"Dear Florida Supreme Court: We need your help."

That's how Judge Newsom starts off this opinion, which certifies a question to the Florida Supreme Court. 

Dear Florida Supreme Court: We need your help. Among other much simpler issues, this case presents a knotty and important state-law contract question that is more appropriately answered by you than by us. Accordingly, after clearing away some underbrush, we will respectfully certify to you the following question:

Is a contractual “exculpatory clause” that purports to insulate one of the signatories from “any … damages regardless of kind or type … whether in contract, tort (including negligence), or otherwise” enforceable? Or, alternatively, does the clause confer such sweeping immunity that it renders the entire contract in which it appears illusory? Or, finally, might the clause plausibly be construed so as to bar some but not all claims and thus save the contract from invalidation?

Each possibility finds at least some support in Florida law, each comes with its own equitable pros and cons, and each has dramatically different implications for the case before us.

Alex Acosta press conference

Watch here:



It's strange to me that people are just as angry with Acosta (the prosecutor) as they are with Epstein (the sex offender).  As I've written about here in the Miami Herald, Acosta ensured Epstein had to plead, register, and go to jail. Ten years later, the deal looks too lenient, but to say that he cut the deal for some nefarious reason is not fair.  Anyone who worked with or against Acosta knows that he would not have done that.  Some of the details in the piece are now dated because it was written back in December, but the main point is still the same.  I also wrote this piece for The Hill about Acosta, differentiating a bad deal from real prosecutorial misconduct.

This morning, the WSJ has a similar take here.

Alex Acosta tweets response re Epstein case

Here is the link. 

RIP Meenu Sasser

Very sad. Sasser was only 48. She had esophageal cancer. 

She was the first Asian American judge in Palm Beach. 

She was also a short lister for the district seat in Fort Pierce. 

The Palm Beach Post has the obituary here. 

Questions after Jeff Epstein charges

1. How does this affect the SDFLA civil litigation?

2. Will he get bond?

3. How will the SDNY get around Epstein’s previous non-prosecution agreement?  Is alleging different girls enough?

4. Will the case go to trial?

5. Will Epstein put the same defense team back together?

6. How will these charges affect other defendants considering pleading guilty if they might later be charged for the same conduct in a different district if that other district considers the sentence too lenient?

7. Why is the public corruption unit handling the case?

Happy blog birthday!

It’s 14 years of blogging... 14!

Thank you again for reading and for the tips. It’s been a fun run.

A lot has changed for the District in 14 years. For starters, the district and magistrate benches are a lot younger and more diverse.

Parties for the new judges are now hosted on the 13th floor of the Ferguson courthouse. When I was clerking 22 years ago, parties were hosted in the Dyer courtyard and were catered by Christy’s. Old school. If you were lucky, Judge Davis would invite you to the after party for scotch in his chambers.

More reminiscing later... for now, I’m going to take the week off from posting unless something really important happens. I’ll see you all next week.

“Justice Gorsuch channels his inner-Scalia, which is good news for criminal defendants”

That’s the title of my latest piece in the Hill. Please take a look here and tell me what you think. From the introduction:

The late Justice Scalia often joked that he was “the darling” of the criminal defense bar and the “poster child” for the National Association of Criminal Defense Lawyers.  He was right.  More than any other Justice on the Supreme Court with him, he ruled for criminal defendants on important cases dealing with the confrontation clause, sentencing issues, the right to a jury, and probable cause to name a few.   

When Justice Gorsuch replaced Scalia, many feared that he would not be nearly as friendly to criminal defense issues.  But Gorsuch has proved those critics wrong.  Like Scalia, Justice Gorsuch may also get his own poster from NACDL.  Some examples from this Term: 

1. Haymond v. United States.  Justice Gorsuch wrote the 5-4 majority opinion, which is joined by the 4 more liberal Justices, in favor of a defendant who was found guilty of possessing child pornography.  The question for the Court was whether judges had the power to sentence defendants to additional an additional term of imprisonment without a jury finding beyond a reasonable doubt.  Justice Gorsuch said no way: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.”  There’s lots of other really good language in the opinion, explaining that the right to trial by jury, together with the right to vote, is “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without which ‘the body must die; the watch must run down; the government must become arbitrary.’” (Quoting letter from Clarendon to W. Pam (Jan. 27, 1766), in 1 papers of John Adams 169 (R. Taylor ed. 1977)).  Great stuff.

And the conclusion:

Justice Gorsuch is far from perfect.  He is pro-death penalty.  He dissented in Flowers v. Mississippi, the case where the prosecutor illegally struck black jurors. These decisions have led some to rightfully criticize Gorsuch, like the well-respected Leah Litman in this piece.  But Litman is wrong to minimize what Gorsuch has done, saying he only “sometime departs” from his conservative colleagues. The truth is that he’s been quite good for the rights of criminal defendants, as was his predecessor Justice Scalia.  He doesn’t knee-jerk vote for the government like Justices Alito and Thomas.  And as Litman rightfully points out, he even votes for criminal defendants when his more liberal colleagues (like Breyer) do not. Instead of criticizing Gorsuch for not doing the right thing on every single criminal justice issue, we should be optimistic that he will continue to channel Justice Scalia’s independent streak on these issues.    

Democratic Debates in Miami (UPDATED)

They start tonight with 10 candidates and another 10 tomorrow night. Seems like way too many to have any meaningful discussion.

Will the topic of judges be brought up?

Criminal Justice?

Meantime, the final decisions from the Supreme Court are coming out in a few minutes, and any stragglers will be tomorrow. Check SCOTUSblog for updates.

Finally, I haven’t heard anything about the Rubio JNC interviews on Monday. If you have any tips or intel, please let me know and I will post it anonymously.

UPDATE — Justice Gorsuch again rules with the 4 liberal Justices on a criminal justice issue, this time in a sex-offender case. Here’s the opinion. He’s channeling his inner-Scalia. Here’s how the opinion starts:

Only a jury, acting on proof beyond a reasonable doubt,may take a person’s liberty. That promise stands as one ofthe Constitution’s most vital protections against arbitrary government. Yet in this case a congressional statute compelled a federal judge to send a man to prison for aminimum of five years without empaneling a jury of hispeers or requiring the government to prove his guilt be-yond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments