Supreme Court new argument style

 The Supreme Court has a new argument format, as detailed in this Court guide to oral advocates on page 7.  Jonathan Adler explains it here:

The Supreme Court has been utilizing a new oral argument format this term. Audio of the arguments is streamed live through the Court's website. Advocates get a brief opportunity to introduce and frame their case, followed by a period of open questioning, followed by an opportunity for each justice, in order of seniority, to ask additional questions they may have. ... The new format seems to result in longer arguments, but also more probative ones, and live audio is great.

One interesting development with the new format is that Justice Thomas has asked the first question in the vast majority of arguments thus far. Indeed, as of yesterday, Justice Thomas had asked the first question to all but one of the advocates so far this term. This is a positive development, as Justice Thomas' questions are good ones.

That last part about Justice Thomas now asking questions has been really interesting.  Many have said that he really enjoyed asking questions during the telephonic arguments where questioning would go in order of seniority.  And because he liked it, he likes to get his questions in first after the advocates finish their brief introduction.

Justice Sotomayor explained that the format of questioning changed because the female Justices were getting interrupted more often than their male counterparts.   

Shame on you prosecutors. Shame.

 Prosecutors were very bad in a recent trial before Judge Cooke. So bad, the 11th Circuit called them out:

More broadly, however, I feel compelled to address the  prosecution’s conduct and the tactics it employed throughout the trial. The prosecution fell short of the high level of professionalism that we expect prosecutors to embody, even if their actions did not rise to the level of misconduct. An unfortunate but notable feature of this trial was that the district court exerted considerable time and energy corralling the prosecution’s often wayward tactics. Starting in voir dire and continuing through the testimony of multiple witnesses, the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them, eliciting remarks from the court including:

• “Counsel, you know that’s improper.”
• “[W]hy would you go there?”
• “We went over this. . . . I may be wrong, but I ruled. Let’s go.”
• “We’ve had this conversation through other witnesses. Counsel, move on.”
• “We did this yesterday. I’m not revisiting. Anybody [who] wants to go back to the transcript, can.”
• “I don’t know . . . how many other languages to speak to you. . . . I said how to proceed. Proceed that way.”
• “What you have to do is to remember we have had some rules in this trial and somehow they seem to have been forgotten.”

The court’s admonitions, it seems, had little effect. After a particularly volatile exchange between a prosecutor and defense witness Miller, in which the prosecutor admitted that he lost his composure, the district court warned that he was “close” to causing a mistrial. Afterward, outside the presence of the jury, she admonished the prosecutor, telling him: “You’re better than having to go to the lowest part of your anger in order to examine this witness. . . . [Y]ou’re an experienced cross-examiner. You didn’t have to do
that. I would have expected that of someone of less experience than you.” The district court lamented that things “got very messy and uncontrolled.”

But apparently not bad enough to get a new trial or reversal. Instead of any actual consequences, the court says, in a concurrence by all three judges, that the prosecutors shouldn't do this again.  

Ha!  

Nothing is going to change regarding the epidemic of prosecutorial misconduct until there are some consequences.  I mean, the prosecutors in this case aren't even named in the opinion.  Defendants receive obstruction enhancements for less.  Walks of shame are not enough...

11th Circuit changes font and format of its opinions

 You thought we only covered the bickering amongst our district judges?  No, dear readers! We also break the important news in the 11th Circuit, including that the court finally updated its font and format.  It used to look like this:

And here's the new one:

Breaking -- Ryon McCabe is your new Magistrate Judge

 

It looks like the judges worked through their deadlock... by turning to the AO's published guidance which permits for a revote and if that doesn't result in a majority, then the Chief Judge gets to choose.  It's unclear whether the revote broke up the logjam or whether the Judge Altonaga had to make the selection, but either way, it's over.

Congratulations to Ryon McCabe, a really good guy.  We had cases against each other when we were both new lawyers (he was an AUSA and I was an AFPD).  He was also honorable and is a smart guy.  He's been in private practice for some time now and McCabe Rabin.  The FBI will do its background check, which usually takes a few months, and then he will sit in West Palm Beach.

RIP Shirley Henderson

 She covered all of the big trials in Miami back in the day.  The Miami Herald has the obit here.

She once said the cast of characters she captured in her renderings — the cops, terrorists, judges, lawyers, drug smugglers, exiles and everyday folk — was just so Miami. “This is about our mix — this is the socio-political and economical history of Miami.” Henderson’s bold pastel strokes have also been exhibited at HistoryMiami Museum in a popular exhibit in 2010, and are on permanent display at the University of Miami School of Law, the Museum of Art of Fort Lauderdale, the Polk Museum of Art in Lakeland and nationally at museums in Michigan and Ohio.

Her courtroom work even hangs on the walls of South Beach’s Joe’s Stone Crab after Jo Ann Bass bought 10 of her pieces in 1995 to hang on permanent exhibit at the landmark restaurant. “I have done every major trial in federal court for the last 35 years. These are historical documents. I think it’s very important to record the trials,” Henderson told the Herald in 2015.

 

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.