Motion To Continue Sentencing Until Rain Stops

By Michael Caruso 

Judges generally believe they are objective and impartial and can ignore irrelevant information when they make decisions. Research, however, has shown that many legally irrelevant factors may influence legal decision-making.

The “anchoring effect” may be the most well-known example. The anchoring effect is a type of cognitive bias where numbers that act as a reference point influence a person. These numbers may or may not be utterly irrelevant. In 2006, Prof. Dan Ariely asked students at MIT to bid on items in an arbitrary auction using social security numbers as their anchor. Students were asked how much they would pay for two types of wine, a cordless mouse, a cordless keyboard, a design book, and chocolates. The professor instructed students to write down the last two digits of their Social Security number at the top of the page and then write them again as a price next to each item. So, if the last two digits were four and five, the student would write $45. When they finished that task, students were asked to indicate for each item “yes” if they would pay that price or “no” if they would not. As the last step, students wrote down the maximum amount they would be willing to pay for each item. Ariely found that students’ Social Security numbers influenced the amount they were willing to pay. Students with the highest last two digits of their Social Security number (80-99) bid the highest, and those with the lowest last two digits (1-20) bid the lowest. When students were debriefed on the experiment and asked if they thought their Social Security numbers influenced the prices they would pay, they stated no.

In the federal criminal legal system, the Sentencing Guidelines have, post-Booker, remained the essential starting point in all federal sentences. Because the Guidelines produce a numerical value, they create a cognitive “anchoring effect” bias that some say exerts a disproportionately strong impact on a judge’s decision-making that may undermine the fairness of sentencing decisions. Researchers have other ways that anchoring biases purportedly impact judicial decision-making. 

But more decidedly irrelevant factors and circumstances may influence a judge’s imposition of sentence. With the disclaimer that I’m not vouching for any of the conclusions made by the authors of these studies (and note contrary studies), here are a few examples where judges purportedly impose longer sentences or render more severe decisions:

—Bad weather (higher sentences when raining) Cf. https://hal.science/hal-03864854/document with https://eprints.whiterose.ac.uk/137050/8/sentencing%25

 

—Lack of sleep (higher sentences on the Mondays after the start of Daylights Savings Time) See https://hbr.org/2017/02/sleep-deprived-judges-dole-out-harsher-punishments

 

—Hunger (judges are more severe right before a meal break) 

Cf. https://www.pnas.org/doi/10.1073/ pnas.1018033108 

with https://www.scientificamerican.com/article/lunchtime-leniency/ and  https://www.annieduke.com/no-judges-dont-give-harsher-sentences-hungry-annies-newsletter-october-5-2018/

 

—Sports (move to continue when the judge’s football team loses) https://www.theatlantic.com/education/archive/2016/09/judges-issue-longer-sentences-when-their-college-football-team-loses/498980/

 

—Attractiveness (the more unattractive the defendant, the higher the sentence) See

https://www.thelawproject.com.au/insights/attractiveness-bias-in-the-legal-systemhttps://www.thelawproject.com.au/insights/attractiveness-bias-in-the-legal-system

Whatever the import of these and other studies may be, they certainly try to scientifically test Jerome Frank’s belief that a judge’s decisions are but a part of their total behavior and that the process of making decisions is, in reality, a composite of the psychological, environmental, and socioeconomic factors that go into the development of the personality of the individual judge. 

The bottom line is if you have a sentencing set for 11:30 the day after the Dolphins play Kansas City on Monday night and the forecast calls for rain, you may want to move to continue.

Ft. Lauderdale courthouse still closed...

 ... apparently it will be closed all week.

Here's what it looked like a few days ago:

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Trump Sues Cohen in SDFLA

By John R. Byrne 

Our district is now home to another lawsuit filed by former President Trump, this one against his former attorney, Michael Cohen. Trump is seeking $500 million in damages. 

You can read the Complaint here. As of the time of this post, no judge had been assigned yet.

***Update***

The case has been assigned to Judge Gayles

Ft. Lauderdale federal courthouse closed…

 …due to flooding and rain. 

Can’t wait for that new courthouse!

I’m told judges and staff are all working from home and hearings are proceeding via Zoom. 

Stay dry!

"What have you done for mankind today?"

By John R. Byrne

It's a question that Ben Ferencz used to ask his children around the dinner table every night. Ferencz, who was the last living Nuremberg prosecutor, died last Friday in his sleep. He was 103. He had moved permanently to South Florida in 2019.

The South Florida Sun Sentinel, along with countless other media outlets, are covering Ferencz's life. He was only 27 years old when he prosecuted 22 members of the Nazi killing squads. The beginning of his opening statement, which the paper excerpts, is powerful. 

“It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.”

Ferencz is considered one of the founding fathers of the International Criminal Court. Remarkably, in 2011, he delivered the closing statement for the prosecution at the Court's first trial. What a legacy.

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