SDFLA Summer

1. The SDFLA is pretty quiet right now.  There's a 4-5 trial nearing its end in front of Judge Gayles for the interns who want to see some good lawyering.  

2. Former SDFLA AUSA Michael Brown has been nominated to the district bench in the NDFLA.  Brown is a good guy, who currently works at Alston & Bird:

It's been a good month for Alston & Bird partner Michael L. Brown.
President Donald Trump nominated Brown July 13 to fill a long-vacant post on the federal court bench in the Northern District of Georgia. Brown's nomination came only 23 days after he and his New York law partner secured the acquittal of a bond trader in a federal trial in Connecticut closely watched by Wall Street.
Brown—a former federal prosecutor and co-leader of Alston's government and internal investigations practice—teamed up with Alston New York partner Brett Jaffe in a successful defense of Tyler Peters, a former vice president at international broker-dealer Nomura Securities International Co.
The jury convicted only one of Peters' co-defendants in the securities fraud conspiracy and gave Brown's client a clean sweep after the Alston team presented Peters as a junior trader who was simply doing what he had been trained by his supervisor to do and who did not know that the misstatements the traders made when making securities sales were illegal.
The court record included scrappy—and lengthy—letters Brown wrote to the judge on the defense team's behalf flatly accusing federal prosecutors of misconduct. The at times pugnacious letters were indicative of Brown's style. He is not afraid of a legal brawl.
"Mike is a great lawyer," said Atlanta attorney Page Pate, who has known Brown since the two were first-year law students at the University of Georgia. "If he is representing the government, he's going to be a hard-ass for the government. If he's representing a client, he's going to fight like hell for his client. He is one of a select group of people who can literally go either way."

3. This is a pretty funny tweet for you GoT fans:

The R+L=J Theory is SO last season... #GameOfThrones  #GoTS7 pic.twitter.com/t3dkAeo5h3

— DavidCaspi (@DavidCaspi) July 17, 2017

Judge Milton Hirsch's Constitutional Calendar

If you haven't subscribed to Judge Milton Hirsch's Constitutional Calendar, you should. To subscribe, send an email to is Milton-Hirsch-constitutionl-calendar+subscribe@googlegroups.com.

[UPDATE -- I had the unsubscribe email up earlier. Sorry about that, but it is fixed now.]

Here is today's entry:

On July 18, 1949, Jackie Robinson, the first African-American to play major league baseball in the modern era, appeared before the House Un-American Activities Committee. Robinson was not suspected of being a communist or “fellow traveler.” But communists at home and abroad were in the habit of making much of the hypocrisy of an America that preached democracy and equality, but practiced Jim Crow. HUAC wanted assurances that the American black community was not tempted by communist blandishments.

Robinson began his testimony with a brief statement. (This was a good sign. Many witnesses were denied the privilege of making any statement before answering questions.) It included the following:

"I have had a great many messages come to me, by wire, phone and letter, urging me not to show up at this hearing. And I ought to make it plain that not all of this urging came from Communist sympathizers. Of course most of it did. But some came from people for whom I have a lot of respect and who are just as opposed to Communist methods as I am.

"And so it isn’t pleasant for me to find myself in the middle of a public argument that has nothing to do with the standing of the Brooklyn Dodgers in the pennant race – or even the pay raise I am going to ask Mr. Branch Rickey for next year!

"So you’ll naturally ask, why did I stick my neck out by agreeing to be present and why did I stand by my agreement in spite of the advice to the contrary."

Robinson went on to assure the committee members that the African-American community would not be seduced by the communist sales-pitch. Apparently the committee was satisfied. Robinson never heard from them again.

New JNC members announced

Here's the list of new JNC members for the Southern District of Florida (h/t Celia Ampel):

The Southern District JNC members are:

• Chair Manny Kadre, chairman and CEO, MBB Auto LLC, Coral Gables

• Georgina Angones, assistant dean of law development and alumni relations, University of Miami School of Law, Coral Gables

• Ellyn Bogdanoff, shareholder, Becker & Poliakoff, Fort Lauderdale

• Reginald Clyne, partner, Quintairos, Prieto, Wood & Boyer, Miami

• Kendall Coffey, partner, Coffey Burlington, Miami

• Vivian de las Cuevas-Diaz, partner, Holland & Knight, Miami

• Renier Diaz de la Portilla, solo practitioner and mediator, Renier Diaz de la Portilla P.A., Miami

• Albert Dotson Jr., partner, Bilzin Sumberg, Miami

• Peter Feaman, president, Peter M. Feaman P.A., Boynton Beach

• Robert Fernandez, partner, Zumpano Castro, Coral Gables

• Daniel Foodman, partner, WNF Law, Miami

• Philip Freidin, partner, Freidin Brown, Miami

• Carey Goodman, mediator, Cudjoe Key

• Anat Hakim, general counsel, WellCare, Tampa

• Jillian Hasner, president and CEO, Take Stock in Children, Miami

• Marilyn Holifield, partner, Holland & Knight, Miami

• Eduardo Lacasa, chief operations officer, Chrysalis Health, Fort Lauderdale

• Ira Leesfield, partner, Leesfield Scolaro, Miami

• Dexter Lehtinen, partner, LSRCF Law, Miami

• David Leibowitz, general counsel, Braman Management Association, Miami

• Richard Lydecker, founding partner, Lydecker Diaz, Miami

• Debbie Maken, author and attorney licensed in Mississippi, West Palm Beach

• Tom Mersch, partner, Kelley Kronenberg, Fort Lauderdale

• Carlos Nunez, partner, WNF Law, Miami

• Thomas Panza, senior partner, Panza, Maurer & Maynard, Fort Lauderdale

• Edward Pozzuoli, president, Tripp Scott, Fort Lauderdale

• David Prather, partner, Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, West Palm Beach

• Dennis Richard, partner, Richard & Richard, Miami

• Robert Rigal, CEO, Echelon Medical Capital, Boca Raton

• Jon Sale, of counsel, Broad and Cassel, Miami

• Christian Searcy, president and CEO, Searcy Denney Scarola Barnhart & Shipley, West Palm Beach

• Harley Tropin, president, Kozyak Tropin & Throckmorton, Coral Gables

• Joanne Urquiola, Joanne R. Urquiola P.A., Miami

• Steve Waserstein, partner, WNF Law, Miami

• Stephen Zack, partner, Boies Schiller Flexner, Miami

Judge Frank Hull to take senior status

Zoe Tillman reports that Judge Frank Hull is taking senior status:

Two new upcoming vacancies: 11th Circuit Judge Frank Hull (HT @cardinals150) and SDNY Judge Kevin Castel, per federal judiciary

— Zoe Tillman (@ZoeTillman) July 12, 2017

This is big news as she is probably the most conservative judge on the Court as it relates to criminal justice issues, even though she is a Clinton appointee.

Plea bargaining and tattoos

Plea bargaining and tattoos.

Chief Judge Ed Carnes starts an opinion about plea bargaining this way, comparing the process to tattoos:

In negotiating a plea bargain both sides aim for the best terms they can get, placing bets on what the future will hold. The problem is that the future and certainty are strangers and not everyone wins a wager. Sometimes a deal, like a tattoo, does not age well and what appeared to be attractive in the past seems unattractive in the future. But plea agreements, like most tattoos, are written in permanent ink and cannot be redrawn just because one party suffers from the plea bargain form of buyer’s remorse. This case is here because two defendants convinced the district court, over the government’s objections, to take up the judicial pen and redraw their freely entered plea agreements whose ink had been dry for nearly a decade.

Still no cameras in the Supreme Court

You can film the cops on the street, but you can't watch a Supreme Court argument.  Something is wrong there.  The 3rd Circuit ruled last week that you have a constitutional right to record the police on the street.  From the AP:

A federal appeals court in Philadelphia has joined five other circuits in finding that citizens have a First Amendment right to videotape police in public.

The U.S. 3rd Circuit on Friday joined what it called the "growing consensus" that the public can photograph or record police without retaliation.

U.S. Judge Thomas L. Ambro stressed that the U.S. Constitution grants citizens the right to "information about how our public servants operate in public."

He acknowledged the pressure faced by police but said bystander recordings since at least the Rodney King beating by Los Angeles police in 1991 have both "exposed police misconduct and exonerated officers from errant charges." Such recordings, he said, provide different perspectives than the images captured by police dashboard and body cameras.

Cellphone recordings in the years since King's violent arrest was videotaped by a bystander have repeatedly captured shootings of motorists, suspects and others by police, fueling a national conversation around policing and minority communities, activists say.

"There's just no question in 2017 that the right to record the police is part of the liberty protected by the First Amendment, even more so now that smartphones are as ubiquitous as they are," said Molly Tack-Hooper, a staff attorney with the American Civil Liberties Union of Pennsylvania who argued the case. "A huge percentage of the country walks around with technology in their pocket that enables them to deter police misconduct by merely holding up a smartphone ... and distributing those recordings at the touch of a button."

Each federal appeals court that has weighed the issue has found it unconstitutional for police to interfere with such public recordings, Ambro said. The technology allows bystanders to complement traditional press accounts of how police use their power, he said.

Supreme Court Justices are public servants as well. We should get a chance to see how they operate in court.

Should judges be able to reject plea deals?

Should judges be able to reject plea deals?  That's the question raised in this case where "a federal judge in West Virginia has rejected a plea deal for a man accused of dealing heroin and fentanyl, arguing that 'the secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.'" From the Washington Post:

In his 28-page ruling, the district judge for the southern district of West Virginia, Joseph R. Goodwin, notes the severity of the opiate epidemic in West Virginia, calling the state “ground zero” in a crisis that amounts to “a cancer that has grown and metastasized in the body politic of the United States.”

He argues that given this context, “the bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.”

The judge makes a compelling case about needing more trials:

Plea bargains have become so widespread in part because of a perception that they place a lighter load on an overburdened criminal justice system.

But Goodwin argues that this perception is outdated. The judge draws on federal data sources to illustrate that federal criminal trials have fallen precipitously even as the number of U.S. attorneys has grown dramatically.

“In [fiscal year] 1973,” he writes, “each federal prosecutor handled over eight criminal trials on average. By [fiscal year] 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.”

Even though the system desperately needs more trials, it strikes me as wrong and dangerous to reject plea deals on an individual basis to accomplish this goal.  Rejecting plea deals on an individual basis will unfairly harm particular defendants, especially if that defendant will get a higher sentence should he lose the trial.

So, I think there are lots of ways judges can accomplish more trials.  For example, give more variances after trial.  Explain to defendants that there will not be a trial tax for going to trial.  Hold prosecutors' feet to the fire for discovery and other violations so that they don't think that they can get away with everything.  Enforce violations by excluding evidence.  Appellate courts need to have a more limited view of harmless error in the few cases that do go to trial.  There's a lot more to be said here.

Yes, more trials, but not this way.

Happy 12th Birthday to the Southern District of Florida Blog

Happy 12th Birthday to the Southern District of Florida Blog!

Twelve years ago in 2005, on the July 4 weekend, I started this blog and it's been a fun run of over 3,200 posts and over 5 million page views.

To put the 12 years in perspective:

The Wilkie Ferguson courthouse was not yet open.
Judge Zloch was Chief Judge of the District.
Mel Martinez was one of our Senators.
Alex Acosta had just been named Acting U.S. Attorney.
The Supreme Court had five different Justices than today: Rehnquist, Scalia, Stevens, Souter and O'Connor.
There was no Twitter.
My firm had one lawyer, me (it now has 5).
I had one daughter (I now have 3).
My commute was 20 minutes (it's now 45).
We still don't have a Floridian serving on the Supreme Court, which was the very first post!

Thanks again to all of you for reading and for the tips.  I still very much enjoy keeping tabs on the most interesting and exciting District in the country.