"Suffer and suffer until you get what you want."

 Coach Spo sounds like a criminal defense lawyer!  GO HEAT:

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And Rumpole, even though you are a Heat hater, you may come around after seeing that Spo quoted one of your favorite speeches after the game:

Heat Coach Erik Spoelstra referenced Teddy Roosevelt’s Man in the Arena speech in his post game comments. One of best speeches ever. Here is excerpt. @HeraldSports @MiamiHEAT #MiamiHeat #Heat pic.twitter.com/WXyMo7RLr3

— Michelle Kaufman (@kaufsports) May 30, 2023

A new alliance on the Supreme Court...

 ... and it's not who you might think: Justices Gorsuch and Jackson.  Via David Lat (you should subscribe to his newsletter if you haven't already):

The two justices have joined forces in four opinions so far this Term, per Lydia Wheeler of Bloomberg Law: Tyler v. Hennepin County, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined; Polselli v. Internal Revenue Service, where Justice Jackson wrote a concurrence that only Justice Gorsuch joined; Bittner v. United States, where Justice Jackson was the only member of the Court to join Justice Gorsuch’s majority opinion in full; and Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined. In addition, Justice Jackson was the only justice to join Justice Gorsuch when he dissented in December from the grant of certiorari in Arizona v. Mayorkas (the Title 42 case that the Court recently dismissed as moot).

What’s behind this joining of forces? I agree with Professor Anthony Michael Kreis, who told Bloomberg Law that the justices’ shared concern about “protecting the little guy” reflects Gorsuch’s libertarian worldview and Jackson’s concern for civil rights. I also concur with Professor Dan Ortiz, who notes that their apparent support for the rule of lenity is consistent with Gorsuch’s concern about overreaching government and Jackson’s pre-robescent career as a public defender.

I also wonder whether it might reflect two other things. First, in their inaugural terms on the Court, both Justices Gorsuch and Jackson were surprisingly outspoken on the bench for junior justices (and got very different coverage for it, as noted by Ted Frank—mostly critical for Justice Gorsuch, and mostly “Yas Queen!” for Justice Jackson). As two justices less inclined to show deference to senior colleagues and more willing to express their views openly, it makes sense for them to team up in separate opinions that opine a bit more broadly than their colleagues.

Second—and this is entirely speculation on my part, but drop me a line if you have actual info—I wonder if the two might be personally friendly or copacetic. Cf. Justice Antonin Scalia and Justice Ruth Bader Ginsburg, who enjoyed an across-the-aisle friendship over many years together on the Court (even if it didn’t manifest itself in their votes or opinions). Maybe Justice Jackson can invite Justice Gorsuch, an avid outdoorsman who presumably enjoys wilderness-y stuff, to a viewing party for Survivor, one of her favorite shows. In her recent commencement speech at American University’s Washington College of Law, Justice Jackson cited Survivor for various life lessons, including “understanding that this game is about existing both in community and conflict”—wisdom that might explain her alliance with Justice Gorsuch.

"The taxpayer must render unto Caesar what is Caesar’s, but no more."

 That was Chief Justice Roberts channeling his inner Milton Hirsch in Tyler v. Minnesota. 

From the conclusion:

The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U. S., at 49. A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more. Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment. Tr. of Oral Arg. 27. The judgment of the Court of Appeals for the Eighth Circuit is reversed.

Meantime, the NY Times has this message for the Supreme Court:

The Supreme Court will soon issue rulings, on affirmative action, student debt relief, and the First Amendment and gay rights, that have the potential to affect the American public for generations. And yet public approval of the court is at a historic low. This was true even before the seemingly endless stream of reports over the past few weeks about the justices’ lax ethics. Since a conservative supermajority took control of the court in 2020, it has blown through the guardrails courts are expected to observe — showing little respect for longstanding precedent, reaching out to decide bigger questions than it was asked to and relying on a secretive “shadow docket” to make hugely consequential rulings with no public explanation.

Even Republicans who are happy with the Supreme Court’s recent rulings are voicing their concerns. “What I would urge the court to do is take this moment to instill more public confidence,” Senator Lindsey Graham of South Carolina said during the Senate Judiciary Committee hearing on ethics at the Supreme Court on May 2. “I think we’d all be better off if they did that.”

Mr. Graham is right: The nine justices — unelected and employed for life — are shielded from the usual mechanisms of democratic accountability, and so they depend on a high level of public trust like no other institution of American government. Their failure to take the steps necessary to restore that trust, steps that are entirely within their control, is undermining their legitimacy as one of the country’s most vital institutions.

Instead the justices are behaving as though the same laws they interpret for everyone else don’t apply to them. They’re not entirely wrong. In most other government jobs, people can be fired for disregarding laws or ethical obligations, but the justices can be confident that they will face no consequences. Federal laws that explicitly apply to them — involving, for example, financial disclosures and recusal standards — are not enforced, leaving the justices to self-police, and the highest court is not bound by a code of ethics as the lower federal courts are.

Chief Justice Roberts gives speech

And it's pretty interesting.  One thing he says was how hard the decision was to put up a fence aroudn the Supreme Court.  He also pushes back on the idea that Congress needs to enact ethics rules for the Justices. Here's the video of the event:

LIVE: US Supreme Court Chief Justice John Roberts will speak at the American Law Institute's annual dinner https://t.co/G0cfzaGspD

— Reuters (@Reuters) May 24, 2023

KBJ's favorite show is Survivor

 From the AP:

Supreme Court Justice Ketanji Brown Jackson called herself a “Survivor superfan” on Saturday and offered an audience of graduating law school students lessons from the reality TV show.

The show has been on television for 23 years and is now in its 44th season. Jackson said she has seen every episode since the show’s second season.

“I watch it with my husband and my daughters even now, which I will admit it’s not easy to do with the demands of my day job. But you have to set priorities, people. And that’s exactly the first lesson that I have for you today,” she told the graduating class of American University’s law school in Washington.

***

In her address, Jackson described “Survivor,” in which contestants are deposited in a remote tropical location and undertake challenges in the hopes of ultimately winning $1 million, as “great fun to watch.” But she also said it holds “a number of broader lessons that are helpful for becoming a good lawyer.”

One lesson, she said, is to “make the most of the resources that you have,” drawing a parallel to when she was a federal public defender and prosecutors always seemed to have more resources. Jackson said she knows “what it is like to commit to moving forward even when the deck is stacked against you” and also talked about a Survivor contestant with a prosthetic leg who nonetheless prevailed at a difficult challenge involving a balance beam.

“My advice to you is to do your best to shut out distractions, use your time wisely and figure out how to make the most of what you have,” Jackson said.

Other lessons from the show are to “know your strengths” and to “play the long game,” she said.

That last piece of advice could serve the liberal justice well on the Supreme Court, where her colleagues include six conservatives and two other liberals, making it unlikely her views will prevail in some of the term’s most contentious cases when they are announced over the next several weeks.

“Season after season, the players who tend to do really well are those who appear to come in with the understanding that this game is about existing both in community and conflict,” she said of “Survivor.”

Jackson said that players who go far are the ones that “choose optimism, lifting the spirits of the other tribe members, no matter what happens.”

“They try to stay as even-keeled as possible, not getting too carried away by dramatic wins or heartbreaking losses,” she said.

Senate confirms Nancy Abudu to 11th Circuit

 From Reuters:

The U.S. Senate on Thursday confirmed President Joe Biden's nominee to the 11th Circuit U.S. Court of Appeals, overcoming rare Democratic opposition from Senator Joe Manchin.

Nancy Abudu, a lawyer for the nonprofit Southern Poverty Law Center (SPLC) legal advocacy group, was confirmed on a 49-47 vote. She will be the first Black woman to serve on the Atlanta-based 11th Circuit.

Abudu's nomination drew strong Republican opposition, and she faced a new obstacle on Wednesday night when Manchin, a moderate Democrat from West Virginia, broke ranks to oppose advancing her nomination.

Don't snap a pic in federal court

 It happened in the Corollo trial and Judge Rodney Smith is not happy.  The Miami Herald covers it here:

The lawsuit involving Miami Commissioner Joe Carollo was throw into disarray Wednesday morning when the federal judge overseeing the case briefly threatened to send the commissioner’s attorneys to prison over a photo that was taken inside the courtroom. Taking pictures inside federal courtrooms is strictly prohibited and U.S. District Court Judge Rodney Smith was livid when one showed up in a filing from Carollo’s attorneys, Ben Kuehne, Mason Pertnoy and Marc Sarnoff. The picture, which the judge said was included in a sealed document and never shown in court, apparently showed an attorney for the Little Havana businessmen suing Carollo talking to a media member in Smith’s courtroom. Smith did not name them or six other people also shown in the photo, which he said was taken by another attorney, Jesse Stolow, who is part of the defense team and had been attending the proceedings. “This is one of the most egregious reprehensible disrespectful actions you could make against this court. It requires prison time. We will see how it can be avoided,” Smith said. “I’ve never seen something like this in my life. What happens here sets a precedent.”

I still want cameras in federal courts, but I guess that's a long ways away.
 

 

"I also want to underscore my disgust at how outrageous the prosecution’s conduct in closing argument was."

 That was Judge Rosenbaum, concurring with an unpublished 107 page opinion in Pace v. Warden:

The prosecutor’s antics have no place in our system of justice. To recap just a couple of the prosecutor’s egregious remarks, he urged the jurors to im-pose the death penalty rather than send Pace to prison for life be-cause “if anal sodomy is your thing, prison isn’t a bad place to be.” The despicable nature of this comment speaks for itself. Not satis-fied with that, the prosecutor also told the jury to sentence Pace to death because if it did not, it would be “saying that these victims’ lives didn’t matter.” It goes without saying that it is never appro-priate or even permissible to attempt to guilt a jury into a death verdict. These tactics aren’t close to the line or justifiable. They are squarely and obviously improper.

I applaud Judge Rosenbaum for calling out these antics.  But the opinion does not name the prosecutor.  And there are no repercussions for the unethical conduct.  So the conviction is affirmed, and then nothing... what's the message for prosecutors?

Rein em in

Last week I posted about the First Circuit's big decision in Varsity Blues, reining in a rogue federal prosecution.  

The hits keep coming -- this time the Supreme Court unanimously reversed the Second Circuit's "right-to-control" theory which they have been using to punish defendants for decades.  The case is Ciminelli v. United States.  Here's the intro to SCOTUSblog summary:

For decades, the Supreme Court has steadily narrowed the scope of the federal criminal wire fraud statutes, and Thursday’s decision in Ciminelli v. United States is no exception. The court held that the federal criminal wire fraud statutes do not incorporate a “right to control” theory of fraud. The court referenced both federalism and overcriminalization concerns in narrowing the scope of the wire fraud statutes, pushing federal prosecutors to be more precise in articulating fraud cases against suspicious state contractor activity. As Justice Samuel Alito’s concurrence explains, though, the precise outcome for Louis Ciminelli himself or others accused of fraud is less clear.

And in another case, the High Court reversed an honest services conviction in Percoco v. United States.  From SCOTUSblog because the jury instructions were wrong:

Before his 2018 trial, Percoco asked the judge to dismiss the “honest services” charge against him, arguing that a private citizen cannot be convicted of depriving the public of its right to honest services. The court rejected that request, and Percoco was convicted and sentenced to a total of six years in prison. The U.S. Court of Appeals for the 2nd Circuit upheld his conviction.

In an opinion by Justice Samuel Alito, the Supreme Court on Thursday threw out Percoco’s conviction. Like the lower courts before them, the justices declined to adopt a bright-line rule holding that private citizens can never have the kind of fiduciary responsibility to the public that would allow them to be held liable for depriving the public of its right to their honest services.

Percoco’s conviction still cannot stand, the justices ruled, because the instructions that the trial judge gave to the jury in his case were too vague. The judge told the jury, Alito observed, that Percoco “owed a duty of honest services to the public if (1) he ‘dominated and controlled any governmental business’ and (2) ‘people working in the government actually relied on him because of’” his relationship with the government. But that standard does not, Alito continued, provide enough information about what conduct is or is not allowed, nor does it shield against arbitrary enforcement by prosecutors.

So I urge district judges again -- it's okay to grant motions to dismiss and Rule 29s!  It's okay to give defense instructions and not the patterns.  The Supreme Court has your back. 

How involved should judges be in the community?

By John R. Byrne

Happy Friday. Carlton Fields hosted Judges Scola, Altman, and Singhal and the local chapter of the Federal Bar Association for a CLE on judicial ethics. Interesting discussion about how involved federal judges should be in the community (the "Ivory Tower" approach versus active speaking/meeting with practitioners and members of the community). I think our bench is one of the more engaged benches, on the whole. 

Big games tonight for the Heat (ESPN @7:30) and Panthers (TNT @7). 

Prosecution trounced in Varsity Blues appeal

 You gotta check out this First Circuit opinion reversing the Varsity Blues' convictions.  It's exactly why more defendants should fight these weird fraud theories. 47 out of the 50 defendants pleaded out.  Three cases went to trial.   Two were acquitted and one was reversed on appeal.

District judges: we need you to do more to check these crazy prosecutions instead of letting them get all the way to trial.  It's okay to grant motions to dismiss!  You will get affirmed.  And if not, the case will get reversed and then it will be tried.  Nothing lost... These defendants suffered a lot and 47 others pleaded guilty because motions to dismiss this first of its kind theory were denied over and over again.

Real ethical issues versus fake ones

 I've been posting a bunch about the ethical issues popping up with the Supreme Court Justices recently.  From Ginni Thomas to Harlan Crow and so on.  Some of these issues are real concerns, especially Ginni Thomas' role in January 6.  

One issue, though, that I expressed skepticism about last week was Chief Justice Roberts' wife being employed as a legal recruiter.  The more I think about it, the more I don't get the uproar.  She is a lawyer who left her law job because she did not want the appearance of impropriety.  And now she is working as a legal recruiter.  She should not have to step away from her job. 

Here are two articles saying Jane Roberts' job is a nothingburger (Above the Law and Bloomberg).

Interested in your thoughts.

"Supremely Arrogant"

That's the title of Maureen Dowd's NYT op-ed on the Supreme Court.  From the conclusion:

John Roberts cannot accept that these justices are incapable of policing themselves. Despite all the slime around him, he refused to testify before Congress about a court that blithely disdains ethics.

One reason may be, as The Times reported, that the chief justice’s own wife, Jane, has made millions of dollars as a legal recruiter, placing lawyers at firms with business before the Supreme Court.

Even though I’ve been writing since Bush v. Gore that the court is full of hacks and the bloom is off the robes, it is still disorienting to see the murk of this Supreme Court.

 

Gillum Found Not Guilty

 

By John R. Byrne

Not a trial in the Southern District of Florida but a trial with Southern District of Florida ties. Our own David Markus and Margot Moss obtained a "not guilty" verdict on the charge of lying to the FBI for the former gubernatorial candidate. The jury hung on the other 18 counts, but apparently were 10-2 in favor of acquittal on those. Prosecutors say they'll retry Gillum. Lot of national press coverage on this one.

Good luck to the Heat (Saturday @3:30) and Panthers (Sunday @6:30) this weekend.

Breaking -- Biden to nominate 3 for district judgeships

I have it from multiple sources that President Biden has cut a deal with Senators Rubio and Scott to nominate Jackie Becerra, Melissa Damian, and David Leibowitz for the 3 open district slots.  Three great choices.  More on this later, but wanted to get this up.

May the Fourth be with you.

Always.

 

If you are looking for some legal news, check out this new story from ProPublica about Harlan Crow paying for the private school tuition of a boy that Justice Thomas raised as his son.

More News & Notes

 1.  The 3rd Circuit makes filing deadlines 5pm.  I hate this rule. It won't help lawyers and will just move the deadline to a day earlier.  Even my kids can upload their papers until 11:59 at night.  Here's the rule and the reasons for it.

2. Former Judge Michael Luttig says the Supreme Court really needs an ethics code.  Here's the actual statement.  From the conclusion:

Whether the Supreme Court is subject to ethical standards of conduct or not is emphatically not a partisan political issue and must not become one. But just as emphatically, the issue of the Court’s ethical standards of conduct does not present a constitutional question, much less one of any constitutional moment. This is not to say that the issue and question of whether the Supreme Court should be bound to ethical standards in its non-judicial conduct and activities is not important. It is unquestionably important. It is even of surpassing importance. But it ought not be thought of as anything more – and certainly nothing less -- than the housekeeping that is necessary to maintain a Republic.

Lest the Congress and the Supreme Court ill serve the nation in the course of attempting to resolve the constitutionally fraught question before them, they should together address the question with the solemnity and wisdom that the question deserves and requires. If they do but this, they will almost assuredly conclude that the answer they seek is the answer they both should want.  

3.  Gov. DeSantis expands the death penalty... and it looks to be unconstitutional.  Via the WaPo:

Gov. Ron DeSantis (R) expanded Florida’s death penalty law on Monday, signing a measure making it a capital crime to rape a child under the age of 12, a law that could set up a future U.S. Supreme Court case.

Vowing Florida “stands for the protection of children,” DeSantis signed the law during a campaign-style event in Titusville, touting his record on issues involving “law and order.”

The measure, which overwhelmingly passed the Florida legislature last month with bipartisan support, gives state prosecutors the option of seeking the death penalty if an adult is found guilty of the sexual battery of a child.

The law will still go into effect even though it is unconstitutional. In 2008, the U.S. Supreme Court issued a 5 to 4 decision that struck down a Louisiana law that allowed a child rapist to be sentenced to death, barring states from executing child sex predators unless they also murdered their victims.

News & Notes

1.  The Fort Lauderdale federal courthouse is still closed due to flooding weeks ago. 

2. Check out this wild sentencing, covered by Jay Weaver:

It started out as a routine sentencing of a Colombian cocaine smuggler and wound up as a messy and very Miami legal drama. You’ve got a local jeweler who deals in high-end watches claiming he’s been stiffed on a quarter-million loan to the smuggler’s friend, who bankrolled his legal defense. You’ve got an attorney hired by the jeweler to collect the debt making his claim in a criminal case, something that just never happens in by-the-book federal court. And you’re got a doozy of a motion by the jeweler’s attorney, arguing the drug trafficker should get punished hard because his pal who took out the loan hasn’t paid up, that the FBI fell down on the job of investigating the unpaid debt, and that the defense attorney for the smuggler ought to be sanctioned for any number of reasons.

3. Justice Alito apparently believes he knows who the leaker is.  And he's blaming the bar for not coming to his defense.  Oh boy.  Via the NY Times:

He added that he was disappointed that lawyers had not come to the defense of the court, which has faced mounting scrutiny for what critics say are serious ethical lapses.

“This type of concerted attack on the court and on individual justices” is, he said, “new during my lifetime.”

He added: “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.”

Instead, Justice Alito said, “if anything, they’ve participated to some degree in these attacks.”

4. Unlike the criticism of Justice Thomas, I'm not sure this attack on Chief Justice Roberts' wife, who has a very successful attorney placement firm, is justified.  From Business Insider:

"When I found out that the spouse of the chief justice was soliciting business from law firms, I knew immediately that it was wrong," the whistleblower, Kendal B. Price, who worked alongside Jane Roberts at the legal recruiting firm Major, Lindsey & Africa, told Insider in an interview. "During the time I was there, I was discouraged from ever raising the issue. And I realized that even the law firms who were Jane's clients had nowhere to go. They were being asked by the spouse of the chief justice for business worth hundreds of thousands of dollars, and there was no one to complain to. Most of these firms were likely appearing or seeking to appear before the Supreme Court. It's natural that they'd do anything they felt was necessary to be competitive."

Roberts' apparent $10.3 million in compensation puts her toward the top of the payscale for legal headhunters. Price's disclosures, which were filed under federal whistleblower-protection laws and are now in the hands of the House and Senate Judiciary committees, add to the mounting questions about how Supreme Court justices and their families financially benefit from their special status, an area that Senate Democrats are vowing to investigate after a series of disclosure lapses by the justices themselves.

 5. So, should there be an ethics code for the Justices?  This WaPo piece makes fun of the High Court for pushing back against the code.

Disney Files Suit

 By John R. Byrne

This seemed like a matter of time. But now it's official. Disney is pushing back against Governor DeSantis's latest moves to exert state control over the Magic Kingdom. A few weeks back we covered how the old Reedy Creek board had executed a Declaration of Restrictive Covenants that greatly limited what the new board (the "Central Florida Tourism Oversight District") could do in terms of Disney. Yesterday, the new board declared the Declaration "void and unenforceable." Separately the Florida Legislature has recently pushed forward legislation that would prohibit enforcement of the Declaration (along with a Development Agreement) "unless the [new board] were to readopt them."

Disney presents a host of constitutional challenges to the state's action, arguing that it's "[a] targeted campaign of government retaliation--orchestrated at every step by Governor DeSantis as punishment for Disney's protected speech[.]" 

Disney isn't lacking for sound bites. How about this quote from the Florida representative who introduced the original Reedy Creek dissolution bill? “You kick the hornet’s nest, things come up. And I will say this: You got me on one thing, this bill does target one company. It targets The Walt Disney Company.”

Hard to believe.

The complaint (excerpted below) was filed in the Northern District of Florida. Will be fascinating to see this play out.

Disney Complaint by John Byrne on Scribd

🔥🔥🔥

 

Phins Back in Court

By John R. Byrne

While that Jimmy Butler performance last night has everyone talking about the Heat, one of our other professional sports franchises is back in federal court. 

The Dolphins filed suit last Friday against First Class Cruises, LLC and Jeffrey Nahom. According to the complaint, which landed before Judge Bloom, the defendants promoted a Fan Cruise where fans could interact with 35 former Dolphins players. The defendants allegedly failed to pay the cruise line for the requisite state rooms/amenities for the former players/fans, forcing the Dolphins to come to the rescue at the last minute and cut checks to the cruise line. 

The Sun Sentinel covers the lawsuit here. According to the paper, Nahom/Nahom-controlled entities had other cruise promotions that have generated controversy, including a Philadelphia Eagles cruise (cancelled) and Washington Commanders cruise (cancelled).

It isn't all bad. The Dolphins fan cruise did ultimately go forward and fans got to meet Dan Marino, the greatest quarterback in NFL history....

SCOTUSblog off of Twitter

Not only are they not paying the $8 for the blue check, they have left Twitter altogether.  

Reuters covers how law firms are dealing with the new pay-for-the-blue-check program on Twitter:

While many law firms may be lukewarm to Twitter, some individual lawyers have amassed large followings, using the platform for self-expression, networking and business development.

Are they willing to pay for a checkmark?

Those who have the blue badges include former Manhattan U.S. attorney Preet Bharara, now a partner at Wilmer Cutler Pickering Hale and Dorr (1.7 million followers); Hogan Lovells appellate partner Neal Katyal (837,500 followers); Quinn Emanuel Urquhart & Sullivan founder John Quinn (50,600 followers); and Paul, Weiss, Rifkind, Wharton & Garrison appellate chair Kannon Shanmugam (13,000 followers).

Lest you think the list is limited to the elite alone, Michael Avenatti (aka Federal Correctional Institution, Terminal Island inmate number 86743-054) also has a blue check – and 612,200 followers.

None responded to my requests for comment, though I don’t know if Avenatti can actually get text messages in prison.

Class action watchdog Ted Frank of the of the Hamilton Lincoln Law Institute (20,000 followers) also has a blue check. When I asked him about it, he offered this response via email: “I recently purchased a phenomenal fish appetizer at a Chinese restaurant in Virginia for $12, making that at least 150% as important a story. Would be happy to give that a review.”

This is an example of why Ted Frank is good at Twitter.

Still, plenty of lawyers with big followings are checkmark-free. For example, former U.S. attorney general Eric Holder, now senior counsel at Covington & Burling, has 559,300 followers and no blue mark. He declined comment via a firm spokesman.

“A 17-page paper on the importance of professionalism in the legal field and treating one’s opponents with civility.”

Two defense lawyers in the sprawling Young Thug criminal trial were ordered to write a 17 page paper on civility in the middle of trial or go to jail for 20 days.  

Which one would you pick?

The judge also said that the “Paper is to be published quality in APA format and at least 10 primary and secondary sources. April 28 at noon or you do 20 days.”

You can watch the in court order at the Twitter clip here.

So you want to be a Magistrate Judge?

 There’s a new opening as the Judge Otazo-Reyes on November 30.

Applications are due May 3.  

And here’s the committee who will recommend 5 names to the district bench:

Chair:

Ryan Ulloa, Esq.

Members: 

Sashi Bach, Esq.

Matthew Dates, Esq.

Wifredo Ferrer, Esq.

Hector Dopico, AFPD

Jasmin Grant (non-attorney)

Lindsey Lazopoulos Friedman, AUSA Francesca Nabors (non-attorney) Jonathan Osborne, Esq.

Motion To Continue Sentencing Until Rain Stops

By Michael Caruso 

Judges generally believe they are objective and impartial and can ignore irrelevant information when they make decisions. Research, however, has shown that many legally irrelevant factors may influence legal decision-making.

The “anchoring effect” may be the most well-known example. The anchoring effect is a type of cognitive bias where numbers that act as a reference point influence a person. These numbers may or may not be utterly irrelevant. In 2006, Prof. Dan Ariely asked students at MIT to bid on items in an arbitrary auction using social security numbers as their anchor. Students were asked how much they would pay for two types of wine, a cordless mouse, a cordless keyboard, a design book, and chocolates. The professor instructed students to write down the last two digits of their Social Security number at the top of the page and then write them again as a price next to each item. So, if the last two digits were four and five, the student would write $45. When they finished that task, students were asked to indicate for each item “yes” if they would pay that price or “no” if they would not. As the last step, students wrote down the maximum amount they would be willing to pay for each item. Ariely found that students’ Social Security numbers influenced the amount they were willing to pay. Students with the highest last two digits of their Social Security number (80-99) bid the highest, and those with the lowest last two digits (1-20) bid the lowest. When students were debriefed on the experiment and asked if they thought their Social Security numbers influenced the prices they would pay, they stated no.

In the federal criminal legal system, the Sentencing Guidelines have, post-Booker, remained the essential starting point in all federal sentences. Because the Guidelines produce a numerical value, they create a cognitive “anchoring effect” bias that some say exerts a disproportionately strong impact on a judge’s decision-making that may undermine the fairness of sentencing decisions. Researchers have other ways that anchoring biases purportedly impact judicial decision-making. 

But more decidedly irrelevant factors and circumstances may influence a judge’s imposition of sentence. With the disclaimer that I’m not vouching for any of the conclusions made by the authors of these studies (and note contrary studies), here are a few examples where judges purportedly impose longer sentences or render more severe decisions:

—Bad weather (higher sentences when raining) Cf. https://hal.science/hal-03864854/document with https://eprints.whiterose.ac.uk/137050/8/sentencing%25

 

—Lack of sleep (higher sentences on the Mondays after the start of Daylights Savings Time) See https://hbr.org/2017/02/sleep-deprived-judges-dole-out-harsher-punishments

 

—Hunger (judges are more severe right before a meal break) 

Cf. https://www.pnas.org/doi/10.1073/ pnas.1018033108 

with https://www.scientificamerican.com/article/lunchtime-leniency/ and  https://www.annieduke.com/no-judges-dont-give-harsher-sentences-hungry-annies-newsletter-october-5-2018/

 

—Sports (move to continue when the judge’s football team loses) https://www.theatlantic.com/education/archive/2016/09/judges-issue-longer-sentences-when-their-college-football-team-loses/498980/

 

—Attractiveness (the more unattractive the defendant, the higher the sentence) See

https://www.thelawproject.com.au/insights/attractiveness-bias-in-the-legal-systemhttps://www.thelawproject.com.au/insights/attractiveness-bias-in-the-legal-system

Whatever the import of these and other studies may be, they certainly try to scientifically test Jerome Frank’s belief that a judge’s decisions are but a part of their total behavior and that the process of making decisions is, in reality, a composite of the psychological, environmental, and socioeconomic factors that go into the development of the personality of the individual judge. 

The bottom line is if you have a sentencing set for 11:30 the day after the Dolphins play Kansas City on Monday night and the forecast calls for rain, you may want to move to continue.

Ft. Lauderdale courthouse still closed...

 ... apparently it will be closed all week.

Here's what it looked like a few days ago:

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Trump Sues Cohen in SDFLA

By John R. Byrne 

Our district is now home to another lawsuit filed by former President Trump, this one against his former attorney, Michael Cohen. Trump is seeking $500 million in damages. 

You can read the Complaint here. As of the time of this post, no judge had been assigned yet.

***Update***

The case has been assigned to Judge Gayles

Ft. Lauderdale federal courthouse closed…

 …due to flooding and rain. 

Can’t wait for that new courthouse!

I’m told judges and staff are all working from home and hearings are proceeding via Zoom. 

Stay dry!

"What have you done for mankind today?"

By John R. Byrne

It's a question that Ben Ferencz used to ask his children around the dinner table every night. Ferencz, who was the last living Nuremberg prosecutor, died last Friday in his sleep. He was 103. He had moved permanently to South Florida in 2019.

The South Florida Sun Sentinel, along with countless other media outlets, are covering Ferencz's life. He was only 27 years old when he prosecuted 22 members of the Nazi killing squads. The beginning of his opening statement, which the paper excerpts, is powerful. 

“It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.”

Ferencz is considered one of the founding fathers of the International Criminal Court. Remarkably, in 2011, he delivered the closing statement for the prosecution at the Court's first trial. What a legacy.

One Day It Will Please Us To Remember Even This

By Michael Caruso

Some believe that our unfortunate reality is that, sometimes, no amount of thoughtfulness, hard work, or understanding will transform an intractable problem into a resolvable one. Yet, today marks the 25th anniversary of a counter-example—the “signing” of the Good Friday Agreement that brought peace to Northern Ireland and ended decades of violence known as “The Troubles.”

The origins of the Troubles date back to centuries of warfare in which the predominantly Catholic people of Ireland attempted to break free of British (overwhelmingly Protestant) rule. In 1921, the Irish successfully fought for independence, and Ireland was partitioned into two countries: the Irish Free State, which was almost entirely Catholic, and the smaller Northern Ireland, which was primarily Protestant with a Catholic minority.

While Ireland was fully independent, Northern Ireland remained under British rule, and the Catholic communities in cities like Belfast and Derry complained of discrimination and unfair treatment by the Protestant-controlled government and police forces. In time, two opposing forces coalesced in Northern Ireland mainly along sectarian lines: the Catholic “nationalists” versus the Protestant “loyalists.”

During the 1970s, 1980s, and 1990s, Northern Ireland suffered dozens of car bombings and sectarian attacks perpetrated by paramilitary groups on both sides, like the Provisional IRA and the Ulster Volunteer Force. Hundreds of civilians were among the dead.

There is a connection to our district. The IRA had two primary sources for weapons—Libya and the United States. And there were at least two notable prosecutions here that involved alleged gun running for the IRA. In 1990, the FBI used a Stinger missile to lure four suspected IRA members in a sting operation. One of those arrested—Joseph McColgan— commented: ″I’m just a poor Irishman here on holiday, and I was entrapped by certain people here.″  They were later convicted at a trial presided over by Judge Gonzalez. 

The Troubles ended, at least officially, with the signing of the Good Friday Agreement in 1998, creating a framework for political power-sharing and ending decades of violence. 

A year later, however, "the Florida Four" were accused of smuggling guns to the IRA. At a trial before Judge Ferguson, one of the men testified that “militant Irish-Americans” pushed him to buy weapons because they feared the peace deal would leave defenseless Catholics to face armed Protestant paramilitaries and police. The three men who went to trial were convicted of gun smuggling but acquitted of providing material support and conspiracy to murder. 

 

Postscript: Most of you know that David has a wonderful podcast called “For the Defense,” where he talks with defense lawyers about their cases. In writing this post, I realized that our district’s history—although somewhat alive on the internet—might be lost to time. I wonder if a voluntary bar association would be interested in doing a podcast with the judges and lawyers involved in these and other notable cases and creating an oral history of our district. 

Paul Hastings' associates have to buy their own work from home setup?

Here's the slide everyone is talking about, which was apparently presented to associates at Paul Hastings.  As you can imagine, it's gotten quite a bit of criticism. 

Dershowitz Sees Reversal of Litigation Fortune

 By John R. Byrne:

Judge Singhal just granted summary judgment to CNN in a high-profile defamation case. The Plaintiff, Alan Dershowitz, alleged that a host of CNN anchors and commentators misconstrued statements he made to the US Senate during President Trump’s impeachment trial. 

The order candidly touches on the evolution of the news media and the state of First Amendment jurisprudence more broadly.

Some good legal trivia in the order too, including this about the Supreme Court's landmark defamation decision--New York Times Co. v. Sullivan:

“In Sullivan, an advertisement containing false information was published in the

New York Times. In total the circulation of the paper in the entire state of Alabama—

where the concerned parties’ alleged injury occurred—was 394 copies."

394! 

Bottom line: CNN’s reporters may have “spun” Dershowitz's comments but there wasn’t evidence that they spoke with actual malice, the governing standard.

Worth a read. Order excerpted below.

Dershowitz Order by John Byrne on Scribd

Nikki Fried and Lauren Book arrested for peaceful protests

 

Well, everyone is talking about Trump and whether that's a political prosecution. Take a look at this arrest last night of Nikki Fried and Lauren Book. What happened to the first amendment?

Police just handcuffed & arrested protesters including ⁦@NikkiFried⁩ & ⁦@LeaderBookFL⁩ pic.twitter.com/NCdqHJxmcx

— Gary Fineout (@fineout) April 4, 2023

Yikes.

Judges Branch and Ho ban Stanford Law Students from clerkships

Not just the protestors, but all students who attend Stanford.  They are cancelling the whole school because a small group of students tried to cancel a federal judge who was speaking at a Federalist Society event. They are already boycotting Yale. 

Hey, more opportunities for the UM law students!

Here's some coverage:

"We will not hire any student who chooses to attend Stanford Law School in the future," Ho, who sits on the Fifth Circuit Court of Appeals, said Saturday evening in a speech to the Texas Review of Law and Politics, a transcript of which was reviewed by the Washington Free Beacon. The clerkship moratorium, like the one on Yale, will exempt current law students.

Ho's announcement is the latest and most dramatic effort to hold Stanford accountable for its treatment of Fifth Circuit appellate judge Kyle Duncan, who was shouted down by hundreds of students—and berated by Stanford diversity dean Tirien Steinbach—when he spoke at the law school last month. The students called Duncan "scum," asked why he couldn't "find the clit," and screamed, "We hope your daughters get raped."

Though Steinbach is on leave, Stanford has ruled out disciplining the hecklers, who by Stanford's own admission violated the school's free speech policy.

"Rules aren't rules without consequences," Ho said. "And students who practice intolerance don't belong in the legal profession."

Mickey Strikes Back

 

By John R. Byrne:

Everyone’s talking about the Trump indictment but, since it’s Friday, we’re going with some lighter fare. Disney!

You may have read about Governor DeSantis's takeover of the Reedy Creek board, which governs the district where Walt Disney World operates. But, apparently, on the eve of the takeover, the old board significantly curbed the new board's powers by having the district enter into a Declaration of Restrictive Covenants in favor of Walt Disney Parks. 

As one of the new board members said, “This [document] essentially makes Disney the government. This board loses, for practical purposes, the majority of its ability to do anything beyond maintain the roads and maintain basic infrastructure.” 

The new board has hired multiple law firms to look into undoing the covenants. 

As a side note, remember the Rule Against Perpetuities? You know, that rule you learned for the bar exam and then promptly forgot about after the test? It makes an appearance in the Declaration! The restrictive covenants are in place "in perpetuity" unless that violates the Rule Against Perpetuities, in which case they will be in place "until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration." I think that works. 

If you're interested in reading the Declaration, the Orlando Sentinel includes it in their article.

Enjoy the weekend and go Canes!

Oath Keepers juror speaks

 Wowee.  You should read this entire Politico article about the deliberations, but there's this:

Ellen indicated that she and another juror who happened to be a lawyer helped spearhead a lot of the deliberations. Some jurors, she said, did not seem to have followed every twist and turn of the trial. Others, she said, seemed to have preconceived notions against convicting anyone regardless of the facts — which the jury had to overcome to arrive at its verdict. And when she completed her service, after a five-week trial and lengthy deliberations, Ellen came away with a conclusion: If she were ever on trial, she would waive her right to a jury and instead let the judge decide her fate.

“I would never want my fate in the hands of people who are mostly completely ill-equipped to understand what’s going on,” she said.

Ellen described the extraordinary volume of evidence jurors had to sift through as they considered the 34 counts against the six defendants — part of prosecutors’ video evidence trove that is unparalleled in American history. She said she grew exasperated at times with some jurors’ insistence that they had to rely only on direct evidence to reach a conviction, rather than circumstantial evidence that can point to someone’s guilt. But despite these frustrations, she ultimately compared the experience to “12 Angry Men” and a “made-for-TV movie” in which jurors understood the gravity of their charge and the significance of the case they had just witnessed.

Ellen indicated that of the four defendants who took the stand “three did harm to themselves by testifying.” One of them, she said, was Bennie Parker, whose testimony she said helped convince the jury that there was a plan to storm the Capitol even before the group arrived at the building. That testimony, she said, damaged other defendants, including Parker’s wife Sandra, who was convicted on several counts for which Parker — who didn’t enter the building — was acquitted.

***

Ellen saved her harshest remarks for some of the defense lawyers in the case, who she said at times acted in ways that perplexed and even upset the jury. For example, the lawyer for one defendant, Laura Steele, didn’t put on a case for his client but noticeably laughed repeatedly throughout the trial, Ellen said.

“I was horrified,” she said.

 

Justice Gorsuch dissents from cert denial

 It's the well-known Donziger prosecution, which involved a lawyer being held in contempt.  Justice Kavanaugh joined the dissent, which explains:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.

***

However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.  In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.

News & Notes

1. Thank you Michael Caruso for a great post on Friday.

2.  Hope everyone enjoyed their spring break.  Back to the crazy traffic.

3. Go CANES.

4. What's going on with the Israel Supreme Court.  CNN explains here:

For months, hundreds of thousands of Israelis have been taking to the streets across the country to protest far-reaching changes to Israel’s legal system some say threaten the country’s democratic foundations.

At its core, the judicial overhaul would give the Israeli parliament, the Knesset, and therefore the parties in power, more control over Israel’s judiciary.

From how judges are selected, to what laws the Supreme Court can rule on, to even giving parliament power to overturn Supreme Court decisions, the changes would be the most significant shakeups to Israel’s judiciary since its founding in 1948.

The proposed reforms do not come out of nowhere.

Figures from across the political spectrum have in the past called for changes to Israel’s judiciary.

Israel has no written constitution, only a set of quasi-constitutional basic laws, making the Supreme Court even more powerful. But Israel also has no check on the power of the Knesset other than the Supreme Court.

5.  Will Trump be indicted this week?  Should he be?  Rumpole discusses bail over at his blog.  

Triple Crown Winner

By Michael Caruso

As David noted in a prior post, Judge Williams and I had the privilege of speaking at Magistrate Judge Augustin-Birch's investiture last week. In addition to telling the audience what a wonderful person and lawyer the Judge is, we both noted the "firsts" she's accomplished–the first judge of Haitian-American descent on our court and in the 11th Circuit and the first career public defender on our bench.

Because this is Women's History Month, I wanted to note some (but not all) other relevant judge "firsts."*

Chief Judge Altonaga–the first Cuban American woman federal judge in our country and the first woman Chief Judge in our district.

Judge Barkett–the first woman on the Florida Supreme Court.

Judge Cooke–the first African American woman in our district.  

Judge Lagoa–the first Cuban American woman on the 11th Circuit, Florida Supreme Court, and Third DCA.

Judge Maynard–the first African American woman Magistrate Judge in our district. 

Judge Nesbitt–the first woman in our district.

Special mention to Judge Seitz–the first woman Florida Bar President.  

But the Triple Crown belongs to Judge Susan Black of the 11th Circuit Court of Appeals–Judge Black was the first woman to be a county court, circuit court, and federal judge in Florida. (Judge Black was also the first woman ASA in our state). Quite the accomplishments! 

If you're interested in reading more about women "trailblazers," I highly recommend this ABA oral history series– https://www.americanbar.org/groups/senior_lawyers/women_trailblazers_project_listing 

At this site, you'll find fascinating interviews with Judges Barkett and Kravitch, Justice Quince, Janet Reno, and many others. 

*I gathered this information from public sources; please let me know if incorrect. 

 

Magistrate judge in Denver has never heard of Brady v. Maryland

I hate gotcha moments but wow, you gotta watch district court nominate (and current magistrate judge) Kato Crews bomb this question about Brady v. Maryland. 

There are so few trials that *judges* do not even know what Brady is. This is a magistrate judge, who hears discovery disputes among the parties… and who is also supposed to order disclosure of Brady material at arraignment per Rule 5.

And he’s been nominated to the district bench. Ouch. 

Here’s the story about the nominee, Kato Crews.

And here’s a video of the exchange