For the Defense, Season Finale

 

pictured: Margot Moss (left), Andrew Gillum and his family (center), and David Markus (right)
 

FOR THE DEFENSE, SEASON 5 FINALE:
MARGOT MOSS (AND I) FOR MAYOR ANDREW GILLUM

Season 5 has been a blast. Thank you all so much for listening and for your supportive emails.  I really appreciate it.

The season finale is a special episode for me as I got to sit down with my partner Margot Moss and discuss a recent trial we finished a few months ago involving Mayor Andrew Gillum.  (Our team also included Katie Miller and Todd Yoder). You'll enjoy hearing Margot's passion for criminal defense and how she won this case in her opening statement. 

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

This season's Florida CLE code is listed at the end of this episode. If you're a Florida lawyer, you'll get 9.5 general credits, 2.5 ethics credits, and 1.5 technology credits.  Not bad for a free podcast.  All that I ask in return is that you spread the word, leave reviews, and subscribe.  It will take you 30 seconds. THANK YOU.

The podcast continues to make news. Most recently, the interview of John Lauro was discussed in the New York Times, and was previously cited in in the Wall Street Journal, Politico, Salon, CBS, and other outlets. If you missed it, you can check it out on audio and YouTube.

I also want to thank our other awesome guests this season:  Milton Hirsch, Todd Blanche, Gerry Lefcourt, Lisa Wayne, Matt Menchel, Barry Scheck, and Craig Albee.  Their trials and stories were inspiring. 

There are also a few Markus/Moss updates from the last few months while we're here:

• Since it's all Trump all the time, I've been making the rounds on various news shows to discuss recent developments, including Kaitlin Collins (here), Erin Burnett (here and here), Jim Acosta (here), Greta Van Susteren (here, here, and here) and Glenna Milberg (here). It's been a lot of fun.
• 
• Margot Moss was named the Criminal Justice Act Representative for the Southern District of Florida, which is a huge responsibility and honor. She also appeared on the wonderful Athena Rising podcast with Vanessa Johannes and Marissel Descalzo. 
• 

 

• We are currently fighting the government's efforts to freeze all of our client's assets pretrial.  Although its early, this ruling -- covered by the Miami Herald -- was favorable and is of interest.  The team includes Lauren Doyle.
• One of our biggest wins this year was a decision from the government (memorialized in a letter) not to prosecute our client, the CEO of a publicly traded company after we made a number of presentations along with wonderful co-counsel.
• The Firm and its lawyers continues to be recognized in Chambers and Best Lawyers.  Chambers named David a "Star Lawyer" and Best Lawyers awarded him "Lawyer of the Year."  Margot and Mona were recognized as well.

We love trials, criminal defense, and speaking to the lawyers. We hope you are enjoying this podcast as much as we are doing it. Please stay in touch with your suggestions and comments.  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

Bench and Bar (cont.)

By John R. Byrne

After a long hiatus, the Court held its semi-annual Bench and Bar Conference last Friday at the Miami Beach Convention Center. The event enjoyed record attendance, with over 1000 members of the bar attending. 

The decision to have fewer panels to ensure robust attendance at each panel was smart and the App allowed the moderators to ask questions from the audience in real time (and *mostly* avoided audience members hijacking the discussions with lectures masquerading as questions!)

I know there were complaints about the Gideon panel composition from the criminal defense bar. Still, Judge Williams and Judge Scola made powerful cases for the dire need for more federal funding for indigent representation. 

A really nice event put on by Chief Judge Altonaga and Judge Altman. Some pictures below. 

Panel on multi-district litigation with Judge Moreno, Judge Ruiz, Judge Rosenberg, Judge Singhal, and Podhurst partner Peter Prieto.

Afternoon plenary session on Gideon v. Wainwright with Judge Williams, Akhil Amar, Judge Scola, and David Howard.

Panel on criminal trials with Judge Marra, Judge Dimitrouleas, Chief Judge Altonaga, Judge Altman, Judge Cohn, and Judge Torres.

Supreme Court Roundup with Neal Katyal and Miguel Estrada.

Panel on civil jury trials with Judge Middlebrooks, Chief Judge Altonaga, Judge Bloom, Judge Altman, and Kozyak partner Ben Widlanski.

Bench & Bar conference

The big SDFLA conference is today.  It's a huge event and looks to be very successful.  If you are there, take some pictures and I will post them. (email them to me at dmarkus at markuslaw dot com)

One bit of controversy -- it's also the 60th anniversary of Gideon and there's a Gideon panel at the conference.  However, there is no public defender on the panel (the panel does include Judge Kathy Williams, the former FPD and David Howard, a criminal defense lawyer).  The local criminal defense listserv was fired up about it last night.  

In other news, prosecutors are pushing forward with charges against Hunter Biden, including possession of a firearm while being an addict.  The problem -- right wing judges have already struck down this statute as unconstitutional.

Georgia prosecutors are cray cray

 They are saying they plan on calling 150 witnesses and taking 4 months to try their case.  And they will likely have to do it more than once.  Those poor jurors.  

In Florida news, the Florida Supreme Court has abandoned the presumption of innocence and says that “The fact that a lawyer has been charged with a felony by an indictment or information in state or federal court may, for the purposes of this rule, constitute clear and convincing evidence that the lawyer’s continued practice of law would cause great public harm when such a felony charge alleges conduct reflecting adversely on the lawyer’s fitness to practice law.”  

Hmmm.  

Don't we tell juries that a charge is not proof of anything and should not be considered when deciding guilt or innocence?  Apparently our fine state Supreme Court disagrees. 

Another sketchy white collar prosecution thrown out

 This time its the soccer prosecutions in EDNY.  From the AP:

A federal judge threw out the convictions of a former Fox executive and a South American sports media and marketing company in the FIFA bribery investigation, citing a May decision by the U.S. Supreme Court in a case involving an aide to former New York Gov. Andrew Cuomo.

U.S. District Judge Pamela K. Chen, who presided over the trial in Brooklyn federal court, granted a motion for an acquittal in a 55-page decision filed Friday night.

Hernan Lopez, the former CEO of Fox International Channels, was convicted on March 9 along with the marketing company Full Play Group SA of one count each of wire fraud conspiracy and money laundering conspiracy related to the Copa Libertadores club tournament.

Full Play was convicted of two additional counts each of wire fraud conspiracy and money laundering conspiracy related to World Cup qualifiers and friendlies and to the Copa América, the continent’s national team championship.

***

“The Supreme Court’s latest wire fraud decisions — especially Percoco — and the absence of precedent applying honest services wire fraud to foreign commercial bribery, requires this court to find that (the statute) does not criminalize the conduct alleged in this case and that therefore the evidence at trial was insufficient to sustain defendants’ convictions under that statute,” Chen wrote.

She added: “Defendants’ convictions for money laundering, predicated on their honest services wire fraud convictions, also cannot be sustained. The court therefore grants defendants’ motions to acquit on all counts of conviction.”

 In other news, some inmates are playing D&D while others are listening to Taylor Swift.  We should be giving inmates iPads and phones so that they can make the most of their time in prison.

In news closer to home, Judge Rosenberg dismissed a case on standing grounds where the merits issue was whether the 14th Amendment barred Trump from running for President.

Judges are crushing defendants even those with no criminal history, so the Sentencing Commission steps in

 Defense lawyers have long been arguing that the way the guidelines treat folks with no criminal history is too harsh.  Judges have mostly ignored these arguments for the past 30 years.  

Well, now the Sentencing Commission has jumped in and said that folks with no criminal history (and no violence) should get an additional 2 levels off of their sentence.  AND it's going to be retroactive. 

  From Reuters:

The United States Sentencing Commission (USSC), in a 4-to-3 vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history—meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text). Amendment 821 creates a new Chapter Four guideline at §4C1.1 (Adjustment for Certain Zero-Point Offenders) providing a decrease of two levels from the offense level determined under Chapters Two and Three for defendants who did not receive any criminal history points under Chapter Four, Part A and whose instant offense did not involve specified aggravating factors. In short, for many white collar crimes and lower-level drug offenses, it could mean months or years off of a sentence.

***

The USSC estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

New podcast episode: Craig Albee for Mark Jensen

 

You've been asking for a good old fashioned murder trial, and we've got one for you this week: Craig Albee for Mark Jensen. This is the "letter from the grave case" where Jensen's wife penned a letter saying that if she turned up dead, the first suspect should be her husband. The fascinating defense was that she committed suicide to set up her husband. Craig is a truly gifted trial lawyer, who also happens to be the Federal Defender in Wisconsin.  So this episode is dedicated to all the wonderful state and federal public defenders out there. 

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

This is episode 8 of the season.  We have one more episode to finish up, which will be released on September 12.  Then I have a few bonus episodes in the works to sprinkle in throughout the rest of the year.  This season's Florida CLE code will be given in the email on September 12 and at the end of that episode.

The podcast continues to make news. The interview of John Lauro a few weeks ago went viral and was discussed on the news shows as well as in the Wall Street Journal, Politico, Salon, and other outlets. And as the Trump case moves forward, it continues to be cited and discussed, including by CBS over the weekend.  John was gracious enough to spend his time going in depth on a variety of topics, including use of the media, defense strategy, venue, recusal, and so on. If you missed it, you can check it out on audio and I also uploaded it to YouTube as an experiment.  Let me know what you think.

We do not make any money off of this podcast.  We do it because we love trials, love criminal defense, and love speaking to the lawyers.  But to keep it going, we need your help by spreading the word... 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

Who has it right? Kagan or Alito?

 The issue -- Can Congress regulate the Supreme Court.  Alito says no.  Kagan says yes.  Here's the intro from the NY Times, which covers the debate:

As a young lawyer in the Reagan White House, John G. Roberts Jr. was tartly dismissive of the Supreme Court’s long summer break, which stretches from the end of June to the first Monday in October.

“Only Supreme Court justices and schoolchildren,” he wrote in 1983, “are expected to and do take the entire summer off.”

On the other hand, the young lawyer wrote, there is an upside to the break: “We know that the Constitution is safe for the summer.”

These days, members of the court find time to quarrel about the Constitution even in the warm months. The primary antagonists lately have been Justices Samuel A. Alito Jr. and Elena Kagan.

From the body:

The question is timely, of course, as news reports have raised ethical questions about, among other things, luxury travel provided to Justices Alito and Clarence Thomas. Those reports have led to proposed legislation to impose new ethics rules on the court.

Justice Alito, in an interview published in The Wall Street Journal last month, appeared to object, saying that “Congress did not create the Supreme Court.”

He added: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

A few days later, at a judicial conference in Portland, Ore., Justice Kagan took the opposite view, though she cautioned that The Journal had not reproduced the question that had prompted Justice Alito’s answer. She indicated, graciously, that he could not have meant what he seemed to say.

“Of course Congress can regulate various aspects of what the Supreme Court does,” she said, ticking off a list of ways in which lawmakers can act. Congress sets the court’s budget. It can increase or shrink the size of the court, and it has over the years done both. It can make changes to the court’s jurisdiction.

Indeed, the Constitution provides that the court has appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.”

All of this is unsurprising, Justice Kagan said.

“It just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else,” she said, adding, “I mean, we are not imperial.”

Meantime, if you prefer debates about typography, this NLJ article is for you.  It goes through the various fonts, margins, and line spacing for the different Circuits.  The 7th earns praise.  Not so much for the 11th.