Felicity Huffman's 14-day sentence is unjust — because it's too high

That’s the title of my latest piece in The Hill, which starts this way:

With as much subtlety and sophistication as a sledgehammer, social media erupted after Felicity Huffman’s 14-day sentence was announced, with commenter after commenter saying her sentence was way too light. A rich, white woman only received two weeks in jail. The system must be corrupt! Well, the system is corrupt, but not because Huffman’s sentence was too light, but because it was too severe.

But wait, you might be saying, she only received a few weeks; how can that be too severe?

Her sentence is wrong for at least four reasons:

Our criminal justice system still has an unjust “jail-first” mentality. The default sentence for a first-time non-violent offender who accepted responsibility where no one suffered any loss should obviously be something other than incarceration. If that type of offender — with no aggravating factors — isn’t getting probation, then who is? The problem is that we are so tied to putting people in jail, even people we know will never do anything similar again, that our default is some prison. That’s wrong. It’s important to keep things in perspective: Huffman didn’t hurt anyone and it’s not altogether clear that paying someone to take a test should even be a federal crime in the first place.

Please take a look and let me know your thoughts.

BREAKING -- Barbara Lagoa and Robert Luck to be nominated to the 11th Circuit (UPDATED with President Trump's official release)

Numerous sources have confirmed that Florida Supreme Court Justices Barbara Lagoa and Robert Luck are set to be nominated to fill the 11th Circuits seats of Judges Tjoflat and Marcus.  Both are former AUSAs in Miami, former 3rd DCA judges, and current Justices on the Florida Supreme Court.  And both are *excellent.*  A big congrats to them.  Very exciting news.

UPDATE -- shortly after this post, President Trump made it official with this release:

Today, President Donald J. Trump announced his intent to nominate:

Barbara Lagoa of Florida, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit

Barbara Lagoa currently serves as a Justice on the Supreme Court of Florida. Prior to her appointment by Governor Ron DeSantis in 2019, Justice Lagoa was a District Judge on the Florida Third District Court of Appeal. Before taking the bench in 2006, Justice Lagoa was an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of Florida and spent 11 years in private practice in Miami, Florida. Justice Lagoa also served as the Chair of the Florida Judicial Ethics Advisory Committee from 2015 to 2016. Justice Lagoa earned her B.A., cum laude, from Florida International University and her J.D. from Columbia Law School, where she served as Associate Editor of the Columbia Law Review.

Robert J. Luck of Florida, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit.

Robert Luck currently serves as a Justice on the Supreme Court of Florida. Prior to his appointment by Governor Ron DeSantis in 2019, Justice Luck was a District Judge on the Florida Third District Court of Appeal and a Circuit Judge for the Eleventh Judicial Circuit Court of Florida. Before taking the bench in 2013, Justice Luck was an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of Florida. Justice Luck also served as an Adjunct Professor at Alabama State University from 2007 to 2008, where he taught an undergraduate class in business law. Upon graduation from law school, Justice Luck served as a law clerk to Judge Ed Carnes of the United States Court of Appeals for the Eleventh Circuit, to whom he also later served as a Staff Attorney. Justice Luck earned his B.A., with highest honors, from the University of Florida and his J.D., magna cum laude, from the University of Florida Levin College of Law, where he was inducted into the Order of the Coif and served as Editor-in-Chief of the Florida Law Review.

Raag Singhal has committee hearing (Updated with results of Chinese spy trial))

This morning Judge Raag Singhal appeared before the Judiciary Committee, on his way to a full Senate vote.  Judge Singhal is a really excellent choice and should sail through without a problem. Both sides of the aisle would do well to support him.  Here’s Senator Rubio’s statement in support:

Regretfully, due to a scheduling conflict, I am unable to attend today’s nominations hearing to introduce a highly qualified judicial nominee from my home state of Florida – Judge Anuraag “Raag” Singhal. Judge Singhal has been nominated to serve as a United States District Judge for the Southern District of Florida. I commend and support his nomination and the committee’s work toward Senate confirmation of Judge Singhal.
Judge Singhal is a graduate of Rice University and Wake Forest University School of Law, and he has lived and worked in Florida for 30 years. Most recently, Judge Singhal has served as a Circuit Court Judge in Broward County. He has extensive experience in the courtroom as both an attorney and a judge. He is active in Broward County’s legal community and is particularly proud of his ongoing work to mentor young attorneys. He is committed to honoring professionalism, honesty, integrity, and ethics in his work and in the community, and I am confident he will exhibit and exercise those qualities on the federal bench.
I thank the committee for its work on Judge Singhal’s nomination and believe that the committee will find him to be highly qualified to serve in this very important capacity.
Thank you for the opportunity to submit this statement in support of Judge Singhal’s nomination and confirmation.

 UPDATE on Yujing Zhan's case:  She was found guilty today after 4 hours of deliberation.  The closings were interesting (via Courthouse News Service):

In the courtroom Tuesday, prosecutors called a cavalcade of FBI agents and analysts to the stand, but Zhang declined to ask them a single question.
“She’s just not gonna do anything,” prosecutor Rolando Garcia said while closing arguments were being scheduled with U.S. District Judge Roy Altman.
Altman, a Trump appointee who is one of the youngest federal judges in the country, urged Zhang in pretrial hearings to enlist counsel, to no avail.
On Tuesday evening, he denied Zhang’s request for more time to prepare final remarks to the jury.
“You’re going to have to get ready,” Altman told Zhang.
The defendant, who describes herself as a China-based investment consultant, stood up and in a quiet, disjointed voice delivered a less-than-five-minute closing statement. It was one of the only moments throughout the trial where she took steps to defend herself in front of the jury.
“I am a bit nervous,” Zhang said. “I did nothing wrong.”
Zhang reminded the jury of a service contract that, by all accounts, involved her paying $20,000 to a Chinese agent to arrange her trip to a Mar-a-Lago gala.
The March 30 event supposedly would give Zhang and other Chinese attendees an opportunity to rub shoulders with Trump and his family and meet high rollers in the Palm Beach social scene.
“I made contract to go to Mar-a-Lago to go see the president … see his family,” Zhang said in broken English.
According to prosecutors, Zhang was told by the Chinese agent that the event was canceled. But she flew to the United States anyway, went to the posh Palm Beach resort and lied her way in, prosecutors say.
“There was no event. She knew there was no event. … She was bound and determined to get on that property,” Garcia told jurors during his closing argument.
He cited cellphone communications in which the Chinese agent told Zhang, “We can forget about [the Mar-a-Lago event].”

Your next magistrate judge will be...

...one of these 5:

AFPD Sowmya Bharathi
Barbara Junge

Meredith Schultz 

AUSA Steve Petri

AUSA Jared Strauss 

The district judges will interview these candidates and make a decision at their next judges' meeting in October.  Congratulations!

Greatest opening ever?

“Good afternoon, grand jury. What I want to say ... I don’t believe I did anything wrong. And thank you, USA.”

That was Yujing Zhang's entire opening statement this morning before Judge Altman. The post below covers the craziness that happened with her clothing before trial started.

Michael Sherwin, a good guy and smart prosecutor, has the unenviable task of trying a case against a pro se defendant. The Herald covered his opening:

Assistant U.S. Attorney Michael Sherwin, one of two prosecutors, told the jury that Zhang had lied multiple times to Secret Service agents and Mar-a-Lago staff in order to gain entry for a charity event, even though she learned the gala had been canceled days earlier.

The prosecutor told the 12-person jury that Zhang gave a variety of misleading explanations to agents and staff before her arrest. Among them: that she had come to the president’s Palm Beach club to use the pool, that she had been invited to a United Nations Chinese-American Association event, and finally that she wished to engage in trade and economic negotiations with Trump and his daughter, Ivanka.

“In no way was this defendant authorized to be there,” Sherwin said. “She lied multiple times.”

The prosecutor said that after Zhang’s arrest. federal agents discovered evidence on her iPhone 7 showing she had received text messages while she was still in China saying the Mar-a-Lago event on March 30 was canceled.

Zhang received the bad news in two “We Chat” messages on March 18 and March 26 from a person she had paid to make the arrangements for her, Sherwin said. Zhang was upset and texted back: “I want a refund.” Despite the cancellation, Zhang left for the United States two days later on March 28.

Even the first witness had a memorable moment:

Prosecutors presented their case chronologically, including testimony by a cab driver who said he took a woman who looked like Zhang to the area around Mar-a-Lago on March 29, the day before her arrest.

Willy Isidore said he picked up the woman at the Colony Hotel in Palm Beach and she asked him to give her a ride to Mar-a-Lago.

“She said she didn’t have an invitation,” Isidore testified. “I told her, ‘If you don’t have an invitation, you can’t get in.’ ”

Instead, he drove her to the neighborhood around Trump’s private club. He said the woman was talking on her cell phone and taking pictures the whole time.

When he brought her back to the Colony Hotel, Isidore said the woman asked for a receipt and he gave her his business card.

“She told me her name was Veronica,” Isidore testified.

But when asked if he could recognize the woman by Assistant U.S. Attorney Rolando Garcia, Isidore flubbed the question.

“Maybe,” he said, sitting less than 10 feet away from Zhang in the courtroom. “I’m not sure.”

Zhang did not cross-examine Isidore, missing an opportunity to challenge his credibility.

The Herald says that she missed the opportunity to challenge his credibility, but she actually did the right thing here. If she gets up and crosses the guy, he might then recognize her. Sometimes "no questions" is the right move.

Roy Altman to start trial this morning in the pro se Chinese trespasser case (UPDATED)

The pro se Chinese national charged in federal court with trespassing at Mar-a-Lago starts trial this morning.  The Miami Herald has this profile on Yujing Zhang in advance of the trial.  The Federal Public Defender's Office will be standby counsel. 

Judges and prosecutors hate pro se defendants.  It's a tough tight rope of giving them the benefit of the doubt and not letting them take advantage.

From the Herald:

Zhang, who has spent the past five months in pretrial detention, has been charged by indictment with two federal crimes: trespassing on restricted property and lying to a federal agent. Next week, a jury will determine how at least that part of her story ends during a trial that begins Sept. 9.

Though she has not been charged under the Espionage Act, prosecutors have filed classified evidence in Zhang’s case, indicating the existence of an ongoing, parallel investigation into matters regarding national security that potentially involve her and others. The FBI’s counterintelligence squad is investigating whether the Chinese national was working as an agent of the Chinese government or had been in contact with officials in Beijing before her trip to Mar-a-Lago, according to sources familiar with the probe.

Prosecutors have suggested they could bring more charges against Zhang in the future.

Currently facing a maximum of six years in federal prison, Zhang’s best possible defense seems premised on presenting herself as a bumbling foreign tourist lost in an unfamiliar world. Experts on Chinese espionage say it’s an act they’ve seen before — and that playing the role of a misguided, Trump-obsessed businesswoman could be the perfect cover for a spy. Mar-a-Lago and other Trump properties — where the president is known to loosely discuss national-security affairs — present perfect targets for foreign infiltration.

UPDATE -- jury selection appears to have been ... interesting (via the Miami Herald):

On Monday morning, Zhang appeared in a courtroom at the Fort Lauderdale federal court house in a brown inmate uniform. She is representing herself despite a judge’s plea that she accept attorneys from the Federal Public Defender’s Office, and is facing a maximum of six years in prison on charges of entering restricted property and lying to a federal agent.

Seeing the under-dressed defendant in court, U.S. District Judge Roy Altman asked Zhang why she wasn’t wearing her civilian clothes.

Zhang, speaking in Mandarin, told Altman that she didn’t have any “undergarments,” or underwear, such as a bra and panties, although in fact she had been provided with clothes she brought with her from China before her arrest.

The judge quickly dressed her down.

“You have no undergarments in your cell?” he asked.

“No,” said Zhang, who is being held in a Broward County jail facility while in federal custody.

“You should wear your civilian clothes so the jurors don’t see you in your prison garb,” Altman explained.

Zhang said she didn’t understand the judge’s English, and Altman told her to listen to her Mandarin interpreter or “we could be here for a year.”

Finally, Assistant Federal Public Defender Kristy Militello, who is still advising Zhang though her client fired her before trial, intervened. Militello told the judge that Zhang had the appropriate undergarments along with a silk blouse and skirt and could change into them.

In that case, the judge said, Zhang should change out of her prison garb.

About 15 minutes later, Zhang returned in a blouse, peach-colored jacket and khaki slacks.

The judge told her that he was going to introduce her to prospective jurors. She said she didn’t want to be introduced because she thought the trial was canceled.

“You are obviously unprepared to proceed,” Altman said, then “strongly recommended” that Zhang go to trial with the public defender by her side.

Altman asked her one last time if she wanted Militello to represent her.

“I don’t think so,” she told Altman.

And with that, the jury candidates were brought into the courtroom. The two sides must pick 12 of them plus a few alternates for trial.

Stanley Marcus to take senior status

Big news out of the 11th Circuit today.  Judge Stanley Marcus announced that he will be taking senior status meaning that Donald Trump will get to appoint another judge to that court.  Although Marcus was appointed by President Clinton, he is known for siding with the conservative wing of the court, especially on criminal justice issues so it’s not altogether clear that a Trump appointee will move the already very conservative court more to the right.  With Marcus’ announcement, that means that Trump has two seats to fill on the 11th (Tjoflat also recently announced his retirement).  Both seats will be filled from Florida.

Breaking -- Greg Craig found NOT guilty

This was the big white collar case that everyone was following very closely over the past month.

Craig never should have been charged.  One count was dismissed and one count quickly rejected by a jury.  Sad!

From the Government's closing:

“No matter how many great things he has done in this country, no one is above the law in this country,” he went on. “The truth matters. Facts matter. And now that you have heard the evidence, it is time for you to hold this man accountable for that scheme, and that truth, and find him guilty as charged.”

And from the defense:

In the defense’s closing, Craig attorney William J. Murphy implored jurors to scrutinize the law and a 2013 letter from Craig to the Justice Department explaining to investigators that Craig had his own reasons to speak to the Times, namely to defend himself, his firm’s and his colleagues’ work, and that he was not paid for his media outreach.

Government allegations that Craig was part of Ukraine’s media rollout of the report relied on the words of a “congenital liar,” Murphy said, naming Manafort deputy Rick Gates, who testified and awaits sentencing after cooperating in Mueller’s probe and as a witness against Craig and Manafort.

Murphy said Craig was truthful in saying that in responding to the Times, Craig did not inform or consult with Ukraine or act as its agent.

Murphy spoke of the reputation Craig had built over 50 years and urged jurors to “salvage” it for him, saying, “We ask you to apply the evidence with the law and find him not guilty and prevent this prosecution from sounding a horrible, false note at the end of an incredible career of honor, service and integrity.”

There really should be consequences when the Government loses at trial.