11th Circuit "emergency" over

On October 17, the 11th Circuit, per Chief Judge Carnes, issued an order putting an end to the emergency order that allowed cases to be decided by panels with only one active 11th Circuit judge.  Now we are back to at least 2 11th Circuit judges per panel.

Aly Palmer of the Daily Report has this story:

With his court back to nearly full strength, the chief judge of the U.S. Court of Appeals for the Eleventh Circuit has announced the end of a court emergency.
In December, Chief Judge Edward Carnes declared an emergency, saying that cases could be decided by three-judge panels composed of only one of the court's judges plus two visiting judges. At the time, four of the court's 12 slots were vacant.
Since then, three vacancies have been filled. Most recently, Judge Jill Pryor of Atlanta started work two weeks ago. On Friday, Carnes signed a new order declaring the emergency over.
Friday's order suggested that the public will continue to see decisions from panels that include only one member of the court. Carnes explained that panels composed of fewer than two Eleventh Circuit judges that have had any appeals either orally argued or submitted to them for decision before Friday remain authorized to decide the cases.
Federal law says that when federal appeals courts decide cases by three-judge panels, at least two of the judges must be members of that particular appeals court. An exception includes the chief judge's ability to certify an "emergency."

Meantime, the big federal bar shindig tonight is at the JW Marriott.  Who is in?

New Article on the Eleventh Circuit's State of Emergency

Section 46(b) of Title 28 of the U.S. Code states that appeals may be heard and determined "by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, ... unless the chief judge of that court certifies that there is an emergency." By General Order No. 41, the Eleventh Circuit was for the better part of 2014 certified to be in an emergency state. South Florida appellate lawyer Andrew L. Adler, who clerked for two judges of the Eleventh Circuit, wrote about this in his scholarly article Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts of Appeals, which was recently published in the Journal of Appellate Practice and Process.

Here's the introduction:

At the end of 2013, the chief judge of the Eleventh Circuit declared a state of emergency, exempting the court from the requirement in 28 U.S.C. §46(b) that each of its panels include a majority of Eleventh Circuit judges. As would later become clear, the emergency arose from multiple vacancies on the court, which exacerbated the effect of its heavy per-judge caseload. Throughout 2014, emergency panels consisting of one Eleventh Circuit judge and two visiting judges resolved over one hundred appeals. 

In a petition for rehearing filed in one such case, an unsuccessful appellant challenged the validity of the emergency panel. Rather than resolving the petition summarily, the emergency panel instead published a precedential opinion upholding the certified emergency. Although other circuits have certified section 46(b) emergencies based on the vacancy-caseload combination, the Eleventh Circuit's opinion is the first federal appellate decision addressing a challenge to such an emergency. Because extended vacancies and heavy caseloads are likely to persist, that opinion invites new scrutiny of the emergency exception to section 46(b)'s majority requirement. This article begins that undertaking.

Adler defends Chief Judge Carnes's application of the emergency exception.

If you're interested in the Eleventh Circuit -- or in the federal courts of appeals in general -- do check out Adler's well written and thoroughly researched article.

Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts of Appeals

Can a bankruptcy judge order the marshals to arrest a lawyer?

There is some debate about whether a non-article III judge has that power.  But in any case, the answer is certainly NO after a district judge has issued a stay of the order.  Julie Kay has the very interesting story here:

Palm Beach bankruptcy lawyer Tina Talarchyk said she was getting ready to drive her twin girls to school Tuesday when federal marshals showed up to arrest her on a civil contempt order.
Talarchyk said she persuaded the marshals that an arrest order issued last week by U.S. Bankruptcy Judge John Olson was stayed U.S. District Judge Marcia Cooke in Miami pending appeal. She said the marshals left after getting new instructions.
"I think Judge Olson overreached when he entered an incarceration order without due process of having an evidentiary hearing," Talarchyk said in an interview. "I am shocked that after Judge Cooke entered her order that Judge Olson continued to personally reach out to the marshals to have me apprehended. I think it shows he lacked impartiality. The fact that it happened with my children in the car was traumatizing."
Olson held the Talarchyk Firm partner in contempt of court, suspended her from practicing in bankruptcy court and ordered her to be detained until she paid $10,949 into a client trust account. She insists she paid the money and doesn't owe her client anything.
Cooke issued an emergency stay of Olson's order Thursday after Talarchyk appealed, so Talarchyk and her lawyer are baffled about why the marshals showed up.

ACB to be confirmed Monday

 The WaPo has the story here:

Judge Amy Coney Barrett’s nomination broke through one more hurdle ahead of her all-but-assured installation to the Supreme Court as the coronavirus pandemic — which has inextricably been intertwined with the story of her nomination — once again intersected with her confirmation fight.

Senators voted around 1:30 p.m. in a rare Sunday session, 51 to 48, to advance her nomination to replace the late Justice Ruth Bader Ginsburg. The final confirmation vote for Barrett is expected Monday night, putting her in position for a first full day as a justice as early as Tuesday and as the court continues to hear election-related legal challenges ahead of Nov. 3.

“We made an important contribution to the future of this country,” Senate Majority Leader Mitch McConnell (R-Ky.) said Sunday, praising Barrett as a “stellar nominee” in every respect. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

That last quote is interesting...

Meantime, ACB was asked about the Supreme Court's "shadow docket." If you are interested, you should read this entire post from SCOTUSblog.  Here's the intro:

Near the end of two meandering days of questions at last week’s Senate hearings for Amy Coney Barrett, Sen. Richard Blumenthal (D-Conn.) asked a question that probably has never been asked at any other Supreme Court nomination hearing.

“Are you aware of the Supreme Court’s – as it’s called – shadow docket?” he asked.

Barrett, who clerked for Justice Antonin Scalia, said she was. “The shadow docket has become a hot topic in the last couple of years,” she added.

Barrett is right. In fact, in just the last few months, the court has issued emergency rulings on coronavirus policies, immigration restrictions, capital punishment, access to abortion, the U.S. census and procedures for the upcoming election. All of those rulings have been part of the court’s shadow docket.

The court itself would never use that term. Law professor William Baude coined it in 2015 to refer unofficially to the body of orders issued by the Supreme Court outside the formal opinions in the 70 or so cases in which it hears oral argument each term. Some of those orders are peripheral and procedural. But others resolve, at least temporarily, contentious policy disputes or matters of life and death. And this year, the shadow docket is taking on more significance – and getting more attention – than it ever has before.

Concerns about the shadow docket relate primarily to a special system that allows litigants to seek emergency relief from the Supreme Court in the middle of ongoing litigation. Under normal procedures, a case reaches the justices only after full consideration and final decisions by a trial court and an appeals court – a process that usually takes months, if not years. But the shadow docket gives litigants a potential shortcut: When a lower court issues a ruling (even a preliminary ruling that does not decide the full case), the losing side can ask the Supreme Court to order an emergency “stay” of that ruling. A stay, if the justices issue one, freezes the lower court’s ruling, stripping it of force while the litigation proceeds. By preserving the status quo as it existed before the lower court’s ruling, emergency stays can favor litigants who hope to run out the clock.

Traditionally, litigants must satisfy a high legal standard to earn an emergency stay. Among other things, they must show that they would suffer “irreparable harm” if the lower court’s ruling were left in place. That onerous standard is meant to reserve this form of relief for circumstances in which the court’s immediate intervention is needed to prevent extraordinary consequences. Emergency stays, everyone agrees, should not be a way to short-circuit the normal appeals process. But as the number of these requests has grown in recent years (including a flurry of such requests from the Trump administration), Justice Sonia Sotomayor has argued that the court itself has tacitly lowered the bar for litigants to receive emergency stays on the shadow docket.

News & Notes

1.  NACDL says that it isn't safe to have jury trials right now and issues a number of guidelines for courts on how and when to reopen:

Compromising accused persons’ constitutional and fundamental rights -- like the right to counsel, the right to confront witnesses, the right to due process, and the right to a speedy and public trial by a jury culled from a fair cross section of the community -- for the sake of public safety results in grave injustice. NACDL recognizes that there is no way to fully reconcile these core constitutional rights with the public safety considerations arising from this pandemic. There are, however, fundamental principles that can minimize the constitutional burden while protecting the public and all the stakeholders who must come together for our courts to function.

2. An Ohio federal judge had ordered the release or transfer of over 800 inmates from a high risk prison. Justice Sotomayor issued a stay. SCOTUSblog covers it:

Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

3. How broken is our criminal justice system? Clark Neily from Cato says it's rotten to the core:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts. And the most relevant fact is that America’s criminal justice system is rotten to its core. Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response. If America is burning, it is fair to say that America’s criminal justice system—which is itself a raging dumpster fire of injustice—lit the fuse.
***
As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government. Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

4. The Sentencing Commission just released some data, which shows how this broken system is disproportionately affecting minorities: Of those in federal prison, 34.3% are Black, 33.7% are Hispanic, 28.2% are White, and 3.8% are other races.

11th Circuit tackles abortion case during COVID crisis

I missed this one last week.  Judge Jordan, joined by Martin and Rosenbaum upheld a preliminary injunction against an Alabama law that was being interpreted as prohibiting abortions during corona.

Bloomberg law summarizes the opinion here:

Alabama will remain partially blocked from imposing new restrictions on abortions in name of public health during the coronavirus pandemic, the Eleventh Circuit said.
Alabama State Health Officer Scott Harris mandated the postponement of “all dental, medical, or surgical procedures” except those “necessary to treat an emergency medical condition” or “to avoid serious harm from an underlying condition or disease, or necessary as a part of a patient’s ongoing and active treatment.”
The order is currently in effect until April 30, but may be extended. A violation would be a misdemeanor.
Planned Parenthood, the Alabama Women’s Center, and other abortion providers sued, and a federal court issued a preliminary injunction. It doesn’t entirely block the state from enforcing the order against abortion providers. But it does bar the state from “failing to allow healthcare providers to consider and base their decisions as to whether to provide an abortion without delay on certain factors,” including whether a delay would cause the patient to lose her legal right to an abortion under Alabama law after 20 weeks of pregnancy.
The injunction will remain in place, the U.S. Court of Appeals for the Eleventh Circuit said.
“The state argues that the order is a valid exercise of its power to issue public health orders during an emergency,” the court said. “But just as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency.”

Houston, we have a problem.

 At least it's not Florida this time.  It's Texas.  It's always Texas or Florida...

The Supreme Court 5-4 last night did not take action to stop Texas' new abortion law.  From SCOTUSBlog:

Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.

The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.

The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, ...

***

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Texas case will now return to the lower courts, where litigation will continue. ***

Big unpublished opinion from the 11th Circuit reversing because of a judge's refusal to ask voir dire questions related to sexual preference prejudices

Judge Martin issued this 2-1 opinion in United States v. Bates, holding that it was reversible error not to ask potential jurors about their biases against "men who have sex with men." Northern District of Florida Judge Robert Hinkle dissented while Judge Richard Eaton from the Court of International Trade joined Judge Martin.  Even though the emergency order allowing two visiting judges has been lifted, its revocation only applies going forward, so it does not affect this opinion.

From the intro:

Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr. Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.

From the end of the opinion:

The government cannot carry its burden to show that this error was harmless. If Mr. Bates is to be convicted, we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high. His convictions must therefore be vacated, and we remand this case for further proceedings.

 The court was also concerned with the amount of time the defense was given to prepare:

Although we do not decide Mr. Bates’s argument that the District Court abused its discretion by denying his motions to continue trial, on remand the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense. Two circumstances of this case raise concern that Mr. Bates was not afforded the time or resources necessary to prepare an adequate defense during his first trial. First, there was a delay of several months in getting approval for funds for an expert. ...
Second, we are concerned that Mr. Bates did not have enough time to prepare his defense, given that the focus of his prosecution shifted abruptly before trial. Mr. Bates was originally charged on August 23, 2012 in a two count indictment that included only one specific date on which child pornography was allegedly distributed, and gave a range of dates spanning sixteen months over which child pornography was allegedly downloaded or accessed. On February 14, 2013, just two weeks before trial, the government superseded on the indictment, increasing the number of counts to eighteen and highlighting much more detailed information about the dates and times child pornography was downloaded, accessed, and distributed. One week after that, the government disclosed a lengthy supplementary expert report, which was also more detailed than anything Mr. Bates had gotten from the government to that point. Given these late shifts in the focus of Mr. Bates’s prosecution, and the technical nature of the evidence the government presented, we are concerned that he did not have enough time to adequately defend himself during his first trial. See United States v. Verderame, 51 F.3d 249, 250–52 (11th Cir. 1995). If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.

Latest trial order from Chief Judge Moore (spoiler... trials continued till May)

The order is below. Although trials are technically continued until May, it's going to be longer than that. There is a pilot civil jury trial scheduled for May now (as reported earlier), but juror summons go out about 8-10 weeks in advance. So assuming that May pilot trial goes well and the Court decides to open things up again, we are looking at July before we get back in earnest.

2021-12 Coronavirus Public Emergency - Eighth Order Concerning Jury Trials and Other Proceedings 02-10-21 by David Oscar Markus on Scribd

News & Notes

1. Richard Strafer's memorial service will be held on August 6 at 10am at Kendall Mt. Nebo, 5900 SW 77th Avenue. Miami, FL 33143.

2. We filed an emergency petition in the Supreme Court for former Panamanian President Ricardo Martinelli. Jay Weaver covers it here:

Attorneys for former Panamanian President Ricardo Martinelli, who is being detained in Miami on an extradition request to his homeland, filed an emergency petition with the U.S. Supreme Court on Monday that asserts his constitutional rights have been violated because his bid for bond was denied.

Martinelli’s legal team argued that federal courts nationwide have “misconstrued” a 114-year-old Supreme Court decision “as having erected a heavy presumption against bail in such [extradition] cases.”

“The belief that [this decision] imposed an unlawful presumption has prevailed [in extradition cases] for so long that it is now binding across the country,” Miami attorneys David O. Markus and Ricardo Bascuas wrote in Martinelli’s emergency petition for a writ of habeas corpus. “Only this court can resolve the confusion at this point.”

Markus and Bascuas, who were added to Martinelli’s legal team led by attorney Marcos Jimenez, said the U.S. Supreme Court was the former president’s only recourse because bond denials cannot be appealed in extradition cases in the federal district or appeals courts.

3. David Lat is blogging about Katherine Magbanua's case. Magbanua is represented by Chris DeCoste and Tara Kawass. Full disclosure, we represent Charlie Adelson.

4.  SCOTUS protestors get a taste of jail.  Via WP:

Five protesters who disrupted a session of the U.S. Supreme Court by shouting disapproval of its rulings on campaign finance law were sentenced to one or two weekends in prison Monday after losing a bid to overturn a 1949 law restricting public protest at the court.

U.S. prosecutors had asked U.S. District Judge Christopher R. “Casey” Cooper in Washington to order 10-day jail sentences for the defendants, members of an organization called 99Rise. They had stood and spoken one-by-one just after the court was gaveled into session April 1, 2015, about a year after the justices had struck down overall limits on campaign contributions.

Federal Court filings to be suspended

Ahhh, how technology continues to help us....

Julie Kay reports today that because of the new e-filing system that will be going into effect, the court has to suspend *all* filings (unless it's an emergency or indictment or some other exception) starting tomorrow thru October 12. Here's the Review's summary:

Lawyers who practice in the Southern District of Florida will get a one-week vacation, courtesy of U.S. District Court as it prepares to implement a new, long-awaited electronic case-filing system. No motions or pleadings will be accepted between the close of business Thursday and 9 a.m. on Oct. 12 as the court adopts its new CM/ECF case filing system. Exceptions will be granted for emergencies, such as jurisdictional deadlines for filing an appeal or a statute of limitations deadline. In those cases, motions must be brought by hard copy to the appropriate clerk of the court’s office in Miami, Fort Lauderdale, Fort Pierce and Key West. The court will automatically add five business days to filing and service deadlines that occur during the shutdown period, so no lawyer will be penalized for a delay. Chief Judge William Zloch ordered the shutdown and exceptions in an administrative order posted on the court’s Web site, stating that “a failure to take action may result in a miscarriage of justice.” “The hiatus is necessary,” said Thomas Meeks, chairman of the local rules committee for the Southern District of Florida. “They have to switch everything over.” On Oct. 12, the district will officially switch to the new, nationwide paperless filing system, becoming one of the last federal court districts in the country to do so. At that time, e-filing and hard copy filing will no longer be permitted and attorneys will have to file all motions and pleadings via computer to the Southern District of Florida’s Web site. They’ll be able to do so 24 hours a day, from any location. The only exceptions to electronic filing will be for: • Documents filed under seal • Documents related to habeas cases and Social Security cases • Civil complaints • Civil documents not requiring a filing fee, such as recovery of student loan, bankruptcy appeal, bankruptcy withdrawal, recovery of veteran’s benefits and appointment of a receiver • Criminal complaints, indictments, criminal information and plea agreements • Emergency motions and requests for emergency hearings • Summons • Surety bonds • Proposed trial exhibits The office of clerk of the court Clarence Maddox has been training the estimated 4,000 South Florida lawyers who practice before the court, as well as judges. David Markus, president of the Miami chapter of the Florida Association of Criminal Defense Lawyers, welcomed the court-imposed vacation. “You’ll never find a lawyer who will complain about getting a few extra days to file something,” he said. Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.

"Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?"

That’s how Judge Charles Breyer ends this must read opinion in which he rejects a plea agreement where the government tried to get a defendant to agree to waive bringing a compassionate release motion until 180 days after asking BOP.

Breyer makes so many good points in his Order:

— that Congress said compassionate release should be available after 30 days, not 180.  So why should DOJ undue that provision.  (And even the 30 days can be waived in an emergency like this pandemic).

— Compassionate release isn’t only available in times of global crisis, like corona.  But there are lots of other times both for the individual and for other people in the family: “A terminal diagnosis. The death of a parent caring for his or her children alone while their other parent is imprisoned. An accident that renders a person unable to feed, bathe, or move without assistance. Compassionate release exists to address these calamities as well."

— It’s not good enough to say that this is a contract with parties bargaining because those parties are not on equal footing:  "It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table."  This is one reason why courts should be able to reject plea deals when they are too harsh but not when they are too lenient.  Courts are there to check the government’s immense power, as Breyer is doing in this case.

Read the whole thing.  In the meantime, here’s the introduction and the conclusion:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed? Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences? What if the defendant’s children are effectively orphaned by the death of their other parent? What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it? What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence? What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail? When should a court be able to consider such events and revise a previously imposed sentence accordingly? How difficult should it be for a defendant to request this type of relief?
Congress has provided one set of answers to these questions, in the First Step Act of 2019. See 18 U.S.C. § 3582(c)(1)(A). The United States attorney’s office has very different answers in this case, for this defendant. See Plea Agreement (dkt. 206) ¶ 5. Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement.
***
It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table. See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010). As to terms such as this one, plea agreements are contracts of adhesion. The Government offers the defendant a deal, and the defendant can take it or leave it. Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”). If he leaves it, he does so at his peril. And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on. See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940). Now imagine the choice the Government has put Funez Osorto to. All that power—and the all too immediate consequences of opposing it—weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass. That Faustian choice is not really a choice at all for a man in the defendant’s shoes. But the Court has a choice, and it will not approve the bargain.
That leaves only one question, which is why? Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion? Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner. Inspector General Report at 49–50. And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities. Id. at 45–48. The waiver of compassionate release is senseless.

The order reminds me of one of the first cases I had as a young public defender before Judge Norman Roettger.  For those of you who don’t know Roettger, he had a handlebar mustache and wore a gun around his ankle in court... The young prosecutor at the time put in an appellate waiver into the plea agreement as was his orders from above.  I told him we couldn’t agree to it.  But the prosecutor told me that he had no discretion to take it out.  Either we go to trial, plead straight up to the indictment, or agree to the provision.  I couldn’t understand why the prosecutor was being so difficult about it.  My supervisor at the time told me that Judge Roettger was vocal about not accepting these provisions and that we should just set it for plea and let the judge know what was happening.  So we show up for court and tell the judge about the proposed deal.  He asked the young prosecutor: “So do you work for the Department of Justice of the Department of INJUSTICE!!?? What if I commit legal error?  Shouldn’t the defendant be permitted to appeal and correct that legal error?!”  He then made the prosecutor scratch out that provision in front of a packed courtroom and took the plea agreement without it.  Quite a moment, especially for a young lawyer who was nervous about the gun making an appearance.

Intactivists!

Ah, Florida (via the Sun-Sentinel):

A federal judge will get 10 days advance notice before a 4 1/2-year-old boy at the center of a circumcision battle is set to have the procedure, the father's attorney promised Monday.
U.S. District Judge Kenneth Marra — hearing an emergency request from an attorney for the boy and his now-jailed mom, Heather Hironimus, to block the surgery already cleared by two state courts — had inquired about the child's whereabouts and the status of the circumcision.
"The child is healthy and well," said Ira Marcus, attorney for father, Dennis Nebus. He told the court the boy is staying with his dad in a "safe and secure" location, has not yet been circumcised, and would not be operated on before telling Marra first.

"Mr. Nebus is entitled to some finality," Marcus said, arguing the boy's parents' legal fight has gone on long enough. "And you know what? The child is entitled to some finality."
But Thomas Hunker, hired by Hironimus to represent the child, urged Judge Marra to step in and protect the boy from "physical harm," brain damage or worse from an elective procedure that is not medically necessary for him and violates his Constitutional rights.
"This is a potentially life and death situation," Hunker said, contending that the child doesn't respond well to general anesthesia and is prone to scarring that could further harm his genitals if he survives. He further argued the procedure to remove the foreskin from the boy's penis is not "reversible" and violates his right to bodily "integrity."
Marra concluded a 75-minute hearing without ruling on the bid for a temporary restraining order against the circumcision — or Nebus' motion to throw the case out of federal court.
Several times, Marra peppered Hunker with questions about why he should hear a case that had already been decided in the father's favor by state circuit and appellate courts. "So you want me to take a fresh look at what was already done by the state court?" Marra asked.
***
On Friday, the attorney filed for the restraining order until the resolution of a federal lawsuit that was filed on the boy's behalf on April 13. The lawsuit states the boy's rights were violated because he hasn't had a psychological examination or an independent guardian to speak on his behalf in court as the mother requested, along with other claims.
The lawsuit lists as defendants his father, Judge Gillen, and Palm Beach County Sheriff Ric Bradshaw. Attorneys for Gillen and Bradshaw urged Marra to remove them from the case.
Meanwhile, Hunker also filed in state court Friday an emergency motion on behalf of Hironimus to freeze all state judicial orders and court proceedings in the long-running custody battle while the matter is pending in federal court.
In March, Gillen ruled Hironimus had committed a "direct, contemptuous violation" of court orders by continuing work with circumcision opposition groups — called "intactivists" — that have "plastered" the child's photos and name "all over the Internet."
During Monday's hearing, a small group of the mother's supporters stood outside the courthouse in West Palm Beach.
"I've been an advocate for all human beings to have bodily autonomy," said Rebecca Boni, a mother of two young children from Boca Raton. "To me it's so obvious it blows my mind the [state] judge decided to side with the father."

SDFLA Federal Courthouses Closed on Monday

From the court website:

CLOSURE OF KEY WEST, MIAMI AND FORT LAUDERDALE FEDERAL COURTHOUSES ON MONDAY, AUGUST 27, 2012

During inclement weather periods, the safety of jurors, the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close. In light of the announced closures of public schools in Monroe, Miami-Dade and Broward Counties, the federal courthouses in Key West, Miami and Fort Lauderdale will be closed on Monday, August 27, 2012. Those courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge Federico A. Moreno. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:
- The Court’s website: www.flsd.uscourts.gov
- Recorded telephone messages at each courthouse
- Broadcast messages sent to CM/ECF e-filers
- Television announcements
Please note that if the Court’s website is unavailable, the Administrative Office of the U. S. Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

Here is Judge Moreno's Administrative Order regarding closures, which explains that when schools in a particular county are closed, so too are the federal courthouses in that county.

Justice Thomas Seeks Response from City of Miami in Voting Map Case

By John R. Byrne

A few weeks back we covered Judge Moore's order throwing out the City of Miami's voting map plan on concerns of racial gerrymandering and adopting the plan proposed by the plaintiffs. The City got the Eleventh Circuit (with a dissent from Judge Wilson) to stay the order, prompting the plaintiffs to ask SCOTUS for emergency review.

Justice Thomas, who handles emergency appeals from the Eleventh, appears to be seriously considering the request. Last Thursday, he ordered the City to respond to the plaintiffs' appeal by 5 p.m. today. The Herald covers it here.

SDFLA closed tomorrow (Monday) for ETA

 From the clerk:

Message posted 11/8/2020 @ 2:45 p.m. 

CLOSURE OF MIAMI, FORT LAUDERDALE, WEST PALM BEACH, FORT PIERCE AND KEY WEST FEDERAL COURTHOUSES, INCLUDING BANKRUPTCY AND PROBATION, ON MONDAY, NOVEMBER 9, 2020

During inclement weather periods, the safety of the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close.  In light of the announced closures of public schools in Miami-Dade, Broward, Palm Beach, St. Lucie and Monroe Counties, the federal courthouses in Miami, Fort Lauderdale, West Palm Beach, Fort Pierce and Key West will be closed on Monday, November 9, 2020.  A closure in any division includes the Bankruptcy Court and Probation, if any, in that Division.  The courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge K. Michael Moore. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:

- The Court’s website: www.flsd.uscourts.gov

- Recorded telephone messages at each courthouse

- Broadcast messages sent to CM/ECF e-filers

- Television announcements

Please note that if the Court’s website is unavailable, the Administrative Office of the US Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

1600!!!

There's a certain honour with being the blogger to post the 1600th post on David O Markus's famous Southern District Of Florida Blog. And with DOM being out of town and unawares, we decided to grab the honour before he could change his mind and revoke our blogging privileges.

For those of you discriminating enough to read our own humble blog about the Richard E Gerstein Courthouse in Miami, you know that last week we promised- at the possible expense of Mr. Markus's standing in the community and his law license- to post a joke that started off this way: " A rabbi, a priest, President Obama and (insert your favourite federal judge here) walk into Tobacco road...."

But before we get to the punch line, there's this to consider:

Rumpole's person of the day:

Meet Former Jet Blue Flight Attendant Steven Slater. On a flight on Monday inbound to JFK from Pittsburgh, Mr. Slater had a confrontation with an unruly female passenger. (Side note- those gals from the Steel City can be quite a handful when they've had a few Iron City beers in them). Upon landing at JFK, Mr. Slater had all he could take. When the plane stopped taxing, Mr. Sater activated the emergency exit, deployed the emergency slide, grabbed a beer from the beverage cart, and slid off the plane and into instant fame. Mr. Slater got into his car and drove home to Queens where a few hours later a few members of New York's Finest showed up to arrest him on a slate of charges. For those of you who exclusively practice in Federal Court, The NY Times coverage is here.

For those of you who occasionally venture over to State Court, the NY Post coverage is here. (Headline was "Wing-Nut pleads not guilty.")

Punchline: They all walk up to the bar and order a round of beers. And the bartender looks up and sees who has walked in and says: 'what is this, some kind of joke?' "

Sorry folks, this is what happens when DOM goes on vacation.

See You in Court.

HR.

PS-if you want to know something useful about current federal legal developments, read South Florida Lawyer's post just below this one. We craftily waited until he posted number 1599 so we could grab 1600.

11th Circuit conference ends badly

It was the big 11th Circuit conference in Alabama last week, with all of the judges in the Circuit attending.  And the Circuit Justice -- Justice Clarence Thomas -- was there giving the keynote.  But during his speech, Judge Merryday collapsed and had to be rushed out.  The Daily Report has more:

A medical emergency in the back of the room abruptly ended a question and answer program with U.S. Supreme Court Justice Clarence Thomas at the U.S. Court of Appeals Eleventh Circuit Judicial Conference late Friday.
Thomas was starting to talk about legal opinions on bankruptcy law--saying he worries about challenges facing the judges he had been talking with during the conference --but he never got to finish his sentence. The crowd in the back corner of the ballroom at the Grand Hotel Conference Center began to move and people began saying, "Call 911."
Chief Judge Steven Merryday of the U.S. District Court for the Middle District of Florida had collapsed and fallen to the floor. Agents from the U.S. Marshal's office and hotel security staff immediately came to his aid while they waited for an ambulance to arrive. Thomas waited on stage with University of Georgia Law School Dean Peter "Bo" Rutledge, who had been asking the questions of the justice, and Eleventh Circuit Chief Judge Ed Carnes, who had made the introductions.
They were about halfway through their planned one hour and five minute presentation, after which Carnes was scheduled for 15 minutes of closing remarks.
Soon the marshals gave an order to clear the room and keep a clear path to the door. Hotel staff directed the attendees toward a hallway and a sunny, breezy terrace beside Mobile Bay.
An ambulance arrived within minutes. Emergency responders began speaking to the judge, asking him questions and trying to prompt a response. They asked him to smile if he could understand them. Merryday was conscious and stood for a moment with help before being secured onto a stretcher and moved to the waiting ambulance to drive to a hospital in nearby Fairhope.
Judges and lawyers waiting in the hallway expressed their hope and prayers for the judge's recovery. Some said they were initially afraid they were being attacked when they heard the commotion and a call for 911.
Carnes decided not to reconvene the meeting, which was scheduled to end at 5 p.m. and had run like clockwork for two days. The 160 judges and 300 lawyers in attendance slowly began to leave. Shortly after 5 p.m. Carnes received a phone call, after which he announced to the few still gathered in the hallway that Merryday was at the hospital and in stable condition. His wife had been contacted by a friend and neighbor who is married to another judge attending the conference.

UPDATE -- According to online reports, Judge Merryday is okay.

When should judges retire?

Here's a lengthy AP article about how the 9th Circuit is addressing senility and other such problems among aging judges. From the conclusion:

Richard Carlton, who runs the 9th Circuit's counseling hotline, said he gets a handful of calls a year from judges concerned that a colleague may be impaired.

"A lot of these situations resolve themselves pretty quickly," he said. "It often times turns out to be some kind of physical condition or some new medication somebody's taken, or they're in the process of transitioning from senior status to full retirement."

Over the past five years, the 10th US. Circuit Court of Appeals, which includes Colorado and five other Western states and has its own judicial health program, has addressed at least two complaints that could reflect mental decline.

One accused a senior district judge of falling asleep during a court proceeding.

The judge said a tiring family emergency may have been to blame and indicated that he would reduce his caseload and decline trials and lengthy hearings, according to a 2010 order by the circuit's chief judge.

The second complaint by a judge's former law clerk accused the judge of forgetfulness and erratic, abusive behavior. The judge underwent psychological screening and was cleared of any mental disability, according to a 2014 order by the circuit's chief judge.

The judges and complainants were not identified.

Canby encourages his colleagues to get ahead of any complaints by, like him, voluntarily declining to regularly hear cases at some point. In an article in the 9th Circuit's wellness newsletter, he said impaired judges threaten public confidence in the judicial branch.

"If a great majority of judges are determined to keep on judging until they are no longer mentally able to perform properly, instances of impaired judges still making decisions will multiply," he wrote. "The consequence of such behavior will be an unacceptably high rate of institutional damage."

Falling asleep during a court proceeding? If that's cause for forced retirement, we'd have quite a number of judicial emergencies...

Go Heat & other SDFLA News & Notes

1.  Lewis Tein and Paul Calli are dominating the proceedings before Judge Cooke.  The latest victory -- disqualification of the Tribe's lawyer -- is reported in the DBR:

She said Cortiñas as Lehtinen's former law partner would be familiar with all of the small firm's business with the tribe and agreed with Lehtinen that it amounted to an "unfair informational advantage."She said this perceived conflict was reason enough to disqualify Cortiñas. "How does it look for those on the outside who are not lawyers?" Cooke asked. "How do we police ourselves?"Cooke ruled Cortiñas did not violate ethics rules by representing the tribe after hearing similar issues while an appellate judge. Though she added his appearance "disturbs me."As a result, she ruled the Gunster firm was not disqualified from representing the tribe or its attorneys at the evidentiary hearing on sanctions.Cortiñas told Cooke before his disqualification that the tribe's former attorneys were afraid of his legal prowess. "The reason they really don't want me here is I know fraud cases very well," Cortiñas said.Cooke said the comment somewhat indicated the tribe may have had incompetent counsel in Roman and his associates.

2.  Check out this order from the 11th. The defendant's lawyer challenged (on rehearing) the fact that the panel had two visiting district judges.  The same panel consisting of only one active 11th Circuit judge said no problem.  Well, the court is getting Judge Rosenbaum now.  I wonder if the order allowing two visiting judges still applies.


3.  Meantime, Judge Rosenbaum's elevation has caused an emergency on the district court....