Black Lives & Medicine program at the Court (virtually)

 To attend, all you need to do is send an email by February 19, 2021, to: FLSD_Program@flsd.uscourts.gov.

 

"Restoring the Historical Rule of Lenity as a Canon"

 Shon Hopwood has this new piece about the Rule of Lenity.  It's especially important with all of the white collar cases that charge people who are in a gray area.  From the abstract:

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes. As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts. If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

Pilot civil jury trial set for May in SDFLA

The judges voted yesterday to have a pilot civil jury trial in May.  I'm told it was a spirited debate and it passed 10-8.  If that goes well, other civil and criminal trials could resume as soon as the summer.  

For the pilot trial in May, there are a number of protocols and standards that will have to be met before it can go forward.  It will be interesting to see where we will be with the variants and vaccine roll-out at that time.  

I posted about the issue a few weeks ago here.

Judge Fay funeral arrangements

Funeral mass will be held at 11:00 a.m. on February 9, 2021 at St. John the Evangelist Catholic Community Church, 5655 Stadium Pkwy Viera, Florida 32940 and will also be live streaming at https://youtu.be/UvG1-mbN3GE. In lieu of flowers, donations may be made to Rollins College, St. Thomas University, UF Law's Peter T. Fay Jurist-in-Residence Program, Wounded Warriors, or the Shriners Hospitals for Children.

New guidance for federal prosecutors. Will it matter?

 The Acting AG issued new guidance for federal prosecutors "to ensure that prosecutors are able to exercise discretion in pursuing justice."  The January 29 memo explains that the Trump era policy of charging the most serious offense and seeking the highest sentence is rescinded.  And in its place, the old Obama-era policy on charging and sentencing will take its place.  That means that prosecutors will have the discretion to look at the particular case and person, and then decide what the appropriate charge and sentence should be. This is a significant change.  Let's see if our federal prosecutors will take the letter and spirit of the change to heart.

Jose Baez on this week's episode of For the Defense

 

FOR THE DEFENSE EPISODE 2 JOSE BAEZ FOR CASEY ANTHONY This week, we have Jose Baez on the show to discuss the Casey Anthony case. Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. In this clip (posted on Twitter), Jose discusses the first time he started to suspect George Anthony of abusing his daughter, Casey Anthony.   Last week, Season 2 of For the Defense got off to a great start with Alan Dershowitz, who discussed the O.J. Simpson trial as well as lots of other interesting topics.  (Here's a clip of Dersh answering whether the prosecution lost the trial or whether the defense won it.)  Each episode is currently available on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on our website.  Please send me your feedback -- and of course, subscribe, like and comment!  We would really appreciate positive reviews if you have a minute.  Finally, if you would like to receive these updates via email, please sign up here.  Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

RIP Judge Peter T. Fay

Judge Fay had just turned 92.  He was beloved in the SDFLA and the 11th Circuit. He was appointed to our District in 1970 by President Nixon and to the 11th Circuit by President Ford.  Interestingly, Jeb Bush pushed his father to appoint Fay to the Supreme Court.

St. Thomas recently renamed its law school the Peter Fay School of Law.

A former clerk emailed me that he was the first person to master barefoot water skiing.  In fact, he was inducted into the Rollins sports Hall of Fame for water skiing, basketball, and football.

He was known for his civility and wonderful demeanor.  He will be missed.  

Please feel free to use the comments to tell stories and remember Judge Fay.

UPDATE WITH COMMENTS:

Here's Judge Federico Moreno:

Pete Fay’s five decades as a magnificent judge is well known. But his humility, faith and generosity with his time is his legacy. He was a true American hero, who never forgot what it was like to be a trial lawyer. FAM

 

Ursula Ungaro taking senior status

 Big news out of our district today. Judge Ungaro, who has served on the federal bench for 28 years (and before that as a state judge for 5 years), gave notice to President Biden today that she is taking senior status, effective in May.  Judge Ungaro turns 70 this week. She will still continue to take and hear cases.

When I started as an assistant federal public defender back in 1999, I was assigned to Judge Ungaro's courtroom (back in the Tower building) and tried many cases before her.  She always cut through all of the nonsense and taught me (and the other lawyers in front of her) to focus on what mattered.  She is extremely smart and has always been a force on the bench.  Her independence is her legacy, along with the graciousness of her chambers staff, Kathryn and Bill.

It will be interesting to see the process for filling her seat, which now makes two openings here (the other is Judge Moreno's).  I'm hearing lots of names including Melissa Damian Visconti, Michael Sherwin, Michael Caruso, David Leibowitz, Jackie Becerra, and others.  

In any event, congrats to Judge Ungaro and thank you for the many years of service to the community!