Parkland and the Future of the Death Penalty

 

By John R. Byrne

Fallout continues from the death penalty phase of the Parkland shooter. The Sun Sentinel covers recent court rulings on Florida’s death penalty here. Before 2016, Florida law allowed just a majority of jurors to recommend the death penalty to a judge. In Hurst v. Fla., 577 U.S. 92 (2016), the Supreme Court overturned that law in an 8-1 decision. Although Florida law now requires a unanimous jury vote recommending death, there is talk of changing the law (Alabama allows a 10-2 vote, for example). 

Should judges be elected or appointed?

We've had this debate on the blog for many years, and there is no good solution.

We all just wanted judges who are hard-working, nice, fair and will grant a continuance! 

Well, there are 5 judges on the Florida Supreme Court who are up for "retention," which means they can be voted out.  But that never happens. Here's an article from the Tampa Bay Times that discusses what's up:

Five of the seven sitting justices on the Florida Supreme Court are on the November ballot for a retention vote.

Florida’s Supreme Court justices are appointed by the governor. But voters decide whether the justices should be retained; such votes are conducted in the first general election that occurs more than a year after a justice’s appointment, and again every six years.

The state’s highest court has the final say in some of the major issues facing Floridians. That includes final orders imposing the death penalty, district court decisions declaring a provision of the state Constitution or a statute invalid, certain orders from the Public Service Commission on utility rates or services, and issues that it decides are of great public importance, such as whether the privacy clause in the state’s Constitution includes abortion

.

The five that are up are Justices Canady, Couriel, Grosshans, Labarga, and Polston.

BOP is really bad

 Imagine if a criminal defendant or his lawyer refused to follow court orders or the law.  They'd be put in jail before you could say not guilty.

But BOP does its own thing and really doesn't care much for the judiciary or the legislature.  In fact, it still refuses to follow the First Step Act

From Walter Pavlo in Forbes:

The Federal Bureau of Prisons (BOP) is under new leadership but it is still suffering from decades of mismanagement. BOP Director Colette Peters began work on August 2nd of this year taking over for the Michael Carvajal. The U.S. Senate’s Permanent Subcommittee on Investigations held a hearing on July 26 chaired by Senator Jon Ossoff (D-GA) who grilled outgoing BOP Director Carvajal about the failings throughout the agency. While the hearing was focused on the corruption and abuses at USP Atlanta, it was a condemnation of an agency in crisis.

Director Peters testified on September 29, 2022 in from the Senate Judiciary Committee. Unlike Carvajal’s previous, contentious testimonies before the same committee during his tenure, Peters’ was marked by cordiality and encouragement to implement the First Step Act legislation, uncover corruption among staff and provide transparency to an agency that U.S. Senator Ron Johnson had previously described as one where “People have not been held accountable.”

The First Step Act (FSA) was signed into law in December 2018. It is considered one of the most influential pieces of legislation directed at the BOP to not only encourage prisoners to participate in meaningful programs meant to rehabilitate, but to reduce the number of people in prison who pose little or no danger to society. Senator Dick Durbin was frustrated in Peters’ testimony stating that the full effects of FSA had not been implemented nearly 4 years after it being signed into law. Peters assured the Senators that an auto-calculator was completed in August 2022 that provided FSA credits to prisoners which had the effect of reducing many sentences. However, that auto-calculator was not in place at the time of the hearing, or at least it was not communicated to prisoners or the public.

According to dozens of prisoners I interviewed for this piece, calculations were not communicated to them nor reflected on BOP.gov, which tracks release dates for federal prisoners. Anticipating this computer program’s rollout that would reduce many prisoner release dates, prisoners and their families eagerly awaited the news of when they would be going home. As the weeks passed after after August, prisoners still had no news. It was not until the week of October 3rd that FSA credits started to be applied. As one prisoner told me, “I was expecting a year of credits and I got 4 months. I have no idea what happened.”

What happened is that the calculator still has errors in it. Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year. Colitha Bush, had only been in a halfway house for a few weeks when the director of her Houston facility called her and said, “I hope you’re sitting down,” Bush told me in an interview that the director told her that it had received a new sentence calculation from the BOP and she was now not due to be released until April 2024. Colitha said, “I couldn’t believe that they were going to send me back to prison after I took all those classes and did what the First Step Act required.” The following day, Colitha went into the halfway house and was informed that the BOP had corrected her date, and she could stay home. “I was relieved but the last 24 hours was pure hell thinking that I was going back,” Bush said. Bush was not the only person to receive a revised date, some of the prisoners whose sentences were commuted by President Joe Biden had their dates recalculated to state a date in the future. One of those whose sentenced was commuted but had her date recalculated said that she was concerned enough to make a few calls to make sure it was not true. Her date was corrected also.

 

New Hurricane Policy for SDFLA (SECOND UPDATE)

 The physical courthouses will close when public schools are closed, so that remains the same.  But Chief Judge Altonaga has tweaked the policy so that court employees are now expected to tele-work even if the courthouse is closed, unless they are without power or wifi.  

Here's the order.

On the other hand, the Chief did declare December 23 as a court holiday. 

**UPDATED -- one helpful tipster points out that many court staff wanted the change to the hurricane policy so that they would get paid when there was a storm since they were working from home even if they weren't coming into the courthouse. 

***SECOND UPDATE -- Well, this is interesting.  I have received a number of responses to the above update and have been told that court employees ARE paid even when the storm closes the courthouse (since they are employees and get a salary).  So, the responses say, this "excuse" is not accurate and not what the employees requested.

Judge Ho and friends cancel Yale for law clerks

Judge James Ho (CA5) and another 11 judges -- including Judge Branch from the 11th Circuit -- have said they won't hire law clerks from Yale because they feel Yale has a cancel culture.  

Yale news covers the story here:

“I don’t want to cancel Yale,” Ho told Reuters. “I want Yale to stop cancelling people like me.”

According to employment lists obtained by the News for the Yale Law classes of 2019, 2021 and 2022, no Yale Law graduates from any of these classes reported first clerkships with Ho or Branch. The most recent Yale Law graduate hired by Ho graduated in 2017. 

Aggrey Odera LAW ’23 pointed out that the boycott was ironic, since those who participate in and embrace alleged “cancel culture” would not likely want to work for a judge such as Ho. This boycott would only shut out the voices of conservative Yale Law students, Odera told the News.

“I find it funny — and counterintuitive if his ends actually are conservative — that a conservative judge would deny clerkship opportunities to conservative Yale Law students … as a means of punishing the school,” Odera wrote in an email to the News.

In his speech, Ho referenced previous events that have taken place within the Law School, one of which followed the backlash surrounding a controversial email — seen as racially insensitive to many — inviting students to an event co-hosted by the Federalist Society. 

Dean of Yale Law School Heather Gerken responded to that incident with an email defending free speech while emphasizing a desire to create an inclusive environment for students.

“The vigorous exchange of ideas is the lifeblood of this Law School,” Gerken wrote in an email to students following the incident. “Protecting free speech is a core value of any academic institution; so too is cultivating an environment of respect and inclusion. These two values are mutually reinforcing and sit at the heart of an intellectual community like ours.”

Branch — also a Trump appointee — is the first federal judge to publicly join Ho’s boycott, raising concern “about the lack of free speech on law school campuses, Yale in particular.”

In other cancel culture news, I was informed by a number of sources that the AO had banned this blog so that the judiciary could not access it. After a few quick calls, this was all sorted out.  Our judges can again take a peak at breaking district news when they get bored on the bench.  All good!

Many cheat, but only prosecutors get away with it

That's the title of my latest piece in The Hill, which you can access here.  

Here's how it starts out:

Cheating to gain an advantage against your opponent is as old as competition itself. 

 

In the last few weeks alone, we have seen cheating scandals in chess, poker, and even fishing. 

 

Magnus Carlsen, the world’s top chess player, has accused Hans Neimann, a 19-year old rising star in the chess world, of cheating. Neimann admitted to previously cheating in online tournaments, after which Carlsen said: “I believe that Neimann has cheated more — and more recently — than he has publicly admitted.” Neimann offered to play Carlsen naked in an attempt to refute the allegations. The website Chess.com conducted an investigation of Neimann’s online play and has concluded that he cheated in more than 100 games, including in matches where prize money was at stake. He has been banned from playing on the website. 

 

Just last week, poker had its own cheating scandal — Robbi Jade Lew was accused of cheating when she called Garrett Adelstein and bet $269,000 even though her hand was a lame jack high. Lew returned the money but has denied cheating. She has challenged him to a heads-up game. The casino where the match took place is taking the allegations seriously — it has hired a law firm to conduct an investigation, which may include a polygraph test and a third-party cybersecurity firm. 

 

Poker and chess, fine. But fishing? Yes, even fishing. At the Lake Erie Walleye Trail tournament in Cleveland, Jacob Runyan is accused of inserting weights into fish so he could win a $30,000 prize. He was disqualified, and an investigation has been initiated over his past three tournaments, which he and his partner won.

 We’ve also seen cheating in ice-skating, baseball, and even paralympic basketball where the winning team faked IQ tests so that they would qualify to compete. Jaw dropping, right? 

 

But when those folks cheat, there is a real investigation and they are punished (and of course, their victims do not end up in jail). 

 

Not so when prosecutors cheat: No one really investigates; they are almost never punished, and their victims can spend years in prison. 

Please let me know your thoughts. 

Remembering Judge Dave Lee Brannon

By Michael Caruso

Yesterday, the Palm Beach-Federal Bar Association hosted a judicial reception that honored and presented the portrait of the late Magistrate Judge Dave Lee Brannon. As most of David's readers know, Judge Brannon had a remarkable career. As a very young man, he served in the United States Coast Guard after graduating from the Academy. During his years in the Coast Guard, his favorite assignment was aboard the USCGC Glacier, an icebreaker that took him to both the North and South Poles. While in the Coast Guard, he attended law school at the University of Miami. His last Coast Guard assignment was with the Seventh Coast Guard District Legal Office and Intelligence Branch in Miami, Florida. He then joined the Southern District of Florida Federal Public Defender's Office in 1986 and served as Supervisor of the West Palm Beach office before being appointed to the bench.

At the Federal Public Defender's office, Judge Brannon had a well-earned reputation for his intelligence, kindness, and graciousness—as a colleague and a judge. Those qualities, among others, were celebrated yesterday by his family, friends, and former colleagues.

First, Chief Judge Altonaga offered introductory remarks that focused on Judge Brannon's service to his country in his different capacities. Judge Middlebrooks then spoke and revealed to the audience his warm affection for Juge Brannon in addition to reading the moving tribute to the judge that the Eleventh Circuit adopted after his passing. 

Judge Brannon's career law clerk, Jessica Rodriguez, then delivered a heartfelt tribute that focused on his mentorship of her and his other clerks—both in law and life. During her remarks, to demonstrate Judge Brannon's generosity and kindness, she played an audio clip of the judge helping her young son learn Japanese. 

Finally, Judge Brannon's wife, Dr. Pamela Brannon, spoke. She shared with us several stories about how they met, a date at the Dade County Fair, an awkward dinner with friends, and a meeting with Justice O'Connor. These stories demonstrated their strong and loving bond as well as Judge Brannon's humanity. 

Dr. Brannon ended her remarks by sharing a quote she found in Judge Brannon's highlighted copy of The Count of Monte Cristo. Of course. After all, the novel revolves around a sailor who was falsely accused, arrested, and imprisoned without trial. 

The quote is worth reproducing here: "the friends that we have lost do not repose in the bosom of the earth, but are buried deep in our hearts, and it has been thus ordained that we may always be accompanied by them."

Truth. Rest in Peace Dave.

Same Courthouse, Different Purpose

By John R. Byrne

"Feel Good" Friday story about Angel Sanchez, who went from prison to graduating in the top ten percent of UM law school. Judge Williams and Judge Miguel de la O helped along the way, giving him internships in their chambers.

Sanchez was recently sworn in to the DC bar at the Richard E. Gerstein justice building, the courthouse where he had been sentenced to 30 years in prison (admission to Florida has to wait because of the clemency process). Worth a read.