“There is no such thing as rock bottom. So, assume that the worst is yet to come.”

I try to keep this blog apolitical, but wow, what a piece by George Will in the Washington Post.  Here's how it ends:

In life’s unforgiving arithmetic, we are the sum of our choices. Congressional Republicans have made theirs for more than 1,200 days. We cannot know all the measures necessary to restore the nation’s domestic health and international standing, but we know the first step: Senate Republicans must be routed, as condign punishment for their Vichyite collaboration, leaving the Republican remnant to wonder: Was it sensible to sacrifice dignity, such as it ever was, and to shed principles, if convictions so easily jettisoned could be dignified as principles, for . . . what? Praying people should pray, and all others should hope: May I never crave anything as much as these people crave membership in the world’s most risible deliberative body.

A political party’s primary function is to bestow its imprimatur on candidates, thereby proclaiming: This is who we are. In 2016, the Republican Party gave its principal nomination to a vulgarian and then toiled to elect him. And to stock Congress with invertebrates whose unswerving abjectness has enabled his institutional vandalism, who have voiced no serious objections to his Niagara of lies, and whom T.S. Eliot anticipated:

We are the hollow men . . .

Our dried voices, when

We whisper together

Are quiet and meaningless

As wind in dry grass

or rats’ feet over broken glass . . .

Those who think our unhinged president’s recent mania about a murder two decades ago that never happened represents his moral nadir have missed the lesson of his life: There is no such thing as rock bottom. So, assume that the worst is yet to come. Which implicates national security: Abroad, anti-Americanism sleeps lightly when it sleeps at all, and it is wide-awake as decent people judge our nation’s health by the character of those to whom power is entrusted. Watching, too, are indecent people in Beijing and Moscow.

Jury trials and grand juries continued till August 31

Not too long ago, all of the Miami courthouses informally closed for the summer.

Now it’s official. Because of corona, there will be no juries or grand juries this summer. We will regroup in September. Chief Judge Moore’s order was issued last night. I will post it shortly.

In the meantime, go read Rumpole's blog who is doing a lot of good coverage of what's going on in the community with the protests. 

And Udonis Haslem is trying to bring people together. 

An open letter to former prosecutors outraged about the Flynn dismissal

I wrote a letter in the Hill to my friends who are former prosecutors who are upset about the Flynn dismissal.  It starts this way:

There are fair-minded people who are concerned about the Department of Justice’s decision to dismiss the Michael Flynn case. And for many, it’s more than concern. For example, a group of former prosecutors were so outraged by the decision, that they wrote a letter asking for the Attorney General’s resignation because the motion to dismiss, they believed, “undermined [DOJ’s] mission to ensure equal justice under the law.”
For prosecutors legitimately concerned about equality under the law — to be sure, a hallmark of any legitimate justice system — there are bigger issues to be angry about than the dismissal of one case charging a relatively minor crime.

Let me know your thoughts.

News & Notes

1. David Ovalle covers Zoom hearings in Miami here.  I like Phil Reizenstein's quote. Many people don't know that Phil is an avid poker player:

“There are subtle in-person clues you can’t pick up when you’re questioning someone during an online hearing. It’s the difference between playing poker at a table versus online,” said Miami defense lawyer Philip Reizenstein, who by mistake appeared recently in an online court hearing in front of a virtual background created by one of his children: a pink-and-purple Minecraft cartoon house.

Scott Fingerhut also makes an important point about Zoom:

Lawyers also worry about witnesses being coached by people off screen, or looking at notes. “You need a full shot of a witness,” said lawyer H. Scott Fingerhut, who teaches criminal procedure at Florida International University’s law school. “How else do you know if they are holding a phone for texting for advice, or a script nearby?”

2.  The SDFLA is now soliciting feedback on Magistrate Judge Patrick Hunt for his reappointment.  I urge all of you to support Judge Hunt here.

3.  I will be debating Professor Carissa Hessick about judicial power and the Flynn case next Friday at 2pm at this Federalist Society Event.  Clark Neily of Cato will be hosting.  Should be fun.  It's free and via Zoom.  You can register here.

Florida Supreme Court gets two South Florida appointees

Former AUSA John Couriel and Palm Beach Circuit Judge Renatha Francis are the two newest members of Florida’s highest court.  Couriel is a good guy and a smart lawyer.  He has been at Kobre Kim for some time now.  I don’t know Francis personally, but she has a very good reputation as a judge, and I really like the addition of the first Jamaican American to the bench.  She won’t be able to take the bench till September when she has 10 years under her belt as a member of the bar.  Congratulations to both.

RIP Luis Perez (updated with funeral arrangements)

I was planning on a lengthy post-long weekend post this morning, but unfortunately, I have some sad news to pass along.  Longtime prosecutor Luis Perez has passed away.

Luis has been battling cancer for many years and passed away this morning.  He was an Assistant United States Attorney for as long as I can remember.  Most recently he was the chief of economic crimes.  He always seemed to be around, whether walking the streets of downtown Miami during the lunch hour or in court or in a case meeting.  We didn’t always agree on cases obviously, but he was a nice guy, always friendly, and a dedicated public servant.

UPDATED — The service will take place this Thursday at 1:00 p.m. and will be live streamed: http://church.stamiami.org/ . The church is not allowing open physical attendance. For those of you who are interested in making donations, they can be made in Luis’ memory and honor to Sylvester Cancer Center (pancreatic cancer).

More on the Michael Flynn case.

This time I have a debate with the USA Today editorial board.  Here is their piece.  And here is a link to mine, which starts this way:

Chief Justice John Roberts said judges, like umpires, are there “to call balls and strikes and not to pitch or bat.” The Justice Department and Michael Flynn agree that their contest is over, so Judge Emmet Sullivan should not force the parties to keep playing.

And the conclusion:

In our system, each side is responsible for its own case. Judges ensure that government treats the defendant fairly. They have no interest in forcing prosecutors to prosecute. The parties have resolved their dispute, so there is nothing left to judge. As Justice Roberts put it, “Nobody ever went to a ball game to see the umpire.”

Mackenzie Garrity selected for the UM School of Law Stuart A. Markus award

Friends and readers of the blog know that my family set up an award in my Dad's name at the University of Miami School of Law after he passed away.  The Stuart A. Markus Award recognizes an individual student each year for outstanding work in one of the School of Law’s in-house clinics. The winner is selected by vote of the in-house, live-client clinic directors.  The first award went to Bethany Bandstra.  Other winners include Lindsay MacDonald, Brittany Hynes, Sarah Bujold, and Romney Manassa.

This year the Markus Award goes to Mackenzie Garrity.  I received this letter from Professor Kele Stewart summarizing her accomplishments:

In the fall 2019, the Innocence Clinic received the State’s response to a federal habeas petition filed in the United States District Court for the Northern District of Florida. Mackenzie naturally emerged as the leader of the group, while dealing with the time pressure and learning about a case the Clinic had been litigating since 2012. The specific law involved in federal habeas petitions is complex, which added to the pressures of the case. Mackenzie remained calm and focused in her work and kept the team calm and focused. Her research and writing on the project was excellent. Her ability to work with other students, while learning the area of federal habeas law was exemplary. She identified the weaknesses in the State’s arguments with a logic that far exceeded her status as a 2L. While this project took the majority of the semester to complete, Mackenzie performed other clinic duties with great detail, care and timeliness.
Mackenzie was also assigned to draft a Petition for Writ of Mandamus in case where the clinic had been waiting for a year to get a ruling on a 3.850 motion. Based on her draft of the Petition, the First District Court of Appeal issued a show cause order which in turn prompted the court to issue its long overdue order. 

The challenges posed by COVID-19 did not diminish Mackenzie’s dedication. She was assigned a case in which the Clinic has represented the client since 2013. The case has been hard-fought and an evidentiary hearing remains to be scheduled due to COVID-19 court restrictions. Mackenzie drafted a motion for the compassionate release of our elderly client who will be 80 in August and has diabetes among other ailments. This puts him at risk of death from COVID-19 according to the CDC. Mackenzie not only drafted the motion, but recognized the time sensitivity and drafted it  expeditiously. While there is no Florida law on the subject, she was able to find some authority and
analogize current federal law on the issue. After the motion was filed, the Judge ordered the State to respond and also ordered a response from the Department of Corrections. Most importantly, the Clinic was contacted by the prosecution to discuss a resolution that would result in the client’s release. Mackenzie has already drafted a response to the State’s forthcoming and anticipated response. Once the State’s response is received, her draft will be edited and a reply will be filed within hours.

Super Impressive.

My dad practiced law in Miami for over 50 years.  Throughout his career, he fought hard for his clients in every area of the law.  He never turned away a person in need, and helped countless people with practical, hands-on advice and representation that went far above and beyond the norm.  The Markus Award is given annually to a student who shares that caring spirit, and who has made a meaningful difference in someone’s life – which is something my dad did every day.

Congratulations to Mackenzie! 

And thanks to Professor Ricardo Bascuas and Georgina Angones for their help in both setting up this award and for looking after it every year.  It means a lot to me and my family.