Vaccine mandates in the courts

 The Supreme Court won't block Indiana University's vaccine mandate, as many  on the right thought would happen.  From the NY Times:

The Supreme Court allowed Indiana University on Thursday to require students to be vaccinated against the coronavirus.

Eight students had sued the university, saying the requirement violated their constitutional rights to “bodily integrity, autonomy and medical choice.” But they conceded that exemptions to the requirement — for religious, ethical and medical reasons — “virtually guaranteed” that anyone who sought an exemption would be granted one.

Justice Amy Coney Barrett, who oversees the federal appeals court in question, turned down the student’s request for emergency relief without comment, which is the court’s custom in ruling on emergency applications. She acted on her own, without referring the application to the full court, and she did not ask the university for a response. Both of those moves were indications that the application was not on solid legal footing.

The students were represented by James Bopp Jr., a prominent conservative lawyer who has been involved in many significant lawsuits, including the Citizens United campaign finance case. He argued that the university’s vaccine requirement was putting his clients at risk.

***
A trial judge had refused to block the university’s requirement, writing that the Constitution “permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty and staff.”

A unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, declined to issue an injunction while the students’ appeal moved forward.

“Each university may decide what is necessary to keep other students safe in a congregate setting,” Judge Frank H. Easterbrook wrote for the appeals court. “Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza and more) are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university close contact is inevitable.”

Judge Easterbrook, who was appointed to the appeals court by President Ronald Reagan, relied on a 1905 Supreme Court decision, Jacobson v. Massachusetts, which ruled that states may require all members of the public to be vaccinated against smallpox or pay a fine.

New trial for defendants who received ineffective counsel in white collar case...

 ...out of the First Circuit.  But represented by Greenberg Traurig lawyers Jed Dwyer and Jay Yagoda.* What's amazing in this case is not just the ineffective lawyer's conduct, but that the government tried to defend the convictions where the lawyer did not even have a computer that could open the voluminous discovery.  Shame.  Here's the introduction from the case (opinion here):

Meet Roger Boncy and Joseph Baptiste. Boncy once served as chairman and CEO of a U.S.-based investment company called Haiti Invest, LLC. And Baptiste once sat on that company’s board of directors. We use the past tense, because everything changed when the feds accused them of conspiring to bribe Haitian officials into approving an $84 million port project in that country — one involving cement factories, a shipping-vessel repair station, an international transshipment station, and a power plant (among other things). Prosecutors tried them jointly. And each had their own lawyer. We will save lots of details about the trial and its aftermath for later. But for now it is enough to note the following.

The government claimed (based in large part on undercover recordings played at trial) that Baptiste and Boncy solicited money from undercover agents (posing as investors in Haitian infrastructure ventures), which they promised to funnel to Haitian bureaucrats through a Baptiste-controlled nonprofit that supposedly helped Haiti’s poor — 5% of project costs would be allocated to bribe Haitian authorities. And as a further way to grease the project’s skids, the duo — again according to the government’s theory — promised to pay off Haitian officials with campaign contributions, offers of future jobs, and money to fund their favorite social programs. At the trial’s end, the jury convicted them of conspiring to violate the Foreign Corrupt Practices Act and the Travel Act (count 1), and convicted Baptiste (but not Boncy) of violating the Travel Act (count 2) and conspiring to violate the Money Laundering Act (count 3).

After firing his original attorney and hiring a new lawyer, Baptiste moved under Criminal Rule 33 for a new trial on the counts of conviction based on (according to the motion) ineffective assistance of counsel under the Sixth Amendment. Likewise invoking Criminal Rule 33, Boncy asked for a separate new trial on the count of conviction because (the motion argued) Baptiste’s lawyer’s “ineffective[ness]” influenced how the jury “view[ed] . . . both defendants” and so impaired his (Boncy’s) Fifth Amendment “due process right” to a “fair” proceeding. The government opposed both motions.

Following an evidentiary hearing, the district judge found that Baptiste had shown deficient performance of counsel and that the cumulative effect of counsel’s deficiencies caused him (Baptiste) prejudice. Not only that, but the judge also found Baptiste’s attorney’s shortcomings prejudiced Boncy by (among other things) requiring “Boncy’s counsel . . . to play an outsized role at trial rather than pursue his preferred defense strategy.” And noting that a joint trial of alleged coconspirators is presumptively appropriate and that “severance [was] not warranted,” the judge ordered a joint retrial in the interest of “justice” because neither defendant got “a fair” first trial — the significance of the “justice” buzzword (pulled from Rule 33) will be apparent later.

From that decision, the government now appeals. After setting out the guiding legal principles, we turn directly to the issues that confront us — adding additional details necessary to put matters into workable perspective. When all is said and done, we affirm.”

How bad was the lawyer.  Here's the start to the court's summary:

• He could not "open discovery produced by the [g]overnment." 

• He "did not provide copies of documents or audio and video recordings to . . . Baptiste, nor did they ever sit down together to review all of the materials that the [g]overnment had provided." 

• He did not "'thoroughly review' certain documents." 

• "[H]e [did] not investigate[]" the case "sufficiently to understand the import" of the government's evidence or to craft an appropriate response. • He did not get English translations of Haitian-Creole recordings, even after learning about "potential errors" in one of the government's translations. 

• He "did not subpoena any witness" or "formulate his own list of potential witnesses in support of . . . Baptiste's potential defenses." 

• "[H]e did not . . . identify or contact any expert witnesses that could have provided evidence on Haitian law or business practices." • He "continued to pursue an entrapment defense," even though "others had previously told him that the defense was not available to . . . Baptiste on the facts of the case" — a mistake that essentially put Baptiste in the thick of the conspiracy. 

• He "only cross-examined two of the [g]overnment's six witnesses, none of whom [he] had contacted or sought to interview prior to trial." 

• He "elicited damaging testimony" from the two he did cross. 

• And he deferred to Boncy's lawyer on the "cross-examinations of the remaining witnesses," even though Boncy's "trial strategy was to portray . . . Baptiste as the primary driver of the alleged conspiracy" — a conspiracy that Boncy's attorney insisted Boncy was not a part of.  

Sigh.

*Update -- There was some confusion in the comments about whether GT represented Bouncy at trial or just appeal.  Here's what happened: (1) GT represented Boncy at trial and got acquittals on all counts, except the 371/fcpa charge: (2) post-trial, they moved for a new trial for Boncy on the basis that co-defendant’s (Baptiste’s) counsel was ineffective; the court granted the motion; and (3) on appeal, 1^st circuit affirmed that Boncy gets a new trial as district court held. 

Judge Kathy Williams rules for Norwegian and against Gov. DeSantis

 This is a biggie.  You can read the order here. It's a lengthy 59-page order exploring the First Amendment and the Dormant Commerce Clause (looks like Judge Williams and her clerks had a very busy weekend as this was just argued on Friday).  

Here's the intro from the order:

On July 13, 2021, Plaintiffs—Norwegian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian Cruise Line; Seven Seas Cruises S. De R.L., d/b/a Regent Seven Seas Cruises; and Oceania Cruises S. De R.L., d/b/a/ Oceania Cruises (collectively, “Plaintiffs” or “NCLH”)—initiated this action against Dr. Scott Rivkees, the Surgeon General of Florida and the head of the Florida Department of Health (“Defendant”). (DE 1.) After 15 months of suspended operations, NCLH plans to resume passenger cruises from Florida on August 15, 2021 on the Norwegian Gem. (Id. at ¶ 1.) NCLH has adopted a policy requiring all passengers on its vessels to be fully vaccinated against COVID-19 and to provide documentation confirming their vaccination status before boarding. (Id. at ¶¶ 4, 35.)

Plaintiffs assert that a recently-enacted Florida law, codified at Fla. Stat. § 381.00316 (“Section 381.00316” or “the Statute”), prevents them from implementing the vaccination policy for vessels departing from Florida. (Id. at ¶ 122.) Under the Statute, Plaintiffs are prohibited from requiring passengers to provide “any documentation certifying COVID-19 vaccination or post-infection recovery” prior to boarding. Fla. Stat. § 381.00316. NCLH explains that if it cannot maintain its vaccination policy in Florida, it would be forced to either cancel all voyages leaving from the state or allow unvaccinated passengers to sail, and both options would cause significant financial and reputational harms. (DE 3 at 17–19.)

NCLH brings this as-applied constitutional challenge, arguing that the Statute violates its rights under the First Amendment, the dormant Commerce Clause, and Substantive Due Process. (DE 1.) It also claims that the Statute is preempted by the CDC’s Conditional Sailing Order (“CSO”) and subsequent instructions. Plaintiffs have asked the Court to enjoin the enforcement of Section 381.00316 pending resolution on the merits of their claims. Upon a review of the record, and with the benefit of oral argument, the Court finds that Plaintiffs are entitled to a preliminary injunction.

Norwegian was represented by Quinn Emanuel (Derek Shaffer, John O'Sullivan, Olga Vieira, and I'm sure lots of others). 

Quiet, summer blogging

 Sorry for the slow pace of the blog lately... with COVID raging again, there isn’t much happening in the SDFLA.  One interesting case going forward is in front of Judge Kathy Williams... a dispute between Norwegian Cruise Line and Gov. DeSantis about the so-called vaccine passports.  From Reuters:

Norwegian Cruise Line heads to federal court on Friday in a battle that pits the company's plan for returning to the seas against Florida Governor Ron DeSantis's vow to oppose COVID-19 "vaccine passports."
The court battle comes as big business and some government entities are responding to the rapid spread of the Delta variant of the coronavirus with vaccination requirements, prompting legal challenges from vaccine skeptics and civil libertarians. read more

Norwegian plans to make its first post-pandemic departure from Miami, the main port for Caribbean cruises, on Aug. 15. As part of its plan to guard against a COVID-19 outbreak, it will require passengers to prove they have been vaccinated.
Banning anyone who refuses to prove their vaccine status will run afoul of Florida's law, which forbids businesses, government entities and schools from requiring proof of COVID-19 immunity in return for a service. The law has certain exceptions, such as for healthcare.

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.