sufficiently alleged that Cattelan had access to “Banana & Orange,” a piece featuring both a banana and an orange taped to a wall with silver duct tape.

The work has been available on YouTube since 2008, on Facebook since 2015, and on Morford’s personal website since 2016. The artist showed that the work had been accessed in 25 different countries, Scola said.

“Banana & Orange” also met the minimum standard of originality to receive copyright protection, the judge said.

“While using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity,” he said, “its absurd and farcical nature meets the ‘minimal degree of creativity’ needed to qualify as original.”

Of the copyrigthable elements of Morford’s work, there was similarity to “Comedian,” according to Scola. Both pieces use a single piece of silver duct tape that “runs upward from left to right at an angle” that affixes a banana “angled downward left to right” against a wall, he said.

Thursday, July 07, 2022

DOJ Antritrust suffers crushing defeat in third chicken antitrust trial

 This one really bothered me -- DOJ indicted 10 defendants in a criminal antitrust case (hoping some would plead and flip).  All 10 stay strong and go to trial in Denver federal court.  All 10 are hung.  DOJ says, we are going to try again.  All 10 go to trial a second time.  And all the jury hangs again as to all 10.

Surely, the government would not try them again, right?

Wrong.

But the judge is rightfully upset.  So he orders the head of the antitrust division to court to explain why the government is going to try all 10 again. 

Shortly before appearing, the government dismisses against 5 of the defendants.  Then the chief showed up to court and explained that he believed his prosecutors would win.  Shortly thereafter, he was quoted as saying he's not part of the "chickenshit club."  

I wrote about how ridiculous that position was here.

The remaining 5 just went to trial and WALKED.  Not guilty across the board.

An unbelievable defeat for DOJ. 

Really happy for the 5 defendants and their lawyers, but they never should have been in that position, of course.  The government should not be able to try a defendant if it can't get a conviction at a trial, let alone two trials.

After trial #2, I did a bonus podcast episode with Barry Pollack, who represented one of the defendants who was dismissed after trial #2.  Check it out here.

Wednesday, July 06, 2022

What can a defense lawyer say about his client not testifying in closing?

 The issue has come up because a judge is piping mad that a defense lawyer said this in closing:

So . . . the Court instructed you, rightfully so, that you cannot consider the fact that the Congressman didn’t testify. He has an absolute right not to testify and you cannot consider it, but that’s a hard instruction to follow, especially in a case where we’re talking about what’s in his mind, what he knew, what he remembered, and what he understood. And we don’t have to explain the decision not to testify, but I’m going to. And the answer is that he did testify. Remember, most of what we listened to during our, I think, six days of trial were his statements. And the testimony, essentially, that he gave in those recordings was unvarnished,
unprepared, uncounseled. Well, I suppose in D.C. he told the prosecutors what he knew and remembered, and you got to hear that, too. I can’t improve on that. I can’t—his memory is not better today than it was in 2019, so there’s really nothing to add. And so here you are, some of you may be thinking, why didn’t he testify? Why didn’t he explain this? But what do you think would have happened if he got up there on the stand and tried to explain and his memory is worse than it was before and the Government confronts him with the call and asks him to explain it? He would say the same thing as what he said before, this is what I heard, this is what I understood.

Doesn’t seem so bad to me.  He said he had an absolute right not to testify and that he already gave his statements.  But the judge issued an order to show cause.  Here’s the whole order, which is being covered by Meghann Cuniff on Twitter.

I always have to sigh when I see judges getting so angry at defense lawyers.  Imagine a prosecutor had actually commented on a defendant’s silence, which happens in courtrooms all the time… the prosecutor would get yelled at for a minute and then nothing.  No reversal (harmless), no sanctions (it’s a prosecutor!), etc.  Judges typically give prosecutors the benefit of the doubt — it was just a mistake — while defense lawyers get orders to show cause.  

In any event, do you think the defense lawyer crossed a line here?  His client was convicted, by the way.  This order came out after the client was sentenced.




   

Tuesday, July 05, 2022

BOP incaercating people longer than the law allows

 There should be outrage.  Instead, very little is being done.  This entire article about the problem, entitled "Thousands of federal inmates still await early release under Trump-era First Step Act," is worth a read:

Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

The Department of Justice was tasked with carrying out the law through the federal Bureau of Prisons, but the bureau director, Michael Carvajal, a Trump administration holdover, announced his retirement in January amid criticism of a crisis-filled tenure marked by agency scandals. No replacement for Carvajal has been named, and criminal justice advocates contend that for the bureau to allow even one person to be incarcerated beyond what is permitted under the First Step Act exposes ongoing failures.

“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, or FAMM. “Here we are, four years later, and it’s maddening.”

Friday, July 01, 2022

Your Fourth of July moment of Zen

 I started this blog back on July 2, 2005 (happy 17th birthday to the blog!) with a post about putting a Floridian on the Supreme Court.  

That's now a reality!  Yay for KBJ, a Miamian!


Wednesday, June 29, 2022

Free Brittney


By Michael Caruso

In 1972—50 years ago—President Nixon made his historic visit to China in February, The Grateful Dead conquered Europe in April and May, Hunter S. Thompson published his novel Fear and Loathing in Las Vegas in July, and, of course, your Miami Dolphins went undefeated later in the year among other cultural milestones. And, despite our country withdrawing from Vietnam, 759 Americans died there in 1972.

1972 also saw the passage of monumental bipartisan legislation. On June 23, 1972, President Nixon signed Title IX, the law best known for promoting gender equity in athletics and preventing sexual harassment on campuses. These are Title IX's 37 words: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The law's impact—opening doors and removing barriers for girls and women—cannot be overstated.

For context, in 1970, just 59% of women in our country graduated from high school, and just 8% had college degrees. And there were just over 300,000 women and girls playing college and high school sports in the United States. Today that number exceeds 3.6 million.

The impact of Title IX stretches into professional sports as well. More opportunities have emerged for young women to turn their sport into their careers, particularly in the WNBA.

One such woman is Brittney Griner. Ms. Griner plays for the Phoenix Mercury in the WNBA. Like many WNBA players, she also plays overseas during the offseason. For the last few seasons, Ms. Griner has played for a team in the Russian league. On the eve of Russia's invasion of Ukraine, Ms. Griner was arrested at a Moscow airport. Russian authorities claimed she had hashish vaporizer cartridges in her luggage and accused her of smuggling significant amounts of a narcotic substance, an offense punishable by up to 10 years in prison. Curiously, Russian authorities only announced her arrest after the invasion occurred.

Russia has detained Ms. Griner since her arrest. The U.S. State Department has classified Ms. Griner as “wrongfully detained,” which sparked a growing movement for the player’s release led by her wife, Cherelle Griner. Her "trial" is scheduled to start this Friday.

But we'll see. Brian Whitmore, a nonresident senior fellow at the Atlantic Council’s Eurasia Center and an assistant professor at the University of Texas Arlington, characterized Griner’s detainment as “a hostage situation” and her trial as an exercise in “political theater” designed to pressure the U.S. government into a prisoner swap. “They want to trade her,” Whitmore said, “and they’re going to drag this out until they get something they want.”

Multiple state-owned Russian news outlets reported that Russia would be open to swapping arms dealer Viktor Bout for Ms. Griner. Russia’s seemingly lopsided asking price complicates negotiations. In 2001, a jury convicted Bout of conspiring to kill U.S. nationals and officers, and the U.S. asserts that the convicted arms dealer smuggled military-grade weapons to rogue leaders and insurgent groups, elevating conflicts from machetes and one-shot rifles to grenade launchers and AK-47s. While as noted above, Ms. Griner allegedly had a few vape cartridges in her luggage.

As we all celebrate and enjoy this holiday weekend, let's keep all our loved ones who are suffering in our thoughts and prayers, and let's all hope for Ms. Griner's speedy release. And watch a WNBA game.