Judging in Times of Crisis

                                  

Washington Reviewing the Western Army, by Kemmelmeyer, Fred., 1796-99

By John R. Byrne

That's the subject of Judge Altman's forward to the recent issue of the University of Miami Law Review. He covers the role judges have played in various domestic crises, from Justice James Wilson authorizing President Washington to use force to put down the Whiskey Rebellion to Chief Justice Taney's ruling that President Lincoln's suspension of the writ of habeas corpus--done to facilitate the seizure of a confederate sympathizer--was unconstitutional. Most relevant to our district, he discusses how the COVID-19 pandemic posed its own set of challenges to the judiciary, including how to resolve whether the Court's suspension of grand-jury proceedings meant that defendants indicted after the expiration of the statute of limitations must have those indictments dismissed (Judge Altman and Judge Ruiz held "no" and Judge Middlebrooks "yes"). The Eleventh Circuit is set to weigh in on that issue soon. Interesting read!

RIP Jerry Shargel

 Legendary criminal defense lawyer Gerald Shargel (left, with Bruce Cutler and John Gotti) passed away over the weekend.  From the New York Times:

Mr. Shargel argued that he was no more aggressive in defending his clients than the government was in prosecuting them.

Referring to the extortion and robbery case against John Gotti Jr., a son of the reputed mob boss, he said, “The Government’s campaign reminds me of something that Gregory Scarpa” — a deceased member of the Colombo crime family — “once was heard to say,” he told The New York Times in 1999. “After he killed a particular person, he was heard saying that he hated the guy so much that he wanted to dig him up and kill him again. The Government hates John Gotti, the father, so much that they’re trying him again, through his son.”

“Clients hire me,” he told The New Yorker in a 1994 profile, “because I’ll do anything that the law will allow, without concern for how it’s gonna make me look.”

“6-3 is the new SCOTUS 5-4“

That’s the title of this interesting post by Adam Feldman over at Empirical SCOTUS.  It starts:

What this means? The Court’s most common split vote this term was six justices in the majority and three justices in dissent. The most frequent six justices in the majority were the Court’s conservative justices and the most frequent in the dissent were the three liberal justices.

Why this matters? The Court’s biggest cases came in the 2021/2022 Term came down to this vote. This includes Dobbs (abortion), NY Rifle (guns), Kennedy and Carson (religious liberty) and WV v. EPA (Clean Air Act).  When at least five of the conservative justices voted together there was no opposing vote that could decide the outcome to a case. These big cases though all had a supermajority of six votes.

What do the numbers show? 13 of the 18 six to three decisions this term came down along ideological lines. This is up from 10 of 18 six to three decisions last term. Last term also had much less ideologically charged cases on the docket with the biggest cases dealing with voting rights issues (Brnovich), campaign donations (Americans for Prosperity Foundation), and unions (Cedar Point).

"Artist Behind Banana Taped to Wall Can’t Escape Copyright Suit"

 That's the title to this Bloomberg article about Judge Scola's case involving this "art" from Art Basel a few years ago:

Here's the intro to the article:

The artist behind a viral sculpture featuring a banana taped to a wall at the 2019 Art Basel fair in Miami was unable to immediately shake a lawsuit claiming he copied the artwork from another artist.

The idea of a banana duct-taped to a wall is uncopyrightable, but the specific “selection, coordination, and arrangement” of the various elements of the sculpture can receive a degree of protection, Judge Robert N. Scola Jr. said in his Wednesday opinion.

At this early stage of the suit, artist Joe Morford sufficiently argued that the Art Basel exhibit, known as “Comedian,” was substantially similar to his work, called “Banana & Orange,” which he registered with the Copyright Office in 2000.

“Comedian,” created by Italian artist Maurizio Cattelan, garnered significant international press, commentary, and controversy. Cattelan sold three copies of the work and two proofs for more than $390,000. Morford, who represents himself, sued for copyright infringement in 2021.

The judge, writing for the US District Court for the Southern District of Florida, found that Morford has also sufficiently alleged that Cattelan had access to “Banana & Orange,” a piece featuring both a banana and an orange taped to a wall with silver duct tape.

The work has been available on YouTube since 2008, on Facebook since 2015, and on Morford’s personal website since 2016. The artist showed that the work had been accessed in 25 different countries, Scola said.

“Banana & Orange” also met the minimum standard of originality to receive copyright protection, the judge said.

“While using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity,” he said, “its absurd and farcical nature meets the ‘minimal degree of creativity’ needed to qualify as original.”

Of the copyrigthable elements of Morford’s work, there was similarity to “Comedian,” according to Scola. Both pieces use a single piece of silver duct tape that “runs upward from left to right at an angle” that affixes a banana “angled downward left to right” against a wall, he said.

DOJ Antritrust suffers crushing defeat in third chicken antitrust trial

 This one really bothered me -- DOJ indicted 10 defendants in a criminal antitrust case (hoping some would plead and flip).  All 10 stay strong and go to trial in Denver federal court.  All 10 are hung.  DOJ says, we are going to try again.  All 10 go to trial a second time.  And all the jury hangs again as to all 10.

Surely, the government would not try them again, right?

Wrong.

But the judge is rightfully upset.  So he orders the head of the antitrust division to court to explain why the government is going to try all 10 again. 

Shortly before appearing, the government dismisses against 5 of the defendants.  Then the chief showed up to court and explained that he believed his prosecutors would win.  Shortly thereafter, he was quoted as saying he's not part of the "chickenshit club."  

I wrote about how ridiculous that position was here.

The remaining 5 just went to trial and WALKED.  Not guilty across the board.

An unbelievable defeat for DOJ. 

Really happy for the 5 defendants and their lawyers, but they never should have been in that position, of course.  The government should not be able to try a defendant if it can't get a conviction at a trial, let alone two trials.

After trial #2, I did a bonus podcast episode with Barry Pollack, who represented one of the defendants who was dismissed after trial #2.  Check it out here.

What can a defense lawyer say about his client not testifying in closing?

 The issue has come up because a judge is piping mad that a defense lawyer said this in closing:

So . . . the Court instructed you, rightfully so, that you cannot consider the fact that the Congressman didn’t testify. He has an absolute right not to testify and you cannot consider it, but that’s a hard instruction to follow, especially in a case where we’re talking about what’s in his mind, what he knew, what he remembered, and what he understood. And we don’t have to explain the decision not to testify, but I’m going to. And the answer is that he did testify. Remember, most of what we listened to during our, I think, six days of trial were his statements. And the testimony, essentially, that he gave in those recordings was unvarnished,
unprepared, uncounseled. Well, I suppose in D.C. he told the prosecutors what he knew and remembered, and you got to hear that, too. I can’t improve on that. I can’t—his memory is not better today than it was in 2019, so there’s really nothing to add. And so here you are, some of you may be thinking, why didn’t he testify? Why didn’t he explain this? But what do you think would have happened if he got up there on the stand and tried to explain and his memory is worse than it was before and the Government confronts him with the call and asks him to explain it? He would say the same thing as what he said before, this is what I heard, this is what I understood.

Doesn’t seem so bad to me.  He said he had an absolute right not to testify and that he already gave his statements.  But the judge issued an order to show cause.  Here’s the whole order, which is being covered by Meghann Cuniff on Twitter.

I always have to sigh when I see judges getting so angry at defense lawyers.  Imagine a prosecutor had actually commented on a defendant’s silence, which happens in courtrooms all the time… the prosecutor would get yelled at for a minute and then nothing.  No reversal (harmless), no sanctions (it’s a prosecutor!), etc.  Judges typically give prosecutors the benefit of the doubt — it was just a mistake — while defense lawyers get orders to show cause.  

In any event, do you think the defense lawyer crossed a line here?  His client was convicted, by the way.  This order came out after the client was sentenced.

   

BOP incaercating people longer than the law allows

 There should be outrage.  Instead, very little is being done.  This entire article about the problem, entitled "Thousands of federal inmates still await early release under Trump-era First Step Act," is worth a read:

Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

The Department of Justice was tasked with carrying out the law through the federal Bureau of Prisons, but the bureau director, Michael Carvajal, a Trump administration holdover, announced his retirement in January amid criticism of a crisis-filled tenure marked by agency scandals. No replacement for Carvajal has been named, and criminal justice advocates contend that for the bureau to allow even one person to be incarcerated beyond what is permitted under the First Step Act exposes ongoing failures.

“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, or FAMM. “Here we are, four years later, and it’s maddening.”

Your Fourth of July moment of Zen

 I started this blog back on July 2, 2005 (happy 17th birthday to the blog!) with a post about putting a Floridian on the Supreme Court.  

That's now a reality!  Yay for KBJ, a Miamian!

Justice Ketanji Brown Jackson in a TikTok minute. pic.twitter.com/jJOh3ZyN0d

— Katie Barlow (@katieleebarlow) June 30, 2022