Should a juror be allowed to sit in a death penalty case where he said: Non-white races were statistically more violent than the white race.

Apparently yes, in Texas. 

The Supreme Court denied cert yesterday, but Justice Sotomayor dissented (joined by Kagan and Breyer) and said:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.” Buck v. Davis, 580 U. S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted). When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid. The seating of a racially biased juror, therefore, can never be harmless. As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed,“the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U. S. 719, 729 (1992).
In this case, petitioner Kristopher Love, a Black man,claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race. 29 Record 145. The Texas Court of Criminal Appeals never considered Love’s claim on the merits. Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned. That decision was plainly erroneous. An already-expended peremptory strike is no cure for the seating of an allegedly biased juror. The state court thus deprived Love of any meaningful review of his federal constitutional claim. I would summarily vacate the judgment below and remand for proper consideration.

RIP Ben Benjamin

 There's very little that I think of as positive about the FDC-Miami, but one bright spot was Officer Benjamin.  He was always professional and nice.  And he was a really cool dude.  He treated us defense lawyers and our clients with respect and as human beings.

Such sad news that he recently passed away.  

The obit:

“Ben” Benjamin Jr., 56, of Tamarac, FL transitioned to heaven unexpectedly on Wednesday, April 13, 2022. He was born on Tuesday, February 22, 1966 to Buell Sr. and Cassandra. He was employed by The United States Department of Justice, Federal Bureau of Prisons for over 23 years. He loved shooting, cooking, dancing and was known to many as a “Gentle Giant”. He enjoyed traveling to Colombia, spending time with his friends and family, and was an avid New York Yankee fanatic.

He is preceded in passing by his mother, father, and his brother; Andreas. He is survived by his loving wife; Maria del Pilar, brother; Clint, two sisters, his beloved aunt; Vergie Schou and numerous nieces and nephews.

A “Life Retirement Party” will be held on Thursday, April 21, 2022 with a closed casket from 6pm to 8pm. A “Life Retirement Service” will be officiated by Pastor Bernard King at 8pm. The family has requested that guests wear their favorite baseball attire, if they so choose.

Lastly, for those who are unable to attend the Life Retirement Service, please click the “watch video” button located below under Funeral Service at 8pm EST

In lieu of flowers, the family is requesting memorial gifts here.

DOJ's Antitrust division behaving amateurish (UPDATED)

It hasn't been a good couple of weeks for the DOJ's Antitrust Division. 

In Denver, they tried a 10 defendant case twice and both times it hung as to all defendants. Ouch!

Wearing those horse eye-blinders, DOJ announced it would retry the case a third time.  That didn't sit well with the judge, who summoned the head of the Division, Jonathan Kanter, to court to explain how a third trial would be in accordance with DOJ federal prosecution standards.  Bloomberg covered it here:

At the hearing Thursday, the judge repeatedly asked Kanter why he thinks the result of a third trial will be different. He also quizzed Kanter about a Justice Department policy requiring prosecutors to go forward with cases only if they believe the evidence will “probably” result in a conviction. But Brimmer said he doesn’t have the authority to require prosecutors to follow the standard.

The judge concluded the hearing by urging Kanter to “go back to Washington and think about that.”

Well then.  

In addition to those standards, there are, of course, basic standards of fairness and decency.  If you can't convict any of 10 defendants after a length trial, let alone two of them, it's time to call it quits.  Congress needs to fix this.  The government should get one shot to convict.  Then it's tie to move on to the next one.

But that's not the only Antitrust black eye.  It brought its first wage-fixing case in Texas against two defendants. Between the two of them, they were charged in 6 counts. The Division lost 5 of those counts, including the top counts.  It only got a conviction on a lesser false statement count against one of the defendants.  

So what does DOJ do?  It issued a press release with the heading: "Former Health Care Staffing Executive Convicted of Obstructing FTC Investigation into Wage-Fixing Allegations."  Are you kidding me?  The release starts this way:

Today, a Texas man was convicted of obstructing a Federal Trade Commission (FTC) investigation, following an eight-day trial in the Eastern District of Texas.

“Lying to federal agencies is a crime, plain and simple,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “And, as the court’s rulings in this case make clear, so is wage fixing. When obstruction affects the federal government’s investigations into labor market collusion and impedes our ability to protect workers, we will use all the tools available to prosecute all of these crimes to the full extent of the law.”

“Wage fixing causes tremendous harm to countless hardworking Americans,” said Assistant Director Luis Quesada of the FBI’s Criminal Investigative Division. “The FBI will continue to work closely with our law enforcement partners to uncover this type of corruption and bring to justice anyone who is responsible or who obstructs our investigations into this conduct.”

How embarrassing.  But it's also wrong. These guys were exonerated.  And it's not until the 6th paragraph of the release that you see what actually happened at the trial.  Thank goodness there was some honest reporting about it, including from Bloomberg, which had this headline: "DOJ’s First Criminal Wage-Fixing Case Ends Mostly in Defeat."  

Antitrust is now waiting for a verdict in the first "no-poach" criminal trial.  Let's see what happens there and how Antitrust handles it.  In the meantime, they should be rethinking their new "aggressive" tactics in criminal cases.

UPDATED Friday evening 7:40 -- The jury acquitted both defendants in the first no-poach trial -- Kent Thiry and DeVita.  It's going to be hard for the government to spin this one!

Should a lake be able to sue?

That's the question raised in this New Yorker article about a lake in Florida, which is suing to protect itself.

From the intro:

Lake Mary Jane is shallow—twelve feet deep at most—but she’s well connected. She makes her home in central Florida, in an area that was once given over to wetlands. To the north, she is linked to a marsh, and to the west a canal ties her to Lake Hart. To the south, through more canals, Mary Jane feeds into a chain of lakes that run into Lake Kissimmee, which feeds into Lake Okeechobee. Were Lake Okeechobee not encircled by dikes, the water that flows through Mary Jane would keep pouring south until it glided across the Everglades and out to sea.

Mary Jane has an irregular shape that, on a map, looks a bit like a woman’s head in profile. Where the back of the woman’s head would be, there’s a park fitted out with a playground and picnic tables. Where the face would be, there are scattered houses, with long docks that teeter over the water. People who live along Mary Jane like to go boating and swimming and watch the wildlife. Toward the park side of the lake sits an islet, known as Bird Island, that’s favored by nesting egrets and wood storks.

Like most of the rest of central Florida, Mary Jane is under pressure from development. Orange County, which encompasses the lake, the city of Orlando, and much of Disney World, is one of the fastest-growing counties in Florida, and Florida is one of the fastest-growing states in the nation. A development planned for a site just north of Mary Jane would convert nineteen hundred acres of wetlands, pine flatlands, and cypress forest into homes, lawns, and office buildings.

In an effort to protect herself, Mary Jane is suing. The lake has filed a case in Florida state court, together with Lake Hart, the Crosby Island Marsh, and two boggy streams. According to legal papers submitted in February, the development would “adversely impact the lakes and marsh who are parties to this action,” causing injuries that are “concrete, distinct, and palpable.”

A number of animals have preceded Mary Jane to court, including Happy, an elephant who lives at the Bronx Zoo, and Justice, an Appaloosa cross whose owner, in Oregon, neglected him. There have also been several cases brought by entire species; for instance, the palila, a critically endangered bird, successfully sued Hawaii’s Department of Land and Natural Resources for allowing feral goats to graze on its last remaining bit of habitat. (The palila “wings its way into federal court in its own right,” Diarmuid O’Scannlain, a judge on the U.S. Court of Appeals for the Ninth Circuit, wrote in a decision that granted the species relief.)

Still, Mary Jane’s case is a first. Never before has an inanimate slice of nature tried to defend its rights in an American courtroom. Depending on your perspective, the lake’s case is either borderline delusional or way overdue.

“It is long past time to recognize that we are dependent on nature, and the continued destruction of nature needs to stop,” Mari Margil, the executive director of the Center for Democratic and Environmental Rights, said in a statement celebrating the lawsuit.

“Your local lake or river could sue you?” the Florida Chamber of Commerce said. “Not on our watch.”

What A Difference It Makes

By Michael Caruso

When Judge Ketanji Brown Jackson takes the oath as the 116th justice on the Supreme Court, not only will she make history as the first Black woman to serve on the Court, but for the first time in 232 years, the Court will not have a majority of white men.

Notwithstanding, the Washington Post recently highlighted the few notable instances of racial and gender diversity on the Supreme Court that have made tangible changes to American life.  

Here's the list for those who are behind the paywall:

Furman v. Georgia—death penalty

United States v. Virginia—gender discrimination 

Virginia v. Black—cross burning 

Ledbetter v. Goodyear—pay discrimination 

Safford Unified School District v. Redding—strip search

Fisher v. University of Texas—affirmative action 

Walker v. Texas Division, Sons of Confederate Veterans—Confederate flags

Utah v. Strieff—right to search

We'll see what the future holds. 

I'd also like to use this space to congratulate two friends on receiving awards last week from Riverside House. Unfortunately, I couldn't attend because I was held captive in a windowless conference room in our nation's capital.  

Randy Hummel, an AUSA at the U.S. Attorney's Office in Miami, was presented with the Janet Reno Award, and our very own David O. Markus was recognized with the Albert Krieger Award.  I couldn't think of two more deserving recipients of these prestigious awards. Well done.

How would a Republican Senate affect Biden's judicial picks?

 Would they all get blocked?  What would happen to a Supreme Court nominee? After the KBJ hearings, it is going to be interesting to see how it all plays out, especially if the Republicans take the Senate in November.  

The Supreme Court is now a pretty young court:

Thomas -- 73

Alito -- 72

Roberts -- 67

Sotomayor -- 67

Kagan -- 61

Kavanaugh -- 57

Gorusch -- 54

Jackson -- 51

Barrett -- 50

Meantime, we are still waiting on a U.S. Attorney and judges here in SDFLA... what's going on there?!

YES!

 

A new way to get out of jury service.

 Ahhh, you gotta love South Florida.  A juror in the Nikolas Cruz case was let go because she was too busy with her sugar daddy.  I kid you not.  From the New York Post:

A prospective juror for the sentencing of Florida school shooter Nikolas Cruz told the judge she wouldn’t have time for the civic duty — because she’s both married and has a “sugar daddy.”

Parkland gunman Nikolas Cruz pleaded guilty in October to 17 counts of first-degree murder and 17 counts of attempted murder in connection with the massacre.

***During the proceeding, Circuit Judge Elizabeth Scherer asked whether she had missed anyone with concerns or questions, courtroom video shows.

“Did you have a question?” she asks one of the prospective jurors, whom she identified as “Miss Bristol.”

“This is a whole entire month,” the woman replies. “First of all let me clarify myself, July 2nd is my birthday, July 4th is my son, and the 18th is my other son.”

Scherer tells her to slow down.

“Don’t talk too fast, we have to be able to understand … so you said that the July, there’s dates in July that you’re not available? What are those dates?” the judge asks.

“July 7th, July 4th, and July 18th … And again, I need to figure out something. I have my sugar daddy that I see every day,” Bristol answers.

“I’m sorry?” Scherer asks in a deadpan manner as she cocks her head.

“My sugar daddy,” Bristol repeats.

“OK, I’m not exactly sure what you’re talking about but we’ll …,” the judge interjects.

“I’m married, and I have my sugar daddy. I see him every day,” Bristol says.

“OK. All right. Ma’am, we’ll come back to you, OK? Thank you,” Scherer responds.

More than 120 of the first 160 prospective jurors were dismissed — including Bristol, Fox News reported.