RIP Judge Joseph Hatchett

 What a life.  The first African American to serve on the Florida Supreme Court and the first to serve as a Circuit Judge (the former 5th and then the 11th) in the South.  

Former Florida Supreme Court Justice Joseph W. Hatchett died in Tallahassee on Friday, April 30, 2021. Hatchett was 88 and was the first African American appointed to the Court. Read more: https://t.co/4VhgApr0NJ pic.twitter.com/CHxQuPl1VL

— FloridaSupremeCourt (@flcourts) May 1, 2021

From the Miami Herald:

When a young Joseph W. Hatchett took the Florida Bar exam in 1960, he could not stay in the Miami hotel in which the test was given because of Jim Crow regulations.

Within 15 years, Hatchett would become the first African American to serve on the Florida Supreme Court.

Former Florida Supreme Court Justice Hatchett died in Tallahassee on Friday, April 30, Florida Supreme Court spokesman Craig Waters said in a post Saturday morning. Hatchett was 88 and Florida’s 65th justice since statehood was granted in 1845.

Hatchett was appointed to Florida’s highest court by Gov. Reubin Askew in 1975. In 1979, President Jimmy Carter named him to the U.S. Fifth Circuit Court of Appeals, where, the Florida Supreme Court notes, “he became the first African American to serve in a federal circuit that covered the Deep South at the time.”

Twenty years later, after retiring in 1999, Hatchett took on another challenge when he joined with the NAACP to be lead attorney in the fight to preserve statewide preference programs for minorities and women in Florida.

“This is to continue to ensure that all Floridians have an equal opportunity to succeed, and that’s affirmative action,” Hatchett told the Miami Herald at the time.

That earlier indignity at the Miami hotel during his bar exam endured. Hatchett was determined that other promising young Black law students could one day not only eat lunch in the same dining room as their white counterparts — something he was warned not to do when he took the test — but that they, too, could one day ascend as he had.

“I can remember when I became a young lawyer he pulled me aside and told me, basically, that what other people thought of my dreams were none of my business,” said attorney H.T. Smith, the founding director of the Trial Advocacy Program at Florida International University College of Law.

“His whole philosophy was that group of Black lawyers in Florida in the 1960s and 1970s, we had a responsibility to open the vaults of opportunity for ourselves and for people coming behind us,” Smith said. 

Judge Altman interviews Judge Singhal at Federal Bar Association event

 It was a wonderful interview.  Two great guys just talking.  Relaxed and interesting.  What makes them both great is that they are real people.  We learned lots about Judge Singhal -- his love of trials, comics, Presidents, and the law.  His unbelievable background and parents.  We need more judges like him.  I'm glad so many of you were able to see it as I am told it was the best attended event of the pandemic.

How are federal judges and U.S. Attorney going to be selected?

 

No one knows. Jay Weaver covers a lot of the competing interests in this piece. The article starts this way:

When Joe Biden won the presidency, Florida’s congressional Democrats thought they might finally get a chance to serve up his picks for federal judges.

But they had a significant hurdle: Florida’s two Republican senators still dominated the commission that scrutinizes judicial candidates to be nominated by the Democratic president.

So, in an unprecedented move, longtime Democratic Reps. Alcee Hastings and Debbie Wasserman Schultz created their own Florida judicial nominating commission earlier this year to compete with the GOP-controlled Senate panel — even though the House of Representatives has no authority to confirm federal judges for lifetime appointments. The Senate has that power.

The shifting political landscape has caused confusion for judicial candidates seeking to fill two openings for federal judges in the Southern District of Florida and a new vacancy for the U.S. attorney’s job in the same region. Some said it is not clear who will have the last word in recommending finalists for each of the coveted positions.

The judicial openings in South Florida have been created by two U.S. District Court judges assuming “senior status,” Federico Moreno and Ursula Ungaro. The U.S. attorney’s post became vacant with the recent resignation of Trump-appointed U.S. Attorney Ariana Fajardo Orshan.


Among the several candidates who have expressed interest in applying for the judges’ two seats: U.S. Magistrate Judge Jacqueline Becerra, Federal Public Defender Michael Caruso, Miami-Dade Circuit Judge Lisa S. Walsh, Miami-Dade Circuit Judge Tanya Brinkley and Miami-Dade County Judge Ayana Harris.

The U.S. attorney’s post has drawn the interest of former South Florida federal prosecutors Jacqueline Arango, Andres Rivero, David Buckner and Markenzy Lapointe, along with Palm Beach County State Attorney Dave Aronberg.

In the end, President Biden has the sole authority to nominate whomever he wants to be a federal judge or U.S. attorney. But as senators, Florida’s two Republicans, Marco Rubio and Rick Scott, have the unique power to block anyone from being confirmed by the Senate. During the Obama administration, Rubio refused to issue a “blue slip” for two of the Democratic president’s nominees for federal judges in South Florida, Miami-Dade Circuit Judges William Thomas and Mary Barzee, preventing them from going through Senate confirmation hearings. As a result, their nominations stalled.

Breaking -- Court to interview 5 applicants for Magistrate Judge

 Well, the pool of 49 applicants has been narrowed to 5:

Melissa Visconti

Randy Katz

Lornette Reynolds

Erica Zaron

Reginald Corlew

The district court judges will be conducting interviews on May 13.  Good luck to all.

Third Circuit raises interesting issue on loss in fraud case

 Defense attorneys make the argument all of the time -- hold the client responsible for the actual loss in the case, not the "intended" loss.  The Third Circuit raised this interesting point about the issue in a case where a defendant made about $30,000 but the "intended" loss, according to the district court, was $36 million:

Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly.  Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended.  By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.”  United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring).  But Kirschner assumes the comment is correct, and so we will too.

I haven't seen this argument before, which I'm sure will be making its way into all sentencing briefs and appeals going forward.  Let's hope some more sensibility comes around for these crazy loss calculations. By the way, the 3rd Circuit reversed the loss finding on other grounds and remanded to the district court for a fuller hearing and analysis.

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