Monday, June 26, 2023

Finger Pointing Defense Fails in High-Profile 1983 Lawsuit

 By John R. Byrne

A few years back, you may have read about--or seen pictures of--the injury suffered by a woman named Latoya Ratlieff. During a protest of the killing of George Floyd, Ratlieff was hit in the face by a "Direct Impact Round" (a projectile that seems akin to a rubber bullet but with a tear gas payload). 

Ratlieff brought 1983 claims against the City of Fort Lauderdale and the Fort Lauderdale police force. Judge Ruiz issued an order (which got picked up by the Herald last week) that rejected the officers' qualified immunity defense. Very detailed order on crowd control policies, riot control weapons, and how the police deviated from its own policies as well as third-party guidance on weapons use (e.g., the manufacturer of Direct Impact Rounds advises users to aim the rounds at areas below the belt and, on the day in question, a captain apparently told officers to aim for "center mass").

On the legal front, the opinion addressed the officers' qualified immunity defense. The officer who shot Ratlieff argued that he was entitled to qualified immunity because he was simply "following orders" and that it wasn't "clearly established" that, under the facts here, doing so could violate a person's First Amendment rights. The Court rejected the argument, and, in so doing, quoted an Eleventh Circuit opinion: "[S]ince World War II, the ‘just following orders’ defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a ‘reason why any of them should question the validity of [an] order.’"

Good read.

Ratlieff Order by John Byrne on Scribd

Thursday, June 22, 2023

Guest post by Brandon Shinder -- Smith v. United States (2023)

No Venue, No Problem: SCOTUS Unanimously Decides For Federal Government

By: Brandon Shinder

            First, I would like to thank David Oscar Markus and John R. Byrne for the opportunity to submit this guest post. This post will cover the Supreme Court’s recent decision in Smith v. United States, which entails a legal issue that was the subject of the 2023 Gibbons Criminal Procedure Moot Court Competition, where my partner, Gaby Pinzon, and I represented the University of Miami School of Law in winning First Place at the competition.  I would also like to thank our incredible coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition. 

(L to R) Gaby Pinzon, Adam Stolz (coach), Brandon Shinder; not pictured: Luis Reyes (coach).

            On Thursday June 15, 2023, the Supreme Court decided Smith and reaffirmed that—even in 2023—there are some things on which the Justices unanimously agree. In Smith, it was that the proper remedy for a criminal trial in the incorrect venue is not acquittal, but a retrial in the proper venue:

When a conviction is reversed because of a trial error, this Court has long allowed retrial     in nearly all circumstances. We consider in this case whether the Constitution requires a different outcome when a conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location. We             hold that it does not.

            The Court’s holding in Smith is the first time the Court has addressed the proper remedy for a violation of venue. Historically, when constitutional rights are violated during the trial process, the Court has held that the proper remedy is a retrial:

Therefore, the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the award of a retrial, not a judgment barring reprosecution . . . [i]n all other circumstances, we have found that retrial is the strongest appropriate remedy, and we   have applied this rule to every other      Clause of the Sixth Amendment [.]

However, the Court was careful to say “in almost all circumstances” because the Court reaffirmed that violations of the Speedy Trial Clause are categorically different from other Sixth Amendment violations, and as such require the remedy of acquittal.

            The Court rejected all three of Petitioner’s arguments. First, Petitioner argued that the Venue and Vicinage Clauses were incorporated into the Constitution to limit hardships in trial; however, the additional hardship of a retrial was not a reason to require acquittal, as the Court noted:

But any criminal trial, whether or not in the right venue, imposes hardship, and any retrial after a reversal for trial error adds to that initial harm … [and that] the mere burden of a second trial has never justified an exemption from the retrial rule . . . we have repeatedly rejected objections based on the serious hardship in . . . prosecutions in places distant from the [defendant’s] home.

            Second, Petitioner argued that the historical backdrop underlying the Clauses supports the remedy of acquittal. Under English common law, however, venue violations were remedied by retrial.  Nevertheless, Petitioner argued that the incorporation of the Venue and Vicinage Clauses into the Constitution elevated the right to proper venue in American law more so than in common law. The Court again disagreed:  

[A]lthough the Clauses depart in some respects from the common law—most notably by providing new specifications about the place where a crime may be tried—there is no meaningful evidence that the Constitution altered the remedy prescribed by common law for violations of the vicinage right.

            Lastly, Petitioner argued that the Double Jeopardy Clause likewise supports the remedy of acquittal. Petitioner argued that, when juries acquit for improper venue, “a judicial ruling that venue was improper on a motion to acquit should have the same result.” The Court rejected this argument and distinguished judicial decisions from a jury’s general verdict:

[B]ecause it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations, the jury holds an unreviewable power . . . to return a verdict of not guilty even for impermissible reasons.

***

The reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of         acquittal” under Rule 29, plainly does not resolve the bottom-line question of             criminal culpability . . . [i]nstead, such a reversal is quintessentially a decision that “the Government’s case against [the defendant] must fail  even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.”

 

            The Court’s opinion, however, leaves unanswered public policy concerns as posed by the NACDL Amicus Brief, co-authored by our very own David Oscar Markus, which explains how the remedy of retrial “invites prosecutors to engage in even more creative endeavors because it fails to associate any consequence with incorrect choices.”

Wednesday, June 21, 2023

Addict in possession of a firearm?

 While everyone debates whether the charges against Hunter Biden are too aggressive or too lenient, I was wondering if anyone had ever seen a similar charge -- addict in possession of a firearm -- in our district before.  I have not.

Meantime, Justice Alito took to the WSJ opinion pages in an attempt to preempt this ProPublica story:

In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.

Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.

In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito did not report the 2008 fishing trip on his annual financial disclosures. By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.

Experts said they could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties.

“If you were good friends, what were you doing ruling on his case?” said Charles Geyh, an Indiana University law professor and leading expert on recusals. “And if you weren’t good friends, what were you doing accepting this?” referring to the flight on the private jet.

Tuesday, June 20, 2023

FOR THE DEFENSE, SEASON 5 PREMIERE: MILTON HIRSCH FOR PEDRO GUERRERO


We're back!  Season 5 of For the Defense launches today and I'm very excited. For those of you who are new followers, For the Defense is a podcast that I started with Rakontur about three years ago with the idea of conducting in depth interviews with the best criminal defense lawyers about their most fascinating trials.

This season starts with Milton Hirsch for World Series MVP Pedro Guerrero. When he was trying cases, there was no better trial lawyer than Milt Hirsch (that's him with the books below).  Now, he's a sitting trial judge in Miami.  You're going to love the stories Judge Hirsch tells about his defense, which included arguing that Guerrero was too dumb to have entered into the drug conspiracy. 

  Season 5 will continue with new episodes every other Tuesday, and there are some wonderful guests coming up, including Jerry Lefcourt, Lisa Wayne, Barry Scheck, Matt Menchel, Craig Albee, and others.  

 As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website

 

Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here

 Thank you! --David

 


Hosted by David Oscar Markus and produced by rakontur

 

CONTACT: info@rakontur.com, dmarkus@markuslaw.com 

Wednesday, June 14, 2023

Transcript from Trump's initial appearance

 Here.

There's also been some reporting on the number of trials Judge Cannon has had: 4 out of a little more than 200 cases (or about 2%).  Folks are criticizing the low number of trials.  That's fine, but it shouldn't be a criticism of Judge Cannon.  That's the percentage of cases that go to trial nationwide.  Judge Cannon is no different.  So feel free to criticize our system (which is fair!), but the low number of cases that have proceeded to trial before Judge Cannon is not a fault of hers.  

Trump's bond paperwork

 Here's the ROR bond paperwork.

 And the signature page:



Monday, June 12, 2023

Two orders issued in Trump's case

1. The first is by Magistrate Judge Goodman, who will be handling the initial appearance.  He denied a motion by a bunch of press organizations who wanted to take pictures insider or outside the courtroom.  Here's the order, written in Judge Goodman's style -- including this line: "I follow the 'stay in your lane' philosophy."  I understand why Judge Goodman denied the motion, but I wish the public had greater access to the courtroom.  In fact, I wrote this piece today saying we should have cameras in the courtroom.

2. The second is by Chief Judge Altonaga, who issued an order saying that journalists cannot bring their cell phones into the courthouse.  Wow, it's going to be a very long day for them inside waiting for the 3pm hearing.  I love the Chief, but I don't think this is right.  We rely on our cell phones. We need to be in touch with our families, our offices, and so on.  Journalists are people too!

All things Trump

 From the SDFLA clerk's office:

First Appearance in this case will be held at 3:00 p.m. on Tuesday, June 13, 2023, in Courtroom 13-3 of the Wilkie D. Ferguson Jr. United States Courthouse, 400 North Miami Avenue Miami FL 33128. Entry into the courtroom will be permitted on a first come, first served basis. Overflow viewing will be provided.


Southern District of Florida Local Rule 77.1 and Administrative Orders 2018-79 and 2019-87A limit the use of electronic devices in buildings housing federal courthouses. If authorized, news reporters are limited to use their electronic device inside the District’s courtrooms only in text function mode consistent with these Administrative Orders. News reporters are not authorized to record or transmit in any way audio, still photography, or video from anywhere inside courthouses nor from inside courtrooms, including any lobby areas, of any building housing a federal court, and agree to not transmit a live feed of any of the aforementioned at any time. Nor may reporters create a verbatim record of any proceeding. This applies to hearings held telephonically or using any video platform such as a live feed, Zoom or WebEx. A knowing or willful violation of the agreement will result in contempt of court.

District and Magistrate Judges retain the discretion to maintain order in their courtrooms should the entry and exit of news reporters become disruptive in a particular proceeding.


Court security will begin allowing members of the press and the public into the Wilkie D. Ferguson Courthouse at 8:30 a.m. Tuesday morning. All individuals planning to attend the initial appearance scheduled to take place in courtroom 13-3 at 3:00 p.m. will be directed to the central jury room on the 5th floor. Rows will be reserved for the public. There will be open seating for all media. The central jury room will serve as overflow space where the proceedings will be available for viewing.

The 13th floor will be sealed until the U.S. Marshals Service opens courtroom 13-3. Anyone attempting to access the 13th floor will be turned away. Seating for approximately 20 people will be reserved in the courtroom for media and members of the public. Once the U.S. Marshal advises that courtroom seating is available, press outlets will be selected to occupy those seats. Please be mindful that other Court proceedings may be taking place in the Ferguson Courthouse.