Roy Black strikes back

Roy Black has written a wonderful letter in the DBR about advocacy and time limits. It's worth a read:

With great sadness I read of the death of advocacy in these pages on Dec. 23rd​ (I’ve Never Seen Anything Like It’: Miami-Dade Attorney Held in Criminal Contempt​).​ Derrick Morales was given 40 minutes for his final argument, including 20 seconds for rebuttal. Apparently he uttered a few words over the critical time limit and was held in criminal contempt for “obstructing the administration of justice…”

Contempt is usually a toxic stain on a lawyer’s reputation, but in this case, it is more the red badge of courage.

The incomparable ​Clarence ​Darrow argued to a judge for 12 hours over three days to save Leopold and Loeb from the hangman. But the modern, efficient, time-pressed judge no longer sees any value in extended lawyer advocacy. The art is slowly fading away, being replaced by technology.

John Paul Stryker wrote a book on trial advocacy which he subtitled, “a plea for the renaissance of the trial lawyer” in 1954. Instead of a new flowering of eloquence, we are suffering the black death of silence. No longer is advocacy welcomed in our trial courts. It is treated as an unnecessary waste of time, or now, a crime worthy of condemnation and punishment.

I have a lot of empathy. I was once granted an entire three minutes by the Eleventh Circuit. And in another case, an undistinguished federal judge in northern Indiana declared a recess in the middle of my final argument, ordering the marshals to quickly shelter the jury from my words. I’m not sure if my argument was too good or too bad. At least I avoided imprisonment.

Why is there a time limit placed on final argument? Too persuasive? Too dramatic? Or too pedestrian? We are trial lawyers; we go to war with words. We have the verbal confidence to stand on our feet, articulate the facts, and marshal our arguments. We are able to speak with passion in a way that inspires people. The final argument is our primary weapon.

I don’t know what Derrick Morales said in those last few minutes of overtime but I picture it as Salman Rushdie did: “Language is courage; the ability to conceive a thought, to speak it, and by doing so, to make it true.”

Never Give Up

By Michael Caruso

For all those like me who receive a Treasury check every two weeks, last Friday's passage of the 2023 spending bill came as a welcome relief. And, because this bill is a "must pass" measure, lawmakers were furiously negotiating to include various items in the last few weeks. For example, the Senate failed to include the EQUAL Act—which eliminates the federal sentencing disparity between drug offenses involving crack cocaine and powder cocaine—in the omnibus appropriations bill.

One of our local representatives, however, successfully led a bipartisan effort to correct a different wrong by awarding a Congressional Gold Medal to Benjamin Ferencz—the last living Nuremberg prosecutor.

Ferencz was born in the Carpathian Mountains of Transylvania in 1920. When he was ten months old, his family moved to New York—a small basement apartment in "Hell's Kitchen." After he graduated from Harvard Law School in 1943, he joined an anti-aircraft artillery battalion preparing for the invasion of France. As an enlisted man under General Patton, he fought in most major European campaigns. As Nazi atrocities were uncovered, he was transferred to a newly created War Crimes Branch of the Army to gather evidence of Nazi brutality and apprehend the criminals.

After his discharge from the Army, he returned to New York and prepared to practice law. Shortly after, he was recruited for the Nuremberg war crimes trials. Ferencz became Chief Prosecutor in The Einsatzgruppen Case, which the Associated Press called "the biggest murder trial in history." Twenty-two defendants were charged with murdering over a million people. He was only twenty-seven years old. It was his first case.

According to Ferencz, "Nuremberg taught me that creating a world of tolerance and compassion would be a long and arduous task. And I also learned that if we did not devote ourselves to developing effective world law, the same cruel mentality that made the Holocaust possible might one day destroy the entire human race."

In 1970, Ferencz decided to withdraw gradually from the private practice of law and dedicate himself to studying and writing about world peace. Earlier this year, right after his 102nd birthday, Ferencz said when he publicly presents his life story, he always tells his audience, "There are three important lessons I wish to transmit: One, never give up, Two, never give up, and three, never give up."

We all should be grateful Mr. Ferencz never did.

What should we do about the Supreme Court?

 Erwin Chemerinsky says because the Court's approval rating is so low, it's time for a change to restore legitimacy for the Court.  He says 18-year term limits are the answer:

The United States is the only democracy that gives members of its highest court life tenure. In fact, few states provide such a guarantee to their justices and judges. Life expectancy is much longer now than it was in 1787, when the Constitution was written. From 1787 through 1970, Supreme Court justices served an average of 15 years; justices appointed since 1970 have served an average of 27 years.

Clarence Thomas was 43 years old when he was confirmed, in 1991. If he remains on the court until he is 90, the age at which Justice John Paul Stevens retired, he will have been a justice for 47 years. This is too much power in one person’s hands for too long. Also, too much now depends on accidents of history, namely when court vacancies happen to occur. President Richard Nixon appointed four justices in his first two years in office; President Jimmy Carter picked no justices in his four years. President Donald Trump picked three justices in four years, while the previous three Democratic presidents served a combined 20 years in the White House but selected only four. Staggered, 18-year, non-renewable terms would mean that each president would make at least one nomination every two years. My sense is that there is bipartisan support for this reform, which would require a constitutional amendment. Rick Perry, the Republican former Texas governor, argued for it when he ran for president in 2016. Liberals support it as well. Term limits should be applied to current justices. Otherwise, they wouldn’t be implemented for decades. Amy Coney Barrett was 48 years old when she was confirmed, in 2020. If she remains on the court until she is 87, the age Ruth Bader Ginsburg was when she died, she will be a justice until 2059. The question is whether any constituency cares enough about this issue to do the hard work of getting the Constitution amended. That would mean lobbying Congress to propose the amendment and then mounting a campaign for its adoption by state legislatures.

Happy Festivus

 

 

 It's time to air some grievances: 

1. Prosecutors who still don't turn over all 302s. 

2. Prosecutors who still don't agree to turn over exhibit and witness lists. 

3. Judges who don't force prosecutors to do so. 

4. Corporate surety bonds (instead of signature bonds). 

5. The Sentencing Guidelines. 

6. The Trial Tax. 

7. Harmless error. 

8. Lawyers who claim to be defense lawyers who won't tell you what their client will say at trial. 

9. Judges who deny motions for continuances. 

10. 801(d)(2)(e).

Be careful who you sue....

 By John R. Byrne

This holiday season, a Girl Scout troop took a trip to New York to see the Rockettes perform at Radio City Music Hall. Security instantly descended on one of the moms in the group because Madison Square Garden Entertainment's facial recognition software had "picked [her] up." No, she isn't a terrorist. She's a lawyer. And she's an associate at a law firm that has sued a restaurant owned by MSG Entertainment (no, she's not working on the case). MSG kicked her out of the venue, leaving her to wait outside while her daughter and the rest of the troop watched the show. Nothing to see here, according to MSG:

“MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including [the law firm at issue], which was notified twice."

Silly. You can read more about it here.

An oldie, but goodie. Happy Holidays!

 Hat tip: Frank Ramos from Linkedin.  If you don't follow him, you should.

What is fraud?

 This is THE debate in white collar circles over the past few years.  Takhalov (the B-girls case) got the discussion going again in the 11th Circuit.  Interestingly, the Supreme Court keeps reversing convictions based on strange new theories that district judges and appellate courts allow.  The latest question hails from the Third Circuit -- is it federal wire fraud for a college dean to lie in order to increase U.S. News Rankings?  From Law360:

The former dean of the Fox School of Business at Temple University has asked the Third Circuit to throw out his conviction on charges that he falsely inflated the school's stats to boost its ranking in U.S. News & World Report, arguing that students still got a good education in exchange for their tuition.

In an appellate brief filed Friday, Moshe Porat — who was sentenced to 14 months in prison and a $250,000 fine after being convicted on mail and wire fraud charges last year — said the government failed to show how falsely inflating the school's numbers constituted a deprivation of students' "property," as required by federal fraud statutes.

"Imagine that an excellent but unheralded lawyer procures false nominations to be named a 'Super Lawyer.' A client hires the lawyer based on the honor, and the lawyer provides top-notch counsel," Porat's brief said. "The lawyer's conduct is dishonest and morally questionable, but has the lawyer committed federal property fraud? The answer is plainly no—even if the client later learns the truth about the fake honor, and even if the client feels duped and would have hired a different lawyer had he known the truth."

And the response:

Philadelphia federal prosecutors urged the Third Circuit on Friday to reject a bid by the former dean of Temple University's business school to toss his conviction for falsely inflating the school's stats to boost its U.S. News & World Report ranking, slamming his argument that the conduct didn't amount to property fraud.

In its response brief, the government called Moshe Porat's appeal "an exercise in straw man advocacy," rejecting his argument that the falsely inflated stats given to U.S. News didn't deprive students at Temple's Fox School of Business of a good education.

"Porat was charged with and convicted of defrauding business school applicants, students, and donors out of money," the government's brief said. "He accomplished this, in part, by giving false information to U.S. News, knowing that this information would result in false rankings that students and donors valued, and knowing that Fox would then broadcast these rankings far and wide in order to gather tuition money and donations from the people who were the targets of the fraud."

The Definition of Suicide

 By John R. Byrne

More textual interpretation from the Eleventh Circuit and Judge Pryor, this time tackling the meaning of "suicide" in a life insurance policy. The policy at issue, like all life insurance policies, excluded coverage if the policyholder committed suicide. But did "suicide by cop" count? The Eleventh Circuit said "yes." 

No American court had decided the question, so the Court took some time laying out its reasoning. Citing Justice Scalia and Bryan Garner, the Court wrote "The ordinary-meaning rule is the most fundamental semantic rule of interpretation." It then walked through a series of definitions from dictionaries and court opinions. The Court's conclusion--as ordinarily understood, "suicide" is not limited to instances where the decedent delivered the fatal blow himself. In other words, a person can commit suicide "indirectly." Comparing the case of a man throwing himself in front of a train and "suicide by cop," Judge Pryor wrote there was "no material distinction." He explained:

"Police officers are trained to, and have little choice but to, use deadly force to stop a civilian who threatens them, their fellow officers, and the public at large. See FLA. STAT. § 782.02 (2022). A civilian, aware of this fact, threatens the officers to provoke this predictable and lethal response in the same way that the man who throws himself before a train anticipates the predictable, lethal outcome of being run over. In both cases, a person intentionally causes his own death, even if an external force delivers the fatal blow. In other words, he commits “suicide.”

Seems right to me, especially when you think of Jack Kevorkian and physician-assisted suicide which, if you took the other side of the debate, wouldn't qualify as "suicide" either. Anyway...Happy Friday!

Caldwell Opinion by John Byrne on Scribd