One Day It Will Please Us To Remember Even This

By Michael Caruso

Some believe that our unfortunate reality is that, sometimes, no amount of thoughtfulness, hard work, or understanding will transform an intractable problem into a resolvable one. Yet, today marks the 25th anniversary of a counter-example—the “signing” of the Good Friday Agreement that brought peace to Northern Ireland and ended decades of violence known as “The Troubles.”

The origins of the Troubles date back to centuries of warfare in which the predominantly Catholic people of Ireland attempted to break free of British (overwhelmingly Protestant) rule. In 1921, the Irish successfully fought for independence, and Ireland was partitioned into two countries: the Irish Free State, which was almost entirely Catholic, and the smaller Northern Ireland, which was primarily Protestant with a Catholic minority.

While Ireland was fully independent, Northern Ireland remained under British rule, and the Catholic communities in cities like Belfast and Derry complained of discrimination and unfair treatment by the Protestant-controlled government and police forces. In time, two opposing forces coalesced in Northern Ireland mainly along sectarian lines: the Catholic “nationalists” versus the Protestant “loyalists.”

During the 1970s, 1980s, and 1990s, Northern Ireland suffered dozens of car bombings and sectarian attacks perpetrated by paramilitary groups on both sides, like the Provisional IRA and the Ulster Volunteer Force. Hundreds of civilians were among the dead.

There is a connection to our district. The IRA had two primary sources for weapons—Libya and the United States. And there were at least two notable prosecutions here that involved alleged gun running for the IRA. In 1990, the FBI used a Stinger missile to lure four suspected IRA members in a sting operation. One of those arrested—Joseph McColgan— commented: ″I’m just a poor Irishman here on holiday, and I was entrapped by certain people here.″  They were later convicted at a trial presided over by Judge Gonzalez. 

The Troubles ended, at least officially, with the signing of the Good Friday Agreement in 1998, creating a framework for political power-sharing and ending decades of violence. 

A year later, however, "the Florida Four" were accused of smuggling guns to the IRA. At a trial before Judge Ferguson, one of the men testified that “militant Irish-Americans” pushed him to buy weapons because they feared the peace deal would leave defenseless Catholics to face armed Protestant paramilitaries and police. The three men who went to trial were convicted of gun smuggling but acquitted of providing material support and conspiracy to murder. 

 

Postscript: Most of you know that David has a wonderful podcast called “For the Defense,” where he talks with defense lawyers about their cases. In writing this post, I realized that our district’s history—although somewhat alive on the internet—might be lost to time. I wonder if a voluntary bar association would be interested in doing a podcast with the judges and lawyers involved in these and other notable cases and creating an oral history of our district. 

Paul Hastings' associates have to buy their own work from home setup?

Here's the slide everyone is talking about, which was apparently presented to associates at Paul Hastings.  As you can imagine, it's gotten quite a bit of criticism. 

Dershowitz Sees Reversal of Litigation Fortune

 By John R. Byrne:

Judge Singhal just granted summary judgment to CNN in a high-profile defamation case. The Plaintiff, Alan Dershowitz, alleged that a host of CNN anchors and commentators misconstrued statements he made to the US Senate during President Trump’s impeachment trial. 

The order candidly touches on the evolution of the news media and the state of First Amendment jurisprudence more broadly.

Some good legal trivia in the order too, including this about the Supreme Court's landmark defamation decision--New York Times Co. v. Sullivan:

“In Sullivan, an advertisement containing false information was published in the

New York Times. In total the circulation of the paper in the entire state of Alabama—

where the concerned parties’ alleged injury occurred—was 394 copies."

394! 

Bottom line: CNN’s reporters may have “spun” Dershowitz's comments but there wasn’t evidence that they spoke with actual malice, the governing standard.

Worth a read. Order excerpted below.

Dershowitz Order by John Byrne on Scribd

Nikki Fried and Lauren Book arrested for peaceful protests

 

Well, everyone is talking about Trump and whether that's a political prosecution. Take a look at this arrest last night of Nikki Fried and Lauren Book. What happened to the first amendment?

Police just handcuffed & arrested protesters including ⁦@NikkiFried⁩ & ⁦@LeaderBookFL⁩ pic.twitter.com/NCdqHJxmcx

— Gary Fineout (@fineout) April 4, 2023

Yikes.

Judges Branch and Ho ban Stanford Law Students from clerkships

Not just the protestors, but all students who attend Stanford.  They are cancelling the whole school because a small group of students tried to cancel a federal judge who was speaking at a Federalist Society event. They are already boycotting Yale. 

Hey, more opportunities for the UM law students!

Here's some coverage:

"We will not hire any student who chooses to attend Stanford Law School in the future," Ho, who sits on the Fifth Circuit Court of Appeals, said Saturday evening in a speech to the Texas Review of Law and Politics, a transcript of which was reviewed by the Washington Free Beacon. The clerkship moratorium, like the one on Yale, will exempt current law students.

Ho's announcement is the latest and most dramatic effort to hold Stanford accountable for its treatment of Fifth Circuit appellate judge Kyle Duncan, who was shouted down by hundreds of students—and berated by Stanford diversity dean Tirien Steinbach—when he spoke at the law school last month. The students called Duncan "scum," asked why he couldn't "find the clit," and screamed, "We hope your daughters get raped."

Though Steinbach is on leave, Stanford has ruled out disciplining the hecklers, who by Stanford's own admission violated the school's free speech policy.

"Rules aren't rules without consequences," Ho said. "And students who practice intolerance don't belong in the legal profession."

Mickey Strikes Back

 

By John R. Byrne:

Everyone’s talking about the Trump indictment but, since it’s Friday, we’re going with some lighter fare. Disney!

You may have read about Governor DeSantis's takeover of the Reedy Creek board, which governs the district where Walt Disney World operates. But, apparently, on the eve of the takeover, the old board significantly curbed the new board's powers by having the district enter into a Declaration of Restrictive Covenants in favor of Walt Disney Parks. 

As one of the new board members said, “This [document] essentially makes Disney the government. This board loses, for practical purposes, the majority of its ability to do anything beyond maintain the roads and maintain basic infrastructure.” 

The new board has hired multiple law firms to look into undoing the covenants. 

As a side note, remember the Rule Against Perpetuities? You know, that rule you learned for the bar exam and then promptly forgot about after the test? It makes an appearance in the Declaration! The restrictive covenants are in place "in perpetuity" unless that violates the Rule Against Perpetuities, in which case they will be in place "until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration." I think that works. 

If you're interested in reading the Declaration, the Orlando Sentinel includes it in their article.

Enjoy the weekend and go Canes!

Oath Keepers juror speaks

 Wowee.  You should read this entire Politico article about the deliberations, but there's this:

Ellen indicated that she and another juror who happened to be a lawyer helped spearhead a lot of the deliberations. Some jurors, she said, did not seem to have followed every twist and turn of the trial. Others, she said, seemed to have preconceived notions against convicting anyone regardless of the facts — which the jury had to overcome to arrive at its verdict. And when she completed her service, after a five-week trial and lengthy deliberations, Ellen came away with a conclusion: If she were ever on trial, she would waive her right to a jury and instead let the judge decide her fate.

“I would never want my fate in the hands of people who are mostly completely ill-equipped to understand what’s going on,” she said.

Ellen described the extraordinary volume of evidence jurors had to sift through as they considered the 34 counts against the six defendants — part of prosecutors’ video evidence trove that is unparalleled in American history. She said she grew exasperated at times with some jurors’ insistence that they had to rely only on direct evidence to reach a conviction, rather than circumstantial evidence that can point to someone’s guilt. But despite these frustrations, she ultimately compared the experience to “12 Angry Men” and a “made-for-TV movie” in which jurors understood the gravity of their charge and the significance of the case they had just witnessed.

Ellen indicated that of the four defendants who took the stand “three did harm to themselves by testifying.” One of them, she said, was Bennie Parker, whose testimony she said helped convince the jury that there was a plan to storm the Capitol even before the group arrived at the building. That testimony, she said, damaged other defendants, including Parker’s wife Sandra, who was convicted on several counts for which Parker — who didn’t enter the building — was acquitted.

***

Ellen saved her harshest remarks for some of the defense lawyers in the case, who she said at times acted in ways that perplexed and even upset the jury. For example, the lawyer for one defendant, Laura Steele, didn’t put on a case for his client but noticeably laughed repeatedly throughout the trial, Ellen said.

“I was horrified,” she said.

 

Justice Gorsuch dissents from cert denial

 It's the well-known Donziger prosecution, which involved a lawyer being held in contempt.  Justice Kavanaugh joined the dissent, which explains:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.

***

However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.  In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.