How do federal judges break their own tie?

That's the difficult question facing the federal judges in our district right now.  

I previously reported on the short list for Magistrate Judge in West Palm Beach.  This short list was recommended by a committee appointed by our Chief Judge.  Last week, the district judges interviewed the five finalists (as is the practice in the Southern District of Florida). After the interviews, the 16 active judges voted on who would be the next Magistrate Judge.  

The usual procedure would have the announcement that very day, but strangely I didn't hear that evening who got the nod.  And my sources weren't talking.   

Now we've found out why -- the vote ended in a tie* with no tie-breaking procedure.  And no one is budging.

So now what?  Our jury of judges seem to be hung.

Any advice for our brothers and sisters on the bench?

Do we need a good Allen charge for this situation?  

Members of the Judiciary: I'm going to ask that you continue your deliberations in an effort to agree on a magistrate judge. And I have a few additional comments I’d like for you to consider as you do so. Remember at all times that no district judge is expected to give up an honest belief about the merits of an applicant. But after fully considering the interviews and application, you must agree upon a magistrate judge if you can. You should not be hurried in your deliberations and should take all the time you feel is necessary. I now ask that you retire once again and continue your deliberations with these additional comments in mind. Apply them in conjunction with all the other instructions I have previously given to you.

*I have heard conflicting stories about whether the tie is 8-8 between two candidates of 5-5-5 (with one judge not voting) for three candidates.  Because I can't get confirmation on the vote, I am not posting the names just yet.

Congrats to Judge Bob Scola for 10 years on the federal bench

 He had a nice weekend with his clerks:

And they made some pretty funny pictures:

What will trial penalty be in Varsity Blues case?

I'm sure you saw by now that the two Varsity Blues defendants who went to trial were convicted.  Via the NY Times:

Two parents were found guilty in federal court in Boston on Friday for participating in a bribery scheme to have their children fraudulently admitted as athletic recruits to some of the most prestigious universities in the country.

Gamal Abdelaziz, a former casino executive, and John Wilson, a private equity financier, were the first people to stand trial in the federal investigation known as Operation Varsity Blues.

The investigation has snared more than 50 parents, coaches, exam administrators and others in an admissions scheme that implicated college athletic programs at the University of Southern California, Yale, Stanford, Wake Forest and Georgetown. Many other wealthy parents, including some celebrities, have pleaded guilty rather than take their chances in court.

Mr. Abdelaziz, 64, was accused of paying $300,000 in 2018 to have his daughter admitted to U.S.C. as a top-ranked basketball recruit even though she did not make the varsity team in high school. Mr. Wilson, 62, was accused of paying $220,000 in 2014 to have his son admitted as a water polo recruit at U.S.C. His son did play water polo, but prosecutors said he was not good enough to compete at the university.

Mr. Wilson was also accused of agreeing to pay $1.5 million in 2018 to have his twin daughters, who were good students, admitted to Harvard and Stanford as recruited athletes.

“What they did was an affront to hard-working students and parents,” Nathaniel R. Mendell, the acting U.S. attorney for the District of Massachusetts, said in a news conference after the verdict. “But the verdict today proves that even these defendants, powerful and privileged people, are not above the law.”

This was always going to be a really hard sell to a jury, but the appeal will be fascinating because it's not altogether clear that this is an actual federal fraud crime.  Another interesting part of the case is that the government did not call its "star witness," Rick Singer, who made the tape recordings of all of the parents.  

Sentencing will also be worth watching.  DOJ has tracked every Varsity Blues case, and the highest sentence so far is 9 months and the highest sentence requested by the government has been 18 months.  Where will these two defendants end up just because they had the gall to go to trial?  Let me know your thoughts in the comments.  I have the over-under at 24 months. 

Waiting for a U.S. Attorney...

 ...while other districts get theirs.

Here's a NY Times article about Damian Williams, the first Black U.S. Attorney for the SDNY.

One night in December 2018, two dozen lawyers and judges gathered at a fashionable restaurant in New York’s TriBeCa neighborhood to welcome a new member, Damian Williams, into their distinguished fold.

Each had once been a federal prosecutor in Manhattan, running a special unit in the U. S. attorney’s office that investigated fraud on Wall Street. It was a job barely known to the public. But among New York’s corporate and legal elite, it was a position of power and influence, often shared by co-chiefs.

Mr. Williams was the latest appointee. That night, amid jocular toasts and ribbing, Judge Jed S. Rakoff read a whimsical poem in honor of Mr. Williams, gently mocking his self-effacing nature with an out-of-character boast:

“I’m now co-chief — my name is Damian,” the judge began. “Things will never be the same again.”

The judge was only teasing, but in one sense he got it right.

On Tuesday, Mr. Williams, 41, was confirmed by the Senate to be the next United States attorney for the Southern District of New York — a position whose occupants have included future judges, senators, cabinet members and a New York City mayor. The appointment would make Mr. Williams the most powerful federal law enforcement official in Manhattan and, significantly, the first Black person to lead the storied 232-year-old office.

***

“Beyond his extraordinary qualifications, Damian is the right person at this time in history to be the U.S. attorney for Manhattan,” said Theodore V. Wells Jr., a Black partner at the law firm Paul, Weiss and one of the nation’s most prominent litigators.

“It’s important for both Blacks and whites to see a person of African-American descent — especially in this time where there’s so much social unrest — in that top job,” Mr. Wells said.

David E. Patton, the city’s federal public defender, said Mr. Williams now has the opportunity to institute key reforms in the way his prosecutors charge cases, like embracing President Biden’s campaign pledge to end mandatory minimum sentences.

“This is a core issue he can tackle,” Mr. Patton said.

Another issue Mr. Williams will confront is diversity in his office: Of its 232 assistant U.S. attorneys and executives, only seven — including himself — are African American.

 

 

If I told you that a pro se defendant beat back a temporary injunction request against 4 DOJ lawyers....

 ...and gave you only one guess who the pro se defendant was, who would you guess?

Yup, you got it -- Fane Lozman.  The same Fane Lozman who has won twice in the Supreme Court.  

The PBP covers his most recent case, before Judge Middlebrooks -- who patiently presided over a 5-hour hearing:

Longtime Riviera Beach gadfly Fane Lozman this week towed his 20-foot-long floating home away from the banks of Singer Island to comply with a state court order saying that its bottom was damaging environmentally sensitive seagrasses that are protected by Florida law.

On Friday, federal officials told U.S. District Judge Donald Middlebrooks that Lozman is now running afoul of federal rules.

The floating container home, anchored in a cove south of John D. McArthur Beach State Park, poses a hazard to marine navigation and should be removed from the water immediately, an attorney for the U.S. Department of Justice said during a five-hour court hearing.

The dueling lawsuits — one filed against Lozman by the Florida Department of Environmental Protection in Palm Beach County Circuit Court and the other by the U.S. Army Corps of Engineers in federal court — has put the former U.S. Marine and self-made millionaire in an untenable position, Middlebrooks said.

“Mr. Lozman is caught between state and federal regulatory agencies,” he said.

Further, Middlebrooks said, it appears Lozman may be the victim of selective enforcement.

The Army Corps cited Lozman for last year anchoring his 910-square-foot container home on submerged land he owns off Singer Island. Yet, Middlebrooks noted, it has done nothing to force the removal of a partially submerged rusted barge that has been in the Lake Worth Lagoon for at least four years and appears to pose a far greater risk to boaters.

“I realize that there’s a fair amount of regulatory discretion that the Corps has,” Middlebrooks said. “But seeing that barge and that metal and comparing it to what Mr. Lozman has, well, there’s no comparison.”

Further, he said, living on the Intracoastal Waterway, he is no stranger to local waters.

“Going down the Intracoastal Waterway, I’ve seen more structures that pose more harm than Mr. Lozman’s stripped-down container home,” he said.

In other SDFLA news, Judge Kathy Williams presided over a civil trial last week.  The plaintiff, represented by Mark Schweikert, won $6 million against the Miami-Dade School Board.  From the Herald:

A federal jury has ordered the Miami-Dade School Board to pay $6 million to a former student of an ex-Palmetto High teacher accused of harassing and sexually abusing a string of female students. In a verdict late Friday, jurors concluded the school district, despite multiple warnings, did nothing to stop Jason Edward Meyers, a creative writing teacher. 

The verdict found Meyers “posed a substantial risk of sexual abuse or harassment to female students,” yet the district was “deliberately indifferent” in how it handled the accusations. The federal lawsuit was filed on behalf of an unidentified student in 2019. It was the second lawsuit filed in the Meyers saga — an earlier lawsuit from another former student settled for $1.1 million.

Jurors deliberated less than two hours in ruling in favor of the young woman, who was about 16 and 17 when she was groomed into having sex with Meyers on campus. Now 23, the woman testified during last week’s trial, as did several other victims. “She was one who was brave and courageous to be scrutinized in that way,” said her attorney, Mark Schweikert. “To win it in the eyes of the jurors — members of this community — is incredibly cathartic for her and for myself as her advocate.”

***

Meyers, 46, is still awaiting trial in Miami-Dade criminal court in a case involving the same victim from last week’s trial — she will have to testify again. To the frustration of his victims, the criminal trial has been pending for more than five years, because Meyers changed attorneys — and then because of the pandemic. He’s awaiting trial on three felony counts of engaging in sex with a minor. 

Meyers was not named in the federal lawsuit. “No one was interested in hearing his side of the story in that civil case,” said his criminal defense attorney, Bradley Horenstein. “Jason Meyers is innocent. Looking forward to our day in court.” 

The Miami-Dade school district, in a statement on Monday, did not say whether it will appeal.

Oyez Oyez Oyez! (UPDATED)

UPDATE -- Clarence Thomas asked the first question today in open court... so it wasn't just that he was going to ask questions telephonically.

SECOND UPDATE -- Oral arguments are live-streamed this Term!

  It's the First Monday in October, which means the Supreme Court Justices are coming back from their summer vacations.  (In addition to term limits as SCOTUS reform, I think it's time to do away with their three month break in the summer.)  So what's on tap for this Term?  Here's a good summary of the biggest cases, which address abortion and guns, from Vox:

For four decades, anti-abortion activists have dreamed of the day when the Supreme Court would overrule Roe v. Wade. That day could be just months away, as the Court will hear a case this winter asking it to destroy Roe.

The National Rifle Association, like other, even more strident gun rights groups, spent those decades dreaming of an expansive Second Amendment that sweeps even the most venerable firearms regulations into the trash bin. This fall, the Court will hear a challenge to a 108-year-old law laying out who may obtain a license to carry a firearm in New York.

A more obscure issue, but one that could have even more sweeping consequences, is the question of when federal agencies — acting pursuant to a statute enacted by Congress — may regulate private businesses and individuals. The conservative Federalist Society has long obsessed over plans to strip federal agencies of this regulatory power. This month, right-wing groups flooded the Supreme Court with briefs asking the justices to overrule a seminal precedent preventing judges from sabotaging agencies such as the Environmental Protection Agency.

It remains to be seen whether the Supreme Court, with its 6-3 conservative majority, will make all these groups’ dreams come true. But Republican advocacy organizations of all stripes appear convinced that now is the time to shoot for the moon, and so these issues — along with a host of others ranging from anti-discrimination law to partisan gerrymandering — are on the docket this coming Supreme Court term, which starts Monday, October 4.

In other SCOTUS news:

1.    Justice Alito is fired up over the shadow docket criticism.   From the NY Times:

In a combative speech on Thursday, Justice Samuel A. Alito Jr. defended several of the Supreme Court’s recent rulings on what critics call its “shadow docket,” saying the news media had created the impression that “a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view.”

He addressed the recent decisions in unusual detail, rejecting, for instance, what he said was the “false and inflammatory claim that we nullified Roe v. Wade” in early September by allowing a Texas law that bans most abortions after six weeks to come into effect.

“We did no such thing, and we said so expressly in our order,” he said, quoting from it. Indeed, the majority in the 5-to-4 ruling said it based its decision on procedural grounds and did not address the constitutionality of the Texas law.

The effect of the ruling, however, has been to deny abortions to most women in Texas. In dissent, Justice Elena Kagan wrote that the majority’s unsigned order “illustrates just how far the court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process.”

“Without full briefing or argument, and after less than 72 hours’ thought,” she wrote, “this court greenlights the operation of Texas’ patently unconstitutional law banning most abortions.”

Justice Alito’s speech, at the University of Notre Dame, was largely devoted to addressing the “shadow docket,” which he called a loaded and misleading phrase.

“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he said. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”

2.      Justice Kavanaugh has COVID.

3.      So he couldn't go to Justice Barrett's investiture.

Linda Lopez nominated in S.D.Cal.

 Wahooo! Really happy to post this one.

Miamian Linda Lopez, who is now a Magistrate Judge in San Diego and was an assistant federal defender before that, has been nominated to the district court in S.D. Cal.  From the White House:

Linda Lopez: Nominee for the United States District Court for the Southern District of California
 
Judge Linda Lopez has served as a Magistrate Judge on the U.S. District Court for the Southern District of California since 2018. From 2007 to 2018, Judge Lopez worked as a federal public defender in San Diego. From 2003 to 2007, Judge Lopez worked as a criminal defense attorney in Miami as a solo practitioner, where she served on the Criminal Justice Act Panel and represented indigent defendants in federal court on a court-appointed basis. Judge Lopez began her career as a criminal defense attorney in private practice from 1999 to 2003. Judge Lopez received her J.D., magna cum laude and Order of the Coif, from the University of Miami School of Law in 1999 and her B.A., magna cum laude, from Florida International University in 1996. She also received her A.S. in 1994 and her A.A. in 1992, both from Miami Dade Community College.

San Diego Superior Judge Jinsook Ohta, left, and U.S. Magistrate Judge Linda Lopez have been nominated by President Joe Biden for district judge seats for the Southern District of California.

(Courtesy of U.S. Courts and San Diego Superior Court)

Judge Beverly B. Martin

By Michael Caruso:

 

Today is Judge Beverly B. Martin’s last day of service on the Eleventh Circuit Court of Appeals. She’ll be missed.

 

I’m limited by both ability and space to do justice to Judge Martin’s work on the Court. But, I offer two brief opinions.

 

First, I’d note her work—with former Chief Judge Ed Carnes—in effectuating systemic change for the men and women on Florida’s death row. In United States v. Lugo, Judge Martin concurred in the result but wrote separately to note the “alarming” number of cases where state-appointed lawyers missed their federal habeas filing deadlines. As Judge Martin pointed out, these missed deadlines have many negative consequences, including barring a federal court from reviewing the death row inmate’s claims on the merits. Her concurrence is well worth reading to see how she addresses this issue with thoroughness, compassion, and humility. And, as a result of this opinion, we now have two Federal Public Defender Capital Habeas Units in Florida to represent these men and women in federal court.

 

Second, although Judge Martin grounded her opinions on the facts and law of the case, I believe she never forgot that these cases are about people and not abstract legal questions. Again, my space is limited, but one recent example is United States v. Bryant. In Bryant, Judge Martin dissented from the Court’s holding that limited a person’s ability to obtain a  compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons. I acknowledge that the majority’s holding has negatively impacted our clients, but I think Judge Martin was right on the law. Beyond her legal analysis, however, her opinion captures the hopes and struggles that Mr. Bryant experienced while in prison. This combination of rigorous analysis and human understanding is the mark of a great judge and person. 

Like I wrote, Judge Martin will be missed.