The waiting is the hardest part

 By John R. Byrne

There are currently three openings on our district court bench and still no nominations from the White House. The open seats are from when Judges Moreno, Ungaro, and Cooke took senior status. With new US Attorney Markenzy Lapointe in place, you have to think that the focus now turns to filling those spots. 

Yesterday, CNN published an article about the Biden White House struggling to get judges confirmed in the South, the issue being framed as needing sign off from two Republican senators in most of the states. Senator Rick Scott's communications director, McKinley Lewis, said the senator welcomed “an open, good faith dialogue with the White House to ensure any nominees to serve on Florida’s federal courts will respect the limited role of the judiciary and will not legislate from the bench.”

The names mentioned for the seats so far include Federal Defender Michael Caruso, Kozyak Tropin partner Detra Shaw-Wilder and former federal prosecutor David Leibowitz.

Markenzy Lapointe officially starts (UPDATED)

 

He is being sworn in this morning.

Congrats to Mark.

Lots of line prosecutors and defense lawyers (and even judges) wondering what changes will be made.  

Good luck!

UPDATE -- Here's a lovely picture from the swearing in:

 

 

 

The Story of a "Jailhouse Lawyer"

By Michael Caruso

The term "Jailhouse lawyer" is used to describe an incarcerated person who helps those similarly situated with legal filings. And the term is often used with disdain—the stereotype of the incarcerated person filing frivolous lawsuits. But jailhouse lawyers have been at the heart of several key legal victories: the right to an attorney, the right to be protected from abuse by other prisoners and guards, and the right to free exercise of religion.

Kelly Harnett is a former jailhouse lawyer. And a good one. In this recent article, the author describes Harnett's journey from helping other women at the law library at Rikers and then, after she was sentenced for murder, clerking at Bedford Hills Correctional Facility's law library, to the vacation of her murder conviction and life after her release:

Harnett was 28 and facing murder charges for the killing of a stranger in a park in Queens. She was innocent, she would tell anyone who would listen; she had been a bystander, unable to stop her abusive boyfriend from choking the man.

Harnett paged through the law books. At first, nothing made any sense. But she decided that if she could simply memorize the statutes, she would understand them and could maybe even become good at law. "And everyone loves something they're good at," she told me.

She filed a motion to dismiss her indictment. She wrote and revised briefs, citations, and arguments. On one occasion, Harnett was working under a deadline when flying water bugs hatched in an adjacent storage room and flooded into her cell. A guard refused to move her: "Guess what I did? I sat right on the floor, on top of the bugs but on a tipped-open garbage bag that I double-bagged, and got to work." The motion was denied, but the story became, in her mind, one of triumph and resilience.

In the end, neither the prosecutor nor the jury bought Harnett's story. In 2015, she was sentenced to 17 years to life and transferred to Bedford Hills Correctional Facility in Westchester. There, she was tapped to be a clerk at the law library. She worked with an aging PC with no access to the internet, a kiosk connected to a single legal-research database, and a printer that had to be hand-fed and that jammed every three pages. Still, she began writing motions for herself and other incarcerated women."

Harnett never seemed to get anywhere with her own case, but some of the motions she filed for other women were successful. "People were getting good results," said Heidi Stumbo, who met Harnett in prison in 2015. Women were landing court dates and being released. "You got Kelly and things started rolling," said Stumbo. "She did it all; she knew it all." By Harnett's count, four women were released because of her work, and many others moved their cases forward.

Harnett became focused on how the criminal legal system targeted women and specifically survivors of abuse like herself. She discovered that nearly all her friends inside had been abused before they came to prison and that, for most, the abuse was in some way directly connected to their incarceration.

Harnett had all but exhausted her own options when, in 2019, a law passed in New York that would supply her with a powerful weapon. It gave judges more leeway to take abuse into account during sentencing in certain cases and even allowed for resentencing.

After the court received Harnett's filing under the new law, the judge ordered a hearing. Before the hearing, Harnett's lawyer and the Queens district attorney's office agreed that if Harnett would forgo her application, her murder conviction would be vacated, and she would plead guilty to manslaughter, a lesser charge, in exchange for time served. Harnett took the deal.

The article ends with describing Harnett's struggles to find her footing after being released. She's worked as an unpaid intern for a state judge, at NYU's Bernstein Institute, taught at Brooklyn Law, and co-authored a law review paper. But her conviction limits her opportunities, and she's struggling to make ends meet. Hopefully, this article convinces someone to give her a chance.

Snitching ain't easy

 Rick Singer, the mastermind of the Varsity Blues case, and the main cooperating witness, was sentenced today to 3.5 years in prison.  Although it was significantly lower than the guidelines urged by the government, it was the highest sentence of all 50+ defendants who were sentenced in the case. 

Here's a good thread on the sentencing from Shelley Murphy who covered it:

Prosecutor Stephen Frank tells judge that Singer deserves a higher sentence than others in Varsity Blues case because "without him this massive, historic national scheme would never have happened…he is the face of this fraud."

— Shelley Murphy (@shelleymurph) January 4, 2023

 

NPR had a good article setting forth all of the issues in advance of the sentencing.

A room with a view.

The view from the Federal Detention Center Miami: the pool at Downtown 5th “luxury apartment rentals” #BecauseMiami pic.twitter.com/bNjL5UqZNU

— Because Miami (@BecauseMiami) January 3, 2023

Cruise lines hit with over $400 million in damages

 

By John R. Byrne

A tough note to end 2022 on for cruise companies Carnival, MSC SA, Royal Caribbean, and Norwegian. Judge Bloom has ordered them to pay over $439 million in damages for engaging in “prohibited tourism." The case was brought under the 1996 Helms-Burton Act or Libertad Act. In short, the cruise companies took U.S. travelers to Cuba and, in so doing, used the Havana port facilities that Castro had confiscated.

Judge Bloom noted deterrence as one of the reasons for the significant damages award, writing “A lower award as Defendants suggest would not effectively serve a deterrent purpose, since a lesser award could conceivably be considered merely a cost of doing business.” The Herald covers it here.

Roy Black strikes back

Roy Black has written a wonderful letter in the DBR about advocacy and time limits. It's worth a read:

With great sadness I read of the death of advocacy in these pages on Dec. 23rd​ (I’ve Never Seen Anything Like It’: Miami-Dade Attorney Held in Criminal Contempt​).​ Derrick Morales was given 40 minutes for his final argument, including 20 seconds for rebuttal. Apparently he uttered a few words over the critical time limit and was held in criminal contempt for “obstructing the administration of justice…”

Contempt is usually a toxic stain on a lawyer’s reputation, but in this case, it is more the red badge of courage.

The incomparable ​Clarence ​Darrow argued to a judge for 12 hours over three days to save Leopold and Loeb from the hangman. But the modern, efficient, time-pressed judge no longer sees any value in extended lawyer advocacy. The art is slowly fading away, being replaced by technology.

John Paul Stryker wrote a book on trial advocacy which he subtitled, “a plea for the renaissance of the trial lawyer” in 1954. Instead of a new flowering of eloquence, we are suffering the black death of silence. No longer is advocacy welcomed in our trial courts. It is treated as an unnecessary waste of time, or now, a crime worthy of condemnation and punishment.

I have a lot of empathy. I was once granted an entire three minutes by the Eleventh Circuit. And in another case, an undistinguished federal judge in northern Indiana declared a recess in the middle of my final argument, ordering the marshals to quickly shelter the jury from my words. I’m not sure if my argument was too good or too bad. At least I avoided imprisonment.

Why is there a time limit placed on final argument? Too persuasive? Too dramatic? Or too pedestrian? We are trial lawyers; we go to war with words. We have the verbal confidence to stand on our feet, articulate the facts, and marshal our arguments. We are able to speak with passion in a way that inspires people. The final argument is our primary weapon.

I don’t know what Derrick Morales said in those last few minutes of overtime but I picture it as Salman Rushdie did: “Language is courage; the ability to conceive a thought, to speak it, and by doing so, to make it true.”

Never Give Up

By Michael Caruso

For all those like me who receive a Treasury check every two weeks, last Friday's passage of the 2023 spending bill came as a welcome relief. And, because this bill is a "must pass" measure, lawmakers were furiously negotiating to include various items in the last few weeks. For example, the Senate failed to include the EQUAL Act—which eliminates the federal sentencing disparity between drug offenses involving crack cocaine and powder cocaine—in the omnibus appropriations bill.

One of our local representatives, however, successfully led a bipartisan effort to correct a different wrong by awarding a Congressional Gold Medal to Benjamin Ferencz—the last living Nuremberg prosecutor.

Ferencz was born in the Carpathian Mountains of Transylvania in 1920. When he was ten months old, his family moved to New York—a small basement apartment in "Hell's Kitchen." After he graduated from Harvard Law School in 1943, he joined an anti-aircraft artillery battalion preparing for the invasion of France. As an enlisted man under General Patton, he fought in most major European campaigns. As Nazi atrocities were uncovered, he was transferred to a newly created War Crimes Branch of the Army to gather evidence of Nazi brutality and apprehend the criminals.

After his discharge from the Army, he returned to New York and prepared to practice law. Shortly after, he was recruited for the Nuremberg war crimes trials. Ferencz became Chief Prosecutor in The Einsatzgruppen Case, which the Associated Press called "the biggest murder trial in history." Twenty-two defendants were charged with murdering over a million people. He was only twenty-seven years old. It was his first case.

According to Ferencz, "Nuremberg taught me that creating a world of tolerance and compassion would be a long and arduous task. And I also learned that if we did not devote ourselves to developing effective world law, the same cruel mentality that made the Holocaust possible might one day destroy the entire human race."

In 1970, Ferencz decided to withdraw gradually from the private practice of law and dedicate himself to studying and writing about world peace. Earlier this year, right after his 102nd birthday, Ferencz said when he publicly presents his life story, he always tells his audience, "There are three important lessons I wish to transmit: One, never give up, Two, never give up, and three, never give up."

We all should be grateful Mr. Ferencz never did.