What's Justice Alito thinking?

 David Lat's excellent newsletter, Original Jurisdiction, pointed out these two exchanges in the website designed case, which are completely bizarre.

JUSTICE ALITO: Justice Jackson [offered an] example of the Santa in the mall who doesn't want his picture taken with black children. So, if there's a black Santa at the other end of the mall and he doesn't want to have his picture taken with a child who's dressed up in a Ku Klux Klan outfit, that black Santa has to do that?

[Colorado Solicitor General ERIC] OLSON: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

JUSTICE KAGAN: And, presumably, that would be the same Ku Klux Klan outfit regardless whether the child was black or white or any other characteristic.

JUSTICE ALITO: You do see a lot of black children in Ku Klux Klan outfits, right? All the time….

YIKES!

Here's another doozy:

    JUSTICE ALITO: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph     for his Jdate dating profile. It's a dating service, I gather, for Jewish people.

JUSTICE KAGAN: It is.

(Laughter.)

    JUSTICE ALITO: All right. Maybe Justice Kagan will also be familiar with the next website I'm going     to mention. So, next, a Jewish person asks a Jewish photographer to take a photograph for his                ashleymadison.com dating profile.

(Laughter.)

JUSTICE ALITO: I'm not suggesting that. I mean, she knows a lot of things….

Double yikes.

Stone Walls and Steel Bars

By Michael Caruso

Yesterday, David mentioned a new report which describes a “federal jailing crisis” that disproportionately impacts poor people of color. The report was authored and researched by Prof. Alison Siegler and a team of her clinic students at the University of Chicago Law School. The report, Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis, drew upon two years of court-watching and interviews. Prof. Siegler included our district in her study.

Here are a few of Prof. Siegler's key findings:

"Federal judges regularly disregard the law that protects against a person being jailed due to their inability to pay bail, directly impacting people of color and people from low-income backgrounds."

"Federal judges regularly disregard the legal requirement to ensure that anyone who cannot afford a lawyer is represented by court-appointed counsel during their initial appearance hearing."

"Federal judges often overlook legal requirements at initial bail hearings, leading to unlawful detention."

"Federal judges routinely misapply the “presumption of detention” statute that applies in drug cases, improperly treating it as a mandate for jailing and fueling racial disparities."

Prof. Siegler's findings demand that we address and correct these systemic issues in our criminal legal system. Addressing these issues becomes more pressing when coupled with research that suggests pretrial detention leads to worse outcomes for the people in jail—both in their court cases and in their lives—compared with similarly situated people who are able to secure pretrial release.  

The Vera Institute, for example, has noted research dating back to the 1950s and 1960s has established a connection between pretrial detention and the likelihood of being convicted and sentenced to incarceration. This research suggests that pretrial detention, even for a relatively small number of days, may have negative implications for court appearances, conviction, sentencing, and future involvement with the criminal legal system.

Hopefully, Prof. Siegler's work, and the work of others,  will kickstart a national and local conversation about these issues. I hope the Court, the U.S. Attorney's Office, the Pretrial Services Office, the FPD, the criminal defense bar, and the impacted community can collaborate and move forward. No one group is responsible or blameless for this crisis.

News & Notes

 1. Judge Milton Hirsch wrote this incredible order about the right to a 12-person jury in state court.  Worth a read.  From the conclusion:

Had this order been filed six weeks earlier, it would have ended here. I would have concluded that Florida v. Williams is no longer the law, and that Defendant is entitled to a jury of 12. In the interim, however, an appellate court of this state has concluded the contrary. Ramos v. Louisiana was decided two years ago. While the vaunted Miami criminal defense bar, public and private, temporized and dawdled, a lawyer in St. Lucie County, Florida, appears to have raised the issue at bar. In the ordinary course, the matter then wound its way to the Fourth District Court of Appeal which, less than six weeks ago, decided Guzman v. State, ___ So. 3d ___ (Fla. 4th DCA Oct. 26, 2022).In Guzman, the Fourth District found that the issue of a 12-person jury was likely not properly before it, Guzman, ___So. 3d at ___; but that if it was, the Supreme Court in Ramos “ha[d] not revisited its express holding in Williams,” Guzman at ___, and the Supreme Court “does not normally overturn . . . earlier authority sub silentio.” Id . (quoting Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 18 (2000)). Noting how terse is the Guzman majority’s discussion of this issue, Defendant asks me to pass over it as meredictum. It is terse. But it is notdictum.11By operation of Florida’s well-settled “ Pardo rule,” see Pardo v. State, 596 So. 2d 665,666 (Fla. 1992), I am, in the absence of a binding decision from the Third District, bound by a decision from the Fourth District. As a judge of a lower court, I must follow controlling appellate case law. But judges of lower courts “may state their reasons for advocating change” while they follow controlling appellate case law. Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.1973). I have done so. See supra at 7-11; see also Guzman, ___ So. 3d at ___ (Gross, J., concurring) (“The Ramos majority . . . contains references to the common law requirement of a12-person jury and suggests that the Sixth Amendment affords a right to the essential elements of a trial by jury as understood and applied at common law”).We will be ignoring, not effectuating, the intent of the Supreme Court, not to say the intent of our Constitution’s Framers, by trying this defendant before a jury of fewer than 12 good men and women and true. We will be ignoring a constitutional right. But like every lower-court judge I must obey the decisions of higher courts, “agreeing with some, disagreeing with some, following all, because our bondage to the law is the price of our freedom.” Johnson v. Johnson, 284 So. 2d 231, 231 (Fla. 2d DCA 1973).Guzman has considered Ramos and found Williams still to be the law. I sincerely hope and confidently believe that the Third District will find otherwise. Until it does, however, Defendant’s motion for a 12-person jury must be respectfully denied.

2. USA Today did a nice piece about how prosecutors federal judges are messing up bail and detaining too many folks.  Check it out here. 

Congratulations to newly confirmed U.S. Attorney, Mark Lapointe

Fantastic news.

Mark is a great guy and will be a wonderful U.S. Attorney.

Lots of speculation and chatter in the bar about how he will shake up the office and what measures he will take to change the culture over there.  

The Herald covers the confirmation here:

Markenzy Lapointe was confirmed by the United States Senate Tuesday night as the U.S. attorney for South Florida, making him the first Haitian-American lawyer to serve in the region’s most powerful federal law enforcement position. Lapointe, a former U.S. Marine and ex-federal prosecutor who was raised in Haiti and Miami, was nominated in September by President Joe Biden to fill the position, which is responsible for directing about 250 prosecutors in a district extending from Key West to Fort Pierce. It is considered one of the busiest districts in the country because of the region’s steady stream of financial fraud, drug trafficking and internet crimes.

"And" Means "And" (Or does it mean or?) -- UPDATE

 By John R. Byrne

"And" means "and," it turns out. That's the holding of the Eleventh Circuit after en banc review in United States v. Garcon, Case No. 19-14650. Judge Pryor wrote the majority opinion, framing the question presented as such:

• The question presented in this appeal of a grant of safety valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal    defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.” 18 U.S.C. § 3553(f )(1)             

The Court answered that question "yes," holding that a defendant has to check every box to lose eligibility. Because Garcon did not (he had a prior 3-point offense but did not have a prior 2-point violent offense or more than 4 criminal history points) he was eligible, as Judge Cohn had held at the district court level. 

The Court's reasoning for its ruling? "And" is "conjunctive." Seems straightforward, right? Not to dissenting Judges Jordan, Branch, Grant, and Brasher. All endorsed a disjunctive reading of "and." It's hard to do justice to the reasoning of both sides, so the opinion is worth a read, if anything to re-familiarize yourself with the various canons of statutory construction, which get a lot of attention (even the "absurdity canon")! Very interesting lineup of dissenters and this is Judge Pryor's second opinion for the en banc Court in favor of a criminal defendant (he penned the Corrine Brown opinion).

The practical takeaway? A lot more defendants will now be eligible for safety valve relief. Opinion below.

UPDATE by DOM: Thanks for the great post, John. I had to jump in and congratulate the Federal Defender's Office for this big win. It's not every day that you get an en banc ruling for a criminal defendant.  The case was handled by AFPDs Tracy Dreispul and Brenda Bryn.  Wonderful.

Opinion by John Byrne on Scribd

News & Notes

 1. Judge Graham declares a mistrial because of a late disclosure of discovery.  Law360 covers it:

On day 13 of the trial against Jason Todd Faley, Joseph Anthony Cavallo and Benjamin Clark Heath, Senior U.S. District Judge Donald L. Graham declared a mistrial, but refrained from dismissing the indictment with prejudice as the defense had requested.

The mistrial came after the government revealed a terabyte of data, including more than 400,000 emails, that was seized via a search warrant on GoDaddy.com in 2017 for the emails of cooperating defendant Mark Vollaro and others affiliated with Complete Healthcare Concierge, one of the companies through which the defendants allegedly ran a scheme to submit fraudulent prescriptions for compounded medications.

Prosecutors lost track of the documents after the seizure and did not discover the search warrant until just before trial, according to court documents. The data was shared with the court and the defense just after the jury was sworn in, court documents state.

2.  Michael Avanetti was sentenced to 14 consecutive years, making his sentence nearly 20 total years.  Too much? From CNN:

Dean Steward, an attorney for Avenatti, said in a statement to CNN that the sentence “was overly harsh and uncalled for,” adding that his client described it in court as being “off the charts.”

“When compared with similar high-profile cases, the unfairness is glaring,” Steward said.

Monday’s sentence represents the latest episode in an extraordinary years-long legal drama surrounding Avenatti, whose representation of Stormy Daniels, the adult film star who alleged she had an affair with former President Donald Trump years before he ran for office, made the pugnacious attorney a household name.

“Avenatti’s fraud was egregious, and the court plainly meant to send a strong message. But a 14-year sentence is extraordinarily long given all the circumstances,” said CNN senior legal analyst and former federal prosecutor Elie Honig. 

3.  Former Congressman David Rivera has been charged.  His case is assigned to Judge Gayles. From Politico:

Former Florida Rep. David Rivera, who had successfully outflanked a series of investigations during his lengthy political and consulting career, was arrested Monday by federal authorities in connection with an ongoing probe into his work with Venezuela’s authoritarian regime.

Rivera, who represented a Miami-area district from 2011 to 2013, was detained in Georgia on Wednesday in connection with a Miami grand jury indictment issued last month. His arrest was first reported by The Associated Press. According to the indictment unsealed on Monday night, Rivera and his former political consultant, Esther Nuhfer, are facing charges of conspiring against the U.S., failing to register as foreign agents and engaging in illegal financial transactions including money laundering.

“It was the purpose of the conspiracy for the defendants to unlawfully enrich themselves by engaging in political activities in the United States on behalf of the government of Venezuela, and by representing the interests of the government of Venezuela before officials of the of the United States government and in an effort to influence United States foreign policy,” states the 34-page indictment.

“This is the single most important case on American democracy — and for American democracy — in the nation’s history.”

 That's former judge Michael Luttig on Moore v. Harper, which will be heard by the Supreme Court this Wednesday.  The question presented is:

Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

The AP covers the case here: 

The Supreme Court is about to confront a new elections case, a Republican-led challenge asking the justices for a novel ruling that could significantly increase the power of state lawmakers over elections for Congress and the presidency.

The court is set to hear arguments Wednesday in a case from North Carolina, where Republican efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violated the state constitution.

A court-drawn map produced seven seats for each party in last month’s midterm elections in highly competitive North Carolina.

The question for the justices is whether the U.S. Constitution’s provision giving state legislatures the power to make the rules about the “times, places and manner” of congressional elections cuts state courts out of the process.

***

Luttig, who advised former Vice President Mike Pence that he had no authority to reject electoral votes following the 2020 election, is among several prominent conservatives and Republicans who have lined up against the broad assertion that legislatures can’t be challenged in state courts when they make decisions about federal elections, including congressional redistricting.

That group includes former California Gov. Arnold Schwarzenegger, law professor Steven Calabresi, a founder of the conservative Federalist Society and Benjamin Ginsberg, a longtime lawyer for Republican candidates and the party.

“Unfortunately, because of ongoing and widespread efforts to sow distrust and spread disinformation, confidence in our elections is at a low ebb,” Ginsberg wrote in a Supreme Court filing. “The version of the independent state legislature theory advanced by Petitioners in this case threatens to make a bad situation much worse, exacerbating the current moment of political polarization and further undermining confidence in our elections.” 

That's just one blockbuster being heard this week.  Up Monday is the web-designer case, a follow up to the cake designer case.  From SCOTUSblog:

The Supreme Court on Monday will revisit a long-simmering tension between legal protections for LGBTQ people and the rights of business owners who oppose same-sex marriage. The case, 303 Creative v. Elenis, is a challenge by a Colorado website designer to a state law that bars businesses that are open to the public from discriminating against gay people or announcing their intent to do so. The designer, Lorie Smith, argues that subjecting her to the law would violate her right to free speech. Colorado counters that exempting Smith from the law would open a Pandora’s box that would “upend antidiscrimination law – and other laws too.”

The justices have already grappled with this question once. In 2018, the court handed a narrow victory to Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. Justice Anthony Kennedy’s opinion rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

Enter Lorie Smith, the owner of 303 Creative LLC, a designer of websites and graphics based in Littleton, Colorado. Smith is a devout Christian who believes that marriage “is only between one man and one woman.” So although Smith wants to expand her business to include wedding websites, she does not want to design websites for same-sex weddings, and she wants to post a message on her own website to make that clear.

In 2016, Smith went to federal court in Colorado, seeking a ruling that Colorado could not enforce its public-accommodations law, known as the Colorado Anti-Discrimination Act, against her because it would violate her First Amendment rights to free speech and free exercise of religion. When the U.S. Court of Appeals for the 10th Circuit rejected her arguments, Smith came to the Supreme Court. The justices agreed in February to take up her case – but only on the free speech question, not on the free exercise issue.

 

 

CA11 says no to Cannon's Special Master in Mar-a-Lago case

 That was fast... and furious.  The 11th Circuit quickly vacated Judge Cannon's order appointing a Special Master in the Trump/Mar-a-Lago search case.  The per curiam opinion (CJ Pryor, Grant, Brasher) didn't hold back: 

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.