Update to Florida Supreme Court Justice controversy by Kyle S. Roberts

 Here's a further update to Kyle S. Robert's post on the Florida Supreme Court:

On September 8, 2020, the Florida Supreme Court denied Thompson’s motion for rehearing, but granted her motion for leave to amend the Emergency Petition for Writ of Quo Warranto and Writ of Mandamus.

 The Court ordered the Governor to show cause why he should not be required immediately to fill the vacancy in office of justice of the supreme court by appointing a candidate who was on the JNC's certified list of January 23, 2020, and is now constitutionally eligible for appointment. The Governor shall respond by Wednesday, September 9, 2020.

 

Curtis Flowers won't be retried

 It would have been his 7th -- SEVENTH! -- trial.  The AP covers the decision here:

A Mississippi man freed last year after 22 years in prison will not be tried a seventh time in a quadruple murder case, a judge ruled Friday after prosecutors told him they no longer had any credible witnesses.

Curtis Flowers was convicted multiple times in a bloody slaying and robbery at a small-town furniture store in 1996. The U.S. Supreme Court threw out the most recent conviction in June 2019, citing racial bias in jury selection.

“Today, I am finally free from the injustice that left me locked in a box for nearly twenty three years,” Flowers said in a statement released by his lawyer. “I’ve been asked if I ever thought this day would come. I have been blessed with a family that never gave up on me and with them by my side, I knew it would.”

Montgomery County Circuit Judge Joseph Loper signed the order Friday after the state attorney general’s office, which had taken over the case, admitted the evidence was too weak to proceed with another trial.

“As the evidence stands today, there is no key prosecution witness ... who is alive and available and has not had multiple, conflicting statements in the record,” Assistant Attorney General Mary Helen Wall wrote in a filing presented to Loper on Friday.

 Vangela Wade, one of Flowers' current lawyers, wrote an op-ed in the Washington Post.  It starts this way:

Nearly 23 years. More than 8,000 days. That’s how long Curtis Flowers — a Black man who was tried an astonishing six times for the same crime — was locked away in a cramped jail cell with little ability to see his family. Until Friday, when Mississippi’s attorney general decided to drop the charges, Flowers was waiting to find out whether he would be subjected to yet another trial.

My organization, the Mississippi Center for Justice, has been defending Flowers since summer 2019, working with the team of lawyers that has represented him for many years. We are thrilled that he will finally go free. The accusations against Flowers were never grounded in facts, but rather fueled by improper conduct by Montgomery County District Attorney Doug Evans — the prosecutor in each of Flowers’s six trials.

Unfortunately, the Flowers case offers just a tiny snapshot of prosecutorial misconduct. Such misconduct — which can include introducing false evidence, using dubious informants, withholding evidence that could exonerate the defendant or discriminating in jury selection — puts countless innocent people behind bars. As a former prosecutor — notably, the only Black staff member in the office — I witnessed firsthand the disproportionate number of African Americans entangled within the criminal justice system.

Prosecutors wield enormous control over the criminal justice system. They determine which charges to pursue — if any — and make recommendations on bail, pretrial incarceration and sentencing, which are often accepted by judges. In each of these instances, prosecutors have the potential to abuse civil rights — with few, if any, consequences.

One analysis by the Innocence Project of 660 cases in which courts confirmed prosecutorial misconduct revealed that the prosecutor was ultimately disciplined in only one. Another report of 707 cases of prosecutorial misconduct in California found that just six prosecutors were disciplined.

Michael Sherwin is a good example of a U.S. Attorney with principles

 Check out this Washington Post article here. Sherwin is being criticized by both the left and the right.  But he's just trying to do the right thing by not bringing charges where there is no evidence.  Good for Sherwin!

Federal prosecutors on Tuesday accused D.C. police of using insufficient evidence to arrest demonstrators accused of rioting, putting the U.S. attorney’s office and local authorities at odds over how to deal with days of unrest in the District.

The written rebuke came one day after D.C. Mayor Muriel E. Bowser (D) publicly criticized the U.S. attorney’s office for not pursuing most of the criminal ­charges filed by police against nearly 70 people arrested during protests since mid-August. She also sent a letter to prosecutors detailing her complaints.

Noting the mass arrests three weeks ago of 42 people who police said were in a group that spray-painted buildings and set fire to patio umbrellas in Northwest Washington’s Adams Morgan area, acting U.S. attorney Michael Sherwin told Bowser in his own letter that he had no choice but to drop charges against all but one defendant.

“The ‘42 rioters’ were arrested as a collective by MPD and presented to the Office without any articulable facts linking criminal conduct to each individual arrested,” Sherwin wrote in his letter. “Simply put, we cannot charge crimes on the basis of mere presence or guilt by association.”

In his letter, Sherwin says he met with police leaders to request help “to further develop these cases to establish a bare minimum of probable cause. To date, no sufficient evidence has materialized.”

***

“As I am sure you are aware, without some evidence to establish probable cause of a particular arrestee’s criminal conduct — e.g., a police officer’s observation or video footage of the alleged crime — we cannot bring federal ­charges,” Sherwin wrote. “Surely, by your comments, you are not suggesting that this Office skirt constitutional protections and due process.”

 

I’m no fan of Steve Bannon.

 But the way DOJ is treating him and his co-defendants in the press isn’t right.  I call it chutzpah in this piece in the Hill:

Chutzpah is defined as “shameless audacity.” In his book of the same name, Alan Dershowitz said the concept is more easily demonstrated than defined. He gave the classic illustration of the kid who murders his parents and then pleads for mercy on the ground that he is an orphan. The Department of Justice’s recent actions with respect to Brian Kolfage (Steve Bannon’s co-defendant) — issuing press releases with inflammatory quotes about the allegations and the arrest while at the same time filing a motion with the court saying that the defense should not be able to respond in the press — is another good example of chutzpah. So too is DOJ's handling of the press in the Ghislaine Maxwell case — holding a lengthy press conference with pictures and charts and opposing the defense’s motion to curtail the prosecution’s media blitz.
On Aug. 20, the DOJ arrested Kolfage, Bannon and other alleged co-conspirators for fraud in connection with an online fundraising campaign for “We Build the Wall.” Regardless of what you think of Steve Bannon, President Trump, or “the wall” — and as a liberal Democrat, I have pretty strong views — all defendants are presumed innocent and should be treated fairly.

Please read the whole thing and let me know your thoughts.  Try to imagine a defendant that you don’t hate in Bannon’s or Maxwell’s place.

GUEST POST BY KYLE S. ROBERTS (UPDATED)

Florida Supreme Court Said Governor DeSantis Exceeded His Authority In Appointing Judge Renatha Francis, But Held Petitioner Thompson To The Remedy She Requested And Denied The Petition

By Kyle S. Roberts

The August 27^th Opinion denied Representative Geraldine F. Thompson’s challenge to Governor DeSantis’ appointment of Judge Renatha Francis to the Florida Supreme Court because the remedy sought was “legally unavailable under these circumstances.”

For those keeping an eye on this case, this dispute stems from Governor DeSantis’ appointment of Judge Francis to the Florida Supreme Court on May 26, 2020, and the undisputed fact that she has not been a member of the Florida Bar for the preceding ten (10) years—a milestone she will reach on September 24, 2020. Petitioner took the position that to be eligible for a seat on the Florida Supreme Court, the person must meet the requirements laid out in Florida’s Constitution at the time of appointment. Governor DeSantis took the position that the person must meet the requirements laid out in Florida’s Constitution at the time of actually taking the oath and assuming the duties of her office, which Judge Francis intends to do on September 24, 2020.

Rather than simply ask the Court to 1) find that Judge Renatha Francis is ineligible for office and 2) issue a writ of mandamus compelling Governor DeSantis to appoint someone else from the short list sent up on January 23, 2020, Petitioner asked the Court to compel the JNC to create a new list from the original applicants and to compel Governor DeSantis to appoint someone from that new list.

The Court found that “[w]hen we read Article V, section 8 together with article V, section 11, the only reasonable conclusion is that the Bar eligibility requirement attaches at the time of appointment.” This is contrary to the Governor’s position.

Although the Court cleared up the dispute as to the time all constitutional eligibility requirements must be met, it ultimately denied the petition because of the relief sought by Petitioner:

There is no legal justification for us to require a replacement appointment from a new list of candidates, rather than from the one that is already before the Governor. And the correct remedy (an appointment from the existing list of eligible nominees) would be contrary to Thompson’s stated objectives in filing this case. Therefore, we hold Thompson to the remedy she requested and deny her petition.

This Opinion leaves us wondering what will happen next as there is still close to a month before Judge Francis meets the constitutional eligibility requirement and the Court clearly stated that she needed to have met it at the time of appointment. Will Petitioner, or another Florida Citizen, challenge the appointment of Judge Francis, and this time request the correct relief as pointed out by the Court? Will Governor DeSantis revoke his appointment and select one of the remaining 7 individuals on the January 23, 2020, list to avoid further litigation? Will it be status quo until September 24^th and Judge Francis becomes Justice Francis?

The remaining individuals on the January 23^rd list, aside from Judge Francis and now Justice Couriel, are:

Jonathan Gerber

Jamie Grosshans

Norma Lindsey

Timothy Osterhaus

Eliot Pedrosa

Lori Rowe

Meredith Sasso

Kyle is a commercial litigator at Conrad & Scherer LLP in Fort Lauderdale.

Update--

Petitioner Thompson filed a Motion for Leave to amend, and also filed an Amended Emergency Petition for Writ of Quo Warranto and Writ of Mandamus yesterday.

 She is asking the Court to do exactly what it said would be the appropriate remedy and declare that Judge Francis was ineligible for appointment, and to compel Governor DeSantis to immediately appoint one of the 7 remaining on the January 23, 2020, list.

Media matters

 There's been a ton of publicity about the Steve Bannon arrest and charges.  The prosecution has issued its press releases and even held a press conference.  DOJ is a media machine these days.  It wasn't always like that.  But heaven-forbid that a defendant try to respond to the press... 

Bannon's co-defendant called the case a witch hunt and DOJ has filed a letter complaining to the judge that the defendants are making extra-judicial statements which may taint the jury pool.  DOJ had the chutzpah to cite to Sheppard v. Maxwell, F. Lee Bailey's Supreme Court case which found that the defendant (Sam Sheppard, a/k/a the Fugitive) could not get a fair trial with all of the publicity surrounding his trial.  

If DOJ is going to speak to the press, then defendants should be permitted to respond.

“The Department of Justice has been casting a wide net charging these SBA loan fraud cases, and I look forward to discovering if this is an example of that net having been cast too wide.”

That was Bradley Horenstein discussing his new COVID-19 case. His client is accused of getting a relief loan for a farm in Miami... according to the feds, no farm. From the Herald:

As the coronavirus spread havoc in South Florida, prosecutors say Latoya Stanley and Johnny Philus hauled in $1 million in federal relief loans while claiming they were struggling to operate a beauty supply store, an auto leasing business and a couple of farms in North Miami.

Their loan applications were all made up, the feds say — especially the part that they were “farmers” on tiny residential lots in the urban community.

Stanley, 38, and Philus, 33, were arrested Wednesday. They are charged with committing wire fraud and making false statements when they applied for Small Business Administration loans under a new federal program that provides financial assistance to businesses ailing from the impact of COVID-19. Both were released on a $100,000 bond and face arraignment on Sept. 9 in Miami federal court.

***

“In actuality, the complaint alleges that Stanley and Philus employed no one and the farms did not exist,” according to the U.S. Attorney’s Office.

In their government loan applications filed in May and June, Stanley and Philus claimed to operate two businesses — Dream Gurl Beauty Supply and Elegance Auto Boutique — out of a duplex building on one-sixth of an acre at 1275 NE 118th St.

Which circuit is the worst on qualified immunity?

You may have thought it was the 11th... but it’s the 5th actually.  We aren’t far behind, according to this interesting Reuters report.  And the best is the 9th Circuit. But the disparities is a good reason to abolish the doctrine altogether.  Here’s a small portion from Reuters:

For years, the words “qualified immunity” were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine — created by the U.S. Supreme Court itself — a target of broad public demands for comprehensive reform to rein in police behavior.
The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyd’s death, the immunity defense has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years — even when judges found the behavior so egregious that it violated a plaintiff’s civil rights — thanks largely to continual Supreme Court guidance that has favored police.
The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. “It’s essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas,” said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court. “It shouldn’t turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.”
The “happenstance of geography” shows up in a comparison of Collie’s case to the one Benny Herrera’s family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collie’s case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.