News & Notes

1. Any thoughts on the closing arguments yesterday? It looked to me that the prosecution's rebuttal was the best of the three. Lots of good rhetoric. For example: "You were told, for example, that Mr. Floyd died because his heart was too big... the truth of the matter is that the reason George Floyd is dead is because Mr. Chauvin's heart was too small."

2. Joe DeMaria is rightfully fighting the mask protocols in Miami for trials. It's impossible to cross examine a witness wearing a mask. Here's his petition in the 3rd DCA (Law360 subscription necessary) and the article in the DBR (subscription necessary). The argument section starts out like this:

The constitutional right to due process in judicial proceedings requires that a party be allowed to examine a witness in a form that allows the factfinder to fully assess the witness’s credibility. Under the circumstances of this case, the process due to Dresser includes the right both to testify unmasked, and to require to her witnesses to testify without a mask.

3. Who is the greatest Supreme Court Justice of all time? SCOTUSblog ran a pool and your winner is... Earl Warren. Here's the intro to the post:

Forget Ali vs. Frazier, Celtics vs. Lakers, or Evert vs. Navratilova. It’s time for Marshall vs. Warren.
After three rounds of the first-ever SCOTUS bracketology tournament, only two justices remain. Both held the title of chief justice. Both reshaped American law and society. Both are legal titans who defeated a string of worthy contenders to reach the championship. But only one can be chosen by SCOTUSblog readers as the greatest justice in the court’s history.
To see how we got here, you can review the first-round results, the second-round results and the semifinals. We explained our original seeding and selection criteria here. Of course, no March Madness tournament is without controversy, and a few malcontents have sneered at ours. Too triumphalist? Lousy seeding? Skewed in a liberal direction? Skewed in a conservative direction? We heard those complaints and more. Our bracket even inspired a rival tournament with a slightly different agenda – an event premised on underachievement that no one should be proud of winning. Kind of like the NIT.
But enough with March Madness melodrama. This is the final round of the Big Dance, and it’s time to vote. Here’s the championship match-up.

Race and criminal justice

Closing arguments today in Chauvin. And you can feel the tension around the country as we head toward a verdict. Politico has this article saying that the Supreme Court is to blame for "driving while black."

The reason Brooklyn Center police pulled over Daunte Wright is unclear and largely irrelevant. The Department’s chief of police said the car he was driving had expired tags. His mother said he thought he was pulled over because he had air fresheners hanging from the rearview mirror. Regardless of the reason, 20-year old Wright was shot to death by a police officer minutes after the traffic stop began.
Traffic stops figure prominently in some of the most high-profile police killings of Black people. We remember many of their names—Walter Scott, Sandra Bland, Philando Castile —but they are just a few of the many people who have been killed or died as the result of law enforcement’s expansive authority to enforce traffic laws.
Traffic stops might seem like a local matter, or a subjective police decision, but actually the practice is built on five decades of Supreme Court precedent, a set of decisions that has successively opened the door to — and given police an incentive to — use traffic stops as an invasive tool of policing aimed mostly at people of color, primarily Black people.
As a result, reckoning with police violence must include a reckoning with how U.S. Supreme Court precedent has enabled it through its decades-long campaign to empower law enforcement in the so-called War on Drugs. Litigators must continue to push the Court to revisit these damaging decisions with the goal of overturning or weakening the precedents that have put too much power and discretion in the hands of police. Federal, state, and local policymakers, meanwhile, must recognize that these precedents provide a constitutional floor for police behavior; laws and policies can and should be adopted to hold police to a higher standard.
“Driving While Black” is a tongue-in-cheek expression that describes a frightening reality—police can, and often do, find any reason to pull over Black drivers. Given the glut of traffic rules, police rarely have to concoct a reason to pull over any driver they choose. Their job as traffic enforcers enables police officers to pull over Black drivers whenever their implicit or explicit biases tell them that a Black driver is “up to no good.” Harassment, intimidation, violence, and sometimes death, too often ensue.
The Supreme Court opened the door to legally permissible racialized policing with the 1967 case Terry v. Ohio, by allowing police to conduct certain cursory searches, now known as stop-and-frisks, based on the low legal standard of “reasonable suspicion.” As our country’s experience with stop-and-frisk vividly demonstrates, however, for police, reasonable suspicion is too often synonymous with being a Black or brown person in public.
The practice of racially profiling Black drivers was effectively endorsed by the Court in the 1996 ruling in Whren v. United States, which decided that police are allowed to use minor vehicle infractions as a pretext to initiate traffic stops with the goal of investigating other possible unrelated crimes.
According to an analysis of over 100 million traffic stops, Black drivers are about 40 percent more likely to be pulled over than their white counterparts. This analysis also reveals that Black and Hispanic drivers are twice as likely as white drivers to have their cars searched after being pulled over.

"She got life in a drug case. Decades later, Colombian woman free, thanks to Florida supporters"

That's the title of this Herald story.  From the story:

Married in her early teens, Evelyn Bozon Pappa says she was abused for years by her husband, a former helicopter pilot for the Medellin cartel kingpin, Pablo Escobar.
The husband would move on to direct his own drug-smuggling operation from a Colombian seaside city, pressuring his wife to manage a ring of passengers who carried suitcases packed with cocaine on commercial flights to Miami.
“If you don’t help me, you know what will happen to your mother,” he threatened her.
The couple, Carlos Horacio Romero-Paez and Bozon, would later both be charged with drug trafficking by U.S. authorities. He would never be caught. Her life would be destroyed. She was arrested in Miami, convicted and sentenced to life in prison in the mid-1990s, when the Cali cartel dominated the world’s cocaine trade.
But 26 years later, in a turn of fate, Bozon has finally attained her freedom. It took a village, as the saying goes, with collaborative support from her four grown children in Colombia, a team of former prisoners, a Florida State University law professor, two former federal prosecutors and a retired Customs Service agent, who recently came to her defense after putting her behind bars.

 

***

Bozon, now free and reunited with her family in Colombia, is mindful of all the people who helped guide her through her legal odyssey. “They all fought for me,” she said.

Now back in Colombia after a couple of weeks of freedom, Bozon says she is slowly adapting to her new life — just being with her four children, a medical doctor, architect, clothing designer and logistics coordinator. She said several members of her extended family have been infected with the coronavirus but that she has been vaccinated.

“My priority right now is to be with my family, make them happy and feel comfortable with them,” Bozon said.

In the long run, she said she hopes to join an organization that helps other women who have suffered from abuse and battery. “I want to get involved in that because I have the spirit now,” Bozon said. “I can give to them a lot of positive things and make them free.”

Interesting en banc opinion

 It's not every day that you see an en banc opinion authored by two judges on the 11th Circuit.  Even rarer is for that combination to be Chief Judge Pryor and Judge Martin.  But they team up in this case, with Judge Newsom dissenting.

From the joint en banc intro:

WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge, delivered the opinion of the Court, in which WILSON, JORDAN, ROSENBAUM, JILL PRYOR, GRANT, LAGOA, BRASHER, and BLACK, Circuit Judges, joined. 

WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge:

In 2013, Conraad Hoever was incarcerated at the Franklin Correctional Institution (FCI) in Carrabelle, Florida. According to Mr. Hoever’s complaint, correctional officers there subjected him to harassment and threats of physical violence in retaliation for his filing grievances about his mistreatment. Proceeding on his own (without counsel), Mr. Hoever successfully defended against the officers’ attempts to dismiss his case, and he was ultimately able to present his claim of First Amendment retaliation to a jury. After a three-day trial, during which the jury heard testimony from Mr. Hoever, the defendant officers, and witnesses who corroborated the threats, the jury returned a verdict in Mr. Hoever’s favor. But vindication of Mr. Hoever’s constitutional rights was limited. That is because this circuit has interpreted the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), as barring punitive damages for a prisoner’s civil action where no physical injury is shown. The jury, therefore, awarded Mr. Hoever only one dollar in nominal damages.

Our circuit stands alone in enforcing § 1997e(e) as a complete bar to punitive damages, no matter the substantive claim, in the absence of physical injury. Because our interpretation runs counter to the text of the statute, today we correct our course. We now recognize that §1997e(e) permits claims for punitive damages without a showing of physical injury. 

And here's how the dissent starts:

NEWSOM, Circuit Judge, joined by BRANCH, Circuit Judge, and joined in Parts I and III by LUCK, Circuit Judge, concurring in the judgment in part and dissenting in part:

There is a subtle but important difference in how the Court and I read 42 U.S.C. § 1997e(e). In the phrase “civil action . . . brought . . . for mental or emotional injury suffered while in custody,” the Court sees a distinction between requests for compensatory damages, which it says are covered, and requests for punitive damages, which it holds are not. I can’t find that compensatory-punitive divide in the statutory text. As I read it, § 1997e(e) doesn’t distinguish between different forms of monetary relief, but rather between different forms of harm. In particular, the dispositive question, to my eye, is simply whether an inmate-plaintiff ’s action concerns “mental or emotional injury,” as opposed to some other kind of injury. To the extent that it does, I would hold—contra the Court—that § 1997e(e) precludes him from recovering either compensatory or punitive damages unless he has made the statutorily required showing of “physical injury.” To the extent, by contrast, that the inmate’s suit alleges injuries that are not“mental or emotional,” I would hold that § 1997e(e) permits him to seek both compensatory and punitive damages.

Bonus Podcast Episode of For the Defense with Judge Jed Rakoff

 I'm excited to let you know that we have a bonus episode of For the Defense that has been released this morning. It's an interview with Judge Jed Rakoff about his book: Why the Innocent Plead Guilty and the Guilty go Free.  The book is a fascinating set of essays that Judge Rakoff wrote about the craziness of our criminal justice system.  We discuss those essays, including the trial tax, sentencing, the death penalty, how to get the system back on track, and other really great issues during our talk. 

You can check out the bonus episode on Apple, Spotify, and Google,  All other platforms, including a regular desktop player, can be accessed on our website. And you can pick up a copy of Judge Rakoff's book here.






It's also not too late to catch up on Seasons 1 and 2 of For The Defense.  If you have a friend that would like to receive these updates, please have them sign up here.

 

Hosted by David Oscar Markus and produced by rakontur

Sandra Feuerstein, judge in EDNY, dies in Boca car crash

 This is just awful.  The driver was a woman named Snape, who said she was Harry Potter.  

CNN covers the tragedy here:

A woman has been arrested in connection to a hit-and-run accident that killed federal judge Sandra Feuerstein and injured a 6-year-old in Boca Raton, Florida, on Friday.
Nastasia Andranie Snape was arrested Saturday and faces charges of vehicular homicide, leaving the scene of a crash involving death and leaving the scene of a crash with injury, according to jail booking records from the Palm Beach County Sheriff's Office.
CNN has been unable to determine if Snape is represented by an attorney who would comment on her behalf.
Feuerstein was a judge for the US District Court in the Eastern District of New York.

More from the Sun-Sentinel:

Snape didn’t stop until she reached Delray Beach, where officers found her unconscious inside her vehicle, which had crashed at an intersection, arrest documents state.
As a Delray Beach Police officer approached the crashed car, “he could see Snape begin to convulse and have seizure-like movements,” the report said.
Snape came to shortly thereafter, but was unable to make eye contact or hold conversation. Once inside an ambulance, she “began to scream and fight with medics stating that she was ‘Harry Potter,’” the report read.

The paramedics had to give Snape 400 milligrams of Ketamine to calm her down. At the hospital, officers found a designer drug known as “T” in her purse, the report said.

Jury trials continued until July

 So says Chief Judge Moore in the latest administrative order.  I've heard chatter that this will be the last extension and I've also heard some people saying that there will be at least one more.  Who knows! I guess it depends on how these pilot trials go.

RIP Alcee Hastings, a true legend

 This is very sad news.  He was a great guy and public servant.  RIP.

The Sun-Sentinel has the sad news here:

Congressman Alcee Hastings, whose life was marked by perseverance, calamity and a comeback, has died. He was 84.

Hastings crusaded against racial injustice as a civil rights lawyer, became a federal judge who was impeached and removed from office, and went on to win 15 congressional elections, becoming Florida’s senior member of Congress.

He died Tuesday morning, a longtime friend said.

In late 2018, Hastings was diagnosed with Stage 4 pancreatic cancer. For much of the ensuing two years, he continued public appearances between medical treatments, but more recently he hadn’t been in public. In recent days, he had been in hospice care.

More to follow.