Have Zoom sentencings helped or hurt defendants?

 Over the past 16 months or so, most federal sentencing hearings have been conducted via Zoom.  Sure, some judges have conducted in person sentencings.  But mostly, it’s been over a video screen.  At first, many defense lawyers objected and said that it would be hard to get a fair sentencing over Zoom.  How could you really humanize your client over the computer.  But then it became clear that with some judges, sentencing over Zoom during COVID resulted in a lower than usual sentence.  

It would be really interesting to see the stats for sentences during the pandemic.   And if the sentences were generally lower, was that in spite of video screens (and mostly due to not wanting to burden prisons with long sentences during the pandemic) or is Zoom a more effective way to make a sentencing presentation?

Here’s an interesting article about empathy and video screens, by Susan Bandes and Neal Feigenson: Empathy and Remote Legal Proceedings, 51 Southwestern Law Review Issue 1 ( (Symposium on Courts in the COVID-19 Era). Forthcoming December, 2021.

From the abstract:

Do remote legal proceedings reduce empathy for litigants? Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants. Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research. However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings. On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers. We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.

Biden and the Courts

 There's been a lot in the news about how Biden is trying to catch up to Trump in appointing judges.  But he has a long way to go... in part because it wasn't a priority to the Obama administration.  Here is a nice background article on what's going on and why Obama left Biden in such a hole:

President Barack Obama’s judicial nominees faced several structural obstacles that do not hinder Biden’s. When Obama took office, the filibuster enabled Republicans to block any nominee who didn’t have supermajority support in the Senate, and it enabled the GOP to slow the Senate’s business to an excruciating crawl even when Democrats did have the 60 votes necessary to break a filibuster.

The Senate changed these rules to allow judges to be confirmed by a simple majority, and to limit the minority party’s power to delay most confirmation votes.

Then-Senate Judiciary Chair Patrick Leahy (D-VT) — like so many other Democrats who cling to their own idiosyncratic notions of how institutions should function at the expense of governance — insisted on giving Republican senators veto power over anyone nominated to a federal judicial vacancy in their state by taking an unusually expansive view of a Senate tradition known as the “blue slip.” The current chair, Sen. Dick Durbin (D-IL), will not allow Republicans to veto at least some of Biden’s nominees, especially his nominees to powerful appellate courts.

Obama also had to fill a Supreme Court vacancy in his first year, which made it difficult for the White House or the Senate to pay as much attention to lower court nominees.

But even if Obama was dealt a more difficult hand on judicial confirmations than Biden, he played that hand terribly.

At least in the first year of his presidency, Obama staffed his White House with senior officials who either treated the process of shepherding judges to confirmation as a chore, or who lacked experience with judicial politics.

Rahm Emanuel, Obama’s first chief of staff, reportedly told a room full of activists that he didn’t “give a fuck about judicial appointments.” Greg Craig, Obama’s first White House counsel, was a former State Department official who showed more interest in Obama’s worthy, but failed, effort to close the prison at Guantanamo Bay than in choosing judges.

Obama, meanwhile, prevailed on Craig to hire Cassandra Butts, a personal friend and law school classmate of Obama’s with a distinguished career on Capitol Hill and in left-of-center politics. (Disclosure: In 2015, I interned on the Center for American Progress’s domestic policy team, which Butts led.) Craig made her his deputy overseeing judicial nominations.

Yet, while Butts was undoubtedly qualified to work in the White House, she had limited experience working in judicial politics. And her legislative background also fit in poorly in a White House counsel’s office that placed credentials such as a Supreme Court clerkship or practice at a white-shoe law firm on a pedestal. That appears to have diminished her influence.

The result of this mix of inexperience and indifference is that the early Obama White House was often slow to nominate judges. And it stumbled into traps that aides more familiar with judicial politics might have avoided.

***

Though Obama’s judicial confirmations effort grew more sophisticated later in his presidency, it never fully recovered from its early missteps. In eight years as president, Obama appointed only 55 federal appellate judges — just one more than Trump appointed in only four years in the White House.

 Biden is doing quite a bit better.  Here's an AP article about his early picks.

Los Muchachos

 Get ready for the new documentary from Billy Corben and Alfred Spellman: Cocaine Cowboys: The Kings of Miami.  It's the only-in-Miami story of Willy & Sal, coming out next week on Netflix.

 

And here is the famous New Times cover from back in the day and the one that came out today:

 

Jury trials?

 Dave Ovalle and Rumpole have been covering the state court jury trial problems with COVID.  It's not good over there right now.  Here is Ovalle's article:

For Miami, the civil trial was relatively routine: an insurance dispute over building damage caused by Hurricane Irma. It was also one of the first lengthy jury trials to be held in person as Miami-Dade courts began opening up after a long pandemic closure.

The trial ended in early July. But then, several lawyers and the judges who had taken part in the two-and-a-half week trial tested positive for COVID-19.

One of the attorneys, Brittany Quintana Martí, who is pregnant, fell ill enough that she spent five days in the hospital. “She had shortness of breath and fatigue. Really horrible fatigue. Her oxygen levels dropped,” said her husband, fellow Miami lawyer Jose Martí.

***

Last week alone, the Miami-Dade State Attorney’s Office disclosed, seven employees were diagnosed with COVID-19. On Monday, the office announced three more employees had tested positive; that’s 17 total since courts reopened fully to the public on June 28.

Since that date, at least 19 Miami-Dade jail inmates have tested positive, according to county statistics; it’s unknown how many of those have physically been to court, although at least two were confirmed in the Richard E. Gerstein Justice Building during the first week back.

That includes one Miami jail inmate who tested positive on the third day of trial for a case involving a drunk-driving car crash. The trial was delayed three weeks, and is expected to resume in the coming days.

Federal jury trials in this district have restarted without any horror stories just yet. But it seems like it is only a matter of time before there is an outbreak in court.  

How are the new SCOTUS justices judging?

 CNN has this piece, which tries to peg how "Trump's appointees are turning the Supreme Court to the right with different tactics."  The beginning of the article seemed really silly to me:

The three appointees of former President Donald Trump have together sealed the Supreme Court's conservatism for a generation, but they have revealed strikingly different methods. They diverge in their regard for practical consequences, their desire to lay down markers for future disputes and their show of internal rivalries.
Neil Gorsuch takes no prisoners. Brett Kavanaugh tries to appear conciliatory, even as he provokes internal conflict. And Amy Coney Barrett is holding her fire, for the moment.
Whether their differences intensify or fade will determine the Trump effect on the high court and how fast the law moves rightward regarding abortion rights, gun control, religion and LGBTQ clashes.

 What does that even mean?

Here's the conclusion:

Overall, the three Trump appointees voted together with fellow conservatives (Roberts, Clarence Thomas and Samuel Alito) in the most consequential cases of the 2020-21 session.

They curtailed the reach of the Voting Rights Act, threatened the ability of states to impose disclosure requirements on political donors and strengthened property rights in the face of government regulation. That last dispute, from California, arose from union organizers' efforts to temporarily enter agricultural property to talk to migrant farmworkers.

But as the three went their individual ways, Gorsuch agreed more with far-right conservatives Thomas and Alito, while Kavanagh and Barrett aligned more with Roberts at the center-right of this nine-member bench.

Overall in the recently completed session, Gorsuch agreed most with Thomas, 73% in full and 87% in part, according to SCOTUSblog annual statistics. Meanwhile, Kavanaugh and Barrett had one of the highest rates of agreement in cases: 75% in full and 91% in part.

Trump has touted his influence on the federal judiciary as one of his greatest achievements in office. That impact will swell as his appointees across the judiciary -- especially on the high court -- gain seniority and further shape the law with their opinions.

Well, that bolded part is interesting.   

Breaking — Rubio JNC announces finalists

For Judge, they recommend David Leibowitz and Detra Shaw-Wilder  

For US Attorney, Jackie Arango, Markenzie Lapointe, and Andres Rivero  

For Marshal, Gadyaces Serralta  

First federal criminal jury trial since the pandemic...

 ... is a NOT GUILTY.

It was a carjacking and firearm case before Judge Middlebrooks.  Vic Rocha for the defense.

It will be interesting to hear the details about jury selection, masks, and so on about the case.

More to follow. 

Michael Avenatti to represent himself in California

He will be opening this morning.  I like the move as a matter of strategy.

Meghann Cuniff has some great coverage on Twitter about how it went down yesterday and in this Law.com article:

Michael Avenatti will represent himself in his California client theft trial, wrestling the spot from his taxpayer-funded lawyer minutes before a jury was empaneled Tuesday in an Orange County federal courtroom. In an extraordinary move in a high-stakes white-collar criminal case, Avenatti stood as U.S. District Judge James V. Selna’s clerk was about to swear in 12 jurors and said he had a “Faretta issue,” referring to the 1975 U.S. Supreme Court case Faretta v. California, which established defendant’s right to self represent. “No, no. Sit down. Sit down. Sit down, Michael,” his attorney, solo practitioner H. Dean Steward, told him. It didn’t work. With jurors gone for lunch, Avenatti conferenced with Steward for a few minutes then told Selna he wanted to “participate in my defense.” Avenatti told the judge jurors don’t seem to differentiate between civil and criminal defense attorneys, and he was “critically concerned that if I do not play a role in my defense that that will be held against me.” Avenatti told Selna he’s “still a member of the [California State] Bar. I’m under temporary suspension, just to be clear.” Selna warned him: “You can’t appear in this court in a capacity as an attorney with that suspension.”

Avenatti is very forceful and clear in his questioning. Not easy to describe, but that's what I keep going to. He's looking at the juror while standing at the podium, nodding and listening. Guy is talking about his panic attacks.

— Meghann Cuniff (@meghanncuniff) July 20, 2021