Sorry, Not Sorry, Sorry

By Michael Caruso

In the great Larry David movie “Clear History,” he plays a disgraced marketing executive who,  unsurprisingly, at various points in the story, creates drama for which he has to “apologize.” But, in Larry’s view, “Apologies don’t have to be sincere, it’s just the act of the apology itself. All that matters is if you’re acting sincere.”

As David’s readers know, a person’s “acceptance of responsibility” heavily influences the USSG guideline determination. The role of remorse at sentencing and a judge’s ability to accurately gauge a person’s remorse is an area of considerable debate. Professor Susan Blandes has written extensively on this subject. Her research demonstrates that there is currently no evidence that judges can accurately evaluate remorse in a courtroom. Conversely, she’s found evidence that race and other impermissible factors create hurdles to evaluating remorse. 

Moreover, her article notes there is little evidence that remorse is correlated with future law-abiding behavior or other legitimate penal purposes. There is evidence, however, that remorse is often conflated with shame, which correlates with increased future criminality. More research is needed. 

Recently, the phenomenal Havard history professor Jill Lepore wrote a review of a forthcoming book entitled Sorry, Sorry, Sorry: The Case for Good Apologies by Susan McCarthy and Marjorie Ingall. At SorryWatch.com and @SorryWatch, McCarthy and Ingall have been judging the adequacy of apologies and welcoming “suggestions for shaming” since 2012.

In her review, Lepore briefly traces the modern history of the apology. From 1665, she reproduces an apology for an unknown error: “I freely confesse, that I spake many words rashly, foolishly, & unadvisedly, of wch I am ashamed, & repent me of them, & desire all that tooke offence to forgive me.” She references Dave Chappelle, Alex Jones, and others for more recent events. And she offers an interesting contrast between a fictional character’s response to a prior forced apology: “I’m not some weak-kneed f****** crybaby that goes around f****** apologizing all the time,” he said, seething. “I’m done. I am done apologizing” with the actor’s real-life apology for an assault he committed: “You mess up. You own it. You learn from it.” 

Ultimately, Lepore comes to this conclusion about our current state of affairs: “some very angry people very loudly demanding apologies while other very angry people demand the denunciation of the people who are demanding apologies. The fracture widens and hardens—fanatic, schismatic, idiotic. But another way of thinking about what a culture of forced, performed remorse has wrought is not, or not only, that it has elevated wrath and loathing but that it has demeaned sorrow, grief, and consolation. No apology can cover that crime, nor mend that loss.”

Me? I’m sorry for stuff I haven’t even done yet.

Judges still handing out jail sentences in Varsity Blues case even though they may very well get reversed

Yesterday, a former Yale women's soccer coach got 5 months:

Prosecutors said Meredith from 2015 and 2018 accepted $860,000 from Singer in exchange for designating the children of wealthy parents as soccer recruits or attempting to facilitate their admission to New Haven, Connecticut-based Yale by other means.

Separately, Meredith also agreed to accept a $450,000 bribe directly from a California businessman without Singer's involvement to help his daughter gain admission.

But it's not clear that the government's theory of fraud will withstand scrutiny in the First Circuit:

A federal appeals court on Monday questioned whether two wealthy fathers convicted in the first "Varsity Blues" college admissions scandal trial were prejudiced by the introduction of evidence about misconduct by other parents they did not know.

During oral arguments, members of a three-judge panel of the 1st U.S. Circuit Court of Appeals probed what proof existed to establish former casino executive Gamal Aziz and private equity firm founder John Wilson agreed to participate in a sprawling, nationwide conspiracy.

"Maybe there's evidence of a nationwide conspiracy," U.S. Circuit Judge David Barron told a prosecutor. "You still have to prove evidence that these defendants agreed to be in it."

Fifty-three people have pleaded guilty. One parent was acquitted in June, while a coach who was convicted of accepting bribes recently won a new trial.

Prosecutors alleged that Aziz — a former Wynn Resorts Ltd executive also known as Gamal Abdelaziz — in 2018 paid $300,000 to secure his daughter's admission to the University of Southern California as a basketball recruit.

Prosecutors said Wilson paid $220,000 in 2014 to have his son falsely designated a USC water polo recruit and later in 2018 paid another $1 million to try to secure spots for his twin daughters at Stanford and Harvard universities.

Think about that -- 53 people pleaded guilty... that means defense lawyers, prosecutors, and judges went along with a questionable theory of crime simply because it was too risky to fight.  Our system is in trouble. 

Schools and courts closed Wednesday (UPDATED)

Nicole is coming. Mag court postponed till Thursday. Stay safe. 

UPDATED -- Federal courts back open in Miami on Thursday, but closed in Broward in Palm Beach.

Eleventh Circuit to Opine on Court's Use of 1789 law

By John R. Byrne

Ever seen a judge invoke the All Writs Act? Doesn't happen everyday. And now the Eleventh Circuit is going to weigh in on its use in the 3M MDL pending in the NDFLA. 

3M is fighting claims that it made defective earplugs that caused hearing loss. It’s been hit with some substantial jury verdicts in bellwether trials. Last summer, its subsidiary, Aearo Technologies, filed for bankruptcy, looking to stop other cases against 3M from going to trial. 3M has its own bankruptcy webpage and link to its pretty aggressive opening brief challenging the MDL proceedings here.

Judge Rodgers, presiding over the MDL, wasn’t having it. Citing the bankruptcy proceeding as an “undeniable” “threat to this court’s jurisdiction,” she enjoined 3M from attempting to freeze the MDL litigation and attacking her prior orders. And she did it using the ancient (and rarely invoked) All Writ’s Act, part of the Judicial Act of 1789. That Act allows federal courts to “issue all writs necessary or appropriate” to safeguard the integrity of ongoing proceedings and potential future proceedings before them, and to protect or effectuate their prior orders and judgments. There was good precedent allowing a District Judge to enjoin a litigant from challenging certain orders in bankruptcy court. This might be something civil and criminal litigants can use more often here in our district. 

But a few weeks back the Eleventh Circuit stayed Judge Rodgers’s order without comment. (SDFLA's own Judge Barbara Lagoa was on that Motion Panel.) It'll be interesting to see what the Eleventh Circuit does with this and if other judges in MDLs take advantage of the All Writs Act in connection with collateral proceedings. 

Judge Rodgers's order is below.

All Writs Act Order by John Byrne on Scribd

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: