Will there be a Trump surprise?

Pundits are already predicting how the Trump jury will decide his case. On MSNBC, commentators are saying that it’s hard to imagine anything but a guilty verdict based on how they see the case. On Fox, viewers are told that it’s going to be tough for Trump to walk because New York is so heavily weighted Dem. So how will folks react if Donald Trump is found not guilty? It got me thinking about the biggest "surprise" verdicts in American history.

 

  

 

Who else you got?

Second Chances

By John R. Byrne

Nice article by Jay Weaver in the Herald yesterday about Darryl Richardson, a man who turned his life around after being sentenced to 30 years in prison by Judge Seitz back in 2006. Richardson, whose sentence was shortened to 17 years, was released in 2021 and took advantage of the district's CARE court program. CARE stands for “Court-Assisted Re-Entry court.” The program, created by Judge Seitz and currently being overseen by Judge Williams and Judge Reid, has been operating since 2016. It helps participants, who are on supervised release, re-enter the community, connecting them with resources that help them with financial literacy, employment, and medical resources. 

Richardson recently graduated from Miami Dade College’s Culinary Institute, crediting Care Court for pushing him to succeed. I know a lot of effort goes into the program from the Court, probation, and the US Attorney and Federal Public Defender’s offices. It’s cool to hear about those efforts paying off.

Opening statements in New York v. Donald Trump

If you were giving the opening statement for the prosecution, what would your first line be?

And if you were representing Donald Trump, what would it be?

I imagine that the prosecution will start with something like -- No one is above the law.  Even former Presidents.  Donald Trump illegally interfered with the election by doing X, Y, and Z. 

And the defense will start with something like -- Prosecutions should not be political and that's all this is; President Donald Trump is innocent.  He did not interfere with the election.  He was shaken down by a stripper and he paid her.  There's nothing illegal about that. 

How would you do it?

The Second Time Around

 

Guest Blogger Oliver A. Ruiz:

By now, you are no doubt aware that Taylor Swift's new album was released at midnight. Unless you don't have a smartphone, radio, or TV. 

Speaking of TV, some will recognize that to also mean "Taylor's Version," a reference to the albums that Ms. Swift has re-recorded in recent years. You may even know that she has two such albums left to re-record (or maybe just one more, if Reputation TV was also released last night, or very soon as rumored; h/t Kelly Malloy). 

But why do musical artists re-record albums? You may be wondering if this is permitted by copyright law? What does this mean for agreements with record labels? All good questions, and hopefully, this will be your chance to impress a Swiftie in your life. 

Basically, there are a few types of copyrights associated with musical works. Relevant here, these are the compositions (lyrics and melody) and the sound recordings (the original performance, or master recording). This circular talks about the difference. Commonly, the artist will own the copyright in the composition, but music labels negotiate to obtain the rights to the sound recordings. The rights to the sound recordings are typically very lucrative and come with the right to, among other things, license those recordings. The agreements between the artists and the record labels typically have a restriction on re-recording for a period of years, to avoid having the artists re-record the works.

In Taylor Swift's case, the restrictive time period lapsed a few years ago, opening the door for her to re-record her early albums. For some artists, there may be little to gain in doing so, but for a world-renowned artist with a major following like Ms. Swift, it has been a successful endeavor. 

Other artists have done the same, albeit for different reasons. See, for example, Def Leppard.

For more information on Ms. Swift's re-recordings and a discussion on copyright law and the dynamics of record deals, you may be interested in reading this law review article:

Justin Tilghman, Exposing the "Folklore" of Re-Recording Clauses (Taylor's Version), 29 J. Intell. Prop. L. 402, 406 (2022).

"Not guilty means not guilty."

That was Sentencing Commission Chair, Judge Carlton W. Reeves.  From FD.org:

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines (USSC press release available here).

“Not guilty means not guilty,” said Commission Chair Judge Carlton W. Reeves.

The U.S. Supreme Court last year sidestepped the question of whether the practice was unconstitutional, with several justices saying they would wait for the Sentencing Commission to first decide whether to address the issue.

The Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.

The Commission also passed a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age.

The amendments passed by the Commission today are available here. If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.

Rest in Peace, Senator Graham

By John R. Byrne

Senator Bob Graham passed away yesterday. He was a great leader for Florida and our country during his years as a state representative, state senator, Governor of Florida, and, most recently, as a United States Senator from 1986 to 2005. 

During his nearly 20 years in the Senate, the Harvard Law graduate helped select numerous district and circuit court federal judges, many of whom are still serving today.

Graham was well-respected on both sides of the political aisle, reflected by key positions he held, including as chairman of the Senate Intelligence Committee in the aftermath of the 2001 terrorist attacks. And he was a true Floridian, born and raised in Coral Gables and attending the University of Florida as an undergraduate.

The Herald covers his incredible life and career here. If you hit a paywall, here is the AP write up. 

Rest in peace, Senator Graham.

Should Trump be excused from his state trial…

 … so that he can attend his son's high school graduation and the U.S. Supreme Court argument in his case?

Despite your views of Trump, isn't this a no-brainer? Why is the judge giving him a hard time on these things? 

Meantime, Trump apparently fell asleep during trial. But we don't have cameras to see it. Just ridiculous. 

We've all seen judges and jurors nod off during trials. The Supreme Court has said that it's not ineffective for a lawyer to fall asleep during trial... what about a defendant?

In other news, it looks like the Supreme Court is going to reverse another conviction because of prosecutorial overreach.  I enjoyed this exchange with Lisa Blatt:

But Justice Sonia Sotomayor pointed out that the statute applies to rewards only "in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more," she said.

"I'm sorry, doesn't the nexus requirement get rid of most of this?" she asked.

"The doctor who removes your wart, fine. But the doctor who takes your gallbladder out or does your face, like my plastic surgeon, no, that's worth over $5,000," Blatt answered, drawing laughter in the courtroom.

News & Notes

1.SCOTUS will hear Fischer v. United States on Tuesday, which will impact the January 6 cases as well as others. The issue: Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence. 

 The WaPo has more here, as does SCOTUSBlog. Many are expecting, yet again, for the Supreme Court to say that prosecutors and lower courts have stretched statutes too far.

2. Speaking of SCOTUS, here's a nice AP piece about Lisa Blatt from Williams & Connolly, who has argued almost 50 cases before the High Court. A snippet:

She can be strikingly informal, in one case referring to the highest court in the land as “you guys.” She is often blunt, once telling Justice Elena Kagan that her question was factually and fundamentally wrong. She has resorted to the personal, in one case where she felt her Harvard-educated opponent was being condescending. “I didn’t go to a fancy law school, but I’m very confident in my representation of the case law,” the University of Texas graduate said.

“Texas is a fine law school,” Justice Ruth Bader Ginsburg said, just as the arguments were ending and before the court handed Blatt a unanimous win.

Blatt also can be hyperbolic, cautioning last year that a decision against her client, a Turkish bank, would be “borderline, you know, cataclysmic.” A ruling that recognized a large swath of Oklahoma as tribal land would have “earth-shattering” consequences, she said in 2018. The justices risked causing “madness, confusion, and chaos” if they ruled for a high school student who was suspended from the cheerleading squad over a vulgar social media post.

3. Linda Greenhouse has this op-ed about whether the Supreme Court needs to get along or not. From the conclusion:

The Supreme Court and other appellate courts are categorized in the judicial literature as collegial courts. “Collegial” in that usage is a term of art. It doesn’t mean that the judges necessarily get along. It means that these multimember courts act as collectives, when a majority coalesces. In a forthcoming memoir, “Vision,” Judge David Tatel, who recently retired from the U.S. Court of Appeals for the D.C. Circuit, offers as good a definition of judicial collegiality as I have seen. “Judicial collegiality,” he writes, “has nothing to do with singing holiday songs, having lunch or attending basketball games together. It has everything to do with respecting each other, listening to each other and sometimes even changing our minds.”

Years ago, Mark Alan Stamaty used a “Washingtoon,” his cartoon that ran regularly in The Washington Post, to depict the Supreme Court justices walking in single file, each carrying a bundle. “The Supreme Court Goes to the Laundromat” was the title. I thought it was so funny that I kept it for years tacked to the New York Times cubicle in the Supreme Court pressroom. It portrayed, to be sure, a collegial Supreme Court.

But it was a cartoon.

4. And finally, there's a little trial starting tomorrow in NYC. So many people are saying that Trump has no chance because it's in NY. I still have faith in our jury system. I discuss it with Katie Phang on her show here:

COURT IS IN SESSION: @domarkus explains the importance of jury selection in the NYC interference trial/ hush money case. Watch full video below! pic.twitter.com/EVSSVfoXU2

— The Katie Phang Show (@katiephangshow) April 13, 2024