"The rich do not always enjoy legal advantages"

That's the title of my latest op-ed, which was run in the Jerusalem Post.  From the introduction:

Ghislaine Maxwell’s case has led to many uninformed takes about the American criminal justice system. One common theme is that rich people are treated better than the poor by the system.

Clemence Michallon's piece "What Ghislaine Maxwell's case teaches us about rich people justice," is just one example, but this argument misunderstands the American justice system in profound ways. As a lawyer as well as spokesperson for Ghislaine's family, I felt obligated to respond.

Contrary to the premise of the article, the rich do not enjoy enormous advantages in a federal criminal case. If anything, they are greatly disadvantaged.

Ghislaine Maxwell's case is a perfect example.

One of the reasons stated by the judge for denying bail is her wealth. Any other person charged with stale, 25-year-old allegations would be out on bail right now.

Ghislaine is being held in torturous conditions because the Bureau of Prisons deems her not to be a normal inmate permitted to be in the general prison population.

She is the target of relentless media attacks because of her wealth and fame. Reporters almost seem delighted in reporting that she is not being permitted to sleep and that she is losing her hair. Imagine the uproar if we treated anyone else like this.

Prosecutors in that case only offered her a deal after they were caught engaging in misconduct. Michallon points to the Lori Loughlin case as an example of "rich people justice." Absurd.  

Loughlin had a real defense and stood a good chance of being found not guilty at a trial, but prosecutors have so much power that they were able to bully her into pleading guilty or risk facing decades in prison. Her wealth and fame only fueled the prosecution; it certainly did not shield her.

Jurors are predisposed against wealthy defendants. Schadenfreude – enjoyment obtained from the troubles of others – abounds.

So too regarding judges who do not want to appear to be giving any benefits to those with money. ...

UF Law E-Discovery Conference

 I don't usually post about CLE events, but this one is free, remote, has lots of credits, and looks interesting.  It's UF's 8th annual e-discovery conference and our very own Judge Matthewman will be speaking.

Law.com also covers it here:

Just how active should judges be in the e-discovery process? It’s something that’s been pondered for years—perhaps most notably in the debates leading up to the 2015 e-discovery amendments to the Federal Rules of Civil Procedure.
Judges are often the guardians of justice for society. Thus, it’s reasonable to ask whether they should be forced to waste their time with games of rock-paper-scissors to settle discovery disputes between litigants in overzealous combat.

Chief Justice Roberts on an island?

 Check out this Linda Greenhouse piece in the NY Times:

Anyone who still needs proof of how the Supreme Court is changing need look no further than the single decision the justices handed down this week. The court held that a dispute that had become moot in the usual sense of that word — the problem was resolved before the case even went to trial — could be litigated nonetheless, because there was still something at stake: the one dollar the plaintiffs were seeking as damages for an asserted violation of their First Amendment right to free speech.

The holding was surprising in its generosity to the plaintiffs, as was the 8-to-1 vote, but that’s not what made Uzuegbunam v. Preczewski remarkable. Rather, it was the identity of the lone dissenter: Chief Justice John Roberts.

In more than 15 years on the court, the chief justice had never before filed a solitary dissenting opinion. In fact, he has rarely voted in dissent at all, and has written dissenting opinions even less frequently. During the term that ended last July, he was in the majority 97 percent of the time. No chief justice since Fred Vinson, during the 1949 term, has displayed that degree of alignment with his court. To the extent that the Roberts court had a center of gravity, Chief Justice Roberts was it.

Justice Amy Coney Barrett’s arrival in late October changed all that, and quickly. A few minutes before midnight on the night before Thanksgiving, the court issued an order suspending the indoor attendance limits that Gov. Andrew Cuomo had placed on religious services in areas of New York with high rates of Covid infection.

Merrick Garland confirmed

 And 20 Republicans joined in to confirm.

CNN covers it:

The Senate voted to confirm attorney general nominee Merrick Garland on Wednesday, sending the appellate judge on his mission to uphold the integrity of the Justice Department after its actions over the past years threatened to undermine it.

Garland was confirmed in a 70-30 vote.

The former chief judge of the US Court of Appeals for the DC Circuit has been praised by members of both parties. He pledged in his nomination hearing last month to "fend off any effort by anyone" to politically influence the Justice Department's investigations, and that his first priority would be to fully prosecute the "heinous" crimes committed in the attack on the US Capitol on January 6.

"America can breathe a sigh of relief that we are finally going to have someone like Merrick Garland leading the Justice Department," said Senate Majority Leader Chuck Schumer, a Democrat from New York. He called Garland "someone with integrity, independence, respect for the rule of law and credibility on both sides of the aisle."

New Podcast Episode: David Gerger for Robert Kaluza (Deepwater Horizon)

The Deepwater Horizon explosion was arguably the worst environmental disaster in United States history.  In its effort to assign blame, the government pointed the finger at a number of individuals who turned out to be scapegoats, including Robert Kaluza, the off-duty rig supervisor who was filling in for a few days.  David Gerger discusses his successful defense in this episode of For the Defense.

You can check it out on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. 

Robert Kaluza, a well site manager for BP during the 2010 explosion on board the Deepwater Horizon oil rig, center, arrives at federal court with his attorneys Shaun Clarke, left, and David Gerger, right, in New Orleans, Louisiana.
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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.
• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.  Listen here.
• 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. Listen here.

Coming up on For the Defense:

• 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).

Please send me your feedback -- and of course, subscribe, like and comment!  If you would like to receive these updates, please sign up here. 

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

CONTACT: info@rakontur.com, dmarkus@markuslaw.com

Senators Durbin and Grassley introduce bill to prohibit judges from using acquitted conduct at sentencing.

The bill is here. And it has bi-partisan support:

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.

As the senators say, it's un-American.

Let's hope the bill passes.

Ariana Fajardo Orshan resigns, effective March 27, 2021

 Here's her letter:

Debate with Rumpole about using archaic legalese in motions

COMES NOW Defendant Cross-Plaintiff David Markus (hereinafter referred to as “Defendant” or “Cross-Plaintiff” or “Mr. Markus”), by and through undersigned counsel, who hereby files this motion for summary judgment (the “motion” or “MSJ” or “summary judgment” ) pursuant to Federal Rules of Civil Procedure (hereinafter “the Rules”) and states as follows. 

Oy vey.  Did that introduction help in any way to persuade you of anything? Of course not. But Rumpole laps up the legalese in this post over at his blog, which is usually wonderful, but is very wrong on this point.

We no longer write motions on a typewriter with carbon paper.  We don’t rent videos from Blockbuster.  We don’t take film to a camera store to be developed.  We don’t use curled up paper in a fax machine.  Or even a fax machine at all.  

Likewise, we don’t need words like COMES NOW, hereby, herein, aforementioned, inter alia, heretofore, know all men by these premises, and so on. If the goal of legal writing is to persuade, we should do away with archaic legalese.  Plain and easy to understand English is the way to go.  Phrases like COMES NOW do not add anything to a motion.  They are not persuasive.  They are meaningless. 

Bryan Garner, the legal writing authority, says the term COMES NOW should be banned and asks whether lawyers who use such terms “think that the phrase made them sound more thunderous and authoritative?” Justice Scalia started this plain English trend at the Supreme Court.  And it has taken root with the best legal writers across the courts.  From Robin Rosenbaum and William Pryor in the Eleventh Circuit to Alex Kozinski, former Chief Judge of the Ninth Circuit.  

Rumpole wants to stick to tradition, but this is a tradition that needs to be abandoned.  Lawyers also used to wear wigs to court.  Saying things like: I’ve received the your blog argument and “ hereby acknowledge same” doesn’t sound lawyerly.  It sounds like you’re a wanna-be lawyer.

Rumpole, PLEASE GOVERN YOURSELF ACCORDINGLY.  

Okay, don’t use that one either!