11th Circuit in 2-1 decision strikes down conversion therapy ban

 Here's the opinion, which was written by Judge Grant and joined by Judge Lagoa.  Judge Martin dissented. (Judge Rosenberg was the district judge.)

The Sun-Sentinel covers it here:

A federal appeals court struck down Boca Raton’s ban on conversion therapy for gay adolescents struggling to come to terms with their sexuality, calling the ban an infringement on the First Amendment rights of the teens and the counselors who try to treat them.

Licensed family therapists Robert Otto and Judy Hamilton sued the city for the right to talk to their juvenile clients about conversion if the clients had “unwanted” attraction to members of the same gender or “confusion” about their gender identity.

The city’s ordinance prohibited conversion therapy as harmful to the health and emotional development of lesbian, gay, bisexual, transgender and other youth. A district court upheld the law, but Otto and Hamilton appealed, backed by religious-liberty advocates at Liberty Counsel.

A three-judge panel at the Eleventh Circuit Court of Appeals in Atlanta overturned the earlier decision by a 2-1 vote. “We understand and appreciate that the therapy is highly controversial,” wrote Judge Britt Grant. “But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”

Luckily Rudy Giuliani wasn't arguing the case as he could not answer questions about strict scrutiny last week.

Hysterical video from fed judges in Texas

$20k a day.

 That’s what Rudy G. is apparently asking for from the Trump campaign.  Sounds a lot like what the drug lawyers were asking for in the 80s and 90s...

From The NY Times:

Rudolph W. Giuliani, who has helped oversee a string of failed court challenges to President Trump’s defeat in the election, asked the president’s campaign to pay him $20,000 a day for his legal work, multiple people briefed on the matter said.

The request stirred opposition from some of Mr. Trump’s aides and advisers, who appear to have ruled out paying that much, and it is unclear how much Mr. Giuliani will ultimately be compensated.

Since Mr. Giuliani took over management of the legal effort, Mr. Trump has suffered a series of defeats in court and lawyers handling some of the remaining cases have dropped out.

A $20,000-a-day rate would have made Mr. Giuliani, the former New York City mayor who has been Mr. Trump’s personal lawyer for several years, among the most highly compensated lawyers anywhere.

In local news, the 11th Circuit has been conducting Zoom arguments all week. You can watch them live-streamed from a link on the website.  It’s a great opportunity to see appellate arguments.  I presented oral argument today on Zoom and did one a few months ago (via phone, not Zoom).  Zoom is definitely much better than phone.  And although I really dislike Zoom for some district court proceedings like sentencings or evidentiary hearings, Zoom seems to work well for appellate arguments.  There’s nothing like doing it in the courtroom and I hope we go back to it soon, but appeal by Zoom isn’t so bad. It’s certainly a lot less stressful. 

For the Defense, Episode 4: Marty Weinberg for Bill Moran

Episode 4 of For the Defense is out. In this episode, I interview Marty Weinberg, one of the great criminal defense lawyers of our day, about his representation of Bill Moran, who was accused of being in-house counsel to the Cali Cartel. I think you'll enjoy hearing Marty tell the story of this insane only-in-Miami federal trial where prosecutors weren't satisfied with going after the leaders of the Cali Cartel; they wanted the criminal defense lawyers as well. This episode is especially appropriate for this blog as the trial occurred here in the Southern District of Florida before William Hoeveler. The prosecutors were Ed Ryan and Bill Pearson.  In addition to Weinberg, Moran was represented by the great Albert Krieger.  Co-defendant lawyer Mike Abbell was represented by the Srebnick brothers.

You can catch this episode and all episodes on our podcast website here. Last week's episode with Tom Mesereau made some news with his description of what it took to get Jay Leno to testify in the Michael Jackson trial, as did the episode with Donna Rotunno (Harvey Weinstein's lawyer) about being referred to as the anti-Gloria Allred.

If you're enjoying the podcast, I would *really* appreciate it if you could subscribe and post a review. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on here.

If you are interested in receiving updates about podcast episodes, please sign up here.

Thank you! --DOM

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