In praise of trial lawyers

By Michael Caruso

Unlike David, I'm not a naturally gifted trial lawyer. Any skill I've managed to acquire over the years is from watching and learning from my colleagues at the Federal Defender's office.  When I started, lawyers like Hector, Mary, Miguel, Joaquin, Manny, Omar, and Ken were my role models for how to try a case. And my current colleagues continue to inspire me with their grit, creativity, and ability. 

One cross-examination I saw when I was a young lawyer stands out in my memory. An assistant federal defender—Richard—was trying a case that lawyers sometimes call a "slow plea." A challenging case. 

As usual, the arresting agent wrote a report of his investigation. On direct, however, he testified to seemingly critical facts that were not in his report. When he had a chance to ask questions, Richard pressed him on these "new" facts. The agent, when confronted, responded that he had an exceptional memory and powers of recall. 

Richard reached the end of his questions. Despite his best efforts, the agent inflicted damage and Richard looked beaten. Gathering his notes, Richard turned to walk back to the table where his client sat. But, before he sat down, he returned to the lectern. 

He looked at the agent and asked: "What were the first three questions I asked you?" Richard let the "uh...." hang just long enough in the air before he sat down and said, "No further questions."

Richard's work left a lasting impression on me. His tenacity, inventiveness, and courage are all traits I've tried to emulate. 

This trial happened a very long time ago, and my memory may be faulty as to all of the circumstances. I would've double-checked with the transcript, but the jury found Richard's client not guilty, and no transcript was ordered.

 

REMORSE

            By Phil Reizenstein

          Fall brings to my religion the unseasonal concept of atonement and renewal, something usually associated with spring. There is the new year, followed ten days later by Yom Kippur- the Day of Atonement. In between is a time of introspection. Atonement is what follows remorse for transgressions. 

Federal courts have no problem considering “lack of remorse” as a valid sentencing factor: “In the instant case, the district court did not err in considering Bryant's lack of remorse and her disrespect for the law evinced by her allocution, in sentencing her to a term of imprisonment at the higher end of the Guidelines range. United States v. Bryant, 618 Fed. Appx. 586, 590 (11th Cir. 2015).

While it has been black-letter law in Florida for decades that lack of remorse was not a permissible sentencing factor, the First District en banc has had enough of  that trifling concept, recently holding that since remorse means an expression of desire to rehabilitate, lack of remorse means that the defendant may continue with their criminal ways and should be sentenced accordingly: “ For these reasons, we can no longer embrace the blanket, judge-made rule that when it comes to sentencing lack of remorse or failure to accept responsibility may not be considered.” Davis v. State, 268 So. 3d 958, 965 (Fla. 1st DCA 2019), review granted, SC19-716, 2019 WL 2427789 (Fla. June 11, 2019). The Florida Supreme Court has yet to rule on this issue although the case is fully briefed and was argued in 2019.  Considering the Court’s  new-found enthusiasm for reversing precedent, it is not looking good.

We’ve been down this path before in our country: judges and legal systems punishing defendants for a perceived lack of remorse. In at least one famous instance, the legal system blinked first.

 In May of 1961, Freedom Riders from Alabama rode into Mississippi and entered the “Whites Only” waiting room of the bus station in Jackson and were arrested (after being beaten).

 Parchman State Prison in Mississippi was and is as notorious a prison as there is in the United States. In 1961 prisoners in Parchman  were forced to work on chain gangs.  A Jackson, Mississippi state judge had the bright idea to send the Freedom Riders to Parchman, believing Parchman would put the fear of g-d into the Riders and end the rides. The Freedom Riders had other ideas. They decided to fill up Parchman and sent more buses to Jackson. Once inside Parchman the Freedom Riders began to sing: “More buses are a coming oh yeah.  Better get you ready, oh yeah.  More buses are a coming, more buses are a coming, better get you ready, oh yeah.”

Eight and ten men were placed in cells built for two. The Riders would not keep quiet and kept singing, so the guards threatened to take away their mattresses, which caused the Freedom Riders to sing: “You’re  going to take our mattresses, oh yeah. You’re going to  our mattresses oh yeah. You’re going to take our mattresses, you’re going to take our mattresses, you’re going to take our mattresses, oh yeah.”

Over 300 Freedom Riders were arrested in Mississippi in 1961, and many of them were sent to Parchman, and they never stopped singing. Sometimes a lack of remorse is not a bad thing, even in this season of atonement.

Phil Reizenstein

For The Federal Court Personal Injury Lawyer

By: Alaina Fotiu-Wojtowicz

Between forum selection clauses and defendants’ tendency to remove state law claims whenever there is complete diversity, premises liability and other personal injury cases end up in federal court more frequently than you might expect.  But even so, Judge Altman’s recent 37-page summary judgment order in the Torres v. Wal-Mart Stores East, L.P. case is unusual – not only for its length, but also for its depth of discussion on state-law, premises liability negligence issues.

Torres is in many respects the quintessential slip-and-fall, premises liability case.  The plaintiff, Nosleyki Torres, slipped and fell on a puddle of water while shopping at Wal-Mart.  The case was removed by Wal-Mart after Mr. Torres filed in Broward County Circuit Court.

Judge Altman’s order is an entertaining discussion of constructive notice, causation, and the type of disclosures required by Rule 26(a)(2) from hybrid treating physician expert witnesses who will testify as to causation at trial.  The order comes complete with citations to Eleventh Circuit precedent, both in and out of jurisdiction trial court opinions, John Adams’s correspondence, and perhaps most importantly, “Bill Nye the Science Guy.”

At its core, however, the order reiterates that, even in a federal court personal injury suit, or perhaps especially in such a case, it is the jury's role to determine questions of fact:

Who should decide whether, in weighing its important interest in reducing overhead costs against an invitee’s right to amble freely through un-puddled aisles, Wal-Mart has struck the right balance? A life-tenured judge no one elected? A jury of both parties’ peers? The answer—to us—seems clear.

. . .

If we are, as we were meant to be, a democracy—and if Adams was right in suggesting that everyday jurors are the “heart and lungs” of that democracy—then we should let jurors (not unelected judges) make these policy choices for us.

The entire opinion is worth a read and is available here.

Win for Governor DeSantis on Mask Mandates

By John R. Byrne

        This state has seen a flurry of recent litigation involving mask mandates, with numerous school districts resisting Governor DeSantis’s July 30 executive order barring schools from mandating that students wear masks at school.  Wednesday marked a victory for Governor DeSantis.  Judge Moore denied a request by parents of disabled children for a preliminary injunction that would have stopped DeSantis and others from enforcing the order.

        Judge Moore ruled that the parents failed to exhaust administrative remedies under the Individuals with Disabilities Education Act before filing suit.  You can read the order here.  DeSantis has had mixed results in the state so far.  Leon County Circuit Judge John Cooper had previously issued a permanent injunction against the order.    

        On a non-legal note, rest in peace Norm Macdonald.  A comedian's comedian.  You can go through a YouTube rabbit hole with his stuff.  The moth joke is one of the best.

Breaking -- Ariana Fajardo Orshan appointed to state circuit bench

By David Oscar Markus

Gov. DeSantis just appointed our former U.S. Attorney, Ariana Fajardo Orshan, to the state bench.  She previously served from 2012-2018 as a state judge (she was appointed by Rick Scott back in 2012) and then as U.S. Attorney from 2018-2021.   

I wonder if this is a first -- a state judge becoming U.S. Attorney and then getting re-appointed to the state bench.

Congrats to Ariana!

Trials and more

By Margot Moss 

The Operation Varsity Blues' Trial Begins

The trial of John Wilson and Gamal Abdelaziz began Monday.  The 2 men are accused of paying bribes to coaches and officials to have their children admitted to elite colleges.

The government claims that Wilson and Abdelaziz worked with fraud leader Rick Singer to portray the kids as athletic recruits when they weren't actually talented enough to compete in college athletics.  In her opening statement, the prosecutor offered, "This is not a case about wealthy people donating money to universities with the hope that their children get preferential treatment in the admissions process."  Instead, she contended that the case was about lies:  "Lies to obtain admissions spots that were bought and paid for."  As proof of these claims, the government plans to admit recordings of conversations Singer made with the parents.

The defense contends that donations is exactly what this case is about - or at least what the parents thought was happening but for Rick Singer conning them.  Wilson's attorney stated in Opening, "Rick Singer is one of the great con men of our time."  John Wilson "trusted a con man who stole his money.  That con man knows how to play people better than anybody in this courtroom."  The attorney said that the parents did not know that Singer was creating fake athletic profiles for the children applying to the schools and pocketing part of their donation money for himself.

Interestingly, the government does not plan to call Singer as a witness.  Turns out, Singer made notes at the times of the recordings with parents that the agents pressured him and "continue to ask me to tell a fib and not restate what I told my clients as to where [their] money was going - to the program not the coach and that it was a donation, and they want it to be a payment."  

So interesting.

Fifty seven people, including celebrities, business people, athletic coaches, proctors, and administrators, have been charged in the case since March 2019.  Forty six of them have pleaded guilty, and one parent was pardoned by former president Trump.  Wilson and Abdelaziz are the first to go to trial.

Meanwhile, another trial has ended early.

Arizona Federal Judge Declared a Mistrial in the Backpage Case

From Law 360:

An Arizona federal judge on Tuesday called an early mistrial in a pimping case against former executives and employees of Backpage.com, who argued that prosecutors had poisoned the jury with irrelevant stories of human trafficking.

U.S. District Judge Susan M. Brnovich ordered the do-over eight days into a trial that had lasted more than two months, dealing a win to defendants who sparred with the government for three years over admissibility of evidence in the sprawling case. Prosecutors are seeking to prove that former Backpage executives Michael Lacey and Jim Larkin and a half-dozen underlings facilitated prostitution with adult ads on the now-defunct classifieds site.

The Defense's scathing motion for Mistrial begins:

The government's opening argument was a parade of horribles about human trafficking destroying the lives of trafficked women and children, with barely any mention of charged counts and zero linkage of any Defendant to any charged count.  The opening offended the law, ignored indisputable facts, and consisted of inflammatory, unproven, and unprovable assertions that fail in any event to address what the government must prove to convict any defendant.

In the end, the judge agreed.

... and last, but not least ...

The Federal Bar Association Annual Meeting & Convention is Next Week!

Yaniv Adar, President of the South Florida Chapter of the FBA, and many others have been working extremely hard to put together what I'm sure will be a wonderful and informative event next week.  They've put together a great program, including local SDFL judges and speakers from across the country.   Register here to attend.  

 

#Womenalsoknowlaw

By Michael Caruso

Although there's a vigorous debate about the impact of social media on our lives, there's no debate that these platforms can enhance communication, collaborative learning, and creative expressions. In particular, Twitter is the home to many active law professors who write about the criminal legal system (and who also happen to be women). 

For example, Rachel Barkow (NYU/@RachelBarkow) is the author of  the recent book,  "Prisoners of Politics: Breaking the Cycle of Mass Incarceration." She's also at the forefront of advocating for systemic changes in our clemency process.  

Leah Litman (Michigan/@LeahLitman) writes on constitutional law, federal post-conviction review, and federal sentencing.  She's also the co-host of the Strict Scrutiny podcast that discusses the culture of the Supreme Court and individual cases. 

Melissa Murray (NYU/@ProfMMurray) is also a co-host of Strict Scrutiny. Professor Murray writes about criminal law as well as justice issues in our society. Many have mentioned her as being on President Biden's shortlist for the Supreme Court.  

Carissa Byrne Hessick (North Carolina/@CBHessick) heads the Prosecutors and Politics Project at UNC and will publish her book "Punishment Without Trial: Why Plea Bargaining Is a Bad Deal" next month. 

Last, but certainly not least, is our own Aya Gruber (Colorado/@AyaGruber). Professor Gruber is a former law clerk and AFPD in our district. Last year, she published her first book, "The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration" to wide acclaim. Congrats Aya! 

If you're a Twitter user and have any interest in the criminal legal system, start following these important and engaging legal minds! 

#Womenalsoknowlaw

9/11 TWENTY YEARS LATER

 

By Phil Reizenstein

September is my favorite month, especially when I can spend part of it in New York, like I did last week. Fall is beginning to poke its way into the end of summer. The air was cold enough to make a Miami lawyer shiver, while New Yorkers ( I used to be one until Janet Reno hired me in 1986) wore shorts and T-shirts and soaked up the remaining sun. Saturday, the twentieth anniversary of the  9/11 attacks,  hung over everything, mostly unspoken, but never far away.

I grew up in Brooklyn, and I watched the twin towers being built. As a child I marveled at the predictions for Battery Park and the lower west side of Manhattan. There would be apartment buildings for people to live in! In lower Manhattan! This was a strange concept in the days when only struggling artists inhabited industrial lofts in an area of Manhattan vaguely known as “SoHo”.  

Fast forward to May 26, 1977, and I am staying at my father’s loft at 100 Wooster Street. He wakes me up and drags me to the roof  where we  watched George Willig climb South Tower Two. Willig made it to the top, was arrested, and later paid a fine. For me the Towers were no longer a symbol of Wall Street- they now had a little rebel New Yorker in them- an attitude I admired, like when Springsteen sings “When they said sit down, I stood up.” in Growin' Up.

As a New Yorker, I had one very specific need for the Towers: every time I got out of a subway station in Manhattan, I would spin around until I saw the towers; then I was oriented to downtown and uptown and could set off on my journey. The first time I exited a subway station after 9/11, I instinctively did my spin and did a futile 360- they were gone. 

Make no mistake, 9/11  impacted the American legal system.  The US Patriot Act – an Orwellian named law, expanded surveillance powers of government agencies to new heights. Guantanamo Bay became and remains the failed poster child for indeterminate detention. 

In Holder v. Humanitarian Law Project, 561 US 1, (2010)  CJ Roberts, writing for the majority, in a 6-3 decision,  upheld 18 U.S.C.A. §§ 2339A & B in which Congress prohibited almost any conduct that provided “material support” to a designated terrorist organization.  In other words, say what you want, do what you want, support whom you want, unless you are speaking out for, and supporting an organization Congress does not like (which in the 1950’s included the American Communist Party). The law has frightening implications.

Maybe Roberts thought he was just calling balls and strikes when he opined “If only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II.” Holder, 561 U.S. at 38. I understand the analogy, but a bit of judicial activism crept into Roberts’ reasoning IMHO. 

The 9/11 attacks took 2,977 lives that day (many more as the years wore on). It set our nation on a course of deadly, costly and destructive wars, and it permanently altered our legal system and enforcement of Constitutional rights. Rightly or wrongly,  a “terrorist exception” was created for the Bill of Rights out of our fears in the aftermath of the attack. And yet, as James Madison wrote in Federalist 41: "Security against foreign danger is one of the primitive objects of civil society, It is an avowed and essential object of the American Union." The tension between the Bill of Rights and the issues of modern America are as prominent and taut as ever.

One last personal note. I spent my formative years in Brooklyn hanging around the fishing docks in Sheepshead Bay until the captain of the Amberjack V took pity on me one day and said “get on the boat kid” which started a decade long love affair with a job as a mate on a fishing boat. In the days after the attack,  I saw pictures of the Amberjack V- my boat- rescuing people from Battery Park on 9/11 and taking them to New Jersey- anywhere in NY was thought to be too dangerous. I could not have been prouder to have been a New Yorker and a mate on the Amberjack.

 I am not sure this post is what David envisioned when he gave a bunch of us a shot at following in his large footsteps with the blog he built. I am grateful for the opportunity, and in the coming weeks and months (and years?) I  will endeavor to bring to your Monday mornings some of my thoughts on the intersection of legal and social issues from hopefully an interesting and personal perspective. Or Maybe David just says "WTF?"  and revokes my access.