Federal Bar Association to honor Judge Alan Gold

I am very pleased to announce that the South Florida Chapter of the Federal Bar Association will be honoring Judge Alan Gold with the "Ned" Award, named after our beloved Edward B. Davis.

The  Annual Awards and Installation Dinner will be held at the Four Seasons Hotel, Brickell, on Thursday, October 11, 2018, at 5:30 pm. You can purchase tickets here.

Judge Davis would have been thrilled that Judge Gold is receiving this award.  Gold is a UF grad and then attended Duke for law school.  He served as a state judge and then President Clinton nominated him in 1997 to fill Jose Gonzalez's seat.  He took senior status in 2011.  Judge Rosenbaum filled his seat.

District updates

While Supreme Court nominee Judge Brett Kavanaugh is proceeding with his confirmation hearing (follow live Scotusblog here), our District is also undergoing some changes:

1. New U.S. Attorney Ariana Fajardo Orshan has been confirmed. She will be taking the reigns shortly.

2. District judge nominees Roy Altman and Rudy Ruiz have not yet been set for final hearings. That may happen sometime in October. The other nominee Rodney Smith has not yet had his initial judiciary committee hearing so it is unclear when he will be confirmed. The other two open slots remain open and there is no pending action on them.

3. The magistrate judge committee will be interviewing 15 candidates for two slots on October 1. The district judges will then vote on the slate at the judges' meeting on October 4.

4. There is one constant in the District, Federal Defender Michael Caruso.

So you wanna be a magistrate judge?

We will have two new magistrate judges in the beginning of 2019.  The magistrate judge committee is set to interview 15 of the applicants.

I don’t have the whole list, but I am hearing that there are some favorites emerging to get the two slots (in alphabetical order):

1.  Jacqueline Arango (Akerman, former AUSA)
2.  Jacqueline Becerra (Greenberg Traurig, former AUSA)
3.  Sowmya Bharathi (AFPD)
4.  Steven Petri (AUSA)
5.  Erica Zaron (County Attorney’s Office)

Good luck to everyone!

How do the Cuban courts work?

Local South Florida prosecutors caught a glimpse during a murder trial.  The whole article is worth a read, but here’s the intro from the Miami Herald:

A witness box occupies the center of the courtroom. Five judges in long black robes listen to testimony. The defendant watches from the front row of the gallery with an armed guard at his side. There is no jury.

This is how justice operates in Cuba’s socialist system. Or at least that is what Florida prosecutors gleaned from a murder trial in Havana that was groundbreaking on several fronts: The star witness was a detective from the Palm Beach Sheriff’s Office; the defendant was a Cuban national accused of shooting a Jupiter Farms doctor in the head before he fled to the island, and a Florida prosecutor helped prepare the Cuban prosecution team for trial.

“It was fascinating. I was impressed how much it resembled our courtroom process,” said Assistant State Attorney Aleathea McRoberts, who was part of the team that made arrangements for the defendant, Marcos Yanes Gutierrez, to be tried in Cuba and watched the trial from the gallery. “There were opening statements, the presentation of evidence and closing arguments.”

‪Breaking — Ariana Fajardo Orshan confirmed as U.S. Attorney. ‬

Big congrats to Ariana Fajardo Orshan on her confirmation as U.S. Attorney for the best District in the country—the Southern District of Florida.

She takes over one of the busiest and certainly most exciting districts. Good luck to her!

"Open the Federal Courthouses"

That's the title of my op-ed, which was just published in Law360. 

Please click the link above to read the whole thing.  Here's the intro:

In the era of instantaneous 24-hour news, two of the most important and newsworthy events of the year just occurred: The president’s former campaign manager went to trial, and on the same day that the jury split its verdict, the president’s former personal lawyer pleaded guilty to federal crimes and implicated the president in the process. Shockingly, the public did not see any of it.

We were not able to see the government’s main cooperating witness, Rick Gates, and judge for ourselves whether he was telling the truth or lying. We were not able to see the lawyers debate about important legal issues related to the special counsel’s office. We were not able to see Michael Cohen’s expression as he told the judge that he broke the law at the instruction of the president of the United States.

Forget about cameras, reporters in the Paul Manafort trial were not even permitted in the courtroom with their phones, tablets or computers. That meant no live reporting on Twitter and no emails to the newsrooms with updates. In a world focused on information and news as it happens, this is unacceptable.

If this trial or the plea hearing took place in any state court in the country, or if related hearings were held by Congress, the public would have the benefit of watching what was happening, either live or on their DVRs or on the nightly news. They would be able to follow instant reports on social media. In other words, the public would have access to the courtrooms, as guaranteed by the Constitution. And there could be no allegation that the reporting was “fake.”

If there was a vote on whether cameras should be allowed in our federal courthouses, it would pass — overwhelmingly. In fact, the only group of people who seem to be against cameras in the courtroom are federal judges.

"It's called flipping and it almost ought to be illegal."

That was the President of the United States this morning, according to this CNN article:

Trump's latest attempt came in a friendly taped interview with Fox News, which was conducted on Wednesday but aired a day later. Trump sought to put distance between himself and his former lawyer Michael Cohen, who admitted to campaign finance crimes in federal court on Tuesday and implicated the President by saying he'd directed the action.

And he sharply decried those who testify against former confidants to ease legal troubles, bemoaning the longstanding practice.

"It's called flipping and it almost ought to be illegal," Trump said in the interview, adding he's witnessed similar scenarios over his decades in public life. "I know all about flipping, 30, 40 years I have been watching flippers. Everything is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is or as high as you can go."

Suspects cooperating with prosecutors in exchange for a reduced sentence is a central feature of the criminal justice system, but Trump has long valued loyalty over legal precedent or practice.

Actually, there was a short period of time back in the late 90s where courts found that federal prosecutors' use of 5K and Rule 35 were illegal because it was bribery under 18 U.S.C. Sec. 201.  In other words, it encouraged false false testimony (which is very different than the claim that snitching should be illegal because its disloyal).

The main case was U.S. v. Singleton out of the 10th Circuit. Judge Zloch followed suit in U.S. v. Lowery, 15 F. Supp. 2d 1348 (S.D. Fla. 1998).  From his conclusion:

The Court's finding herein, although lengthy, may be reduced to one simple principle: it is not this Court's Constitutional function to engage in legislation. By invoking the theory that "settled expectations" demand exclusion of the Executive Branch from the reaches of Section 201(c) (2), the Executive Branch requests that this Court usurp the function properly left to the United States Congress. Moreover, the Executive Branch's theory amounts to nothing more than this: it has always been done this way, so it must be right. Such reasoning has never been the proper basis for a legal ruling and this Court refuses to make it the basis for one now.
Further, if, as the Executive Branch asserts, Section 201(c) (2) obviously excludes the Executive Branch, the Court feels compelled to question the need for legislation, hurriedly introduced in the wake of Singleton on July 15, 1998, to amend the Statute. See S. 2314, 105th Cong. (1998). By such action, Congress has reinforced the conclusion that Section 201(c) (2) presently includes the Executive Branch.
Finally, the Court notes that the testimony of cooperating witnesses and cooperating defendants is a valuable resource for law enforcement in the investigation and successful prosecution of criminal activity. Any exclusion, however, of the Executive Branch from Section 201(c) (2) must come from the Legislative Branch, and not the Judicial Branch. A judge's authority has limits and outside those limits or designated areas, the democratic institutions govern. Thus, if any changes are to be made to Section 201(c) (2), or if more appropriate, the substantial assistance provisions, it is solely for Congress, and not for the courts or the Executive Branch, to make them.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED that the Defendant, Oslet Franklin Lowery, Jr.'s Motion To Suppress (DE 134) be and the same is hereby GRANTED.

Singleton, Lowery, and other cases didn't last long.  They were all reversed.  

11th Circuit judges speak their minds on Roe v. Wade (and it wasn't Judge Bill Pryor!)

The case is West Alabama Women's Center v. Williamson.

Chief Judge Carnes starts off his opinion this way:  "Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion.* If so, what we must apply here is the aberration." (Footnote omitted).

If there is any question as to how he feels about abortion, you can see it here in the first paragraph of the intro section: "This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating."

Judge Dubina concurs just to make sure that everyone knows that he personally disagrees with Casey and Roe too: 

I concur fully in Chief Judge Carnes’s opinion because it correctly characterizes the record in this case, and it correctly analyzes the law. I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.” Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.

OK, Judge Dubina. You're on record now.

In other 11th Circuit news, the court addressed the Georgia state court bail system where an man was arrested and was too poor to post bail.  Therefore he was held for 6 days even though the misdemeanor he was arrested for could not be punished by a jail sentence.  Judge O'Scannlain (visiting from the 9th Circuit) along with Julie Carnes said as long as bail is addressed within 48 hours, all is OK.  Judge Martin started her persuasive dissent like this:

Maurice Walker was jailed by the City of Calhoun for six days because he was too poor to pay his bail. He challenges the City’s practice of jailing people before trial when they are too poor to make bond, arguing it violates the constitutional guarantees of due process and equal protection. The Majority rejects this claim, characterizing the pretrial jailing as “merely wait[ing] some appropriate amount of time to receive the same benefit as the more affluent.” Maj. Op. at 27. In this way, the Majority renders it unnecessary to review the City’s practice with heightened scrutiny. I believe the Majority rewrites this court’s binding precedent in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc),2 which held that “[t]he incarceration of those who cannot [pay for pretrial release], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057. The Majority fails to recognize this infringement on the rights of indigents, so I dissent.