What's going to happen when we have jury trials again in April 2021?

 Assuming we have trials again in the Spring, how is it going to work?  Are we going to be able to get enough jurors?  Will judges accommodate all of the scheduling nightmares that lawyers are going to have? Will everyone still be required to wear masks during the trial?

Meantime, grand juries are supposed to start up on Tuesday in SDFLA.  There will be two different grand juries and each one will meet once a week (one on Tuesday and one on Thursday).  Apparently, cases for in custody defendants will proceed first.  Then cases with statute of limitations issues.  But with such limited grand jury time, it will be interesting to see how it works.  Will the grand jurors even show up?  How will prosecutors actually schedule the time?  Will there be shortcuts?

In other parts of the country, defendants have been asking for -- and receiving -- discovery regarding the grand jury process.  Who is being excused?  Why? Is it a fair cross-section?  An so on.

Hopefully, the pandemic has changed our idea of bond.  The truth is, almost no one flees.  Ever.  And yet, we hold so many people no bond pre-trial.  During the pandemic, more people were released on bond than ever before... and unsurprisingly to defense lawyers (and prosecutors), no one fled.  Still, we held so many people in pre-trial detention.  In Texas, 80 percent of inmates who died from COVID-19 had not been convicted. These are people who were presumed innocent.  Sickening.  Our district is particularly bad when it comes to bond pending appeal.  Other districts freely grant bond pending appeal, even after trial, in white collar cases.  Why don't we?

And in other news, Justice Alito thought it was a good idea to go and give a political speech at the Federalist Society.  Very on brand for him and we know this is how he feels, but does he really need to go out there and say it?  From the Boston Globe:

“This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

“I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again.

As this WaPo editorial wonders, why is he so angry when his side is winning?

Alito spoke quite a bit about liberty and justice in his address, but he is literally the most right wing Justice in a generation on the 4th Amendment and other criminal justice issues.  He's all in for the Second Amendment and Religious liberty... the other rights, not so much.

OPR finds no misconduct by Alex Acosta

The executive summary of the report is here.  Now I put absolutely *no* credence in anything OPR does because they literally *never* find misconduct, BUT they got this one right.  In this old article at the Hill, I explain why OPR should have spent its time investigating real prosecutorial misconduct. And in this old Herald op-ed, I explain that Acosta was unfairly criticized for the Epstein case.

I wrote that two years ago, and additional facts have come out, but I still don't get it.  With the amount of actual misconduct in the administration, I don't understand why a 10-year old decision regarding a plea agreement -- that everyone knew about when Acosta became Labor Secretary and where he was doing a good job with no scandals -- cost him his job.  Even if you believe that Epstein should have received more time, as Acosta's then first-assistant Jeff Sloman wrote here, that does not mean that Acosta and others acted unethically.  

OPR spent tons of time and resources investigating a really old plea-deal that was struct by lawyers who are no longer prosecutors where the defendant has died.  Had they found any misconduct, what were they going to do?  I'm wondering when they will look at actual prosecutors who have committed real prosecutorial misconduct that actually infringes on a defendant's rights.  Sigh...

Aileen Cannon set for final vote Thursday (UPDATED -- Cannon confirmed)

According to the Senate Cloakroom Twitter account: On Thursday, November 12th, under the regular order, at 12:00pm the Senate will proceed to a vote on the motion to invoke cloture on Executive Calendar #863 Aileen Mercedes Cannon to be U.S. District Judge for the Southern District of Florida. If cloture is invoked, at 1:45pm on Thursday, November 12th, the Senate will proceed to a vote on confirmation of the Cannon nomination.

 UPDATED -- Cannon, now Judge Cannon, was confirmed 56-21.

FOR THE DEFENSE, EPISODE 3 TOM MESEREAU DISCUSSES HIS DEFENSE OF MICHAEL JACKSON

 

FOR THE DEFENSE, EPISODE 3
TOM MESEREAU DISCUSSES HIS DEFENSE OF MICHAEL JACKSON

There wasn't a bigger star than Michael Jackson. And there wasn't a bigger trial than People of the State of California v. Michael Jackson, the four and a half month case in Santa Maria, California.

The King of Pop needed the absolute best trial lawyer he could find as the stakes couldn't have been higher. Stars lined the audience and the witness stand in a trial with wall-to-wall coverage. The question to be answered at trial: Was Neverland Ranch the site of childhood fantasy or unthinkable nightmares?

Everyone had an opinion on how Jackson and his lawyer should defend the case. Tom Mesereau had to put aside the noise and trust what got him there -- his trial lawyer instincts. From picking the jury to cross examining the complaining witnesses to deciding whether to call Michael Jackson himself to the stand, Mesereau made the right decision each and every time despite enormous criticism along the way.

We will discuss those interesting calls with Tom Mesereau on this week's episode of For the Defense.I really appreciate the feedback I've received about the first two episodes (with Donna Rotunno, the lawyer that represented Harvey Weinstein, and Roy Black for his representation of a Miami police officer who shot and killed a young Black man leading to riots). Please keep the comments coming.

Also, it would be really helpful if you could subscribe and give feedback on the podcast platforms as well. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on this website.

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

SDFLA closed tomorrow (Monday) for ETA

 From the clerk:

Message posted 11/8/2020 @ 2:45 p.m. 

CLOSURE OF MIAMI, FORT LAUDERDALE, WEST PALM BEACH, FORT PIERCE AND KEY WEST FEDERAL COURTHOUSES, INCLUDING BANKRUPTCY AND PROBATION, ON MONDAY, NOVEMBER 9, 2020

During inclement weather periods, the safety of the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close.  In light of the announced closures of public schools in Miami-Dade, Broward, Palm Beach, St. Lucie and Monroe Counties, the federal courthouses in Miami, Fort Lauderdale, West Palm Beach, Fort Pierce and Key West will be closed on Monday, November 9, 2020.  A closure in any division includes the Bankruptcy Court and Probation, if any, in that Division.  The courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge K. Michael Moore. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:

- The Court’s website: www.flsd.uscourts.gov

- Recorded telephone messages at each courthouse

- Broadcast messages sent to CM/ECF e-filers

- Television announcements

Please note that if the Court’s website is unavailable, the Administrative Office of the US Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

News & Notes

I've had enough election coverage.  Here's some other interesting tidbits:

1.  Magistrate Judge Alicia Valle is up for re-appointment.  Jon Sale leads the re-appointment committee here.  Please send him comments.  

2.  People's Court Judge Marylin Milian and her husband, former AUSA and Circuit Judge John Schlesinger had some fun promoting at home court here.

View this post on Instagram

Get to know Judge Milian’s husband, Judge John Schlessinger who you’ll be seeing a lot of this season!

A post shared by The People’s Court (@thepeoplescourttv) on Sep 10, 2020 at 11:13am PDT

 

3.  ACB is already asking questions.  Pretty interesting.

4. Some folks have asked me if the prosecutors or judges have responses to the podcast episodes so far on Harvey Weinstein (with Donna Rotunno) and Luis Alvarez (with Roy Black).  But this is a podcast for criminal defense lawyers about their work.  I'm happy to post any rebuttal though.  If the prosecutors or judges would like to comment, please send me your comments and I will post them in full.  

Have a great weekend everyone. 

Recreational drug use is a winner on election day (UPDATED WITH SAD NEWS)

 Lots of controversy still swirling... but one thing both sides agree on -- recreational drugs should be legalized.  Here's an article on BuzzFeed, titled: "The Real Winner of the Election? Drugs."

In New Jersey, Arizona, Montana, and South Dakota, residents voted to legalize recreational cannabis.

Mississippi and South Dakota voted to legalize the medical use of cannabis in-state. And, for the first time in US history, Oregon decriminalized hard drugs, like cocaine, heroin, oxycodone, and methamphetamine. The state also voted to legalize psychedelic mushrooms.

This is all to say that — despite the anxiety of not yet knowing who's been elected president by Wednesday — the country took historic and progressive steps in destigmatizing drug use and drug-related offenses.

 

UPDATE -- some very sad news -- Pat Trese has passed away.  He was only 50 and a really nice guy.  I just met him last week during a two-day zoom hearing in federal court.  Rumpole has more at his blog.  Awful news.  2020...

FOR THE DEFENSE, EPISODE 2 ROY BLACK DISCUSSES HIS DEFENSE OF LUIS ALVAREZ

Happy Election Day!  One of the big issues in this election is criminal justice and especially racial justice.  George Floyd, Breonna Taylor, Ahmaud Arbery, Tamir Rice, and so on.  Back in the early 80s, Miami was going through a similar time of racial tension. 

This episode of the podcast will take us back to that time and examine a case where Roy Black represented a Hispanic police officer, Luis Alvarez, who was charged with the killing of a young Black man, Nevell Johnson.  

This episode is available now on all podcast platforms including Apple, Spotify and Google.

I think you'll enjoy hearing from famed criminal defense lawyer Roy Black (who has represented William Kennedy Smith, Rush Limbaugh, Helio Castroneves, and Marv Albert just to name a few).  This was the case that thrust Roy into the national spotlight, and he didn't disappoint.  Check it out!

And a big thanks to those of you who listened to the premiere episode last week with Donna Rotunno, the lawyer that represented Harvey Weinstein (which is still available on Apple, Spotify, and Google). 

As the kids say, please like and subscribe to the podcast! It would really help me to get the word out!  THANK YOU!