Corrine Brown's case goes en banc before the 11th Circuit

 I previously blogged about the fascinating panel decision here.

In the Brown case, the district court excused a juror who said that he was deliberating based on what "[t]he Holy Spirit told [him]," which was that Brown was not guilty on all counts.  Judge Rosenbaum said it was appropriate to excuse the juror because the juror was not praying for guidance but was basing his decision on what was "told" to him by the Holy Spirit.  Visiting Judge Conway joined Judge Rosenbaum.

Judge William Pryor wrote a lengthy dissent, arguing that jurors should be able to rely on their religious beliefs.

Now the case goes en banc.  Here's what I said about the panel opinion at the time:

For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.

What about Amy Coney Barrett?

 The blog obviously has a local interest in the consideration of Barbara Lagoa as a SCOTUS short-lister.  But the other woman on the short list is Amy Coney Barrett, a judge on the 7th Circuit.  Here's what she said about replacing her former boss, Justice Scalia during an election year:

 

 

Trump #SCOTUS front-runner Amy Coney Barrett, when asked whether Obama should be able to appoint a Supreme Court justice in an election year, said it's inappropriate when it would “dramatically flip the balance of power." pic.twitter.com/loLMaLrsUm

— Mark Elliott (@markmobility) September 23, 2020

And here's a Reason article about her criminal justice record:

Appeals court judge Amy Coney Barrett, a leading contender to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, is a popular choice among conservatives. That fact does not, by itself, tell us much about Barrett's treatment of criminal defendants' constitutional and statutory claims.

When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes. Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases. Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas. By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture. While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.

It is clear from Barrett's record that she does not reflexively side with the government in criminal cases. In a 2019 opinion, for example, she concluded that Drug Enforcement Administration agents violated the Fourth Amendment when they searched a suspect's apartment based on the consent of a woman who answered the door but did not live there.

"Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence?" Barrett asked. "We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property."

In another Fourth Amendment case, decided in 2018, Barrett concluded that an anonymous tip did not provide reasonable suspicion for police to stop a car in which they found a man with a felony record who illegally possessed a gun. "The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable," she wrote for a unanimous three-judge panel. "The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful."

In a 2018 case, by contrast, Barrett joined the two other judges on a 7th Circuit panel in rejecting the Fourth Amendment claims of three men who had been convicted of viewing and possessing child pornography after they were identified as users of the dark website Playpen. The FBI, which ran Playpen for about two weeks in 2015 as part of its investigation, identified people who visited the site via tracing software it installed under a warrant issued by a federal magistrate judge in Virginia. The defendants argued that the warrant was invalid because it purportedly covered searches outside the magistrate judge's district.

Writing for the unanimous panel, Barrett said "we need not decide…whether the searches violated the Fourth Amendment." Even if they did, she said, "the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies." Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that.

 

More on Barbara Lagoa

 This time, a deep dive, by the New York Times. It starts this way:

As a young associate in a prestigious Miami law firm, Barbara Lagoa took on an unusual pro bono case, one without a supervising partner and against a formidable adversary: the Clinton administration.

Ms. Lagoa represented a relative of a 5-year-old boy found off the Florida coast after his mother had drowned trying to cross over from Cuba. His name was Elián González.

Federal agents would eventually seize Elián and return him to his father in Cuba, setting off political shock waves that arguably cost former Vice President Al Gore the 2000 presidential election when he lost Florida.

“After six months, countless briefs, a few all-nighters, two oral arguments and one midnight raid by armed commandos, we learned what it was like to lose,” Eliot Pedrosa, another lawyer on the team, said at a ceremony last year when Judge Lagoa joined the Florida Supreme Court. The experience of “watching armed federal agents use force to pre-empt process,” he said, was “seared into her soul.”

That formative episode helped shape Judge Lagoa’s career as a federal prosecutor and appellate judge and thrust her into South Florida’s political culture, dominated by Cuban-American Republicans.

It is an electoral dynamic that remains powerful two decades later and has helped Judge Lagoa, who now sits on the United States Court of Appeals for the 11th Circuit, emerge as an attractive choice for President Trump as he considers whom he will name to replace Justice Ruth Bader Ginsburg on the Supreme Court.

Trump says he may be meeting with her this week in Miami.  The article ends this way:

For the people trying to promote her nomination in South Florida, though, Judge Lagoa’s life story as the daughter of immigrants matters just as much as her record.

Her friends mention her modest upbringing in the blue-collar city of Hialeah. She rode her bike and roller skated around the neighborhood. Her parents saved up to send her to Catholic school. It was a big deal when she went away to New York for law school.

“In the country my parents fled, the whim of a single individual could mean the difference between food or hunger, liberty or prison, life or death,” Judge Lagoa said last year, when she was nominated to the Florida Supreme Court. “Unlike the country my parents fled, we are a nation of laws — not of men.”

Barbara Lagoa is at the top of Trump’s short list for RBG’s Supreme Court seat

Judge Lagoa, 52, is a Miamian, who currently sits on the 11th Circuit. She previously sat on the Florida Supreme Court and 3rd DCA. And before becoming a judge, she was an AUSA in the SDFLA. She's married to Paul Huck Jr. (son of District Judge Paul Huck Sr.) and they have three daughters. Here's a picture of Gov. DeSantis announcing her to the Florida Supreme Court with her and her family in the background:

We've never had a Floridian on the Supreme Court, which is something I've been pushing for since the start of this blog back in July 2005. 

More on the politics of this choice from Politico: Lagoa is on a list of names that Trump released earlier this month as possible replacements. But unlike Barrett, people close to the process say Lagoa has demographic and geographic advantages in her favor when it comes to the politics of Senate confirmation and the presidential election: Lagoa hails from Trump’s must-win state of Florida and she’s Cuban American. “Justice Lagoa is perfect,” said one source, who has discussed the matter with White House officials but was not authorized to speak on record. “The president wants a conservative jurist and he wants to win the biggest battleground. How do Democrats in the Senate vote against a Latina?” A second Republican who has close ties to Florida said that “Lagoa is at the top of the list. She checks a lot of boxes.” But some conservative groups could object based on what they see as Lagoa’s insufficient record on abortion, the ultimate litmus test on the right. One prominent GOP senator, Josh Hawley of Missouri, has already said he would only vote for a nominee who has affirmed that Roe v. Wade was “wrongly decided.”

RIP Ruth Bader Ginsburg

Everyone will be talking about whether Trump has enough time and the votes to get someone confirmed in the next couple of months.  But before we turn to politics, let's take a moment and remember the incredible woman, an inspiration to so many.  What a truly amazing person.  RIP.

From NPR:

Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas.

The court, in a statement, said Ginsburg died at her home in Washington surrounded by family. She was 87.

"Our nation has lost a justice of historic stature," Chief Justice John Roberts said. "We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tired and resolute champion of justice."

Architect of the legal fight for women's rights in the 1970s, Ginsburg subsequently served 27 years on the nation's highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed."

pic.twitter.com/dKaprfvfN7

— David Oscar Markus (@domarkus) September 19, 2020

🔥🔥🔥 (UPDATED WITH NEW ADMINISTRATIVE ORDER CONCERNING COVID-19)

UPDATE -- Chief Judge Moore just issued this new order concerning COVID-19, which seems to suggest that judges are not permitted to hold in person plea or sentencing hearings.  Yet there are rumors that the U.S. Attorney's Office will be convening a grand jury in November to start indicting cases that have been backlogged.

 ORIGINAL POST:

2-0

10-1

Let’s go Heat!

Have a great weekend. 

 Here are two great articles about the Heat's incredible run:

    1)    This one is about Udonis.

    2)    This one is about what it took to put together this team.

Must read opinion out of the SDNY regarding prosecutorial misconduct

 From Politico:

A federal judge has ordered all federal prosecutors in the Southern District of New York to read a ruling she issued Wednesday that blasts prosecutors for their handling of evidence in a criminal case involving alleged violations of sanctions against Iran.

U.S. District Court Judge Allison Nathan also said she was unsatisfied with the completeness of the government’s account of why prosecutors failed to turn over one key piece of evidence to the defense until the middle of trial, with one government attorney discussing with colleagues a plan to “ bury” the previously undisclosed letter among other documents being emailed to defense lawyers. “No responsible Government lawyer should strategize how to ‘bury’ a document that was not, but should have been, previously disclosed to the defense. A responsible Government lawyer should—at a minimum—forthrightly and truthfully reveal late disclosures to the defense,” Nathan wrote, emphatically disagreeing with the conclusion from U.S. Attorney’s Office leaders that there was nothing to “condemn” in the prosecutors’ actions.

“This Court disagrees and hereby strongly condemns this conduct,” Nathan wrote in her 34-page opinion. Nathan called some of the omissions by prosecutors “shocking.” And she expressed the greatest concern over the explanation prosecutors gave her after the defense for Iranian banker Ali Sadr questioned the late disclosure of the letter prosecutors discussed burying.

“The Court finds that the Government’s representation was misleading, as it implied that it had explicitly informed the defense that [the exhibit] was being disclosed for the first time. Indeed, the Court was misled,” the judge wrote. A jury convicted Sadr in March of five felony counts related to the alleged sanctions violations. However, in June, prosecutors abruptly sought to abandon the case due to the evidence issues that emerged.

You can read the whole opinion here.  Good for Judge Nathan.  Makes me remember how great Judge Gold was as a judge here in this District.  Here's how the opinion starts:

Federal prosecutors have constitutional and statutory duties to disclose many types of evidence to defendants. This principle of disclosure is central to our criminal-justice system. “A prosecutor that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant . . . That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.” Brady v. Maryland, 373 U.S. 83, 87–88 (1963). And federal prosecutors, like all parties that appear before the Court, have ethical duties of candor. United States v. Universita, 298 F.2d 365, 367 (2d Cir. 1962) (“The prosecution has a special duty not to mislead; the government should, of course, never make affirmative statements contrary to what it knows to be the truth.”). In the near decade the Undersigned has sat on the bench in the Southern District of New York, the vast majority of Assistant United States Attorneys before the Court have embraced their disclosure obligations, worked diligently to meet them, and forthrightly admitted when they did not. 

But not all. In this case, federal prosecutors have by their own admission repeatedly violated their disclosure obligations and, at best, toed the line with respect to their duty of candor. Over the course of years in this prosecution—before, during, and after trial—the Government has made countless belated disclosures of arguably (and, in one instance, admittedly) exculpatory evidence. For some pieces of evidence, the Government provides plausible explanations for its late disclosure. For others, it provides no explanation at all. And when the Court pressed for more information about one of these failures, the Government made a misrepresentation to the Court. This serious dereliction requires a serious response. 

And the conclusion:

Almost a century ago, the Supreme Court defined the singular role federal prosecutors play in our system of justice:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . . . He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935).

The Government in this case has failed to live up to these ideals. The Court has recounted these breaches of trust, proposed some systemic solutions, urged referral to the Office of Professional Responsibility for admitted prosecutorial failures apparent in the existing record, and ordered further fact-finding. The cost of such Government misconduct is high. With each misstep, the public faith in the criminal-justice system further erodes. With each document wrongfully withheld, an innocent person faces the chance of wrongful conviction. And with each unforced Government error, the likelihood grows that a reviewing court will be forced to reverse a conviction or even dismiss an indictment, resulting in wasted resources, delayed justice, and individuals guilty of crimes potentially going unpunished. The Court thus issues this Opinion with hopes that in future prosecutions, the United States Attorney for the Southern District of New York will use only “legitimate means to bring about a just” result. Id. Nothing less is expected of the revered Office of the United States Attorney for the Southern District of New York. That Office has a well- and hard-earned reputation for outstanding lawyers, fierce independence, and the highest of ethical standards. The daily work of the prosecutors in that Office is critically important to the safety of our community and the rule of law. Those who stand up in court every day on behalf of that Office get the benefit of that reputation—but they also have the responsibility to maintain it. The Court hereby ORDERS that the Acting United States Attorney ensure that all current AUSAs and SAUSAs read this Opinion. Within one week of the date of this Opinion, the Acting United States Attorney shall file a declaration affirming that this has occurred. The Court FURTHER ORDERS that each of the trial team AUSAs, supervising Unit Chiefs, and the SAUSA submit the declarations described in Section III no later than October 16, 2020. By October 30, 2020, the executive leadership for the USAO may submit a brief as to why no further proceeding for additional fact-finding or credibility determinations is necessary. Counsel for Mr. Sadr may, if they wish, submit a responsive filing by November 13, 2020, and the Government a reply by November 20, 2020.  

The only thing that can be said for the SDNY is that they eventually did the right thing and dismissed the case.  There have a bunch of cases in this District and others where serious misconduct has been uncovered, but admissions of wrongdoing and dismissals were not forthcoming. Sadly in those cases, the government has dug its heels in.  If prosecutors won't dismiss where misconduct is uncovered, then judges should.

If you are looking for some free CLE credits regarding e-discovery....

I'm told that there is a criminal component involving the seizure of a cell phone pursuant to a search warrant, the government’s lengthy efforts to unlock the seized phone, self-incrimination issues re: an i-Phone password, and a Rule 41 return of property issue.

The Palm Beach County Chapter of the Federal Bar Association

proudly presents:

Towards A New E-Discovery Paradigm

A Zoom Webinar featuring:

THE HONORABLE WILLIAM MATTHEWMAN

U.S. MAGISTRATE JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

Presentation to be preceded by the swearing-in of the Palm Beach Chapter Officers

for the 2020-2021 year by:

THE HONORABLE KENNETH MARRA

SENIOR U.S. DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

September 18, 2020, AT NOON

FROM YOUR COMPUTER – BY ZOOM

This event is FREE for all attendees.

0.5 CLE credit requested

 RSVP by September 17, 2020 at noon to Traci Willard (twillard@mrachek-law.com) 

 The Zoom Meeting ID and Password will be sent by 3 p.m. on September 17^th. If you do not receive the invitation by 5 p.m., please send an email to both twillard@mrachek-law.com and adrumm@carltonfields.com