Should we give this op-ed to all jurors?

It’s a very powerful piece about how important jury service is.

Plus, it will combat the idea that jury service is to rubber stamp prosecutors.  There are so many signals around courthouses about law enforcement (the posters in jury rooms saying that if you see something, you should say something; the “law-enforcement cafe;” and so on), that this op-ed might be a good way to temper it.

The conclusion:

We are told that there is a great divide in our country, and at the voting booth that is apparent. But in the jury room, we were just 12 random people pulled out of our daily lives and asked to administer the final decision in a case. It felt like our justice system at work.

I’ll vote in November, and it will be important. But I don’t think I’ll ever feel as significant as a citizen as I did in that jury room.

Meantime, let me be a proud dad for a moment and post the op-ed of my daughter in today’s Miami Herald:

And though I identify as an activist, I wish I did not have to. There is a large part of me that resents the fact that fellow teens and I have to wake up and focus on whether the government will pass the simplest background checks bill, or if there will be a shooting near me that kills someone I know.

I resent it because it should be adults and elected government officials focusing on these issues.

I would much rather spend my time dancing around the house, modeling clothes and makeup for my friends, and going to the beach. You know, typical things that those in government think teenagers do when they call us incompetent and assert that we do not know anything about politics, all the while allowing the gun violence epidemic to continue in an endless cycle. But I can’t.

Cool story about a jailhouse lawyer

Check out this NY Times story about Calvin Duncan, a jailhouse lawyer, who convinced the Supreme Court to hear a case about whether juries could convict without a unanimous verdict:

“For 23 years, I was a jailhouse lawyer,” said Calvin Duncan, a former inmate at the Louisiana State Penitentiary in Angola. “That was my assigned job.”

He had a 10th-grade education, and he was serving a life sentence for murder. The prison paid him 20 cents an hour to help his fellow prisoners with their cases.

He got good at it, and he used his increasingly formidable legal skills to help free several inmates. He knew how to spot a promising legal issue, and he was relentless. Seasoned lawyers sought his advice.

One issue in particular consumed Mr. Duncan. He could not understand how a Louisiana law that allowed non-unanimous juries in criminal cases could be constitutional. He would not let it go, working on about two dozen failed attempts to persuade the Supreme Court to address the issue.

The justices finally agreed in March to decide the question. They will hear arguments in the case, Ramos v. Louisiana, No. 18-5924, on the first day of their new term, on Oct. 7.

 This is so true:

Mr. Duncan visited Professor Mattes’s law school clinic not long after he was released. The students were in their third year, tired of studying and perhaps a little jaded.

Mr. Duncan asked to see the law library, and he marveled at the vast and pristine collections of cases, codes and treatises.

“All of a sudden, he stops and he turns to the students,” Professor Mattes said. “He gets very serious and he says: ‘You guys need to know how incredibly lucky you are. Because what you have here is power.’”

Defending Dersh

Here’s my latest piece, this time in Newsmax, about Alan Dershowitz. Here’s the intro:

Our criminal justice system is built on the notion that the burden is on the prosecution to prove a case beyond a reasonable doubt before one’s liberty, our most valuable asset, can be taken away. And for good reason. We don’t want innocent people in jail.

We are willing to live with some guilty folks going free so that we don’t have the horror of an innocent person behind bars. Our system, with all of its flaws (including the concept that prosecutors who charge people with baseless claims cannot be charged), has clung to this bedrock principle of presumed innocence.

The system still affords defendants due process of law.

But what about a private individual falsely accusing someone of a heinous crime?

Today it seems that anyone can accuse another without any real fear of repercussions.

And this is most certainly true when a person makes an allegation in civil litigation.

Such allegations are protected by the “litigation privilege” and are not subject to defamation suits.

When someone says something accusatory in public, he can be sued. But a person who makes up an allegation in a court document can’t be. And if such an accuser is found to have lied, they likely will never be prosecuted.

This is where famed Harvard law professor Alan Dershowitz finds himself: accused of a heinous crime without any real recourse or due process protection. As the accusations pop up on screens across the globe, they are assumed to be true even though Dershowitz has not been charged or convicted.

“Of course, I concur in every word of the Court’s opinion.”

That’s Chief Judge Ed Carnes concurring with his own majority opinion in this case involving Royal Caribbean:

Of course, I concur in every word of the Court’s opinion. See United States v. Hough, 803 F.3d 1181, 1197 (11th Cir. 2015) (Carnes, C.J., concurring) (“Not surprisingly, as the author of the Court’s opinion I concur in all of it.”). Usually, there is nothing else for the author of a majority opinion to say, but here there is.

There’s been a lot of this lately. Judge William Pryor has done it twice in the last couple of days, here and here. In fact, in the latter case the whole panel concurred, per Judge Pryor, with the majority opinion, written by Judge Pryor. But unlike Carnes’ concurrence, which was written to make some additional points, Pryor takes on prior precedent in the 11th Circuit in both of his concurrences.  I wonder how conservative judges would have viewed the Pryor concurrences (saying the 11th Circuit had gotten it wrong in the past) had they been written by the more liberal wing of the 11th Circuit.

Who should investigate police officers when they commit crimes?

This interesting NY Times op-ed says that it should be public defenders, not prosecutors. It’s pretty convincing:

After a police officer in South Bend, Ind., shot and killed Eric Jack Logan last month, contentious meetings between the public and Mayor Pete Buttigieg showed that there is often a serious lack of faith that allegations of police misconduct will be fairly investigated. We can fix this: Public defenders, not law enforcement officials, should be responsible for determining whether police misconduct occurred.

The skepticism about the way investigations are currently conducted makes sense: Police departments’ internal investigations are reliably lenient. The New York Police Department, for example, took nearly 2,500 reports of biased policing from residents since 2015 and found not a single one credible. Prosecutors and state police, the two other entities most likely to carry out an investigation of police misconduct, often decline to press charges even when video evidence seems to leave little doubt that an officer’s conduct has violated departmental policy.

***

Not surprisingly, communities of color, who are disproportionately exposed to police violence and misconduct, have a much less favorable view of the police than the population overall, and little belief that misdeeds will be revealed or punished. In a 2017 Pew Research poll, 64 percent of Americans said they had generally warm feelings toward the police. But for black Americans it was just 30 percent. If mayors, police chiefs and legislatures are serious about instilling real faith in these communities, they should hand over full control of investigations to the one group of lawyers used to treating the police in an adversarial fashion, all of them experts in police rules and procedures: public defenders.

Unlike prosecutors, who often work hand-in-hand with the police to make a case for conviction, defenders are used to questioning the stories police officers tell. For example, in a case of mine many years ago, the prosecutor and his police witness seemed confident that their evidence was unassailable: Two officers had walked up to the car my client was sitting in, looked in the windows, and seen what looked like cocaine. What never occurred to them, although it was easy enough for me to find out, was that their walk from the police car to my client’s car took them from one city to another. When they arrived, they were out of their jurisdiction and had no authority to make an arrest. It seems minor, but it exemplifies the different approach that defenders must take to protect our clients’ interests — and the rigor we are accustomed to bringing to our investigation of everything the police say and do.

A good-thought provoking article. I wonder how the juvenile prison guard case would have turned out if the Federal Public Defender’s office was prosecuting instead of defending.

Breaking — White House sets interviews for Fort Pierce slot (UPDATED)

Rubio’s JNC interviewed six candidates.

And now it’s down to three (UPDATED):

Michael Sherwin;
Aileen Cannon; and
David Leibowitz

Sherwin (Miami) and Cannon (Fort Pierce) are AUSAs, and Leibowitz is a former AUSA (SDNY). Leibowitz is currently working as General Counsel for Braman.

All are very impressive.

Good luck!

Not guilty verdict in Miami Detention Guard case

The guard, Antwan Lenard Johnson, was accused of putting up a bunch of juveniles to attack a 17-year old (Elord Revolte) that led to his death. The attack was captured on video. The trial took place before Judge Altonaga over the past two weeks. Johnson was represented by AFPDs Hector Dopico and Helaine Batoff, both excellent lawyers, who prevailed in a very difficult case.

The Miami Herald has the background on the case here.

Elord had been in the Miami-Dade Regional Juvenile Detention Center for only three days when he and Johnson confronted each other in the lockup’s cafeteria, records show. Elord rose from his seat without asking Johnson for permission. Johnson told the teen to return to his seat. Elord cursed at the officer, telling him to “f--- off,” prosecutors say.

Prosecutors say Johnson, unwilling or unable to dispense discipline himself, did the next best thing: He ordered the other detainees in Module 9 to beat him up, instead.

Elord died at Jackson Memorial Hospital at 11:17 p.m. on Aug. 31. An autopsy concluded he died from a tear to a vein under his left shoulder, which slowly oozed blood until he stopped breathing.

Federal agents arrested Johnson last April, after a grand jury indicted him. The indictment was handed down a year after state prosecutors concluded they lacked sufficient evidence to charge Johnson with either homicide or official misconduct, and after an internal investigation by the state Department of Juvenile Justice failed to confirm allegations that Elord was the victim of a “honey bunning,” or a beating orchestrated by officers.

In October of 2017, the Miami Herald published a series of stories, called “Fight Club,” that detailed a host of abuses within facilities operated by DJJ, or by private providers under contract with the state. The improprieties included rampant unnecessary and excessive force, sexual misconduct and an unspoken disciplinary tool called “honey bunning,” in which officers deputized detainees to act as enforcers against other youths who got out of line, often rewarding them with a honey bun from the employee vending machine.

The Herald also covered the opening statements:

Johnson “unleashed a commonly used, illegal bounty scheme on Elord,” McLaughlin said in opening remarks to the jury. He emphasized that detention officers are not allowed to hit or discipline the juveniles in their charge, so when Elord began violating rules and mouthing off, Johnson decided “to take matters into his own hands and discipline Elord for disrespect.”

“You will hear testimony from these Mod 9 kids, especially those in the know, that they knew, as they put it, ‘exactly what time it was,’ ” McLaughlin said.

Prior to Monday’s hearing, U.S. District Judge Cecilia M. Altonaga denied a series of motions filed by prosecutors, including a motion to exclude references to Johnson’s good character from his DJJ employment records.

Altonaga’s decisions could make it more difficult for prosecutors to get a conviction. In one such decision, Altonaga forbade prosecutors to show video footage to jurors of other fights and what prosecutors claim are officer-directed beatdowns — which prosecutors claim could help them build the case for the conspiracy charge.

Johnson’s defense counsel argued that the “honey bunning” bribery system that is the crux of the federal conspiracy charge simply does not exist.

“The idea that these kids could be incentivized by a 75-cent doughnut is ridiculous,” said Hector Dopico, Johnson’s lawyer.

Dopico described the juvenile offenders in custody as “carjackers, some of which carry guns to school, some of which are rapists” who are “filled with piss and vinegar.” Dopico accused the federal government of conspiring with the witnesses to cover up the true motive behind the attack that killed Elord.

“The government knows the name of every one of those kids,” the defense counsel said. “Not one of them has been charged with a single crime. The government made a deal with them and Antwan is the scapegoat.”

WSJ takes on Miami Herald re Epstein Reporting

Check out "Bad Reporting Took Down Alex Acosta" here. 

The intro:

Trying to inoculate journalists against hindsight bias is like trying to teach your cat algebra—it’s an uphill slog.Happily, the Washington Post last Sunday gave us a history of the decade-old Jeffrey Epstein sex-crimes prosecution that didn’t rely on the anachronistic innuendo that filled a Miami Herald series entitled “Perversion of Justice.” The furor caused by that series led last week to the resignation of Labor Secretary Alexander Acosta, who had the misfortune of being the U.S. attorney whose office prosecuted the long-ago case. 

The Post investigation, with a non-tabloidal realism the Herald couldn’t muster, found “not a crisp portrait of white hats tilting against black hats, but rather a mottled mural of prosecutors who were eager to stop Epstein from preying on girls, but also sensitive to the young women’s desire not to have their names made public.” It adds that Mr. Epstein’s high-priced defense team “took advantage of the fact that many victims felt a bond with their accused abuser.”

To put it more bluntly than even the Post wants to, prosecutors seem to have feared losing in court because their witnesses were unreliable. If so, this echoes the apparent experience of a state prosecutor in Palm Beach County in the same matter, who ended up going before a grand jury with a single witness, who wasn’t even underage. It also echoes a declaration, in the Herald’s own words, by the Manhattan district attorney in a subsequent matter that the “underage victims failed to cooperate” in the Florida prosecution.

There was also a shout-out to Jeff Sloman's op-ed:

Most cogent about the paper’s own role was an op-ed published in February in the Herald itself by Jeffrey H. Sloman, another member of Mr. Acosta’s team. He points out that though the Herald’s decade-after-the-fact revelations “made a strong case that [Epstein] should have gone to jail for much longer,” the paper “never explained or substantiated its accusation that we schemed with Epstein’s lawyers to avoid that result.”

Bingo. However disappointing, inadequate or even weak-kneed the punishment may look in retrospect, nothing in the record even slightly suggests prosecutors were anything but hostile to Mr. Epstein and eager to extract the strongest realistic sanction. The Herald itself only began metronomically referring to the outcome as a corrupt “sweetheart deal” in 2017 when Mr. Acosta became associated with the Trump administration.

Notice something else: Between 2005 and 2009, when the case was unfolding and making news in South Florida and around world, the Herald produced a single item about Mr. Epstein’s travails, according to the Factiva database. It was buried in a news roundup and portrayed the matter as a simple prostitution case. It didn’t mention underage girls or Mr. Epstein’s status as a crony of Bill Clinton.

I guess this was some kind of sweetheart treatment.