Weekend news and notes

 1.  Amy Comey Barrett finally got to meet her colleagues in person.  From CNN:

2.  Can Chauvin win on appeal?  From the AP:

The defense has said it was impossible for Chauvin to get a fair trial in Minneapolis because of pretrial publicity and community pressure on jurors to convict. That claim is sure to underpin any appeal.

As they arrived at and left the courthouse each day for testimony, jurors passed clear signs that the city was preparing for renewed protests. The courthouse downtown was encircled by razor wire and guarded by armed troops. Most storefront windows were boarded up.

A prime target of an appeal would be key rulings by trial Judge Peter Cahill, including that the trial should remain in Minneapolis rather than be moved and that jurors should be sequestered only for deliberations.

Cahill also refused to delay the trial after Minneapolis announced a $27 million settlement with Floyd’s family during jury selection. The defense says that suggested guilt before jurors even heard evidence.

The defense has decried as prosecutorial misconduct remarks by the state during closings, including that aspects of the defense case were “nonsense.” That claim could make its way into an appeal.

3.  Is it a federal crime to inflate your law schools U.S. News rankings?  Orin Kerr has this thread looking at this interesting question.  The 11th Circuit's Takhalov opinion will be a hurdle...

4.  Yours truly was in SDNY this week.  Here's some coverage from Ghislaine Maxwell's arraignment.

"Chauvin verdict: Don't hate his lawyer"

 That's the title of my latest article in The Hill.  Below is the introduction.  Let me know your thoughts.

Hate mail. Distancing from friends and family. Criticized and second-guessed by the media. All criminal defense lawyers can feel for attorney Eric Nelson and what he has gone through during his high-profile representation of a deeply unpopular client, former Minneapolis police officer Derek Chauvin, who was convicted on all charges Tuesday in the killing of George Floyd.

It’s hard to fight any case at trial. Defense lawyers often face hostile prosecutors, judges, prison guards, and probation officers every day — but in a high-profile case, add to that a hostile media, public, and even popular movements.

CNN’s Jake Tapper said Nelson was gaslighting the jury during the closing. While the jury was deliberating, the President of the United States said he was praying for the victim and that the evidence was overwhelming. A congresswoman said that if the jury returned a verdict of not guilty, protestors should become more confrontational. And I’m sure closer to home, Nelson’s friends and family asked him “How can you represent that person?”

There’s no other profession in America where everyone is rooting against you.

If Chauvin had been shot on his way to the courthouse, it’s hard to imagine anyone sending hate mail to or criticizing the surgeon who operated in an attempt to save his life. No one would protest outside of the surgeon’s office or home. That’s not the same for the criminal defense lawyer.

Sen. Rubio announces competing JNC

 There's the Congressional JNC.  And now there's the Rubio JNC.  Scott is not participating.  So it's unclear how Biden will go about selecting judges and U.S. Attorneys.  Here is the list from Rubio, which includes some prominent Democrats (like Dan Gelber and Seth Miles):

Southern District JAC:
Carlos Lopez-Cantera – Statewide Chair
Manny Kadre – District Chair
Georgina A. Angones
Nelson Diaz 
Renier Diaz de la Portilla 
Albert E. Dotson, Jr. 
Robert H. Fernandez 
Dan Gelber 
Jillian Hasner
Jorge Hernandez-Toraño
Yolanda Cash Jackson 
Seth Miles
Bernie Navarro 
Ed Pozzuoli 
Steve L. Waserstein

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