Gerald Tjoflat to take senior status

Big news out of the 11th Circuit today, as Judge Tjoflat is taking senior status upon the confirmation of his successor.  Tjoflat turns 90 in December and was a member of the 5th Circuit before the court split.  He is the longest serving judge in active service.

Was this cross examination “scandalous”? (TWO UPDATES)

** UPDATED BELOW WITH JUDGE AMY STEELE DONNER'S COMMENTS

There was a little dust-up on the FACDL Listserv this weekend over a cross examination conducted by an assistant public defender named Carl Vizzi back in the mid-80s.  I had never heard of Vizzi or this cross, but the AP covered it back in the day.  The cross won Vizzi’s client an acquittal and also landed him in jail.

During cross-examination of the alleged victim on Wednesday, Vizzi called her an exhibitionist and her husband a voyeur, adding, ″You turn tricks, don’t you?″

At one point, Vizzi slammed two quarters on the witness stand and said, ″You’ll dance nude for 50 cents. What would you do for a dollar?″

The woman charged that the defendant kidnapped and raped her, but the man claimed he had paid the woman for sex.

Holding Vizzi in contempt, Donner said, ″Any rape victim who had the misfortune to observe your conduct would have never continued with a rape prosecution.

″The cross-examination was scandalous, to say the least.″

Vizzi told Donner that he did not mean to violate her orders.

″I defended this man vigorously because I honestly believed he was falsely accused,″ he said.

How would this cross have gone over in today’s climate where the ABA in considering a resolution that would shift the burden to defendants to show affirmative consent. After numerous organizations opposed the resolution, it appears to be dead.

UPDATE — A helpful commenter points out the 3rd DCA case on the contempt order, which was upheld. Some additional cross, which formed the basis of the contempt order:

"Q. Isn't this place a front for prostitution?
MR. BAGLEY: Objection; this is irrelevant, Judge.
THE COURT: Sustained.
. . . .
BY MR. VIZZI:
Q. Isn't it true that girls that work at Live Peeps will often take coffee breaks to do things with the customers who liked how they danced and liked their body —
MR. BAGLEY: Objection.
Q. — and wanted to do a little bit more with them that could be done in those rooms where you work?
Isn't it true that that happens all the time?
MR. BAGLEY: Objection; improper question. It's a compound question and furthermore its irrelevant.
THE COURT: Sustained."
Later, he engaged in the following cross examination of the complainant which led to his contempt conviction:

"Q. Isn't it true that your 19-year-old now-husband doesn't like you to work after hours doing extra things other than work at Live Peeps?
MR. BAGLEY: Objection, your Honor; that's irrelevant.
THE COURT: Sustained. Move on, Mr. Vizzi.
BY MR. VIZZI:
Q. Isn't it true that your husband is a voyeur and you're an exhibitionist and he doesn't like it to get any further than that. He gets sexual gratification when you take your clothes off, but he gets very angry when you perform tricks with customers?
MR. BAGLEY: Objection.
THE COURT: Come to side-bar, Mr. Vizzi.

SECOND UPDATE -- in the comment section, Judge Amy Steele Donner makes the following comments.  Thank you for commenting for the blog Judge Donner:

He actually was a pretty bad lawyer and that was the only case he won in front of me. He also came to my house with his baby begging not to be put in jail. Coming to my house uninvited was also a violation of his oath and the order he violated was the rape-shield law, not that I personally enacted it. The prosecutor was the esteemed former circuit judge, Gerald Bagley who would definitely agree with my analysis of his trial behavior. Amy Steele Donner

One *billion* dollars in fraud

Pleading to a billion dollar fraud case is tough because the guidelines are so high. So sometimes it may be better to take your chances at trial (unless the defendant is permitted to plead to a 371 conspiracy with a 5-year cap). Here’s a Miami Herald article about a plea in the Woodbridge case for Robert Shapiro:

The founder of a South Florida real estate company pleaded guilty Wednesday to orchestrating a $1.3 billion Ponzi scheme that bilked thousands of mostly elderly investors.

Robert H. Shapiro, the former CEO of the Woodbridge Group of Companies, admitted in Miami federal court that he “misappropriated” between $25 million and $95 million of the investors’ money to himself and his family to pay for an estate in the Los Angeles area, chartered planes, global travel, jewelry, diamonds and vintage wines. Shapiro also collected artworks by Pablo Picasso, Marc Chagall, Pierre-August Renoir and Alberto Giacometti. He also owned a Mercury convertible.

Now, all those luxury items belong to the feds.

Shapiro, 61, who was arrested in April, faces up to 20 years for wire and mail fraud conspiracy and an additional 5 years for tax evasion at his sentencing on Oct. 15 before U.S. District Judge Cecilia Altonaga. In pleading guilty, Shapiro avoids going to trial but still is looking at a total of 25 years in prison.

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.