Debate

If you're interested, I'm debating Andrew Fleischman over at Simple Justice (Scott Greenfield's blog) on whether rich defendants face disadvantages in the criminal justice system.

Here's his opening post:

David Oscar Markus recently wrote an editorial on behalf of his clients, the family of Ghislaine Maxwell, in which he said that “the rich do not enjoy enormous advantages in a federal criminal case.”1 If anything, they are greatly disadvantaged.” I’d love to live in a world where this was true. But justice ain’t cheap, and the tools a criminal defendant needs to rebut the presumption of guilt our system heaps upon them often require significant investment.
First off, there’s choosing the correct lawyer. Justice Roberts was not exaggerating when he wrote that a defendant’s inability to pay for their counsel of choice “raises substantial concerns about the fairness of the entire proceeding.”

Few things could do more to ‘undermine the criminal justice system’s integrity,’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.

But the grim reality for Kaley, a woman whose money for her lawyer was forfeited by the State, is a fact of life for the vast majority of criminal defendants who have no say in who will represent them. It can mean an experienced advocate who knows all the local players or a real estate attorney on a side hustle. It’s the difference between a lottery ticket and a paycheck.

Here's the intro to my response:

The criminal justice system crushes people. Men and women. Black and white. Rich and poor. A federal criminal case impacts your liberty, your family, your finances, your mental health, and every other aspect of your life whether you are rich or poor. Each broad category of defendants faces their own hurdles in the system. There is no question that poor defendants face enormous challenges in trying to mount an effective defense again a government with unlimited resources, what Andrew rightly calls “a bit like [fighting] a grizzly bear.” There’s an unfortunate perception out there, however, that the governmental grizzly bear isn’t as interested in gobbling up the rich. But that perception is wrong. This particular bear loves plump and shiny prey.

Michael Sherwin appears on 60 Minutes...

 ... and does a great job discussing the Capitol Riots.

Prosecutors have not yet charged any Capitol rioters with sedition. But asked whether he anticipates those charges, federal prosecutor Michael Sherwin says, “I believe the facts do support those charges.” https://t.co/QttmisXpO1 pic.twitter.com/CLq0xYdAzh

— 60 Minutes (@60Minutes) March 21, 2021

You can watch the whole thing here.

Should Justice Breyer retire?

 There's been a big push by some liberals because they see a tight window for Biden to get a Justice confirmed and they don't want another RBG situation.  Here's the AP covering the story:

Forgive progressives who aren’t looking forward to the sequel of their personal “Nightmare on First Street,” a Supreme Court succession story.
The original followed Justice Ruth Bader Ginsburg’s decision to forgo retirement from the high court, located on First Street in Washington, when Democrats controlled the White House and the Senate during six years of Barack Obama’s presidency, until 2015.
Despite some pointed warnings of what might happen, Ginsburg remained on the bench until her death last year at age 87. President Donald Trump replaced the liberal icon with a young conservative, Justice Amy Coney Barrett, and cemented a 6-3 conservative majority on the court just over a month before he lost his bid for a second term.
In the updated version, 82-year-old Justice Stephen Breyer plays the leading role. He is the oldest member of the court and has served more than 26 years since his appointment by President Bill Clinton.
With spring comes the start of the period in which many justices have announced their retirement. Some progressives say it is time for Breyer to go, without delay. Other liberal voices have said Breyer should retire when the court finishes its work for the term, usually by early summer.
“He should announce his retirement immediately, effective upon the confirmation of his successor,” University of Colorado law professor Paul Campos wrote in The New York Times on Monday.
Campos’ plea stems from the Democrats’ tenuous hold on power.
A Democrat, President Joe Biden, lives in the White House and his party runs the evenly divided Senate only because the tie-breaking 51st vote belongs to Vice President Kamala Harris.
But there is no margin for a senator’s death or incapacitating illness that could instantly flip control to Republicans. Campos noted that the party composition of the Senate has changed more often than not in each two-year session of Congress since the end of World War II.
Breyer has remained mum about his plans, at least publicly. His last comment on the topic of retirement was made to Slate’s Dahlia Lithwick in an interview published in December. “I mean, eventually I’ll retire, sure I will,” Breyer said. “And it’s hard to know exactly when.”

More judges on the way?

 The judicial conference is recommending 3 more district judges in the SDFLA.  But there's a real question of whether any judges will be confirmed right now, with the JNC not being supported by Rubio or Scott.  Rubio apparently has his own JNC.  Scott wants nothing to do with that either.  So will any judges get blue slips going forward?  There's a real concern with people I'm speaking with that no judges will be confirmed unless President Biden and the Democratic Senate get rid of the blue slip process in Florida.  We shall see.

Here's a recent TBT article about the back and forth on the JNC:

Florida’s two Republican senators, Rick Scott and Marco Rubio, are refusing to participate in a longstanding, bipartisan system for nominating federal judges that Florida legal insiders say has produced non-political, competent judicial nominees for decades.

Both Scott and Rubio have said they won’t participate with Florida House Democrats who are setting up Florida’s federal Judicial Nominating Commissions — even though bipartisan cooperation has long been typical.

Scott and Rubio called it an infringement on the Senate’s exclusive right to confirm judges.

Instead, the two senators say they’ll rely on their own sources for recommending judicial nominees, as well as on senators’ traditional prerogative to single-handedly block nominees in their home states.

Podcast Season Finale -- Michael Tigar for Terry Nichols

What a season!  I hope you had as much fun as I did with Season 2.  And we have a great final episode for you.  Who would represent Terry Nichols, 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.  You can check it out on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. 

After listening, you may want to check out Tigar's memoir, available here.

Some other important items:

If you are a Florida lawyer, you will receive 11.5 CLE credits for listening to Season 2.  The code is at the end of this episode.

If you've enjoyed Seasons 1 and 2, please subscribe and leave a review.  This is the only way we can gain momentum for Season 3.

The original music you will hear in this episode is by Omondi Nyong'o.  The song, A Call to Arms, is really inspirational. Check out his work here.

Michael Tigar putting his hands on Terry Nichols' shoulders during closing argument.
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I'd also like to thank the previous guests of Season 2: 

• 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.
• David Gerger (Robert Kaluza/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. Listen here.

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.  

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 for a great Season! --David

Hosted by David Oscar Markus and produced by rakontur

"Hell no."

 That's the response from over half of Florida's corrections officers when asked whether they would get the COVID vaccine.  Sigh....

From CBS4:

A Florida correctional officer polled his colleagues earlier this year in a private Facebook group: "Will you take the COVID-19 vaccine if offered?"

The answer from more than half: "Hell no." Only 40 of the 475 respondents said yes.
***
At FCI Miami, a federal prison in Florida, fewer than half the facility's 240 employees had been fully vaccinated as of March 11, according to Kareen Troitino, the local corrections officer union president. Many of the workers who refused had expressed concerns about the vaccine's efficacy and side effects, Troitino said.
In January, Troitino and FCI Miami warden Sylvester Jenkins sent an email to employees saying that "in an act of solidarity," they had agreed to get vaccinated and encouraged staff to do the same. "Even though we recognize and respect that this motion is not mandatory; nevertheless, with the intent of promoting staff safety, we encourage all staff to join us," the Jan. 27 email said.
Only 25 employees signed up. FCI Miami has had two major coronavirus outbreaks, Troitino said: last July, when more than 400 prisoners out of 852 were suspected of having the disease, and in December, when about 100 people were affected at the facility's minimum-security camp.

"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.