The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Thursday, June 04, 2009
Dore Louis is tall.
Wednesday, June 03, 2009
Tuesday, June 02, 2009
"Do letters from the public — often or ever — influence sentencing judges?"
They're hailing Mary McCarty and flailing her.
With the fallen county commissioner set to be sentenced Thursday, U.S. District Judge Donald Middlebrooks is receiving a welter of missives from the public - some urging the maximum five-year sentence spelled out in her plea deal, some advocating no more than community service.
McCarty, 54, a Delray Beach commissioner and then an 18-year county commissioner, pleaded guilty in March to misdeeds that included votes on bond deals that benefited herself and her underwriter husband, Kevin. That made her the third county commissioner to fall since 2006 in a federal probe of what a state grand jury recently dubbed "Corruption County."
Dozens of people have written to Middlebrooks to weigh in on McCarty's fate, with many expressing anger at the extent of public officials' crimes.
Monday, June 01, 2009
U.S. Attorney's Office still keeping cooperation secret from public
A number of AUSAs and AFPDs have emailed me the new government policy when a defendant is cooperating: Just delete those sections* from the plea agreement and include them in a letter agreement, NOT FILED WITH THE COURT. This new policy certainly circumvents the spirit of making deals open to the public. From what I understand, the prosecutors ask the court to go over the cooperation letter agreement with the defendant, but then ask for the letter not to be filed in the court record. I suspect that most judges will not abide by this request, especially because technically the letter is a matter of public record if reviewed in open court -- so why not file it...
But we'll have to see how this plays out.
*Those cooperation agreements never say anything anyway, so I'm not sure what the big deal is about including it in the open record.
Friday, May 29, 2009
Ruining summer vacation
This summer we plan to use our orientation blog to begin to explore some ideas about the law through books and films. ... Each week we will have by Monday some discussion questions posted on the blog, and we will see where the conversations take us.The idea seems to be to use a blog as a diabolical weapon that targets summer fun. Needless to say, I hit "delete" as fast as I could—which is what I gather just about all of my colleagues did because a couple of weeks ago we started getting phone calls. Long story short, I was prevailed upon, as they say, to do this for a little while.
Now, my being a team player doesn't mean I'm not going to do everything my way. I obviously can't work in an oppressive password-protected website cut off from the outside world that doesn't even allow people to post their coarsest thoughts and pejoratives anonymously. As my grandmother says, "Me fuĂ de Cuba por menos." So, I'm hijacking the kids over to an unofficial open forum called umbricks.com. What's the point of having tenure if you never color outside the lines? (Or sentence below the guidelines?) This way all you members of the Innominate D.O.M.inati—particularly those who are UMSoL alums—can share your comment-space insights on life and law with the wide-eyed eager pups. Go check it out and engage the future of SDFla.
Thursday, May 28, 2009
Justice Scalia and Rumpole
As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:
- Crawford v. Washington -- Justice Scalia breathed life back into the Confrontation Clause and did away with some really bad cases allowing prosecutors to get away with convictions based on hearsay.
- Blakely v. Washington (Apprendi, Booker, etc) -- criminal practitioners rejoiced when Scalia started the revolt against the mandatory federal sentencing guidelines.
- Arizona v. Gant -- Scalia rules in favor of criminal defendant on 4th amendment issue concerning a car search, overruling NY v. Belton.
- Begay v. United States -- finding in a concurring opinion that DUI was not a violent felony based on the rule of lenity.
- United States v. Gonzalez-Lopez -- Scalia finds (5-4) that a criminal defendant has a right to counsel of his choice. This was his quote at oral argument: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”
- United States v. Santos -- Scalia finds that the money laundering statute is ambiguous and rules for criminal defendant that it means proceeds, not profits.
- I'll end with Sorich v. United States in which Scalia dissents from denial of cert on honest services case. Here's part of his opinion:
[T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City ofColumbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). . . . It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.
(A couple weeks after Scalia wrote this dissent, the Court granted cert in the Conrad Black case to figure out the reach of the honest services statute. I'd bet Rumpole that Scalia will rule for Black, but he still hasn't paid me on the last $100...)
And these are just a few off the top of my head in the last few years. I'm happy when Justice Scalia isn't a prisoner to stare decisis. If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia. Yes, criminal defendants are going to lose some too -- like Michican v. Jackson -- but I'll take the above cases with that one. (Has any lawyer ever even filed a Jackson motion to suppress?)
If I had to rank the Justices in order of defense friendly, here's my list:
Scalia, Stevens, Souter (for another couple weeks), Ginsburg, Breyer, Kennedy, Thomas, Roberts, Alito.