Rumpole's Rules of Court (Updated)

 He posts his 10 Rules here, which he says apply via Zoom or in person.  I like them.  Check them out, especially young lawyers.  One quibble with Rule #4 -- are you really standing up during Zoom court?

Updated -- one rule Rumpole should think about adding is that clients shouldn't show up while performing surgery.  This plastic surgeon thought it was a good idea to appear for trial during while his unconscious patient was on the operating table. 

Speaking of Zoom court, I'd like to see the statistics for Zoom sentencings.  Are judges giving more significant downward variances because of the pandemic? Or are sentences higher because it's harder to humanize the client over Zoom?  

My experience has been that most judges recognize the difficulties in presenting arguments during a Zoom sentencing as well as the challenges of custodial sentences.  They have been giving the "Zoom discount." It depends, of course... for some judges, it's business as usual.  But overall, I have seen better (lower) sentences over the past year.  

My hope is that these slightly lower sentences start to become normalized and don't change once the pandemic is over.  If Biden can prioritize judges and appoint some progressives to the bench, we may even start to see real change in sentencing.  Let's see.

What will President Biden do with the Sentencing Commission

 Sentencing Guru Douglas Berman writes about it here.  From his conclusion:

Diverse nominees to the Commission should help ensure this agency pursues an ambitious reform agenda. But President Biden should also expressly request the Commission conduct a comprehensive assessment of the entire federal sentencing system—and perhaps even our whole nation’s many sentencing systems—with a particular focus on modern mass incarceration and mass punishment. The American Law Institute’s recent revision of the Model Penal Code’s sentencing provisions wisely recommends that sentencing commissions regularly “perform an omnibus review of the sentencing system,” which should include “a comparative review of the experiences of other jurisdictions with similar sentencing and corrections systems.” An across-the-board review of the federal sentencing system is long overdue, and the U.S. Sentencing Commission has the staff and resources needed to conduct a systematic, evidence-based nationwide analysis in order to identify those modern sentencing systems and practices that best advance public safety and equitable justice while minimizing the number of persons subject to penal custody and supervision.

Calls for reviving and reorienting the work of the U.S. Sentencing Commission are coming from many quarters: a task force of the Council on Criminal Justice has stressed the need to “reinvigorate the U.S. Sentencing Commission,” for example, and the Biden-Sanders Unity Task Force on Criminal Justice Reform recommended that the Commission be tasked “with conducting a comprehensive review” of federal sentencing law and practices. But even with a chorus of voices and strong political will for significant sentencing reforms, President Biden must prioritize making appointments that can enable the U.S. Sentencing Commission to effectively lead the way.

What will the new SDFLA U.S. Attorney do about prosecutorial misconduct?

 That's a question that should be asked of all potential candidates for U.S. Attorney.  In SDNY, for example, the office has dismissed cases where there is misconduct, even after a conviction (unlike here).  From the WaPo:

Federal prosecutors in New York acknowledged telling a “flat lie” to a criminal defendant’s legal team while trying to downplay their mishandling of evidence in the botched trial of a businessman accused of violating U.S. sanctions on Iran.

The embarrassing revelations about what many consider the U.S.’ top criminal investigating office were contained in a dozens of private text messages, transcripts, and correspondence unsealed Monday, over the objection of prosecutors, at the request of The Associated Press.

The release of the records followed a ruling last week in which U.S. District Judge Alison Nathan urged the Justice Department to open an internal probe into possible misconduct by prosecutors in the terrorism and international narcotics unit in the U.S. Attorney’s Office for the Southern District of New York.

While Judge Nathan found no evidence that prosecutors intentionally withheld evidence from lawyers representing an Iranian banker, Ali Sadr Hashemi Nejad, she said they made a “deliberate attempt to obscure” the truth and attempted to “bury” a key document that might have helped the defense.

The mistakes were serious enough that even after winning a conviction, prosecutors dropped all charges against Sadr.

The whole article is worth a read as it details incredible, but not uncommon, misconduct. The New York judge was upset with the government and urged OPR to investigate.  We know what OPR will do.  But at least SDNY dismissed after the jury verdict of guilt.  That's not true in other officers or especially here, where there is a long line of misconduct cases, which the office tries to defend even after misconduct is exposed.  It will be interesting to see if that changes under the new administration.  

So, hopeful U.S. Attorney candidates -- feel free to email me your plan to address prosecutorial misconduct and I will post your answer in full.

In the meantime, we still need judges to check prosecutors when they cross the line.  

Jayne Weintraub for Yahweh Ben Yahweh

Today's episode of For The Defense is a doozy.  Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended Yahweh Ben Yahweh who some called a cult-leader and others called a savior.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

Yahweh Ben Yahweh, center.

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Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): 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. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.

Coming up on For the Defense:

• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season.).

I would really appreciate it if you could subscribe and comment on the podcast!  If you or a friend would like to receive these updates, please have them sign up here. 

Hosted by David Oscar Markus and produced by rakontur

RIP Bobby Lee Cook

 It's always sad to say goodbye to great trial lawyers.  And Cook was one of the best  From ACJ:

Bobby Lee Cook, one of the premier trial lawyers in America and perhaps Georgia’s most famous attorney, died Friday at his mountain home in Cloudland. He was 94....the stories of Cook’s ingenuity, antics and legal prowess abound. Many have been repeated so many times over the years, lawyers take them as gospel although some are hard to completely verify. Like the time Cook was defending a man accused of murder and the state’s star witness testified he was certain Cook’s client had fired exactly two shots. Expecting this testimony, Cook stationed a friend outside the courthouse and had him fire off six rounds. When asked how many shots had just been fired, the state’s witness couldn’t say for sure. Cook’s client walked. Or the time in a moonshine case where Cook was cross-examining the local sheriff. When Cook accused the sheriff of not arresting another moonshiner because he’d been accepting bribes from him, the sheriff threw a Coke bottle at Cook, narrowly missing him. Cook dragged the sheriff down from the witness stand and began pummeling him. After a few moments, the trial judge told Cook to let the sheriff get up off the floor, saying, 'I think he’s had enough.' The jury acquitted Cook’s client in that case, too.

Rubio backs Markenzie Lapointe for U.S. Attorney

The Herald article is titled: "Rubio backs Haitian-American lawyer for Miami U.S. Attorney.  But candidate field is growing."  The intro:

Although the Republican Party lost the presidency and the power to pick U.S. attorneys, Florida Sen. Marco Rubio still can wield considerable influence over the selection of the next top federal prosecutor in South Florida.

In a key move, sources close to Rubio say, the senator has privately signaled support for a Haitian-American lawyer considered the Biden administration’s front-runner — Markenzy Lapointe, a Black Miami lawyer and Marine veteran who once worked in the U.S. Attorney’s Office.

But Lapointe isn’t the only candidate to emerge. There are at least four others interested in the job — all also qualified and with a history of practicing law in both the public and private sectors. Among them are former South Florida federal prosecutors Jacqueline Arango, Andres Rivero and David Buckner, along with Palm Beach County State Attorney Dave Aronberg. 

 

Readers of the blog knew of this slate when it was posted here on the blog first back on December 11, 2020.

Should courts be having in person hearings?

Forget about trials for a moment, which are postponed until May.  Here's an email from Paul Petruzzi that just went around about a state court probation violation hearing:

So, many of you know I share space with Jerry Cariglio. Our office also has staff and a lawyer with health conditions that place them at greater risk for serious complications were they to contract Covid. As an office, we have all been very careful to avoid exposing ourselves and then the rest of the office. Over Jerry’s objection, Judge Fernandez decided to conduct a PVH in person rather than waiting for things to become more safe. The hearing started yesterday and was to resume today. It won’t resume today because the bailiff tested positive for Covid. In the meantime, Jerry had very close contact with the bailiff for several hours yesterday and now has had contact with half the people in our office suite.
I encourage the judicial powers that be in state court to rethink their current plans.
Paul P.

"Just Let People Have Cellphones in Prison"

 That's the title of this great piece by Hannah Riley at Slate.  And of course we should let folks have their phones, especially during the pandemic lockdown in prisons where they can't leave their rooms for most of the day.  From the conclusion (and I recommend checking out prison TikTok):

It’s not all grim, though. A scroll through prison TikTok will reveal everything from how to MacGyver loose electrical wires to boil water to recipes for “prison pizza”—and then there are, of course, the TikTok dances. People are risking retaliation to show that they too have joy, in the midst of darkness.

The desire to punish is a deeply human one, but we should know by now that policies based on revenge never end well, especially when we know that those policies actually result in more harm. Access to cellphones—that is, access to love, connection, transparency, and a window to the outside world—is one simple but vital step to reduce those harms. Those who believe incarceration should be maximally harsh and devoid of joy or connection must reckon with reality: The more we isolate and torture people in cages, the less safe we all become.