News & Notes

1.  NACDL says that it isn't safe to have jury trials right now and issues a number of guidelines for courts on how and when to reopen:

Compromising accused persons’ constitutional and fundamental rights -- like the right to counsel, the right to confront witnesses, the right to due process, and the right to a speedy and public trial by a jury culled from a fair cross section of the community -- for the sake of public safety results in grave injustice. NACDL recognizes that there is no way to fully reconcile these core constitutional rights with the public safety considerations arising from this pandemic. There are, however, fundamental principles that can minimize the constitutional burden while protecting the public and all the stakeholders who must come together for our courts to function.

2. An Ohio federal judge had ordered the release or transfer of over 800 inmates from a high risk prison. Justice Sotomayor issued a stay. SCOTUSblog covers it:

Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

3. How broken is our criminal justice system? Clark Neily from Cato says it's rotten to the core:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts. And the most relevant fact is that America’s criminal justice system is rotten to its core. Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response. If America is burning, it is fair to say that America’s criminal justice system—which is itself a raging dumpster fire of injustice—lit the fuse.
***
As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government. Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

4. The Sentencing Commission just released some data, which shows how this broken system is disproportionately affecting minorities: Of those in federal prison, 34.3% are Black, 33.7% are Hispanic, 28.2% are White, and 3.8% are other races.

Chief Judge Bill Pryor

Today was Judge Ed Carnes’ last day as chief. Judge Bill Pryor takes over. The 11th Circuit website already has been updated.

This anonymous account is a great follow on Twitter for judicial updates. Here’s his thread today:

Bruce Bagley pleads guilty

The Miami Herald has the story of the UM professor and money laundering expert pleading guilty to money laundering in the SDNY:

University of Miami professor Bruce Bagley pleaded guilty on Monday to two counts of money laundering after being charged with using bank accounts in his name and in the name of a company he created in Florida to launder over $2 million in proceeds from a Venezuelan bribery and corruption scheme.

Bagley, recognized as an international scholar on drug cartels and money laundering, pleaded not guilty soon after his arrest in November 2019 in the New York case linked to South Florida, but filed a notice in March indicating that he planned to change his plea.

“Bruce Bagley (…) went from writing the book on crime — literally writing a book on drug trafficking and organized crime — to committing crimes,” said Geoffrey S. Berman, the United States Attorney for the Southern District of New York, in a press release. “Professor Bagley admitted today to laundering money for corrupt foreign nationals — the proceeds of bribery and corruption, stolen from the citizens of Venezuela. Bagley now faces the possibility of a long tenure in prison.”

“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.