RIP Ervin Gonzalez (2 UPDATES)

RIP Ervin Gonzalez.

The awful news is making the legal community rounds this morning and everyone is shocked.



UPDATED with statement from Colson Hicks:

Colson Hicks Eidson Statement

"We are deeply saddened by the passing of Ervin A. Gonzalez, our beloved partner, friend and role model. Words cannot convey our grief, admiration, or affection for this pillar of our community. Our hearts and prayers go out to his wife Janice and his family and friends during this unfathomable time. A caring, warm, brilliant and masterful trial attorney, he set the standard for the profession in his compassion and vigorous advocacy for those who suffered grievances and injustices at the hands of others. He will be remembered for his intellect, skill and ability to befriend and defend the rights of people from all walks of life with a zest and dedication that was unrivaled. Ervin's passing reminds all of us that mental illness can strike anyone regardless of how accomplished or content they might appear. Like the Ervin we all knew and loved, he valiantly fought this personal challenge with unmatched effort. He simply was unable to win his hardest and final trial. It pains us to know he was suffering so terribly beyond his control.”

-Dean C. Colson

SECOND UPDATE:

Funeral Services
Tuesday, June 13th at 10:00 a.m.
Church of the Little Flower
2711 Indian Mound Trail
Coral Gables, FL 33134

Candidate list for U.S. Attorney expands (UPDATED)

UPDATE -- Dave Aronberg has pulled his name from consideration.

In an interesting turn, the search for U.S. Attorney has expanded to 6 candidates. The list, according to the Herald, is:

▪ Roy Altman, 35, worked as a federal prosecutor for six years, handling hundreds of criminal cases, including the conviction of a postal worker’s killer. In early 2014, he became the office’s deputy chief of special prosecutions, focusing on the sexual exploitation of children and federal violent crimes. A native Spanish speaker, he attended Columbia University and Yale Law School before clerking for an influential federal appeals court judge, Stanley Marcus. Altman, a partner in the prominent Miami law firm Podhurst Orseck, is considered among the favored candidates.

▪ John Couriel, 39, prosecuted economic and major criminal cases at the U.S. attorney’s office before joining the law firm Kobre Kim as a partner. He also ran twice unsuccessfully for the Florida Legislature. A native Spanish speaker, Couriel graduated from Harvard College and Harvard Law School. Couriel was considered a front runner but lost ground after Trump’s advisers learned he voted for Bush in the GOP presidential primary and predicted Democrat Hillary Clinton would win his Republican district by “quite a bit.”

▪ Jon Sale, 73, is a former federal prosecutor in New York and Miami who co-chairs the Broad and Cassel law firm’s white-collar defense and compliance practice. He is also a close friend of Trump confidant Rudy Giuliani. Sale, a graduate of the University of Pennsylvania and NYU Law School, was also an assistant special prosecutor for the Justice Department in the Watergate case that led to the resignation of President Richard Nixon. Sale, widely respected by colleagues and judges, could emerge as Trump’s pick.

▪ Dave Aronberg, 46, is the Palm Beach County state attorney. A Democrat, Aronberg declined to prosecute Trump’s former presidential campaign manager, Corey Lewandowski, for battery in April. Aronberg is also a former state senator. He graduated from Harvard College and Harvard Law School. Despite a being high-profile Florida Democrat, Aronberg has surfaced as an alternative selection.

▪ Jose Felix “Pepi” Diaz, 37, is a state representative from Miami and land-use attorney with the law firm Akerman LLP. A graduate of the University of Miami and Columbia Law School, Diaz came to know the president personally after appearing as a contestant on Trump’s TV show, “The Apprentice,” in 2006. Diaz, despite his association with Trump, is not seen as a strong contender for the post.

▪ Frank Ledee, 53, is a veteran prosecutor in the Miami-Dade state attorney’s office who has most recently served as chief of the gang-prosecution and gun-violence units. He’s also the office’s liaison to the U.S. attorney’s office. Last year, Ledee was appointed by Gov. Rick Scott to the South Broward Hospital District Board. He received bachelor’s and master’s degrees from Barry University and law degree from Nova Southeastern University. Ledee is considered a long shot for the job.

Judges are speaking out

More and more, judges are starting to speak out against the real problems in our criminal justice system.  This time it's Judge Mark Bennett saying that min-mans are the worst injustice he has seen while on the bench.  From CNN:

"I strongly disagree with that decision," the judge says firmly from the bench.
It is not the first time he has felt this way. Bennett says 80% of the mandatory sentences he hands down are unjust -- but that he is handcuffed by the law, which leaves no room for judicial discretion to consider a sentence based on individual circumstances of the defendant. 
Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins.
Bennett says if he had the power, he would jail Rice for perhaps a year, or 18 months. Across the street in a state courthouse, she would have been put on probation, he says.
"I think it's a miscarriage of justice," Bennett says. "But you know people are entitled to their own sense of what justice is."
In the courtroom, the judge lowers his head and his voice.
"With the greatest of reluctance, I sentence you to 60 months," he says.

Breaking News -- Judge Lenard to take Senior Status

Breaking News -- District Judge Joan Lenard informed her colleagues today that she will be taking Senior Status on July 1, 2017. She was appointed by President Bill Clinton in 1995 to fill Judge King's slot when he went senior. Before that, she was a state circuit and county judge, as well as a state prosecutor. This will create another open seat for President Trump to fill.  Congrats to Judge Lenard, and thank you for your service to the bench.

Summer is here (Updated with cell site cert grant)

UPDATE -- the Supreme Court granted cert in the cell-tower case today. Great news as the lower courts have gotten this one wrong. Hopefully it will be an opportunity to re-examine the third-party doctrine, which is the old rationale that the courts have used to justify the acquisition of the data without a warrant. As full-disclosure, I argued the en banc Davis case on this same issue.

School is just about out.
The Supreme Court is just about done.
Trump is tweeting again. And Neal Katyal is happy about it:

Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel.We don't need the help but will take it! pic.twitter.com/8ehqkLkOY2

— Neal Katyal (@neal_katyal) June 5, 2017

What's up here in the SDFLA? Who is in trial? In the Miami old days, the courthouses literally shut down in August. Now only Raja's downtown keeps up the tradition.

Interesting article about DOJ

"It's a building full of prosecutors."  That's how this interesting article about the problems with DOJ starts. More:

Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.

People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.

Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.

Despite an obvious conflict of interest, the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.

We need you, Judges, to check DOJ.  More than ever.  

Judge Martin criticizes the SDFLA's practice of stacking 924(c) counts

Judge Martin criticizes the SDFLA's practice of stacking 924(c) counts in this concurrence:

Although many things about this case are troubling, perhaps most worrisome is that Mr. Hernandez might never have received this sentence if he had been sentenced in another part of the country. The Sentencing Commission also reported to Congress that the practice of "stacking" § 924(c) charges happens in very few districts. The Commission's data showed "no evidence that those offenses occur more frequently in those districts than in others." Id at 361. The Sentencing Commission thus concluded that "this geographic concentration is attributable to inconsistences in the charging of multiple violations of § 924(c)." Id. at 361-62. As it happens, the Southern District of Florida, where Mr. Hernandez was sentenced, is one of the districts recognized as exceptionally prolific in charging § 924(c) crimes. In fiscal year 2010, at least one in thirty-five of our entire nation's § 924(c) sentences came from the Southern District of Florida. Id at 276. The Southern District of Florida was one of only twelve districts in the country that reported having over 50 of these cases that year. Id. For the same period, 38 districts reported having ten or fewer. Id.

Another local practice that may come under fire in the near future is the shackling of all defendants in magistrate court.  The 9th Circuit just found the practice unconstitutional, which is in direct conflict with the 11th Circuit.  The Supreme Court may get the issue, but it's hard to disagree with the 9th's conclusion:

We must treat people with respect and dignity even though they are suspected of a crime. * * * The Constitution enshrines a fundamental right to be free of unwarranted restraints. Thus, we hold that if the government seeks to shackle a defendant, it must first justify the infringement with specific security needs as to that particular defendant. Courts must decide whether the stated need for security outweighs the infringement on a defendant’s right. This decision cannot be deferred to security providers or presumptively answered by routine policies. All of these requirements apply regardless of a jury’s presence or whether it’s a pretrial, trial or sentencing proceeding. Criminal defendants, like any other party appearing in court, are entitled to enter the courtroom with their heads held high. The policy that defendants challenged here isn’t presently in effect. Thus, although we hold that policy to be unconstitutional, we withhold the issuance of a formal writ of mandamus at this time.   

Manuel Noriega has died.

Manuel Noriega has died.  Here's a sketch of him by Arthur Lien from his 1992 trial before Judge Hoeveler.

He received a sentence of 30 years and served 17. Because he was a prisoner of war, he had to receive a jail cell in accordance with the Geneva Convention. That meant he had his own cell with TV, a computer, and exercise equipment. Corrections officers called it "the presidential suite."