More Defenders on the Bench, Please.

 By Margot Moss

Although President Biden took office with the fewest judicial vacancies for a new president in over 3 decades, nearly 50 federal judges announced their retirement since Biden's inauguration.  This nearly doubles his opportunities to appoint lifetime judges.  

With these vacancies, President Biden and his top lawyers are making an effort to increase professional and demographic diversity.  Just yesterday, Veronica Rossman, a longtime assistant federal defender, was confirmed by the Senate to the Tenth Circuit.  She will join other former federal defenders on the Circuit Bench, including Ketanji Brown Jackson (D.C. Circuit), Gustavo A. Gelpi, Jr. (First Circuit), and Eunice C. Lee (Second Circuit) - who also all happen to be individuals of color.  Still awaiting confirmation is Candace Jackson-Akiwumi (Seventh Circuit), who practiced for over 10 years as an assistant federal defender.  Former public defenders are also being appointed to the District Court bench, including Omar A. Williams (D. Ct.), Jia M. Cobb (D.D.C.), Margaret Strickland (D.N.M.), and many others. 

But we still need more!  At a time when diversity is encouraged and applauded, this should include diversity of legal background as well.

No update yet on the two openings in our District.  Note that Michael Caruso is on the list of finalists.  Not only is he the Federal Defender, but he is also a fellow blogger! 

 

Happy Autumn Equinox!  Can’t believe the year has gone by so fast. 

Judge Bloom strikes down sanctuary city ban

From the Miami Herald:

A federal judge in Miami on Tuesday blocked Florida from enforcing a ban on so-called sanctuary cities, declaring portions of a law unconstitutional and tinged with “discriminatory motives.”

The judge’s ruling struck down a key portion of the 2019 law that prohibits local and state officials from adopting “sanctuary” policies for undocumented migrants, a main focus for Gov. Ron DeSantis, who vowed to ban “sanctuary cities” in Florida when running for governor in 2018 even though there were none in the state.

The judge also blocked the state from enforcing a provision in the law that requires law enforcement officers and agencies to “use best efforts to support the enforcement of federal immigration law” when they are acting within their official duties.

But the court allowed other provisions to stand, including one that required state and local law enforcement agencies to comply with immigration detainers — federal requests to hold undocumented immigrants past their release dates so that immigration agents can pick them up.

However, the judge blocked a provision that said local and state agencies could transport detainees who are subject to an immigration detainer to federal custody outside of their jurisdiction because it is “preempted by federal immigration law and is therefore unconstitutional.”

The ruling was in response to a lawsuit filed by the city of South Miami and other organizations, including the Florida Immigration Coalition, against DeSantis in an effort to strike down the law.

“The verdict validates what we said three years ago, Governor DeSantis pushed for a law that is not just racist, but unconstitutional,” said Antonio Tovar, a board member of both the Florida Immigrant Coalition and the Farmworkers Association of Florida, another group that joined the case.

Here's the 110 page order. 

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.