Florida Supreme Court is now a political body

Rumpole is covering the stunning reversal by the Florida Supreme Court on the issue of the death penalty and unanimity.  So are all of the major news outlets. The Court just a few years ago ruled X, and then there was some turnover with new justices, and then two went to the 11th Circuit, and a new 5-justice majority now ruled Y.  It's jaw-dropping.  Here's a piece by Slate:

The Florida Supreme Court has become a laboratory of judicial conservativism since 2019, and now the justices have given themselves a new tool to clear away remaining obstacles. On Thursday, they issued a decision of extraordinary breadth, overturning a landmark precedent and letting judges once again impose the death penalty without the unanimous recommendation of a jury. Their decision authorizes the legislature to revive a scheme that empowers judges to issue a death sentence when the jury does not recommend it.

At the same time, the court effectively overruled precedents that limited its ability to reverse past decisions. In all, the decision announces an aggressive new campaign to toss out liberal precedents and move the court far rightward.

Thursday’s decision in State v. Poole overturns a momentous ruling, State v. Hurst, handed down in October 2016. Hurst dealt with Florida’s capital sentencing scheme, a notorious outlier even among states that retained the death penalty. Like these other states, Florida required a jury to determine whether “aggravating circumstances” exist that justify a sentence of death.

Unlike almost every other state, however, the jury’s determination was not binding. Instead, jurors issued an “advisory verdict”—approved by a bare majority—for the judge to consider. But the judge could then hold a separate hearing, analyze the facts independently, and issue a sentence regardless of the jury’s advice.

The U.S. Supreme Court invalidated this system in January 2016. It reiterated that the Sixth Amendment requires a jury, not a judge, to find all facts that increase the maximum punishment. Since Florida allowed a judge to find “aggravating circumstances” that justified a capital sentence, it ran afoul of this rule. The justices returned the case to the Florida Supreme Court to implement their decision, which, at that point, had a 5–2 liberal majority.

But the Florida Supreme Court did more than apply Hurst. The court also considered its state constitution, which declares that the “right of trial by jury shall be secure to all and remain inviolate.” Interpreting this guarantee, the majority expanded the role of the jury in capital trials beyond the federal minimum. It declared that a judge may not impose death unless the jury unanimously found all aggravating factors to be proven beyond a reasonable doubt, “sufficient to impose death,” and not outweighed by any “mitigating factors.” Moreover, the majority held that a jury must “unanimously recommend a sentence of death” before a judge “may consider imposing” it.

The Florida legislature begrudgingly updated state law to reflect these new rules and bring Florida in line with other death penalty states, which placed these decisions in the hands of the jury long ago. Their revisions left just one state, Alabama, that allowed a non-unanimous jury to impose capital punishment.

On Thursday, though, a reconstituted court gave the legislature the greenlight to repeal these reforms and expand judges’ control over death sentences. In a caustic opinion, the majority blithely threw Hurst—a 5–2 decision—out the window.

A lot has changed since October 2016: Four justices in the Hurst majority were forced to step down under Florida’s mandatory retirement law. Former Republican Gov. Rick Scott replaced one with the ultra-conservative C. Alan Lawson, who previously served as a lower court judge. Current Republican Gov. Ron DeSantis replaced the other three with conservatives selected by Leonard Leo, head of the Federalist Society, a partisan organization that elevates Republicans to the judiciary. Donald Trump has already placed two of DeSantis’ three justices on the 11th U.S. Circuit Court of Appeals. So Thursday’s decision in Poole was decided by a five-member court that split 4–1. The one remaining liberal was the lone dissenter.

Michael Avenatti should not be in solitary confinement

That's the title of my latest piece in The Hill.  Please let me know your thoughts.  From the introduction:

Imagine being held by yourself in a small, freezing cold cell 24 hours a day. Not allowed to go outside. Not allowed to make a phone call. Not allowed to go to the bathroom without being watched. Not allowed to shave. Not allowed to visit with a family member. Shivering and alone, day after day.
This is bad enough for a hardened convicted criminal who cannot safely be housed with others. But imagine being held in these conditions when you have not been convicted of any crime. And when the only crime of which you have been accused is a non-violent financial crime.
This is no crazy, off-the-wall hypothetical. It is a strategy too often used against accused first-time non-violent offenders in an attempt to crush them and coerce them into pleading guilty.
This is what is happening right now to Michael Avenatti.
And it is wrong.

Brrrrr!

It's finally winter!

And it's impeachment talk all the time.

But while everyone is talking impeachment, there are two big trials starting up in New York.

The first is Harvey Weinstein, where he won a motion to be able to show the jury in opening the "dozens and dozens" of loving emails from his accusers:

"What we will counter with are their own words, where they describe loving relations, sensual encounters with Mr. Weinstein," defense attorney Damon Cheronis said during oral arguments Tuesday. "Mr. Weinstein is described as someone they care about both before and after the alleged sexual assault."

"Another complaining witness who claims Harvey Weinstein sexually assaulted her sent him an email wanting to introduce him to her mother," Cheronis argued at another point, though he never specified to whom among the six he was referring.

Of course he should be able to do so, and it's weird that it was even a question. 

For the other big NY trial, we move to federal court where Scott Srebnick and Jose Quinon are representing Michael Avenatti.  The big fight right now is trying to get Avenatti out of the SHU, where it is impossible to prepare for trial.  Here's Scott's letter and the Warden's response. It's absurd to keep a first-time accused white collar defendant in solitary conditions like El Chapo.  Let's hope this doesn't break Avenatti into pleading as the government is trying to do.

Slow blogging

Sorry for the slow blogging over the long weekend. I’ll be back at it tomorrow (Wednesday). See you then.

Should we have a "Defender General?"

Daniel Epps and William Ortman make the pitch for a Defender General in this forthcoming piece:

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

I haven't thought through all the pros and cons of a DG, but if we are going to have one, I nominate Michael Caruso.

News & Notes

1.  Fane Lozman, of Supreme Court fame, has settled his case against Riviera Beach to the tune of $875,000.  Good for him!

2.  Michael Munday's case was affirmed by the 11th Circuit.  No issues with playing clips from Cocaine Cowboys at trial.

3.  Should Apple be forced to open an iPhone from accused defendants?  The NY Times covers this recurring debate here.

4. Michael Avenatti was supposed to start trial next week in New York (with Miami criminal defense lawyers), but he was arrested last night in connection with his California case.  The feds allege that he was violating his bond conditions. 

5.  Mike Flynn wants to withdraw his guilty plea.  I've never understood judges who deny these motions.  (There are some judges in this District who always grant them, which seems like the right move.)  If he wants a trial, let him have his trial!

RIP Magistrate Judge Barry L. Garber

A good man, he will be missed.

Garber was a no-nonsense judge on the bench.  Off the bench, he was a tall teddy bear.  He was appointed back in 1991, and died last night at 89.  RIP.

UPDATE -- services will be held on January 15 at 10:30am at Riverside Mount Nebo Kendall (5900 SW 77th Avenue).

What sentence should Michael Flynn get?

Once upon a time, the government said something other than prison.

But now it is asking for 6 months in this memo. From the Washington Post:

The government revoked its request for leniency weeks after Flynn’s sentencing judge categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election. “In light of the complete record . . . the government no longer deems the defendant’s assistance ‘substantial,’ ” prosecutor Brandon Van Grack wrote in a 33-page court filing. He added, “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request Jan. 22.

The request marked the latest twist in the legal saga of the former Army lieutenant general and adviser to President Trump, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days — before resigning in February 2017. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him with helping them.

Flynn’s change of heart came after the end of special counsel Robert S. Mueller III’s probe of Russian election interference. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly Flynn. A potential prison term could renew such calls.

Flynn, 61, pleaded guilty Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office.

***

This year Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging Flynn had been entrapped into pleading guilty and prosecutors wrongfully withheld evidence. Flynn also broke with prosecutors in the July federal trial of his former business partner Bijan Rafiekian, on charges of illegally lobbying for Turkey. Flynn was set to be the star witness against Rafiekian. He told a grand jury he and Rafiekian campaigned “on behalf of elements within the Turkish government,” a project that included an op-ed under Flynn’s name on Election Day in 2016. But just before the trial, Flynn claimed prosecutors wanted him to lie. A jury convicted Rafiekian without Flynn’s testimony, but a judge threw out those convictions in part because he found “insufficient” evidence of a conspiracy between the two men or of the Turkish government’s role....

In withdrawing their request for leniency, Flynn’s prosecutors highlighted his hindrance of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.” The government recommended zero to six months of incarceration for Flynn, citing “the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian.”

Prosecutors backed their claim Tuesday by filing dozens of pages detailing Flynn and his lobbying firm’s misconduct, including grand-jury transcripts and FBI interview reports. Overall, prosecutors said Flynn participated in 19 interviews with federal prosecutors and turned over documents and communications. The substance of his cooperation was initially hidden, but most has come out in Mueller’s final report, subsequent trials or public records released as a result of lawsuits filed by news organizations.