News & Notes

1.  Terrible news -- CA11 Judge Beverly Martin is retiring in September.  She's been a bright light on the 11th Circuit and she will be very missed.  Let's see if Biden can get it right with her replacement. 

Martin, one of the 11th Circuit’s more liberal members, noted that a person of color has yet to fill one of the court’s four judgeships allotted to Georgia. “I’ve read that the president is committed to diversity, so I’m happy to give him that opportunity here,” she said.

As for what’s next, Martin said she wants to do what she can to help reduce the nation’s prison population.

“There are too many people incarcerated who shouldn’t be,” said Martin. “It costs way too much.”

This includes many who are elderly, she said.

“Every year I’ve been here I’ve heard the stories of incarcerated people and I go to bed at night thinking about them,” Martin said. “We really do need to reevaluate who needs to be in prison and who doesn’t need to be there.”

2.  Marco Rubio has asked his separate JNC to provide finalists for Judge, U.S. Attorney, and Marshal.  Here's his letter to Carlos Lopez-Cantera.

3.  Meantime, the competing Congressional JNC is interviewing next week.  Here's a link to the list of interviewees and times.

RIP Magistrate Judge Dave Lee Brannon

 Man, this is a sad one.  Judge Brannon was such a good guy.  I knew him back from his federal defender days.  Always willing to share a story or advice or his time.  And such a compassionate and nice judge.  Awful news.

There has been a ton of really nice comments on the CJA listserv.  Here's one from Richard Klugh:

I wanted to share one memory of working with Dave Lee Brannon when we were AFPDs.   We had adjacent offices in Miami (starting in June 1986) and then in Ft. Lauderdale four years later. It was in that later period that he and I wrote the first of what became an FPD staple—songs about our defense work. The song, The Christmas Guideline Song, performed at the FPD Holiday party by Celeste, Pat Hunt, and others, was eventually followed by the songs Pat Hunt, Jackie Shapiro, Celeste, Daryl, and Neison wrote for seminars. The guideline song was mostly Dave’s idea.  It went through each section of Chapter 2 of the manual from A to X, beginning with “‘A’ is for assaultive, mean behavior. ‘B’ is when you burgle steal or rob ...”   To paraphrase, put them all together they spell, ‘Dave was just a really great guy.’

 

Unanimous jury requirement non-retroactive

 So says the Supreme Court in the new 6-3 conservative lineup.  I don't get this one.  Here's ScotusBlog trying to explain it with other Supreme Court news:

The Supreme Court on Monday ruled by a vote of 6-3 that inmates whose convictions became final before last year’s decision in Ramos v. Louisiana, holding that the Constitution’s Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, cannot take advantage of it on federal collateral review. The geographical impact of Monday’s decision is limited to Louisiana and Oregon – the only two states that have allowed non-unanimous jury verdicts in recent years. The decision means that hundreds of people who were found guilty by non-unanimous juries in those two states before Ramos will not get to seek to have their convictions overturned. Monday’s ruling, issued on the same day that the court announced it would take up a challenge to a Mississippi ban on abortion that could upend Roe v. Wade, also left the justices divided over the issue of respect for their prior precedent.
The dispute over nonunanimous jury verdicts dates back almost 50 years, to the court’s 1972 ruling in Apodaca v. Oregon, holding that although the Sixth Amendment guarantees a right to a unanimous jury in federal criminal cases, that right does not apply to defendants in state trials. The justices were deeply divided in reaching that conclusion: Four of them would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four different justices would have ruled that the Sixth Amendment guarantees a right to a unanimous jury in both federal and state trials. That left the ninth justice, Justice Lewis Powell, to decide the outcome. He wrote that the Sixth Amendment protects the right to a unanimous jury for defendants in federal criminal trials, but not those in state criminal trials.
In 2020 in Ramos, the Supreme Court – by a vote of 6-3 – overturned its ruling in Apodaca. In an opinion by Justice Neil Gorsuch, the majority explained that there was a long history of a right to a unanimous verdict when the Sixth Amendment was adopted. Gorsuch also stressed that both Louisiana and Oregon had imposed the non-unanimous jury rule for racist reasons. But the Ramos opinion left open the question of whether the decision applied retroactively.
The case decided by the court on Monday, Edwards v. Vannoy, was that of Thedrick Edwards, who was convicted and sentenced to life in prison, without the possibility of parole, in Louisiana nearly 15 years ago for a series of crimes that included armed robbery, rape and kidnapping. The only Black juror at Edwards’ trial voted to acquit Edwards, who is also Black, on all counts. Edwards’ conviction became final in 2011.
In a decision by Justice Brett Kavanaugh that was joined by the court’s other conservative justices, the court explained that the ruling in Ramos announced a “new rule” because “many courts interpreted Apodaca to allow for non-unanimous jury verdicts in state criminal trials.” Under the Supreme Court’s case law, Kavanaugh wrote, a decision that establishes a new rule of criminal procedure generally does not apply retroactively to cases in which inmates are seeking federal post-conviction relief. The court has recognized an exception to this general presumption, Kavanaugh acknowledged, for rules that are so significant that they rise to the level of “watershed” rules. But, Kavanaugh observed, the court has not actually found such a rule in the last 32 years, and it has indicated that it is “unlikely” to recognize such a rule in the future.
“Continuing to articulate a theoretical exception that never actually applies in practice,” Kavanaugh suggested, “offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.” Therefore, Kavanaugh concluded, it is “time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.”

And for those out there who don't understand the toll a federal indictment takes on a person, here's a sad story about a man who committed suicide after a federal verdict. 

Judge Ursula Ungaro leaving federal bench...

 ... for Boies Schiller.  Congratulations to Judge Ungaro and a bigger congrats to BS who land a fierce advocate for their firm.  

The news has been making the rounds for the past few days in local legal circles.  But it's finally official.  

From Reuters:

It’s never too late to blaze new trails. Just ask Senior U.S. District Judge Ursula Ungaro.
After 34 years on the bench in Florida, the Miami-based jurist submitted her resignation on Friday to join Boies Schiller Flexner as a partner on June 1.
She is 70 years old - and she’s not slowing down.
“I like the idea of a challenge,” Ungaro told me. “I wanted to see what it would be like with the credentials I have behind me, to see if I can build a practice and generate business and mix it up in court again.”

No doubt she will be able to mix it up in court again!  I've always liked that Judge Ungaro tells you what's on her mind.  She doesn't hold back.  It's refreshing.  For example, in classic Judge Ungaro form, not pulling any punches, she said this about her new firm:

“I’m very aware - I’m not an ostrich - that the firm has had a lot of departures,” Ungaro said. Boies Schiller, as I previously reported, saw about 60 partners exit in 2020.

“I think they have a great base to restructure,” Ungaro said. “I have all the respect in the world for David Boies and the other lawyers” including her old friend Stephen Zack, a Miami-based partner and member of the executive committee, and Stuart Singer, a fellow executive committee member who is based in Fort Lauderdale.

“I’d like to be part of the restructuring,” she said, adding that “the chemistry should be right.”

Ungaro and Zack met in the mid-1970s, when both were associates at (now defunct) Frates Floyd Pearson Stewart Richman & Greer.

“We suffered together,” joked Zack, who previously served as president of the American Bar Association.

My first assignment as an assistant federal defender was with Judge Ungaro.  She pushed young lawyers and didn't suffer fools.  I am definitely a better lawyer after my stint as a new public defender in her division.  It will be fun to watch her deal with her former colleagues when they don't grant a continuance or agree on an evidentiary point.  I'll be there for that! :)

Congrats again to Judge Ungaro!

Breaking — Melissa Visconti is your new magistrate judge

 

Wonderful news.  She'll be great.  A former Judge Ungaro clerk and former AUSA, she knows the federal system well.  She's also practiced civil and appellate litigation.  Importantly, she's a nice and good person.  A graduate of Princeton and then UM law. Congratulations to Melissa!

Update: Judge Ungaro had this comment: “No one can be another John O’Sullivan. But Melissa will do the district proud. She is whip smart. But more important, she has heart and a deep and sincere desire to serve this diverse community. And, of course, she has great affection for the court. “

Jury has case in civil pilot trial (updated with verdict)

Well, that was quick.  A two day civil trial before Judge Ungaro.  I didn't hear of any issues... thank goodness.  

The only item that I did hear about was that lawyers were required to wear masks when speaking in court -- even when examining witnesses and doing openings/closings.  I think that certainly takes away from the ability to effectively examine a witness and from giving a moving opening/closing.  

Maybe it doesn't matter all that much in a short civil trial, but I don't see many criminal defense lawyers agreeing to trying a case with a mask on.  

Some folks in state court who have tried cases with masks on have said that everyone forgets about it pretty quickly, but I have my doubts... I suspect we will see criminal trials opened back up in the Fall.  My only request to judges is to be understanding with lawyers' schedules, which are going to be insane.

UPDATE— jury verdict before 5pm for Plaintiff for full amount of claim. Plaintiff was represented by Katie S. Phang and Jonathan S. Feldman, a husband and wife team trying their first case together.  It also happened to be their anniversary today. What a nice anniversary gift!! 

11th Circuit shows again that it is an outlier and the most conservative federal appellate court -- by a lot.

 This time the case is United States v. Thomas Bryant, a 2-1 decision, that holds -- contrary to 7 unanimous Circuit Court rulings -- although the First Step Act allows courts to decide compassionate release motions, they are not permitted to decide what compelling and extraordinary circumstances are.  Only BOP can do that, says the lone two judges in the country (Brasher wrote the opinion and Luck joined), who make up the majority opinion in this case.  

Judge Martin rightfully dissents and explains in her intro:

Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”). Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act. And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.1 The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement. Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it. With all respect due, I dissent. 

Let's see if the 11th Circuit takes the case en banc, which it obviously should when it is the one in a 7-1 split, or if the religious freedom issue is the only time a defendant will be able to get en banc review in the 11th.  

Blockbuster en banc opinion in U.S. v. Corrine Brown

If I had told you that an African American congresswoman convicted of fraud would obtain en banc review and win in the 11th Circuit by having her conviction vacated, you would tell me that I was crazy and that it was literally a million to one shot.  After all, the 11th Circuit is the most conservative appellate court in the country, it grants en banc review to defendants who lose once every decade (at most), and has never ruled for a defendant in an en banc opinion since I've been covering the court.  (Please correct me if I'm wrong!). But this wasn't any normal issue before the 11th Circuit.  It involved the religious beliefs of a juror who was told by the Holy Spirit to vote not guilty.  The district judge struck that juror.  Brown was convicted and then appealed.  The panel in a 2-1 decision affirmed the conviction (Rosenbaum for the majority and Pryor for the dissent).  The en banc court lined up as you would expect it, with the 7 conservative judges saying you can't strike a juror based on a religious vote, while the 4 moderate judges dissented (Jill Pryor recused and did not participate). 

You can access the 98 pages of opinions here. 

The lineup:

WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges, joined.

NEWSOM, Circuit Judge, filed a concurring opinion, in which GRANT, Circuit Judge, joined. 

BRASHER, Circuit Judge, filed a concurring opinion, in which BRANCH, Circuit Judge, joined. 

WILSON, Circuit Judge, filed a dissenting opinion, in which MARTIN, JORDAN, and ROSENBAUM, Circuit Judges, joined. 

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which WILSON and MARTIN, Circuit Judges, joined. 

I come out a little different than both camps.  I'm fine with a juror voting not guilty based on really whatever they want.  In my view, nullification should be permissible.  Jurors should be able to say no to the government at a jury trial for whatever reason they wish.  But I'm not okay with a conviction based on nullification. In other words, if Satan told a juror to convict even though the evidence was not there, that would be a reason to remove the juror.  If the Holy Spirit told a juror to acquit even though there was overwhelming evidence, that should be permitted.  

Let's get to the opinions.

From Pryor's introduction:

This appeal requires us to decide whether a district judge abused his discretion by removing a juror who expressed, after the start of deliberations, that the Holy Spirit told him that the defendant, Corrine Brown, was not guilty on all charges. The juror also repeatedly assured the district judge that he was following the jury instructions and basing his decision on the evidence admitted at trial, and the district judge found him to be sincere and credible. But the district judge concluded that the juror’s statements about receiving divine guidance were categorically disqualifying. Because the record establishes a substantial possibility that the juror was rendering proper jury service, the district judge abused his discretion by dismissing the juror. The removal violated Brown’s right under the Sixth Amendment to a unanimous jury verdict. We vacate Brown’s convictions and sentence and remand for a new trial.

More:

Juror No. 13’s vernacular that the Holy Spirit “told” him Brown was “not guilty on all charges” was no more disqualifying by itself than a secular juror’s statement that his conscience or gut “told” him the same. Of course, neither a religious nor secular juror may convict or acquit a defendant using his internal decision-making processes without regard to the evidence. But Juror No. 13 repeatedly explained that he was, in fact, reviewing and deliberating over the evidence. His statements are not proof that he “abandon[ed] his . . . judgment to what he . . . perceive[d] to be oracular signs.” DeMille, 756 P.2d at 84. And just as a juror may say at the beginning of deliberations that he “thinks” a defendant is “not guilty on all charges,” and perhaps later change his mind, Juror No. 13 could say that the Holy Spirit “told” him the same without violating his oath. There is no evidence that Juror No. 13 believed himself unshakably bound to his initial understanding of the Holy Spirit’s guidance, contrary to the district judge’s assumption that Juror No. 13’s “religious beliefs compelled him to disregard” the jury instructions. Cf. United States v. Salvador, 740 F.2d 752, 754– 55 (9th Cir. 1984) (affirming declaration of mistrial where juror stopped deliberating and refused to move from decision made through religious inspiration). Juror No. 13 may have, for instance, discerned upon further deliberation and review of the evidence, that his preliminary view was mistaken. See Luhrmann, When God Talks Back, at 41 (“These evangelical Christians . . . have to pick out the thoughts that count as God’s and . . . do so in a way that does not violate the realistic demands of the everyday world.”). Let us not forget that “[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Allen v. United States, 164 U.S. 492, 501 (1896); see also PeñaRodriguez, 137 S. Ct. at 861 (“[E]xperience shows that fair and impartial verdicts can be reached if the jury . . . undertakes deliberations that are honest, candid, robust, and based on common sense.”). We must guard against the removal of a juror who, in vernacular commonly used by religious and racial minorities, expresses a view among jurors who “may well come to view the ‘holdout’ . . . not only as unreasonable, but as unwilling to follow the court’s instructions on the law.” Thomas, 116 F.3d at 622. And we must take care that judges, “who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives,” Peña-Rodriguez, 137 S. Ct. at 875 (Alito, J., dissenting), do not remove a juror solely because his vernacular led the judge to the same conclusion. See Obergefell, 135 S. Ct. at 2629 (Scalia, J., dissenting) (observing the absence of “a single evangelical Christian” on the “select, patrician, highly unrepresentative panel of nine” that is the Supreme Court).

Newsom is concerned with how the case will be reported:

First, notwithstanding how it will likely be reported, this is not a case about the single statement, “[T]he Holy Spirit told me . . . that Corrine Brown was not guilty on all charges”—it’s a case about the context in which that statement was made and the entire record before us. And the entire record—which the Court meticulously traces over the course of 14 pages—establishes (at the very least) a “substantial possibility” that Juror No. 13 was rendering proper jury service, basing his decision on the evidence. See Maj. Op. at 5–18. Second, and again notwithstanding how it will likely be reported, this is not a case about religious jurors—it’s a case about all jurors. It would come out exactly the same way if Juror No. 13’s comments had touched on some other topic. See, e.g., United States v. Thomas, 116 F.3d 606, 611, 623–24 (2d Cir. 1997) (Cabranes, J.) (reversing a district court’s dismissal of a juror who reportedly had favored acquittal on the ground that “the defendants were his ‘people’” but who was also said to be discussing and evaluating the evidence).

Brasher says there should have been no inquiry at all here:

I agree with the way the Court applies our precedents to Juror 13’s testimony about why he preliminarily voted to acquit the defendant. But I write separately to explain that, in my view, this record should not have been created. There was no cause for Juror 13 to testify at an evidentiary hearing about his religious convictions, his view of the evidence, or his understanding of a juror’s role. The trial judge should not have inquired into Juror 13’s thoughts in the first place. A juror’s initial view of the case is not what matters. 

Wilson dissents:

On the majority’s reading of a cold transcript, there was a substantial possibility that Juror No. 13 was basing his decision solely on the evidence and the law. The district court—able to hear live testimony and observe the juror’s tone, inflection, and demeanor—came to the contrary conclusion. Because the district court was “uniquely situated” to make this determination, I would not supplant its judgment with my own. See United States v. Abbell, 271 F.3d 1286, 1303 (11th Cir. 2001) (per curiam); United States v. Godwin, 765 F.3d 1306, 1316 (11th Cir. 2014). District judges walk a tightrope when deciding whether to remove a juror mid-deliberations. A misstep in one direction—improperly removing a holdout juror—imperils the defendant’s Sixth Amendment right to a unanimous jury verdict. A misstep in the opposite direction—allowing a juror to vote without regard to the merits of the case—undermines each party’s right to a verdict based on the evidence and threatens the rule of law. See Robinson v. Polk, 444 F.3d 225, 227 (4th Cir. 2006) (mem.) (Wilkinson, J., concurring in the denial of rehearing en banc) (“Juries have legitimacy in a democracy because, despite the variety of jurors’ beliefs, they are united in the common endeavor of legal judgment. Any contrary perception threatens the most basic premise of the rule of law.”). 

And Rosenbaum's additional dissent:

Every judge of this Court agrees on this much: the same rule governs dismissal of both the juror who says his religious authority told him the defendant is not guilty on all charges and the one who says his religious authority told him the defendant is guilty on all charges. So let’s be clear about what we’re really doing today: we are holding that a district judge is powerless to dismiss a juror who, on a record like this one, says the Holy Spirit told him the defendant is guilty on all charges and he trusts the Holy Spirit—even though the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base his verdict on what he perceives to be a divine revelation.2 Just think about that. We are prohibiting district judges, on records like this one, from dismissing jurors they find beyond a reasonable doubt will return a guilty verdict that is not based on the evidence. Why bother with the trial? Yet while the Majority Opinion guarantees this result, it invokes the grandeur of the right to a jury trial, ironically dedicating an entire section to how its decision protects the rights of defendants to unanimous jury verdicts. See Maj. Op. at Section III.A. But a unanimous jury’s guilty verdict is worth less than nothing to a convicted defendant if the jurors who returned the verdict did not base it on the evidence. And even if only a single juror voted guilty because he believed his religious authority instructed him to do so, without regard to the evidence, the guilty verdict of the jury he sat on is not the unanimous verdict our Founders and the Constitution contemplated; in that case, at best, only eleven jurors, not twelve, based their verdict on the evidence presented at trial. See Ramos v. Louisiana, 140 S. Ct. 1390, 1395 (2020) (“A verdict, taken from eleven, [is] no verdict at all.”) (internal quotation marks omitted). So though the Majority Opinion’s take on the Sixth Amendment right to a unanimous jury verdict may leave a reader with the impression that our decision today is a soaring eagle, that is but an illusion. Today’s decision is in fact a skulking serpent: it dooms the Sixth Amendment right to a unanimous jury verdict in at least some critical circumstances—namely, when a jury returns a guilty verdict not unanimously based on the evidence.

FN2 To put it in even starker terms, at oral argument, Judge Jordan asked Brown’s counsel whether the rule the Majority Opinion adopts today would also prevent the district judge from dismissing a juror who, on a record like this one, says that Satan told him the defendant is guilty on all charges and he trusts Satan—even if the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base it on what he thinks is a Satanic revelation. Brown’s counsel conceded the rule would preclude the juror’s dismissal. And not a single judge of this Court disagrees; the same rule must govern whether the juror says he’s told by the Holy Spirit or by Satan and whether he says he’s told the defendant is not guilty or guilty on all charges.