What's going on in Broward?

I'm not sure what to make of this, so I'll leave it up to you all.  But a Broward state judge has gone law-viral for campaigning on a fake recording and a self-published book.  From Law.com:

A book about alleged salacious goings-on in the Orange and Osceola circuit courts by a former employee found its way into a Broward judge's 2024 election campaign.

Now the Florida Judicial Qualifications Commission has filed a Notice of Formal Charges against Broward County Judge Lauren Nicole Peffer, accusing her of quoting a book she admitted never having read and not exercising "due diligence to determine the reasonableness of the author's claims."

The book's author is a former Ninth Judicial Circuit employee whose writings she allegedly used to "help her campaign," according to the JQC.

Friday, the judge took responsibility.

"The JQC has found probable cause that during my campaign to seek my current judicial position, my reference to content created by a third party—to whom I have absolutely no ties—was a violation of the Judicial Canons which require a judge to act in a manner that instills public confidence. My sole intent was to provide an example of the scrutiny a judge faces and why the judiciary must hold itself to the highest moral standard. While unintentional, I take responsibility for my actions and apologize for the unfortunate effects the reference may have caused my fellow judiciary members," she wrote in an email. "I am dedicated to serving the people of Broward County, and will continue to uphold the highest level of judicial integrity."

The JQC’s Investigative Panel, following a March 28 meeting, found probable cause for formal proceedings pertaining to Peffer’s use of the self-published e-book, The Ninth Circus Court of Florida, My 30-Year Job from Hell!, by "terminated" technology officer and self-proclaimed whistleblower, Brett Arquette of Orlando.

State court has all the fun... 

Cool Q-A Coming Up

By John R. Byrne

This should be fun. A conversation on May 22 between Judge Ruiz and attorney Roman Martinez, a partner at Latham & Watkins who has argued 15 cases in the Supreme Court (Martinez is also the nephew of former US Attorney, Bob Martinez). Martinez was in the news recently when, during a SCOTUS oral argument, Lisa Blatt accused him and the Solicitor General of lying (Blatt eventually withdrew the accusation).

Register here. Only 29 spots left!

Diddy openings

 Lots of news coverage of the opening statements in Diddy's case. I love this stuff.

The prosecution was as expected -- very straightforward (via Vulture):

“To the public, he was Puff Daddy or Diddy — a cultural icon, a businessman, larger than life — but there was another side to him, a side that ran a criminal enterprise,” [Emily] Johnson said, adding that over the course of two decades, Diddy engaged in offenses such as sex crimes and kidnapping. For years, Diddy “forced” Cassie to have sex with male escorts while he watched and recorded the encounters. “The defendant told Cassie that if she defied him again, he’d publicly release the videos of her having sex with male escorts, which he kept as blackmail,” Johnson said.

“This case is not about a celebrity’s private sexual preferences,” she said. “The defendant made women have sex when they did not want to.” She said Diddy threatened them, drugged them, and beat them into compliance. Once, Diddy became so mad at Cassie that he “stomped repeatedly on her face” in an SUV. Another time, Cassie felt like she was choking when Diddy “made an escort urinate in her mouth.” Johnson also said that another accuser, referred to as “Jane” in court, fell into Diddy’s dark web in 2020. After a few months together, Diddy introduced her to freak-offs. Jane participated because she cared about Diddy and thought it would lead to more time together, not because she liked them. Jane wanted the escorts to wear condoms but “many times, the defendant didn’t let them,” Johnson said. Another accuser, “Mia,” worked for Diddy. Johnson said that Diddy forced himself on Mia multiple times.

The defense opening was by Mark Geragos' daughter, Teny Geragos. And from the transcripts, it looks like she did a really nice job:

Yes, Teny Geragos tried to portray Diddy as a guy who was, indeed, a bad boy — but not one who committed sex trafficking: “Sean Combs is a complicated man, but this is not a complicated case — this case is about love, jealousy, infidelity, and money.” People were fascinated by Diddy, Geragos told jurors. “People really loved him,” she said. Geragos gestured at Diddy and he stood, facing the jury, hands in pockets. “His name is Sean Combs.” Geragos said that Diddy admits to committing domestic violence but that this was not the same as sex trafficking. “When he drank or did the wrong drugs, he would get violent,” Geragos said. “He is not proud of that, and that’s something we’re going to own.” While there are things about Diddy’s sex life “that may make you uncomfortable and may not be what you like to do in your bedroom,” she said, these were private consensual acts in keeping with the “swinger’s lifestyle.”

The WaPo has a blow by blow of the trial here.

RIP David Souter

We need more of him.

From his former law clerk, Noah Feldman:

David Souter, the former US Supreme Court justice who died at 85 on Thursday, was sometimes mistakenly thought to have turned into a liberal after being nominated by President George H.W. Bush on the expectation that he would be an ideological conservative.

History will show the opposite: Souter was among the most consistent, principled justices ever to have sat on the Supreme Court in its 235-year history. His jurisprudence was steeped in the value of precedent and the gradual, cautious evolution of the law in the direction of liberty and equality. A New Englander to the core, he said what he meant and meant what he said. At a moment of unprecedented threat to the rule of law, Souter’s career stands as a model of judicial strength and resilience tempered by modesty and restraint. If the court follows his example, the Republic will survive even the serious dangers it is facing now.

At his confirmation hearings, relics of another time, Souter spoke openly of his admiration for Justice John Marshall Harlan II, known for his explanation that constitutional liberty is derived from a “tradition” that “is a living thing” and cannot be “limited by the specific guarantees” of the text. The key to Souter’s judicial philosophy was the idea, derived from the common law method of precedent and also linked with the conservatism of Edmund Burke, that the rule of law works best to protect us when it proceeds by slow steps attuned to social change, not by leaps forward or backward that produce backlash and end up rejected.

The most famous expression of Souter’s precedent-based view came, with characteristic modesty, in a joint opinion that he cowrote with Justices Sandra Day O’Connor and Anthony Kennedy in the 1992 case of Planned Parenthood v. Casey. The Casey decision upheld the abortion right laid down in Roe v. Wade on grounds of stare decisis, respect for precedent, even as it distanced itself from Roe’s logic.

The justices explained that overturning Roe “would seriously weaken the court’s capacity … to function as the Supreme Court of a Nation dedicated to the rule of law.” In a sentence that exemplifies Souter’s complex-yet-subtle style, the justices wrote that the court’s power lies “in its legitimacy, a product of substance and perception that shows itself in the People’s acceptance of the judiciary as fit to determine what the Nation’s law means and to declare what it demands.”

Jewish American History Month at the court

It was a packed house yesterday at the Federal Courthouse as Beth Bloom led the way for a wonderful event -- it started with a video put together by Bobby Gilbert (featuring Judges Stanley Marcus and Joan Lenard) and then moved into an interesting discussing between Judge Roy Altman and Dan Senor. Good stuff.

Chief Justice Roberts implores judges to check the other branches

 From the NY Times:

Chief Justice John G. Roberts Jr. defended the independence of the judiciary and denounced any attempt to impeach judges over disagreements with their rulings during rare public remarks on Wednesday evening.

“Impeachment is not how you register disagreement with a decision,” the chief justice told a crowd of about 600 people, mainly lawyers and judges, gathered in Buffalo, his hometown.

The remarks were his first since issuing a similar, though also unusual, written statement in March in response to threats by President Trump and his allies to impeach federal judges who have issued decisions against administration policies.

The chief justice did not mention the president directly in his comments on Wednesday, and he did not elaborate further in his answer about threats of impeachment, which he gave in response to a direct question during an event to commemorate the 125th anniversary of the U.S. District Court for the Western District of New York.

But the commentary was nevertheless notable given that justices typically avoid weighing in on political matters. His comments came less than a week after another justice, Ketanji Brown Jackson, denounced attacks on the judiciary during remarks at a conference for judges held in Puerto Rico.

Justice Jackson criticized what she called “relentless attacks” on judges, as well as an environment of harassment that “ultimately risks undermining our Constitution and the rule of law.”

“ Across the nation, judges are facing increased threats of not only physical violence, but also professional retaliation just for doing our jobs,” Justice Jackson said.

Chief Justice Roberts spoke during an hourlong conversation with U.S. District Court Judge Lawrence J. Vilardo, a longtime friend, who at one point asked the chief justice to expound on his views on judicial independence.

“It’s central,” Chief Justice Roberts responded. He added that the job of the judiciary was “to obviously decide cases but in the course of that to check the excesses of Congress or the executive, and that does require a degree of independence.”

The note to judges -- don't bend the knee: 

The Zone of Death

By John R. Byrne 

Not SDFLA related, but fascinating nonetheless. Is there a Zone of Death in this country where you can commit a crime without consequence? Arguably, yes. The other day, attorney Derek Leon told me about a crazy federal criminal case arising out of the District of Wyoming. 

Back in 2005, a man named Michael Belderrain shot and killed an elk within the Montana section of Yellowstone National Park (the park spans three states--Montana, Wyoming, and Idaho). Because Congress, for administrative convenience, placed the entire park within the federal district of Wyoming, federal prosecutors charged him in the District of Wyoming with unlawfully transporting illegally possessed wildlife, among other charges.

Belderrain objected to the prosecution, arguing he wasn't subject to prosecution because of the interplay between two provisions of the U.S. Constitution. Specifically, Article III, Section 2 states that "[t]he Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” But the Sixth Amendment's vicinage requirement demands that the jury be "of the State and district wherein the crime shall have been committed." In Belderrain's case, that was impossible.  No jurors lived within that sliver of land that fell within the state of Montana and the district of Wyoming. (Note: no prosecution under state law was possible because Yellowstone is a federal enclave and states can't enforce state law within the park).

Ultimately, the district court rejected Belderrain's argument, though it acknowledged the problem, writing: "The District of Wyoming is the only district court that includes land in multiple states. Congress created this anomaly when it placed Yellowstone National Park in the District of Wyoming. The Court recognizes the conundrum that presents itself because the literal interpretation of Article III and the Sixth Amendment make it impossible to satisfy both provisions when a crime is committed in the portions of Yellowstone National Park that fall outside of the state of Wyoming." United States v. Belderrain, No. 07-CR-66-D, 2007 WL 9718010, at *2 (D. Wyo. Aug. 8, 2007), aff'd, 309 F. App'x 259 (10th Cir. 2009).

Belderrain ended up taking a plea deal where he promised not to appeal the issue to the 10th Circuit. The Atlantic covered the story in a podcast you can find here. 

Before Belderrain committed his crime, a Michigan State Law professor had sounded the alarm about the Zone of Death in a law review article, which I've posted below. Still, he hasn't succeeded in getting Congress to close the loophole.

Be careful in Yellowstone National Park!

The Perfect Crime by John Byrne on Scribd

BREAKING -- We have a new magistrate judge

Congrats to Detra Shaw-Wilder. The judges voted today and she emerged victorious.  

From her bio:

Detra Shaw-Wilder is a litigation partner at Kozyak Tropin & Throckmorton. She concentrates her practice in complex commercial litigation, business law matters, corporate shareholder disputes and high-level contract and commercial financing disputes. Detra regularly litigates in state and federal court. Having been involved in significant litigation, she has a broad range of trial experience in commercial cases.

Detra frequently participates in panel discussions on complex litigation matters and trial skills programs. She is currently Chairperson of the Business Litigation Committee of the Florida Bar Business Law Section and Vice President of the University of Miami Law Alumni Association. Detra is a past Board Member and Region XI Director for the National Bar Association. She is also a member of the Federal Grievance Committee for the US District Court for the Southern District of Florida and previously served on the Florida Bar Grievance Committee for the Eleventh Judicial Circuit of Florida.

Detra is passionate about community involvement and is involved in several charitable organizations and is a co-founder of the Kozyak Minority Mentoring Foundation. Outside of the practice of law, Detra is a dedicated sports mom and enjoys spending time on the soccer pitch or track field watching her two teenage kids participate in sports.