Rakontur's new doc coming out soon.

 And it's going to be a doozy.  It's called 537 Votes and is about the 2000 presidential recount in Florida or what Billy Corben and Alfred Spellman call a heist.  It's premiering on HBO Max on October 21.

Here's the trailer:

 

Here's a more detailed description from rakontur's website:

In early 2000, the international custody battle over a six-year-old Cuban boy, Elian Gonzalez, triggered a political earthquake in the swing state of Florida, ultimately swaying the outcome of the presidential election. With Miami’s largely conservative Cuban American population outraged at the Clinton administration’s handling of the repatriation of Gonzalez, many called for “el voto castigo:” the punishment vote, to harm Vice President Al Gore’s chances at the ballot box. Miami-Dade County mayor, Democrat Alex Penelas, dubbed People magazine’s “Sexiest Politician,” is surprisingly absent from Gore’s side as election fever mounts. After election day, with the margin of victory hinged on Florida, weeks of chaotic ballot recounts, lawsuits, counter lawsuits and public protests ultimately ended with George W. Bush winning the presidency by a mere 537 votes. 

With humor, verve and new insights, 537 VOTES exposes the key players who contributed to the chaos in the contested Florida county, featuring interviews and archival footage of insiders and political operatives at the time, including Roger Stone; Joe Geller, Chairman of the Miami-Dade County Democratic Party; Al Cardenas, Chairman of the Florida Republican Party; Cuban American anchorman Rick Sanchez; political consultant Armando Gutierrez; Bush campaign operative Brad Blakeman; Democratic Mayor Alex Penelas; author of Cuba Confidential, Ann Louise Bardach; Democratic political operative Jeff Garcia; Miami political reporter Michael Putney; Gore attorney Mitchell Berger; and Democratic pollster Fernand Amandi.

On election day, November 7, 2000, in one of the narrowest election margins in history, it all came down to Florida, where the state’s 25 electoral votes would decide the next president of the United States. The press called Florida for Gore and then retracted it, and Fox News called it for Bush. Gore called Bush to concede, and then all networks deemed Florida “too close to call.” Gore then retracted his concession and the recount began.

Both parties braced for a bitter and lengthy legal battle. Bush’s campaign mobilized its troops, rallying local Cuban Americans and national GOP figures such as former Secretary of State, James Baker. In turn, Gore’s side hired former Secretary of State Warren Christopher and called for a manual recount in four Florida counties, including Miami-Dade. Under heavy scrutiny were 10,750 “no vote” ballots, where “dimpled,” “pregnant” or “hanging” chads were not counted by the tabulating machines. After 36 days of legal maneuvering and appeals on both sides, the U.S. Supreme Court, with a conservative majority, ruled to stop the manual recounts, thereby granting the presidency to George W. Bush on December 12, 2000.

The best documentarians have another classic on their hands.  And another only-in-Miami story.

First Monday in October

 It's been an insane 2020.  The Supreme Court is no different, and we open the Term with 8 Justices.  A ninth may be on the way. And it looks like there will be election litigation that will make Bush v. Gore look like playtime in comparison. Fun times. The WaPo covers the beginning of the Term:

The Supreme Court opens its new term Monday at the forefront of the national political conversation, but with its future uncertain and the unwelcome prospect of deciding a divisive presidential election on the horizon.
With Justice Ruth Bader Ginsburg’s seat on the bench still draped in black crepe, the eight remaining justices will gather via teleconference to tackle a docket that, for now, is not nearly as controversial as the last.
That term saw the court strike a restrictive state abortion law, decide LGBTQ workers are protected by federal anti-discrimination laws, grant temporary relief to undocumented immigrants brought to the United States as children and reject President Trump’s insistence he was above investigation from Congress and local prosecutors while in office.
“The court in this term may be looking for ways to avoid partisan controversy, to delay deciding cases that are of deep ideological division as much as it can,” David Cole, the national legal director for the American Civil Liberties Union, said last week in a briefing for reporters.
There is a foreboding, but “the biggest possible partisan controversy that it might face is a dispute about the election,” Cole continued. “I’m sure that all of the justices are saying the election officials’ Election Day prayer, which is: ‘Dear Lord, let this election not be close.’ ”
The court already is inundated with emergency lawsuits regarding the voting process, such as what accommodations must be made for voters during the coronavirus pandemic and whether the time frames for receiving mail-in ballots should be extended.
But President Trump has made it clear he believes there will likely be litigation over the results.
“I think I’m counting on them to look at the ballots, definitely,” Trump said during Tuesday’s debate with former vice president Joe Biden. “I don’t think — I hope we don’t need them, in terms of the election itself, but for the ballots, I think so.”

CA11 affirms Judge Moreno's decision to terminate protections for homeless in Miami

 Decision by Judge William Pryor here.  It starts like this:

This appeal requires us to decide whether the district court abused its discretion when it terminated a consent decree that regulated how the City of Miami treats its homeless residents. Twenty years after the consent decree’s adoption, the City moved to terminate it based on changed circumstances, fulfillment of its purpose, and substantial compliance with its requirements. The homeless argued the City was still systematically violating the consent decree and moved the district court to hold the City in contempt and sanctioned for committing the violations. The district court ruled the City had not violated the consent decree, granted its motion for termination, and denied the opposing motion for contempt. Because the district court correctly interpreted the decree and did not abuse its discretion by terminating the decree, we affirm.

Some coverage:

An 11th Circuit panel on Thursday upheld the termination of long-standing judicial protections for Miami’s homeless population, finding that the city had overhauled its homeless policing to the point where court oversight is no longer warranted.

The homeless protections were in place for two decades as part of the landmark settlement in Pottinger v. City of Miami, a class action that accused the city of unconstitutional mistreatment of its homeless population in the 1980s.

After the city secured a termination of the settlement in Miami district court in 2019, David Peery — on behalf of homeless Miamians — turned to a three-judge appeals panel in the 11th Circuit. Among other protections, Peery fought to reinstate a requirement that police officers offer homeless people a bed in a shelter as an alternative to arrest for certain misdemeanors, such as sleeping on a park bench.

The three-judge panel on Thursday rejected Peery’s appeal.

According to the panel’s opinion, the city showed “substantial compliance” with the Pottinger settlement by retraining its police on how to deal with the homeless people.

“All police officers receive training on Pottinger’s requirements, and the City has put in place body-camera-usage, records-keeping, and disciplinary procedures to monitor and regulate interactions between the police and the homeless, ” Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote in a 26-page ruling. 

During the appeal proceedings, Peery and his counsel had pointed to a 2018 mass removal of homeless people from the downtown Miami area as key evidence that the city was violating the settlement and couldn’t be trusted to regulate itself regarding its handling of the homeless population.

 

Abuse of discretion to deny continuance motion leads to reversal

In U.S. v. Schwarz, the 11th Circuit reversed a large white collar SDFLA case, where the defendant was not given sufficient time to prepare for trial.  The defendant was sentenced to 480 months in prison even though he was acquitted of half the counts and even though he only had a few months to prepare for trial.  The appellate court called out the trial court's "history of denying continuances in criminal cases":

There are seven cases from 2006 through 2017 in which the issue in this particular trial court was raised and argued on appeal, and, in all but one, there are substantive rulings by this Court. See Jeri, 869 F.3d at 1257–59; United States v. Ubieta, 630 F. App’x 964, 970–72 (11th Cir. 2015); United States v. Bates, 590 F. App’x 882, 890–91 (11th Cir. 2014); United States v. Anderson, 329 F. App’x 878, 882–84 (11th Cir. 2009); United States v. King, 306 F. App’x 501, 513–18 (11th Cir. 2009); Valladares, 544 F.3d at 1264–65; United States v. Perez, 473 F.3d 1147, 1150–51 (11th Cir. 2006). We by no means challenge the conclusions of prior panels. The rules of the Circuit are clear, and the bar is high for reversal when continuances are denied. None of the listed cases resulted in reversal, but three contained warnings to the trial court, and the most recent, United States v. Jeri, found error by the trial court, but insufficient evidence of prejudice to defendant under our precedent.

United States v. King was a 2009 complicated tax fraud case involving four years of personal and corporate tax returns of two corporations owned by defendant which had been investigated by the Internal Revenue Service for over three years and involved 80,000 documents in discovery. 306 F. App’x at 506. Trial was set to begin forty days after arraignment and fifty-three days after indictment. Discovery was turned over by the government during the 40 days. Id. at 504. This Court noted: “The difficulty in trial preparation was exacerbated by the fact that, little more than a month before trial, the government left 39 boxes containing 80,000 discovery documents at Xpedia, a copy center.” Id. at 515–16. The trial court denied several motions by defendant for a continuance, including an unopposed motion for at least a seven-month continuance. Id. at 506. The trial court eventually granted an eight-day continuance, after which the government added twenty-five exhibits and substituted ten more, one day before the new trial date. Id. at 515–16. On the day of trial, defendant renewed orally his motion for a continuance, to no avail. Id. at 515.
Implying error, this Court made the following observations for the benefit of the trial court:

[T]his is a complicated tax fraud case involving voluminous records. King’s requests for more time to prepare was reasonable. While we understand the need to move cases expeditiously, this case was not a simple one. A 30– or 60–day continuance . . . would not have unduly delayed the court’s docket under these facts.

Id. at 516. Nevertheless, “[t]he problem for King . . . is that he has not shown that the district court’s denials resulted in ‘specific, substantial prejudice’ to his defense.” Id. There was also overwhelming evidence of guilt. Id. at 518.
We issued another warning in our 2014 opinion in United States v. Bates, which dealt with a child pornography prosecution. See generally Bates, 590 F. App’x at 882. The denial of repeated requests for continuance was argued on appeal but not decided by the panel. Id. at 890. Nevertheless, this Court instructed on remand that “the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense.” Id. Noting a short period for the expert to complete a computer forensics examination, and a superseding indictment just two weeks before trial, this Court warned: “If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for . . . adequate time to prepare for trial.” Id. at 891.
As stated above, in United States v. Jeri, our Court found error on the part of this trial court in denying a motion for continuance when a television video of the fruits of a search in a drug case was located by the government on the day before trial, and turned over to defendant on the morning of trial.

The facts of this case suggest to us that the trial court would have been wiser to grant a continuance or at least a short recess. After all, the video was not made available to Jeri until the morning of trial and he did not get to watch the video until after the first day of the day-and-a-half-long trial, by which time five Government witnesses had already testified.

Jeri, 869 F.3d at 1258. Again, however, despite “this error,” defendant could not show specific, substantial prejudice, and there was no reversal. But our panel did not leave it there:

[I]t is worth reiterating “that a scheduled trial date should never become such an overarching end that it results in the erosion of the defendant’s right to a fair trial.” Id. at 1291 [citing United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976)]. The costs attendant to a continuance were low, but the potential risk to the defendant was real. While we are acutely aware of the district courts’ heavy caseloads and fully appreciate the important public interest in their expeditious resolution, it is often wise to counsel patience in finding the “delicate balance between the defendant’s right to adequate representation by counsel of his choice and the general interest in the prompt and efficient administration of justice.”

Id. at 1258–59 (full citation added).

We are troubled, after three warnings by prior panels and in view of the particular facts of this case, that this trial court has not heeded prior panel warnings, resulting in an abuse of discretion in this case. The risk of error is exacerbated by the setting of short trial dates. We have considered, but rejected this time, the sanction of reassignment of this case to another court. To avoid future sanctions, the trial court must be carefully mindful of the occasional needed continuance for a defendant and, in some cases, both sides, especially in a case as complicated as this one.
Because we conclude that the district court abused its discretion in denying Schwarz’s several motions for continuance and caused him to suffer substantial prejudice in presenting his defense, we VACATE appellant SCHWARZ’s convictions and REMAND for a new trial.

Wow! 

It's debate night

How about a debate night drinking game.  Take a drink every time the following term is mentioned.  

For Joe Biden:

• $750
• Starts a sentence with "look"
• Obama
  
• "Trump is going to take away health care" 
• "You're fired."
• anything in Spanish
• "Come on man" or "Here's the deal"
  
• RBG
  

Trump:

• Drug test
• Sleep Joe
• "mail in ballots" or "voter fraud"
  
• Closing the borders to China
• Joe will "defund the police"
• "Law and Order"
• "Fill the Seat"
• China
• Rigged
  

It's Amy Coney Barrett

 Many of us here in South Florida were rooting for Barbara Lagoa.  Even though she didn't ultimately get the nomination, what an honor and an experience to have made the 2 person short-list. 

In the meantime, the left will have to decide how they want to play the Barrett nomination especially since it's pretty clear that she will be quickly confirmed.  

Some liberal commentators are already coming to Barrett's defense.  Here's Noah Feldman, who wrote a piece titled: "Amy Coney Barrett Deserves to be on the Supreme Court."

Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term. And I’m revolted by the hypocrisy of Senate Majority Leader Mitch McConnell’s willingness to confirm Trump’s nominee after refusing to even allow a vote on Judge Merrick Garland.

Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.

I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.

When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.

Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.

Martinez had the special skill of connecting the tangle of complex strands to a sensible statutory purpose. She clerked for Justice Stephen Breyer, who also believes in pragmatically engaging the question of what a statute is actually trying to do in order to interpret it.

In a world where merit counts, Barrett and Martinez would both be recognized as worthy of serving on the Supreme Court. If a Democratic president with the support of a Democratic Senate asked me to recommend a current law professor for the bench, Martinez would be on my short list.

There is no question that Barrett will move the Court far to the right, which is pretty depressing.  But at least she is extremely smart, qualified, and a nice person as described by all who know her.  Barrett gave a really nice acceptance speech and said all of the right things:

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.