What should happen to prosecutors who commit misconduct?

The blog has addressed this question a bunch of times and it's time to ask it again in light of what happened before Judge Wolfson in state court.  Here's the AP coverage, and Rumpole covers it here.  

Although it is an epidemic in both systems, my sense is that prosecutorial misconduct happens less frequently in Florida state court than in federal court, mostly because Florida has depositions and more open discovery.  Do you agree?

Also, when it does happen, judges are more likely to call it out in state court and there are more immediate consequences.  In this case, the prosecutor resigned.  And Kathy Rundle issued a statement.  When does that happen in fed-land?

Much more needs to be done in both systems if there's going to be a real deterrent. 

Your Friday moment of Zen

 Judges are always proud of their law clerks.  But imagine the pride when you hear that your two former clerks are arguing against each other in the 11th Circuit.  Here's Ariel Lett and Zach Vosseler, who both clerked for Judge Gayles, after their argument before the appellate court.

Judge Melissa Damian has been sworn in (UPDATED)

That's her with her children and Chief Judge Altonaga.

That means all three new judges are in and working.  Congratulations again to all three!

Cases will now start getting transferred.

Let the fun begin.

Update with a picture of the swearing in of David Leibowitz, with his wife and son, by Judge Marcus.  Judges Altonaga, Moreno, and Jordan were also present  

You won't believe this total screw up in the Trump case yesterday from SCOTUS

UPDATE -- check out Robert Kuntz' comment in the comment section, theorizing that the metadata debacle wasn't incompetence but was intentional.  I doubt it because it would not surprise me for a second that SCOTUS just does not understand basic tech issues.  Your thoughts?

 It's really hard to believe, but the Supreme Court forgot to wipe the metadata from the Trump opinion that came out yesterday.  Internet sleuths found that the three liberal Justices' "concurrence" actually started out as a partial dissent by Justice Sotomayor.  Slate tells the story here:

The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.

What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?

In other news, the 11th Circuit bench-slapped DeSantis and Florida for passing a law called the Stop W.O.K.E. Act that prohibited woke mandatory workplace training.  It obviously violated the First Amendment.  Per Judge Grant, joined by Wilson and Brasher:

 This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale. The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.  

Eleventh Circuit Votes En Banc to Consider Forum Designations

By John R. Byrne

For you First Amendment scholars out there, the Eleventh Circuit just granted re hearing en banc in McDonough v. Garcia, 90 F.4th 1080, 1086 (11th Cir. 2024). The case involved a community gadfly-type who was barred from attending Homestead city council meetings. 

 

In the opinion, Judge Grant surveyed Supreme Court and Eleventh Circuit cases discussing the four types of forums--traditional public forums, designated public forums, limited public forums, and non-public forums. The panel, seemingly begrudgingly, ruled that city council meetings fell into the more speech friendly "designated public forum" category, reversing the district court's grant of summary judgment to Homestead. But it seems like the Eleventh Circuit may be interested in moving those meetings into the less speech friendly "limited public forum" bucket (meaning the city can restrict speech so long as those restrictions are viewpoint neutral and reasonable).

 

Attached is the panel opinion, which is a must read if you're a law student about to take the final in your First Amendment class.

McDonough by John Byrne on Scribd

Friday news

 First, a big congrats to our three new judges.  Jackie Becerra, David Leibowitz, and Melissa Damian were all confirmed this week.  And Judge Becerra was sworn in yesterday, which means she will take the Miami seat.  The next judge who is sworn in will spend a short amount of time in Ft. Lauderdale and then to Miami.  The third judge to be sworn in will be in Ft. Lauderdale for a while.  Current judges: get your transfer orders ready!

In case-related news, Manuel Rocha, the Cuban spy, announced yesterday that he would be pleading guilty.  That was FAST.  From the AP's Joshua Goodman:

A former career U.S. diplomat told a federal judge Thursday he will plead guilty to charges of working for decades as a secret agent for communist Cuba, an unexpectedly swift resolution to a case prosecutors called one of the most brazen betrayals in the history of the U.S. foreign service.

Manuel Rocha’s stunning fall from grace could culminate in a lengthy prison term after the 73-year-old said he would admit to federal counts of conspiring to act as an agent of a foreign government.

Prosecutors and Rocha’s attorney indicated the plea deal includes an agreed-upon sentence but they did not disclose details at a hearing Thursday. He is due back in court April 12, when he is scheduled to formalize his guilty plea and be sentenced.

The brief hearing shed no new light on the question that has proved elusive since Rocha’s arrest in December: What exactly did he do to help Cuba while working at the State Department for two decades? That included stints as ambassador to Bolivia and top posts in Argentina, Mexico, the White House and the U.S. Interests Section in Havana.

“Ambassador Rocha,” as he preferred to be called, was well known among Miami’s elite for his aristocratic, almost regal, bearing befitting his Ivy League background. His post-government career included time as a special adviser to the commander of the U.S. Southern Command and more recently as a tough-talking Donald Trump supporter and Cuba hardliner, a persona friends and prosecutors say Rocha adopted to hide his true allegiances.

New judge update (NUMEROUS UPDATES)

1. Jackie Becerra is up for a full vote at 11am. UPDATE -- Becerra has been confirmed 56-40. 

Thursday update -- Judge Becerra was sworn in today after President Biden signed her commission. 

2. David Leibowitz is expected to be up for a full vote at 2pm. UPDATE -- Leibowitz has been confirmed 64-33.

3. Melissa Damian is expected to get a cloture vote next week. UPDATE -- Actually, it will be this week.  Debate ends Wednesday, and full vote Thursday. SECOND UPDATE -- the Senate is moving quickly. Damian is scheduled for final floor vote at 5:30 today (Wednesday)

Third Update -- Damian has been confirmed 77-20. 

Congrats to all three new judges!!

“As Hyman Roth said, ‘This is the business we have chosen.’‘’

 That was Judge Bob Scola at the plea and sentencing of Philip Esformes.  The Herald covers it here:

A South Florida businessman pleaded guilty on Thursday to stealing millions of dollars from the taxpayer-funded Medicare program, capping a long-running healthcare fraud case marked by a commutation of his initial 20-year sentence by President Donald Trump in late 2020. 

Philip Esformes, who formerly lived in Miami Beach while running a chain of skilled-nursing and assisted-living facilities, showed no emotion as a federal judge spared him from going back to prison but imposed tens of millions of dollars in financial penalties reflecting his ill-gotten gains. 

Other than acknowledging his criminal activity as a healthcare operator who paid and received bribes in exchange for Medicare patients, Esformes said little during his change of plea hearing in Miami federal court and didn’t respond to a reporter’s question afterward. 

The plea agreement was reached earlier this month between the Justice Department and Esformes in one of the nation’s biggest Medicare fraud cases. Despite Trump’s commutation of his initial prison term, Esformes faced a potential retrial on the main healthcare fraud conspiracy count and five related charges from his first trial in 2019 because a Miami federal jury deadlocked on those offenses while finding him guilty on 20 others. The Justice Department vowed to retry Esformes as prosecutors negotiated a plea deal behind the scenes with his defense lawyers.

U.S. District Judge Robert Scola highlighted the “unusual” circumstances of Esformes’ healthcare fraud case, revealing for the first time what he thought about President Trump’s commutation of Esformes’ sentence after he had only served 4 1/2 years, including his time in detention after his arrest in July 2016. 

“I can’t say that I was not disappointed when his sentence was commuted by the president,” Scola said, while pointing out that under the Constitution a president has the prerogative to grant clemency petitions. 

Then, referring to a mob boss’ famous line in the Godfather II movie, the judge noted: “As Hyman Roth said, ‘This is the business we have chosen.’"