Dissents from denials from cert at SCOTUS

 There were some interesting dissents today at SCOTUS from denials of cert.  Professor Berman summarized the opinions here:

In Anthony v. Louisiana, Justice Sotomayor dissents from the denial of certiorari, joined by Justice Jackson, and her 15-page dissent concludes this way:

Our criminal justice system holds prosecutors to a high standard. The prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty.” Berger, 295 U. S., at 88.  From that special role, “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Ibid....

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial.  Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court’s refusal to issue a summary reversal.

in In Khorrami v. Arizona, Justice Gorsuch dissents from the denial of certiorari (which was not joined by Justice Kavanaugh, though he did indicate he would grant the petition).  His 10-page dissent starts and concludes this way:

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury.  On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U.S. Constitution guarantee individuals like him a trial before 12 members of the community....

For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.  In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law.  That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.  Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been.  Respectfully, we should have done just that.

In Chinn v. Shoop, Justice Jackson dissents from the denial of certiorari, joined by Justice Sotomayor, and her 2-page dissent starts and concludes this way:

This is a capital case involving a violation of Brady v. Maryland, 373 U.S. 83 (1963). There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately....

Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter, 562 U.S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

Friday News & Notes

By John R. Byrne

Fun night at the Alfred I. DuPont building for the Federal Bar Association judicial reception and installation. Chief Judge Altonaga swore in Tal Lifshitz as FBA President. Nice speeches from him and outgoing FBA President Stephanie Casey.

For the football fans out there, the Washington Commanders may soon be up for sale. Maybe the reported Eastern District of Virginia USAO's criminal investigation of the team will drive down the price!

Controversy

Michael Caruso

As David's loyal readers know, this is a momentous year for the Supreme Court. The public's confidence in the Supreme Court is at a historic low, the Court's investigation of the Dobbs leak has not been resolved, and perhaps relatedly, there's been a significant push to force the Court to implement an ethics code. And the cases the Court will hear this year are noteworthy—affirmative action, voting rights, and the "independent state legislature doctrine," among others.

But because I'm not a very political person, I'm interested in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Warhol, of course, was a pioneer of American pop art. Lynn Goldsmith is a groundbreaking artist and photographer.

Both Warhol and Goldsmith have significant connections to music. Warhol worked with The Velvet Underground, Blondie, The Rolling Stones, and many more. Goldsmith was one of the first woman rock photographers. The Supreme Court's case is about their art colliding.

In 1981, Goldsmith took this photo of Prince.


In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create an image to accompany an article titled “Purple Fame.” The magazine paid Ms. Goldsmith $400 to license the portrait. In a series of 16 images, Warhol altered the photograph in various ways, notably by cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, masklike appearance. Vanity Fair ran this image.


Litigation followed, focused on whether Warhol had transformed Goldsmith’s photograph. The Supreme Court has said, in a case involving Miami's own Luther Luke Campbell, a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”

The district court judge found that the Warhol series is "transformative" because it conveys a different message from the original and thus is "fair use" under the Copyright Act. But a three-judge panel of the Second Circuit Court of Appeals disagreed, declaring that judges "should not assume the role of art critic and seek to ascertain ... the meaning of the works at issue."

At the Supreme Court, there was a lively debate filled with pop culture references and marked by unusual laughter as justices invoked the Lord of the Rings books and movies, the Syracuse basketball team, and Cheerios cereal to illustrate their points. When Justice Thomas mentioned in passing that he had been a fan of Prince in the 1980s, Justice Kagan quipped: “No longer?” “Only on Thursday nights,” Thomas responded. (Party like it's 1789?).

Although this case may not impact our democracy, the outcome could shift the law to favor more control by the original artist, but doing that could also inhibit artists and other content creators who build on existing work. Stay tuned.

And if you're interested in Prince's music, here's a clip of an incendiary performance at the Rock and Roll Hall of Fame (he casually strolls out at 3:27 to light up the hall).

And as an update to a previous post, Brittney Griner has been held in a Russian jail for 259 days and counting.

The Chewbacca Defense

 I can't believe a prosecutor mentioned the Chewbacca Defense in closing and got away with it.  From United States v. Moise, the court quotes the prosecutors closing:

And I don’t want to seem flip, but some of you may have seen it. I think it’s a South Park episode. And there’s a character on there who is -- plays kind of a shyster attorney. And there’s a scene where he’s giving his closing, and he puts up a picture of a Wookie from Star Wars. And he said: That’s a Wookie. What does that have to do with this case? Nothing. That doesn’t make any sense. This case doesn’t make any sense.

Defense counsel objected and, at sidebar, argued that the prosecutor had implied he was a “shyster lawyer,” which the pros-ecutor disputed. The district court instructed the jury to disregard “those last couple of statements about the South Park episode,” and defense counsel did not request further relief. The prosecutor then continued with his argument that defense counsel was trying to distract the jury with irrelevant matters. The court also reminded the jury three times throughout the proceedings that statements made by attorneys are not evidence. Ultimately, the jury reached a guilty verdict on seventeen counts, but was unable to reach a verdict on the remaining six.

*** Alas, harmless error:

The parties agree to that the prosecutor’s “shyster” remark could have been perceived as an attack on the credibility or integ-rity of Moise’s counsel. We also agree that the remark was im-proper on that basis. See Young, 570 U.S. at 9 (attorneys “must not be permitted to make unfounded and inflammatory attacks on the opposing advocate”); United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987) (“[t]o discredit defense counsel in front of the jury is improper”), overruled on other grounds as stated in United States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989). Nevertheless, we see nothing in the record to suggest that Moise was prejudiced by the “shyster” comment. It was a single, isolated remark in an eight-day trial, and we cannot say it perme-ated the entire trial. See Weinstein, 762 F.2d at 1542. It also came in rebuttal during otherwise proper argument that defense coun-sel’s contentions about the IRS’s initial calculations were not di-rectly relevant to Moise’s guilt or innocence. So despite the pejo-rative nature of the word “shyster,” the jury would have under-stood the prosecutor’s remark as a narrow response concerning the initial calculations, not as a general attack on defense counsel’s character.

Here's the scene from South Park, a classic:

Mentorship Opportunities in the SDFLA

By John R. Byrne

The latest issue of The Federal Lawyer carries an article by Judge Bloom spotlighting the Judicial Intern Academy and the Civil Discourse and Difficult Decisions program (“CD3”).  If you’re interested in mentoring high school or law students in our district, it’s a must read. I think nearly every federal judge in South Florida has participated in CD3 at this point. If you want to get involved in CD3 specifically, reach out to attorney Stephanie Turk, who, along with Judges Bloom and Rosenberg, helped export the program to other federal districts.

USAO goes after Miss Rhode Island for trying to get into Krome to see her boyfriend

North Bay Village Commissioner Convicted After Lying to See Lover in Detention Center https://t.co/MY9zuG2UBn

— NBC 6 South Florida (@nbc6) October 27, 2022

 Julianna Strout was also a North Bay Village Commissioner.  

From NBC6:

A North Bay Village commissioner who lied to get her way into a federal detention center so she could see her lover has been convicted, prosecutors said Thursday.

Julianna Clare Strout, 36, pled guilty to a federal information charging her with attempting to enter, and entering, a federal facility using fraud and false pretenses, according to the U.S. Attorney's Office for the Southern District of Florida.

Following the guilty plea, Strout was sentenced to one-year probation and 50 hours of community service.

Prosecutors said the incident involving Strout happened in October 2021 at Krome Detention Center.

At the time, the detention center had temporarily suspended social visits because of the COVID-19 pandemic, but legal visits were still permitted.

Three times Strout entered Krome by lying to Immigration and Customs Enforcement officials about her reason for visiting, prosecutors said.

Strout told officials that she worked as a paralegal for a law firm and that she needed to visit a detainee to have legal documents signed. Strout also presented officials with a letter on the law firm’s letterhead.

Seems so silly to be using our federal resources like this. 

SCOTUS deciding whether Lindsey Graham should have to testify before the grand jury

 CNN has a post about Justice Thomas' stay here.  

SCOTUS covers Graham's request for the stay.  And here is Georgia's response.

Of course, it's time to get rid of grand juries altogether.  They don't serve as protection for citizens in any respect and are simply a tool used by prosecutors to investigate and lock witnesses in.  A complete waste of resources if the goal is to act as a barrier between prosecutors and an indictment.

Klugh Takes his Talents to the Civil Side

 By John R. Byrne

The City of Miami has been sued for an "illegal" parking tax. It's a class action. One of the named plaintiffs? Criminal defense attorney Richard Klugh, who's now taking the good fight to the civil side of a court docket. The Miami Herald covers the case here (if you can make it through the pay wall....).