The Revenge Of The Machines

By Michael Caruso

Because David’s readers are technologically adept, you know that artificial intelligence (AI) is having a profound effect on the practice of law. Lawyers use AI to review contracts, find relevant documents in the discovery process, and conduct legal research. More recently, AI has begun to be used to predict legal outcomes and recommend judicial decisions about sentencing or bail.

But AI is not yet ready to replace the most important quality a lawyer may possess—judgment. The risk of inherent bias in data that fuels AI and the inability to adequately understand the rationale behind AI-derived decisions must be overcome before using the technology in some legal contexts.

A company named DoNotPay wants to put this proposition to the test. DoNotPay has a robot lawyer powered by OpenAI’s GPT-3 API, the force behind the viral ChatGPT chatbot.

CEO Joshua Browder has offered any lawyer $1 million to let the AI lawyer argue a case at the United States Supreme Court. All the “human lawyer” would need to do is wear AirPods and repeat what DoNotPay’s robot lawyer argues to the Court.

Browder said he had not heard from any lawyers interested in partnering up for Supreme Court cases but had received “very serious offers” from several lawyers involved in Federal and Appeals Court cases.

But we can do this! Here's my offer: the Federal Public Defender will host a CLE where we have a mock argument with one side "argued" by the AI lawyer and the other side argued by a human lawyer. So, if you are a human judge or lawyer who wants to participate, please get in touch with me.

RIP FRANK RUBIO

By Sabrina Puglisi

You hear attorneys talk about the “good old days” when trials were more the norm than taking pleas. Attorneys like H. Frank Rubio, who was happiest when he was in a courtroom in front of a jury, trying a case. This community lost, not just a great lawyer, but an even greater person with the recent passing of Frank Rubio. I had the honor of knowing Frank for over twenty five years when he gave me my first job in law school. He taught me that honesty and your reputation are more important than anything, to always fight the good fight and try as many cases as you can. More important than his work, Frank loved his family. He was so proud of every one of his five kids and having his boys Danny and Tommy join him to form Rubio, Rubio & Rubio was a dream come true. Frank, thank you for being a mentor to so many attorneys in this community. Keep fighting the good fight.

If you would like to show your respects to Frank, the family will be receiving visitors at Gregg L. Mason Funeral home this Wednesday, January 11th from 4-8pm. (10936 NE 6th Avenue, Miami Shores, FL 33161).  His funeral service will be held on Thursday, January 12th at St. Martha’s Catholic Church at 10am (9301 Biscayne Blvd., Miami Shores, FL 33138) with burial to follow. There will be a reception to follow afterwards at the Miami Shores Country Club. 

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.