Will the Harvey Weinstein case have to be tried a third time?

 It sure looks like it after a wild couple of days of deliberations and a split verdict. From Deadline:

 Under personal and judicial duress, the jurors just informed Judge Curtis Farber that they have reached a split verdict: guilty on Count 1 of a criminal sexual act in the first degree against Miriam Haley, not guilty of the same charge involving Kaja Sokola and no verdict on Jessica Mann. In this retrial, each count of first-degree criminal sexual act carries a maximum sentence of 25 years.

***

The jury revealed its partial ruling at the request of Judge Farber, who sent the panelists home early today to allow them time away from one another before they resume their deliberations tomorrow on the last remaining, undecided charge involving Mann. In the return to deliberations, it appears the judge is going to have a court officer take the worried foreman to the jury room.

This afternoon, the group including the judge, the foreman and lawyers including defense lawyer Arthur Aidala and Manhattan Assistant District Attorney Matthew Colangelo, left the courtroom for more than 20 minutes for the interview with the foreman. The foreman told the judge in his chambers that another juror said to him, “Oh, we will see you outside” because he was refusing to change his opinion — which he didn’t disclose — and that he was “concerned for my safety,” according to a transcript of the private hearing released this afternoon by court officials. 

After excusing the juror, Farber said to the lawyers that the dispute sounded to him like “schoolyard nonsense,” echoing comments from another juror who had complained on Friday of “playground” behavior, including some jurors “shunning” one another and talking behind another juror’s back.

When the judge and the lawyers finally returned to the courtroom — without the foreman, and with the rest of the jury still waiting outside the courtroom — Farber said, “In a nutshell, there does appear to be be some fighting in the jury room.” 

Farber said he was inclined to send the jury home early to “give them a chance to get some air, cool down,” but he also said he would ask them if they have reached a verdict on any of the counts. 

As these near-unprecedented circumstances unfold, Weinstein himself addressed the judge this morning and asked for a mistrial. “Your honor, this is a profile in courage moment for you,” Weinstein, seated in his wheelchair, began, sounding like he was in pitch mode. “This is my life that’s on the line, this is not fair,” said the defendent, who saw his 23-year sentence from a 2020 conviction dismissed by an appeals court last year. “I’m not getting a fair trial,” the ailing, 73-year-old added to Judge Farber.

As he has before, the judge rejected the request for a mistrial.

 

11th Circuit sides with Judge Williams and rebukes state AG

 The blog has covered this case -- the one where the state decided it didn't have to follow Judge Williams' order. The State appealed Judge Williams and lost.  

Law & Crime covers it here:

 The U.S. Court of Appeals for the 11th Circuit delivered a sharp rebuke on Friday to Florida Attorney General James Uthmeier over the state’s new immigration enforcement law — scolding him for making “a veiled threat” to defy a judge’s order blocking local immigrant arrests, while ruling to leave the order in place.

“Whether he is right or wrong about his control over other law-enforcement officials, the Attorney General has not made a ‘strong showing’ on this issue,” wrote Judges Embry Kidd, Kevin Newsom and Jill Pryor in a 16-page ruling. The appeals court denied a request for a stay made by Uthmeier and his office in a May 7 motion, which claimed the state’s new immigration enforcement law (SB 4-C) was being followed “to aid the United States in curbing illegal immigration within the state’s borders.”

***

The 11th Circuit called out Uthmeier for his resistance on Friday, saying “the equities seem to cut against the Attorney General — and in any event do not cut in his favor — given his seemingly defiant posture vis-à-vis the district court.” The judges also chided him for condemning what he calls a “universal” injunction, in reference to Williams’ order, noting how he “does not meaningfully contest the propriety of the class certification” in the stay motion.

The court said that even if the AG is correct in claiming that Florida’s law-enforcement officers are totally separate entities over which he has no meaningful control, it still doubts that Uthmeier has Article III standing to appeal the portion of the district court’s order enjoining other state law-enforcement officials, as he alleges.

 

Should defendants be required to remain stoic throughout their trial?

I've been doing some commentary on the Diddy trial.  One thing that struck me last week was the judge scolding Diddy for reacting to testimony and threatening to exclude him from the courtroom.  Shouldn't a defendant be permitted to react to the testimony and look at the jurors.  After all, prosecutors prep witnesses on how to behave on the stand.  And one of their witnesses last week was sobbing.  

 

The judge wrongfully scolded Diddy this week for nodding and looking at jurors while the prosecutor is able to put on witnesses who are sobbing. Another example of how trials are so slanted towards the prosecution. I discussed on @CNN with @jessicadean pic.twitter.com/dvHaJ2ssws

— David Oscar Markus (@domarkus) June 8, 2025

Meantime, Diddy's lawyers have moved for a mistrial because they say that they have proof one of the prosecution's witnesses lied. TMZ covers it here.

Guest Post By Itiel Wainer – Barnes v. Felix (2025)

Guest Post By Itiel Wainer – Barnes v. Felix (2025)

My sincere gratitude to David Oscar Markus and John R. Byrne for allowing me to submit this guest post. In it, I briefly examine the Supreme Court’s recent ruling in Barnes v. Felix, one of two SCOTUS cases that were the focus of the 2025 Gibbons National Criminal Procedure Moot Court Competition. My teammate, Sydney Stark, and I were honored to represent the University of Miami School of Law at that event. You can read Sydney’s discussion of the competition’s other issue here. I also want to extend a heartfelt thank you to our exceptional coaches, Adam Stolz, Esq. and Luis Reyes, Esq. whose support continues to be immeasurable.

Barnes v. Felix is SCOTUS’ latest opinion on excessive force cases and reinforces that there are no short cuts for considering the “totality of the circumstances” when evaluating whether one’s use of deadly force was reasonable under the Fourth Amendment. The case arises from a routine traffic stop that turned fatal. The police officer, Roberto Felix, pulled over Ashtian Barnes in a rental car for unpaid toll violations. When, moments later, Barnes tried to speed away, Felix drew his weapon, stepped onto the moving vehicle’s doorsill, and within seconds fired two shots, killing Barnes. The body camera footage of the incident is available here for those who wish to personally witness the encounter.

Barnes’ mother filed suit under § 1983 against Officer Felix for using excessive force against her son in violation of his Fourth Amendment rights. The district court ultimately granted the officer summary judgment. It did so under a theory that the court’s reasonableness inquiry of the officer’s conduct must be limited to the precise moment an objectively reasonable officer would have perceived a threat. In effect, the court limited its “reasonableness” inquiry to the two seconds before Officer Felix fired his gun and did not consider other factors, like the officer’s decision to jump on the moving car or the basis for pulling over Barnes being mere toll violations.

The Fifth Circuit affirmed on appeal, explaining that the circuit has adopted a “moment of threat doctrine,” which narrows the Fourth Amendment reasonableness inquiry in deadly force cases. Interestingly, the judge who authored the majority opinion also filed a separate concurrence criticizing the doctrine, arguing that the moment of threat doctrine conflicts with the totality of the circumstances standard that has long governed Fourth Amendment reasonableness.

The Supreme Court granted certiorari to address the validity of the moment of threat doctrine and the supposed circuit split on the doctrine. Yet, in both his briefing and oral arguments, the respondent, Officer Felix, declined to defend the moment of threat doctrine. Instead, Felix argued that the moment of threat doctrine, as defined by the Fifth Circuit, does not actually exist. Felix pointed to a circuit split over whether courts may consider an “officer-created danger” as part of the totality of the circumstances as the real issue in the case. He framed the Fifth Circuit’s moment of threat doctrine, to the extent it exists, as a shield against an officer-create danger theory: that Officer Felix’s decision to jump onto Barnes’s car rendered Felix’s subsequent use of force unreasonable.

In a succinct, nine-page unanimous opinion penned by Justice Kagan, the Court rejected the moment of threat doctrine. The Court clarified that while “the situation at the precise time of the shooting will often be what matters most,” there is no hard and fast time limit on the totality of the circumstances inquiry. Thus, the Court explained, the moment of threat doctrine applied by some courts directly contradicts the mandate that trial courts examine the totality of the circumstances. Because the Fifth Circuit’s time-restricted analysis foreclosed scrutiny of Officer Felix’s decision to leap onto Barnes’ car, the Court declined to consider his officer-created-danger argument and left that question open for another day—i.e., whether an officer’s use of force could be deemed excessive if the officer’s conduct “unjustifiably” creates or escalates a situation that leads to a deadly confrontation, even if the force used was objectively reasonable at the time it was deployed.

Ultimately, the Supreme Court’s decision in Barnes v. Felix is a narrow holding clarifying that the totality of the circumstances inquiry has no temporal restriction. Ordinary principles of relevancy and causation likewise guide the analysis, further necessitating a result that continues to afford leeway to trial courts in conducting such a fact-specific, contextual inquiry. The narrow holding is also one way to avoid the morass of whether the moment of threat doctrine even exists. Nevertheless, by sidestepping the officer-created danger question, the Court left the most significant question unanswered for the time being.

922(g)(1) Still Constitutional

By John R. Byrne

Not a shocker, but the Eleventh Circuit confirmed yesterday that not all Second Amendment gun rights arguments are going to be winners, even in the post-Bruen era. In the case, US v. Dubois, the defendant was convicted on a 922(g)(1) felon-in-possession charge. He argued that 922(g)(1) was unconstitutional, citing Bruen, among other recent Supreme Court decisions. But Chief Judge Pryor, writing for the court, pointed out that the Supreme Court's recent Second Amendment opinions haven't abrogated the Eleventh Circuit's prior precedent upholding the constitutionality of 922(g)(1)

More interesting, though, were the concurring opinions, written by CJ Pryor and Judge Abudu. 

Pryor opined that 922(g)(1) would survive even were the Eleventh Circuit to consider its constitutionality anew, exploring how the principles of disarming certain groups at the Founding—combined with severe punishments for felonies—support the law’s constitutionality today. For example, in the centuries leading up to the Founding, English law disarmed brigands, highwaymen, and, wait for it, Catholics.

Meanwhile, Judge Abudu articulated concern with focusing on history and tradition when examining a law's constitutionality, noting that such history and tradition included laws passed when women and people of color "were denied a seat at the legislative table[.]"

Full opinion here.  

Republicans, who ya got? MAGA or Federalist Society?

 This is a fascinating blow up -- Trump takes on the Federalist Society and Leonard Leo, calling him a sleazebag. 

From Politico:

It was a striking characterization of Leo, who played a key role in working with Trump to shape the conservative Supreme Court.

“He openly brags how he controls Judges, and even Justices of the United States Supreme Court — I hope that is not so, and don’t believe it is!,” Trump wrote.

Trump’s attack came after the U.S. Court of International Trade on Wednesday struck down his tariffs, a massive blow to the primary pillar of the administration’s economic agenda. The ruling was temporarily stayed by an appellate court on Thursday. One of the judges on the three-person panel that blocked the tariffs is Timothy Reif, who was appointed by Trump in his first term.

The blame, Trump said, lay with the Federalist Society.

“I am so disappointed in The Federalist Society because of the bad advice they

 gave me on numerous Judicial Nominations,” he wrote. “This is something that cannot be forgotten!”

Leo, in a brief statement in response, did not criticize the president.

"I'm very grateful for President Trump transforming the Federal Courts, and it was a privilege being involved," Leo said. "There's more work to be done, for sure, but the Federal Judiciary is better than it's ever been in modern history, and that will be President Trump's most important legacy."

Trump's relationship with the activist is known to have grown strained over Trump's disappointment that the three conservative justices he appointed to the court on Leo's advice did not intervene to keep Trump in office after he lost the 2020 presidential election.

 So my Republican friends, who are you siding with?

Shark Divers Pardoned

 By John R. Byrne

Happy Friday. A few months back, the blog covered the case about two shark divers who were prosecuted and convicted because they tried to save sharks from what they believed was an illegal poaching operation. The Eleventh Circuit reluctantly affirmed the convictions, with Judge Lagoa writing a powerful opinion lambasting the government for prosecuting the men in the first place. 

This past Wednesday, President Trump pardoned the men. Congrats to Marc Seitles, Ashley Litwin, and Andy Adler who led the pardon charge. Article here. 

Unrelated, details below on the Celebration of Life for Paul Donnelly. 

Monday, June 2, 2025 @ 10:00 am. The service is at Dignity Memorial's Forest Lawn Funeral Home 2401 Davie Road, Davie,  FL 33317

Celebration of Life by John Byrne on Scribd

Breaking--Judge Ed Artau nominated for open SDFLA district court seat (UPDATED)

By John R. Byrne

Hot off the presses. President Trump has nominated Judge Ed Artau, who sits on Florida's Fourth District Court of Appeal, for Judge Scola's open district court seat. Here's the Truth Social Post announcing the nomination. 

UPDATE (by DOM) -- Hi everyone.  Quick update -- In addition to Artau for Scola's seat, Trump has nominated 4 others for Florida seats -- Jordan E. Pratt, John Guard, Anne-Leigh Gaylord Moe, and Kyle Dudek.

In addition, interim U.S. Attorney Hayden O'Byrne's time was up, but our court appointed him as U.S. attorney until Jason Redding Quinones takes over.

And finally, the legal community is abuzz over the nomination of Emil Bove to the Third Circuit.