Chris Morvillo for Autonomy CEO Mike Lynch

FOR THE DEFENSE, SEASON 6, EPISODE 6: Chris Morvillo for Autonomy CEO Mike Lynch You're gonna enjoy this one. Chris Morvillo tried a 3 month case across the country for a client he represented for 10+ years after a co-defendant had already lost and after the judge said that the client had to remain on house arrest with armed guards.  And this was not for any ordinary client -- the press dubbed Autonomy CEO Mike Lynch as the British Bill Gates.  Lynch turned to Chris Morvillo of Clifford Chance and Brian Heberlig & Reid Weingarten of Steptoe & Johnson.  Chris joins the podcast this week to discuss the amazing and against-all-odds across the board acquittal.  There are lots of podcast connections to this episode -- Brian was previously on the show as was the presiding judge, Charles Breyer.  And a few weeks ago we had Sean Hecker on to discuss a related case.  One of the things we discuss with Chris on this episode is an incredible jury instruction the defense got from Judge Breyer after the prosecution engaged in some shenanigans with the defense's summary witness.  You can read the instruction here. As always, you can catch this and other episodes on the web or on every podcast platform, including Apple and Spotify.  If you have a friend that would like to receive these updates, please have them sign up here. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

A Good Day for a Pro Se Litigant

By John R. Byrne

There's an old saying that a lawyer who represents himself has a fool for a client. Though pro se defendant Frederick Bush wasn't a lawyer when he represented himself at his federal trial, he also wasn't a fool. In fact, he acquitted himself quite nicely, preserving a mens rea argument that the Eleventh Circuit just relied on to vacate his conviction.

To recap, Bush was confined at a residential re-entry center in Tallahassee. One day, he decided to leave, later claiming that an employee there had threatened him. In a single count (importantly), the government charged him with two separate statutes that criminalize escaping or leaving custody, one of which (critically) required proof that the defendant acted "willfully" (i.e., with knowledge that his conduct was unlawful). 

At trial, Bush had several back-and-forths with the Court about the need for the government to prove willfulness, even reading from an old Fifth Circuit case. Still, the Court specifically instructed the jury that it needn't find that Bush knew that his actions were unlawful. This was plain error, the Court said. 

A short opinion. Also notable that Judge Newsom used the word "stretch" to describe Bush's time in custody. A word right out of a Dashiell Hammett novel.

Bush Decision by John Byrne on Scribd

Snitchin' ain't easy

 Jennis Ellis has turned State against the former president and her former client.  According to the AP:

Former President Donald Trump’s campaign attorney Jenna Ellis, who worked closely with his personal attorney, Rudy Giuliani, will cooperate with Arizona prosecutors in exchange for charges being dropped against her in a fake electors case, the state attorney general’s office announced Monday.

Ellis has previously pleaded not guilty to fraud, forgery and conspiracy charges in the Arizona case. Seventeen other people charged in the case have pleaded not guilty to the felony charges — including Giuliani, Trump presidential chief of staff Mark Meadows and 11 Republicans who submitted a document to Congress falsely declaring Trump had won Arizona.

“Her insights are invaluable and will greatly aid the State in proving its case in court,” Attorney General Kris Mayes said in a statement. “As I stated when the initial charges were announced, I will not allow American democracy to be undermined — it is far too important. Today’s announcement is a win for the rule of law.”

In other news, Rumpole posted the NYT interview with Justice Gorsuch.

Some interesting stuff re criminal justice:

French: Well, one way I’ve heard that described is that complexity is a subsidy for the wealthy. That complexity is a subsidy for the powerful. In other words, large corporations, well-connected individuals, wealthy individuals can navigate all of the red tape. But the ordinary American really struggles, and sometimes the ordinary American can even struggle to interpret criminal law.

This was an interesting element of the book to me and something that people who are not familiar with your jurisprudence might not know — it’s that you’ve long been a champion of the rights of criminal defendants. It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point. Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?

Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain. And he downloads a bunch of old articles from JSTOR.

His lawyer says it included articles from the 1942 edition of The Journal of Botany. Now, he probably shouldn’t have done that, OK?

But JSTOR and he negotiated a solution, and they were happy. And state officials first brought criminal charges but then dropped them. Federal prosecutors nonetheless charged him with several felonies. And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.

What did they do?

They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system. And ultimately, he killed himself shortly before trial. And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970. And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).

French: You speak in the book about coercive plea bargaining, this process where a prosecutor will charge somebody and then agree to a much reduced sentence on the condition that they don’t take it to trial, that they go ahead and plead guilty, or sometimes when they refuse to plead guilty, they’ll add additional charges. This is something that a lot of critics of the criminal justice system have highlighted for some time. Do you see a remedy?

Gorsuch: Well, I’m a judge, and I’m going to apply the laws we the people pass. That’s my job. In the book, I just wanted to highlight to “we the people” some of the changes that I’ve seen in our law during my lifetime, and plea bargaining during my lifetime has skyrocketed. It basically didn’t exist 50 or 100 years ago, and now 97 percent or so of federal criminal charges are resolved through plea bargaining.

And I just have some questions. What do we lose in that process? We lose juries. Juries are wise, right? And they’re a check both on the executive branch and prosecutors and they’re a check on judges, too, right? And the framers really believed in juries. I mean, there it is in Article III. There it is in the Sixth Amendment. There it is in the Seventh Amendment. They really believed in juries, and we’ve lost that.

And another thing about juries, when you lose juries: Studies show that people who sit on juries — nobody likes being called for jury service. But studies show that after jury service, people have a greater respect for the legal system, for the government, and they participate more in their local governments.

 

Plea offers

When negotiating a plea agreement with the government, how often do you hear -- this isn't an actual offer... I need to get approval from my supervisor.  

I wonder if that happened in the 9/11 cases where the three defendants were offered life only to find out later that the Defense Secretary decided to withdraw the offers.  Via the NY Times:

Defense Secretary Lloyd J. Austin III on Friday overruled the overseer of the war court at Guantánamo Bay and revoked a plea agreement reached earlier this week with the accused mastermind of the Sept. 11, 2001, attacks and two alleged accomplices.

The Pentagon announced the decision with a memorandum relieving the senior Defense Department official responsible for military commissions of her oversight of the capital case against Khalid Shaikh Mohammed and his alleged accomplices for the attacks that killed nearly 3,000 people in New York City, at the Pentagon and in a Pennsylvania field.

The overseer, retired Brig. Gen. Susan K. Escallier, signed a pretrial agreement on Wednesday with Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi that exchanged guilty pleas for sentences of at most life in prison.

In taking away the authority, Mr. Austin assumed direct oversight of the case and canceled the agreement, effectively reinstating it as a death-penalty case. He left Ms. Escallier in the role of oversight of Guantánamo’s other cases.

Because of the stakes involved, the “responsibility for such a decision should rest with me,” Mr. Austin said in an order released Friday night by the Pentagon.

“Effective immediately, in the exercise of my authority, I hereby withdraw from the three pretrial agreements that you signed on July 31, 2024.”

 I also wonder whether the defendants had told the government that it accepted.  If so, I'm sure you'll see a motion to enforce the deal. 

Geofencing and Privacy

By John R. Byrne

One way law enforcement tries to identify suspects is through a "geofence warrant."  In short, law enforcement asks providers like Google to tell it what devices (typically, cell phones) were in a specific area at a specific time. The idea is to get a universe of potential bad guys. 

Yesterday, the Eleventh Circuit decided that defendants generally don't have standing to challenge such searches as violating the Fourth Amendment. In the case, the defendant, Davis, moved to suppress Google data showing that a phone that was associated with him (it was his girlfriend's phone) was at the scene of a robbery and carjacking. 

The Court ruled that Davis lacked standing to challenge the search. Though much of the Court's analysis turned on the phone not being Davis's phone, it also downplayed the invasiveness of geofence searches, noting they were too restrictive in their scope to be considered the kind of "near-constant electronic surveillance" that certain Supreme Court Justices (Sotomayor and Alito specifically) had identified as potentially problematic. 

Judge Jordan concurred in the opinion, giving a fairly detailed account of how Google handles geofence warrants, noting the uncertainties in how other companies (e.g., Apple) responds to them, and taking issue with some of the conclusions by the majority. 

Once you read Davis, you'll be able to impress your friends/neighbors/relatives with all your geofence knowledge.

Davis Opinion by John Byrne on Scribd

New Podcast episode: Phil Hubbart for Pitts and Lee

FOR THE DEFENSE, SEASON 6, EPISODE 5: Phil Hubbart for Pitts and Lee Florida International University College of Law hosted Phil Hubbart and me for a discussion about Hubbart’s book, From Death Row to Freedom: The Struggle for Racial Justice in the Pitts-Lee Case.   Phil Hubbart is a living legend in the 3-0-5.  He revamped the public defender’s office and was an appellate judge.  He recently wrote a book about one of the most riveting cases in Florida history, State v. Freddie Pitts and Wilbert Lee, two Black men who were wrongfully charged and convicted of murder in Port St. Joe, Florida in 1963.  I think you'll enjoy Hubbart discuss how he got involved in the case and worked for over 10 years to get them exonerated.  As always, you can catch this and other episodes on the web or on every podcast platform, including Apple and Spotify.  If you have a friend that would like to receive these updates, please have them sign up here. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

Should Supreme Court Justices have term limits?

 Joe Biden says yes in this proposed Supreme Court reform, which also includes an ethics code and ending immunity for former presidents.  From the AP:

Biden is calling for doing away with lifetime appointments to the court. He says Congress should pass legislation to establish a system in which the sitting president would appoint a justice every two years to spend 18 years in service on the court. He argues term limits would help ensure that court membership changes with some regularity and adds a measure of predictability to the nomination process.

He also wants Congress to pass legislation establishing a code of ethics for justices that would require justices to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.

Biden also is calling on Congress to pass a constitutional amendment reversing the Supreme Court’s recent landmark immunity ruling that determined former presidents have broad immunity from prosecution.

The decision extended the delay in the Washington criminal case against Trump on charges he plotted to overturn his 2020 presidential election loss and all but ended prospects the former president could be tried before the November election.

The last time Congress ratified an amendment to the Constitution was 32 years ago. The 27th Amendment, ratified in 1992, states that Congress can pass a bill changing the pay for members of the House and Senate, but such a change can’t take effect until after the next November elections are held for the House.

Trump wins Motion to Dismiss Against ABC/Stephanopoulos

Chief Judge Altonaga handed President Trump a victory yesterday in his lawsuit against ABC and George Stephanopoulos. 

During a March 10, 2024 interview of US Representative Nancy Mace, Stephanopoulos asked Mace about her endorsement of Trump despite the fact that he was "found liable for rape." Trump sued, alleging that the defendants defamed him in light of a jury's verdict expressly finding that he was not liable for rape under New York Penal Law.  ABC and Stephanopoulos moved to dismiss on the grounds of "substantial truth" and the "fair report privilege."

Judge Altonaga rejected both, pointing to the reporter's reference to specific jury verdicts ("Stephanopoulos was not reporting on statements by Carroll or other commentators; rather, he was discussing the outcome of a legal proceeding in which the jury expressly rejected a charge of rape as defined by New York Penal Law"). 

The case marches on.

Opinion excerpted below.

[34] Order Denying Motion to Dismiss on Scribd