FOR THE DEFENSE -- BONUS EPISODE: TODD BLANCHE FOR PAUL MANAFORT

 

FOR THE DEFENSE -- BONUS EPISODE TODD BLANCHE FOR PAUL MANAFORT I'm very excited about this bonus episode we have with Todd Blanche, who is currently representing Donald Trump. (Listen on your computer here, or on Apple, Google, Spotify, or Amazon). Todd hasn't spoken with the media so I am very grateful that he took the time to speak with me about his representation of Paul Manafort and others on For the Defense.  There are some wild stories, including his visit to the infamous MCC to visit with Manafort.  You'll hear about the other incarcerated individuals who were in the attorney's rooms to his left and his right.  As you'll hear, Todd is a very nice and humble guy who is now representing the former President of the United States.  Next week on July 4, we will pick back up with Season 5, where we will have Jerry Lefcourt discussing the Chicago 8 trial and his client, Abbie Hoffman.  I hope you enjoyed the premiere last week with Milton Hirsch for World Series MVP Pedro Guerrero.  I know the sound was a little off for that episode and we are working on that.  Thanks for your patience.    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

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

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.”

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.

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 

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.