The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Damn, this is a really sad one. Alan Ross passed away last night after battling pancreaticcancer. He was a really good guy. Here are the funeral arrangements:If confirmed, Roy K. Altman of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Roy Altman is a partner at Podhurst Orseck P.A., where his practice has focused on aviation and commercial litigation since 2014. Before entering private practice, Mr. Altman served for six years as an Assistant United States Attorney for the Southern District of Florida, where he prosecuted hundreds of cases covering the full range of Federal criminal conduct. Over this period, Mr. Altman tried more than 20 cases to jury verdict and argued several of these before the U.S. Court of Appeals for the Eleventh Circuit. During his service as a Federal prosecutor, Mr. Altman won a number of awards including the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Team” in United States v. Mentor (first-degree murder), the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Performance” in United States v. Flanders (human trafficking), the Federal Bar Association Young Federal Lawyer Award (one of five attorneys under 37 nationwide), and the “Federal Prosecutor of the Year” award from the Miami-Dade County Association of Chiefs of Police and the Law Enforcement Officers Charitable Foundation. Upon graduation from law school, Mr. Altman served as a law clerk to Miami-based Circuit Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Altman earned his B.A., cum laude, from Columbia University, where he played baseball and football, and his J.D. from Yale Law School, where he served as the projects editor of the Yale Law Journal.
If confirmed, Rodolfo “Rudy” Ruiz II of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rudy Ruiz currently serves as a Circuit Judge in the Eleventh Judicial Circuit of Florida since his appointment by the Governor in 2014. As a Circuit Judge, Judge Ruiz has presided over both civil and criminal divisions. He previously served for two years as a County Court Judge in the Eleventh Judicial Circuit, where he handled a full range of civil and criminal cases. Before ascending to the bench, Judge Ruiz served for three years as an Assistant County Attorney in the Miami-Dade County Attorney’s Office, where he handled a wide range of civil defense matters in Federal and State court at both trial and appellate levels. Before joining the County Attorney’s Office, Judge Ruiz practiced corporate law in the Miami office of White & Case LLP. Upon graduation from law school, Judge Ruiz served as a law clerk to Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida. Judge Ruiz earned his B.S. from Duke University and his J.D. from Georgetown University, where he was an articles editor of the American Criminal Law Review.
If confirmed, Rodney Smith of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rodney Smith serves as a Circuit Judge in the civil and felony criminal divisions of the Eleventh Judicial Circuit, where he has served since his appointment by the Governor in 2012. In this capacity, he also serves as co-chair of the Diversity Committee of the Florida Conference of Circuit Judges. He previously served for four years as a Miami-Dade County Court Judge of the Eleventh Judicial Circuit, where he handled both civil and criminal cases. Before ascending to the bench, Judge Smith served as a senior assistant city attorney in the Office of the City Attorney for Miami Beach, where he handled a broad range of civil defense matters. Before joining the City Attorney’s office, Judge Smith practiced insurance defense law at a number of private Miami firms. Upon graduation from law school, Judge Smith served for four years as an Assistant State Attorney in the Miami-Dade County State Attorney’s Office. Judge Smith earned his B.S., cum laude, from Florida Agricultural and Mechanical University, and his J.D., cum laude, from the Michigan State University College of Law.
2:37: Yells at defendant who responds to question not to talk.
3:04: Yells at lawyer to keep quiet defendant
3:53: Yells at defendant- "I'm not here to talk to you about breathing treatment."
Reflect on that for a moment. This is a misdemeanor case. The defendant is obviously not well. She's in a wheel chair. We learned later that she had chronic obstructive pulmonary disease and in fact died within a few days of being released. The defendant indicates that she needs treatment to breathe. Not for pain. But to perform the basic function all humans need to perform to live. And the response of a member of the Broward Judiciary was that she didn't want to talk about it. Yes, this is the Broward Judiciary on full display for the world to see. They abuse defendants and lawyers all the time. However most of them have enough self control not to do it on video in this fashion.
4:10: "I’m not going to spend all day with her interrupting me."
4:50: Judge yells again
5:55 : "You’ve already said too much."
6:10 Judge Throws a fit and waves arms: "Don’t even say yes..."
6:35: And here's what a kind and decent judge says to a handicapped person in a wheel chair that they've just ordered to go to pre-trial services: "Arrange for someone to carry you if you can’t get there."
A husband-and-wife legal team from Miami is joining President Donald Trump’s personal legal team in the special counsel's Russia investigation.The big debate among criminal lawyers for the past few months has been — would you take that case if he called... the Raskins have said yes. They are well-respected lawyers down here, who are apparently Trump supporters. Their website is here. And they are joining Rudy Guliani.
Jane Serene Raskin and Marty Raskin, two former federal prosecutors and veteran defense lawyers who have a private practice in Coral Gables, are joining Trump’s team along with former New York City Mayor Rudy Giuliani.
“Jane and Marty are highly respected former federal prosecutors with decades of experience. They have a nationwide practice and reputation for excellence and integrity,” Trump’s personal attorney, Jay Sekulow, said in a statement Thursday.
Gorsuch concurred in part and concurred in the judgment. He emphasized at the outset that “[v]ague laws invite arbitrary power.” He defended the originalist foundations for vagueness challenges that Justice Clarence Thomas questioned at length in his dissent, tracing the history of those challenges back to Blackstone’s condemnation of vague statutes and the “tradition of courts refusing to apply vague statutes.” He further noted that the concern with vague statutes was not “confined to the most serious offenses like capital crimes.” Addressing the government’s argument that a more lenient standard of review should apply in civil cases, Gorsuch would have gone even further than the plurality. He suggested that provisions of civil laws should be scrutinized closely for vagueness even outside the deportation context: “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”
"Night Court" and "Dave's World" star Harry Anderson received a tip of the hat from costars and fellow magicians sending out heartfelt tributes to the late sitcom star.
The actor, who died on Monday at age 65, began his lengthy career in stand-up and magic, then notably played judge Harry T. Stone on the Emmy-winning NBC sitcom "Night Court."
Costar John B. Larroquette and several others fondly remembered the actor — and his iconic fedora — with messages honoring Anderson's memory.
"He was wicked smart. He was wicked funny. He had a big laugh. He had a big heart. He delighted in legerdemain especially when he caused someone to scratch their head and proclaim; How the hell did you do that? And he could eat a hamster like no one I ever knew," the actor tweeted late Monday, describing their work on the show as "a carnival fun ride with Harry."
There is a better and safer way to deal with this issue than the current approach of using prosecutors and FBI agents to do the sifting. A law should be enacted under which anytime the government is seeking to search an office or home that may contain confidential and privileged information, the search team must be accompanied by a judicial officer – a judge, a magistrate or someone appointed to fulfill that function.And Trump's lawyers have filed papers this weekend asking to do an initial review before the government gets a chance. Here's the WSJ coverage:
That judicial officer should be the only one ever to read material that is eventually deemed to be confidential. A judge can be trusted not to leak far better than FBI agents or prosecutors. And if a judge were to leak, it would be easy to identify the source of the unlawful disclosure, since the single judge would be the only one to have access to the confidential material.
Lawyers for President Donald Trump say they should be allowed to review the material seized by the Federal Bureau of Investigation last week from Mr. Trump’s longtime lawyer Michael Cohen before government investigators begin their own, according to a court filing late Sunday.Trump won't be at the hearing today. He's in Miami. Here's how to avoid the traffic.
The filing asks a Manhattan federal judge to stop the government from using a “taint team” of prosecutors to review the evidence for documents protected by attorney-client privilege and to issue an order allowing Mr. Cohen, Mr. Trump and their legal teams to comb through it first for “materials over which the President asserts privilege.”
After Mr. Trump identifies which communications he believes are privileged, the government taint team can make objections, the filing said, and the court can make the final determination about which materials investigators are allowed to see.
If confirmed, Gadyaces S. Serralta of Florida will serve as the United States Marshal for the Southern District of Florida. Gadyaces Serralta is currently a Major with the Miami-Dade Police Department, a position he has held since 2015. In this capacity, he also serves as the Commander of the Palmetto Bay Policing Unit. Mr. Serralta began his law enforcement career with the Miami-Dade Police Department in 1990. He served as a patrol officer and sergeant, working primarily with the Criminal Street Gangs Unit and Organized Crime Section, and then served as lieutenant in charge of the Robbery Intervention and Narcotics Detail before assuming his current position as Major. Mr. Serralta earned a B.S. in Criminal Justice Studies from Florida International University and a M.S. in Leadership from Nova Southeastern University.
If confirmed, Wendy Williams Berger of Florida will serve as a District Judge on the U.S. District Court for the Middle District of Florida. Wendy Berger serves as a District Judge on the Fifth District Court of Appeal, where she has served since her appointment by the Governor in 2012. Prior to her elevation to the Court of Appeal, Judge Berger served for seven years as a Circuit Court Judge on the Seventh Judicial Circuit, where she handled the full range of civil, criminal, and death penalty cases. Before ascending to the bench, Judge Berger served for four years as Assistant General Counsel in the Executive Office of the Governor. Prior to joining the Governor's Office, Judge Berger spent seven years prosecuting criminal cases as an Assistant State Attorney. Judge Berger earned her B.S., cum laude, from Florida State University and her J.D. from the Florida State University College of Law, where she was a member of the Florida State University Law Review.
If confirmed, Allen C. Winsor of Florida will serve as a District Judge on the U.S. District Court for the Northern District of Florida. Allen Winsor serves as a Judge on the First District Court of Appeal. Prior to his appointment to the bench, Mr. Winsor served for nearly three years as the Solicitor General of the State of Florida, where he represented Florida's interests in State and Federal courts and argued two cases in the Supreme Court of the United States. Before joining the Florida Attorney General's Office, Mr. Winsor was a partner in the Tallahassee office of GrayRobinson, P.A., where he practiced civil, constitutional, and appellate litigation. Upon graduation from law school, Mr. Winsor served as a law clerk to Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Winsor earned his B.S.B.A. from Auburn University and his J.D., with high honors, from the University of Florida, Levin College of Law, where he was inducted into the Order of the Coif and served as editor-in-chief of the Florida Law Review.
President Donald Trump on Tuesday will nominate Georgia Supreme Court Justice Britt Grant to fill an upcoming vacancy on the federal appeals court in Atlanta, according to an administration official familiar with the nomination.
If approved by the Senate, Grant, 40, would succeed Judge Julie Carnes, who will become a senior judge in June. She was appointed to the state appellate court bench by Gov. Nathan Deal in January 2017.
Savannah attorney Pat O’Connor, former president of the State Bar of Georgia, said the nomination comes as no surprise to him.
“Through her service on the Georgia Supreme Court, Justice Grant has proven herself to be a bright star, both intellectually and in terms of judicial philosophy,” O’Connor said. “She’s thoughtful, articulate and thorough.”
A smuggler who flew loads of drugs for Colombian cartels during Miami’s “cocaine cowboys” era in the 1980s was sentenced to 12 years in prison Monday for using his old talents in a sophisticated auto theft ring.
U.S. District Judge Robert Scola imposed the relatively harsh sentence — more than four years higher than prosecutors recommended — because of the intricacy of the theft scheme, a total loss of about $1.8 million and because 72-year-old Mickey Munday boasted and bragged constantly for years about his cocaine smuggling past.
“All of his comments have involved braggadocio and zero remorse,” Scola said at a hearing.
Munday spent most of the 1990s in prison after pleading guilty to drug smuggling charges involving tons of cocaine from Pablo Escobar’s Medellin cartel and also the Cali cartel during the 1980s. He frequently talked about his exploits in media interviews, social media posts, and in a starring role in the 2006 documentary “Cocaine Cowboys.”
Assistant U.S. Attorney Joshua Rothstein said Munday transferred his abilities to evade law enforcement to the auto theft ring because he couldn’t resist getting back into the criminal game.
“It wasn’t enough to talk about the past. He couldn’t resist the urge to get back in the criminal action,” Rothstein said. “He traded his wings for wheels.”
But at the hearing, Munday said much of what he said over the years was enhanced or fictional and that he was hoping to land a movie deal for his life story’s rights.
“I write about what I know. I combine stories,” he said, adding that he had no arrests after his original release from prison until 2017 for the car theft ring. “I have done everything I could to stay on the straight and narrow.”
Supreme Court experts expect the justices to issue a larger-than-normal number of 5-4 rulings in the coming months. That would increase the chances of conservative Justice Anthony Kennedy, who sometimes sides with the court’s four liberals in major cases, casting the deciding votes.
“It’s reasonable to suggest there are going to be fewer unanimous decisions and more division,” said Nicole Saharsky, a lawyer who often has argued cases before the court.
Rather than comply with the requirements of the United States Constitution, Defendants continue to insist they can do whatever they want with hundreds of thousands of Floridians’ voting rights and absolutely zero standards. They ask this Court to stay its prior orders. ECF No. 163.
No.
It was a little challenging putting together Florida Playbook because it took extra time to pull the choicest quotes from federal Judge Mark E. Walker's order on Wednesday torching Gov. Rick Scott and Attorney General Pam Bondi's legal arguments as the state defends its "arbitrary" clemency process. It might have been easier to just reprint the entire order. Wrote the judge: "this court does not play games." Indeed. Nor did he pull punches in noting that the Republican politicians' have "personal stakes in shaping the electorate" in the way they restore felons' voting rights. It's a pretty direct shot at Scott as he plans to announce next week whether he'll run for Senate.
DRIPPING WITH SARCASM, Walker said Scott, Bondi and the rest of the clemency board should get to work respecting the First and Fourteenth Amendments by drafting a constitutionally sound clemency scheme by April 26. "Bitter pills are clearly too hard to swallow," Walker snarked, saying they "fall woefully short" in some areas and "regurgitate" arguments that are "unpersuasive ... disingenuous ... astounding" or are "rooted in neither common sense nor reality."
'SCREAM INTO THE WIND' - Walker even compared them to toddlers: "Defendants stamp their feet and wail that 30 days is 'not [a] reasonably calculated' time to create a constitutional system of executive clemency. This Court again declines to act as a fifth Board member. But drafting new rules need not be complicated or time-consuming. Defendants could simply identify those rules that run afoul of the Constitution and rewrite them with specific and neutral standards. Instead, Defendants scream into the wind various questions it might consider in crafting constitutional rules. Answering those questions may be a better use of time."
Justice Sonia Sotomayor dissented from today’s summary reversal, in a 15-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor recounted the facts of the case, positing that if the story “sounds unreasonable, that is because it was. And yet,” she complained, “the Court today insulates that conduct from liability,” “effectively treating qualified immunity as an absolute shield.” In particular, she lamented, the court’s ruling “ultimately rests on a faulty premise”: that the cases on which the 9th Circuit relied “are not identical to this one.” But the Supreme Court, she argued, has never ruled that the “clearly established law” standard is met only when the plaintiff can point to a case with identical facts. “It is enough,” Sotomayor contended, “that governing law places the constitutionality of the officer’s conduct beyond debate” – as Kisela’s was here. But at a minimum, Sotomayor added, there is enough dispute about the facts and the law in Kisela’s case that the court should not have reversed without the benefit of briefing or oral argument on the merits.
The majority opinion may have contained a strong rebuke of the 9th Circuit, but Sotomayor’s dissent concluded with an equally forceful reprimand for her colleagues. She asserted that today’s ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Sotomayor had more strong words in her solo dissent from the court’s denial of review in two Florida capital cases. The inmates in the cases, Jesse Guardado and Steven Cozzie, had argued that their death sentences were unconstitutional, but the Supreme Court declined to step in. Sotomayor complained that the Florida Supreme Court had – as it had in two earlier cases – “failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences” after the Supreme Court’s 2016 decision holding that the state’s death-penalty-sentencing scheme violates the Constitution. In a somewhat unusual footnote, Sotomayor quoted from a 19th-century essay by the French author André Gide: “’Everything has been said already; but as no one listens, we must always begin again.’”
So, what part of the butt is the ass crack, really? As a legal matter.
You see, a fight over scantily clad baristas in one Washington State community hinges partly on whether the average person can objectively tell which part of the bottom counts as the "anal cleft" and whether police could (or would) objectively be able to measure whether one is exposed or not.
The city of Everett, Washington, is trying to get rid of its "bikini barista" stands with an ordinance that forces the ladies there to wear more coverage. The city claims that these tiny stands where scantily clad women serve coffee are incubators of prostitution, public lewdness, and crime. They're trying to shut them down by forcing the women to button up.
The stands are fighting back and won an initial injunction against the ordinance's enforcement in December. A U.S. district judge determined that Everett's ordinance was too vague in its description of what needed to be covered and thereby risked arbitrary enforcement issues. And the judge further determined that the law likely violated the First Amendment free expression rights of the women who worked there.
Everett is now fighting back itself against the injunction, submitting a legal brief arguing that the judge erred on both counts. Its appeal calls for the judge to be overruled and the injunction dissolved.
You'll never read a more boring 66-page document about butts. It includes four pages listing all the federal court cases used to bolster its claim that there's no real confusion about what counts as an "anal cleft" and that there's no evidence that the women are actually expressing anything in particular in their clothing choices.
Celebrating the award of $190 million to replace the aging Fort Lauderdale federal courthouse, U.S. Sen. Bill Nelson has set his sights on getting money for a new one for West Palm Beach, too.
Nelson requested U.S. District Judge William Dimitrouleas ask Chief Judge Michael Moore to form a task force to spearhead the effort for a new West Palm Beach district courthouse. Dimitrouleas is chairman of the task force created about a decade ago for Fort Lauderdale’s effort.
“We’re going to have to do the same for West Palm Beach because it has an old federal courthouse as well,” Nelson said during his Fort Lauderdale courthouse appearance Wednesday with Mayor Dean Trantalis and court officials. The West Palm Beach courthouse, built in 1973, is at 701 Clematis St.
Nelson said a site decision for the new downtown Fort Lauderdale courthouse could come from the General Services Administration as early as June and “then let’s get this project going.” He took a tour of the courthouse while officials pointed out many of the leaks that have plagued the building.
The first case for argument in the Supreme Court this morning has a very interesting underlying issue: whether a policy of shackling all criminal defendants at pretrial appearances in a federal district court is constitutional.
But as United States v. Sanchez-Gomez comes before the justices, the questions presented are more procedural in nature, including whether the U.S. Court of Appeals for the 9th Circuit had the authority to review the “interlocutory” appeal of a group of detainees after the federal district court upheld the U.S. Marshals Service restraint policy in the Southern District of California, which is based in San Diego.
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If Kedem comes across as the strait-laced, able Washington lawyer for the prosecution, Cahn has a bit of a Southern California vibe in his voice and manner.
“We believe the courtroom really is a sacred space,” he says, sometimes sticking his hand in his pocket and swaying back slightly from the lectern. “We believe judges control that space and assure that individuals come before the court with dignity and with autonomy and with their liberty interest protected, and that there was a well-established right at common law that, under this court’s precedent, is incorporated in the Due Process Clause to appear before courts free of bonds.”
Cahn mentions the notorious Newgate prison in London, where for centuries detainees faced “terrible conditions, shackled hand and foot, and without question, their bonds would be struck off for their arraignments.”
Ponzi schemer Scott Rothstein is imprisoned and disbarred from practicing as an attorney but it hasn’t stopped him from flexing his jailhouse lawyer muscles – on his own behalf.
Rothstein, 55, personally filed court documents on Thursday in his bid to try to force the feds to reduce his 50-year prison sentence.
Rothstein, who pleaded guilty to orchestrating a $1.4 billion Ponzi scheme, first had to obtain permission from Senior U.S. District Judge James Cohn to file his own court pleadings.
The judge consented and Rothstein, who is being held in the U.S. Bureau of Prisons’ secretive witness protection program for inmates, typed up a 13-page legal argument and submitted it Thursday.
A new federal courthouse for Fort Lauderdale is included in a massive $1.3 trillion federal spending agreement that has bipartisan support and is expected to be approved in the next few days.
News that the $190 million downtown project was part of the package reached the city Wednesday from U.S. Sen. Bill Nelson, who phoned the city’s current and former mayors with the good news.
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The 39-year-old current courthouse at Broward Boulevard and Northeast Third Avenue has had a leaking roof and mold problems, doesn’t have sufficient office space and wasn’t designed for current federal security requirements. The courthouse has been No. 3 on the priority list for new courthouses since 2016.
The General Services Administration is conducting a feasibility study for the new courthouse that should be completed by June. It will then be up to the GSA to pick a site for the new courthouse.
This appeal requires us to consider whether the pat down of a burglary suspect and the identification of a round of ammunition in the suspect’s pocket constitutionally allowed the officer to retrieve the round and another item from the suspect’s pocket.
Judge Elizabeth L. “Lisa” Branch, U.S. Court of Appeals for the Eleventh Circuit.. pic.twitter.com/xzkV4ep6db
— Chief Judge Stephen Dillard (@JudgeDillard) March 20, 2018
MUST WATCH: Ben Carson is actually pinning all of this on his wife: "I left it with my wife. I said, 'help choose something' ... The next thing that I, quite frankly, heard about it, was that this $31,000 table had been bought." pic.twitter.com/uYTPUihNFA— Amee Vanderpool (@girlsreallyrule) March 20, 2018
On Tuesday, [Larry] Krasner issued a memo to his staff making official a wave of new policies he had announced his attorneys last month. The memo starts: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”“These policies are an effort to end mass incarceration and bring balance back to sentencing,” Larry Krasner said in an announcement on Tuesday.The most significant and groundbreaking reform is how he has instructed assistant district attorneys to wield their most powerful tool: plea offers. Over 90 percent of criminal cases nationwide are decided in plea bargains, a system which has been broken beyond repair by mandatory minimum sentences and standardized prosecutorial excess. In an about-face from how these transactions typically work, Krasner’s 300 lawyers are to start many plea offers at the low end of sentencing guidelines. For most nonviolent and nonsexual crimes, or economic crimes below a $50,000 threshold, Krasner’s lawyers are now to offer defendants sentences below the bottom end of the state’s guidelines. So, for example, if a person with no prior convictions is accused of breaking into a store at night and emptying the cash register, he would normally face up to 14 months in jail. Under Krasner’s paradigm, he’ll be offered probation. If prosecutors want to use their discretion to deviate from these guidelines, say if a person has a particularly troubling rap sheet, Krasner must personally sign off.
Unfortunately, Jeff Sessions and Donald Trump are doing the exact opposite. Sessions is pushing for more min/mans. And Trump is now calling for the death penalty in drug prosecutions. Here's Krasner's memo. It's worth a read.“It’s the mirror of a lot of offices saying, ‘If you don’t ask for the max you’ve got to get my permission,’ ” says David Rudovsky, a prominent Philadelphia civil rights attorney. For longtime career prosecutors, this will take some getting used to. “You want to be sure your assistants are actually doing it,” Rudovsky says.Krasner’s lawyers are also now to decline charges for marijuana possession, no matter the weight, effectively decriminalizing possession of the drug in the city for all nonfederal cases. Sex workers will not be charged with prostitution unless they have more than two priors, in which case they’ll be diverted to a specialized court. Retail theft under $500 is no longer a misdemeanor in the eyes of Philly prosecutors, but a summary offense—the lowest possible criminal charge. And when ADAs give probation charges they are to opt for the lower end of the possible spectrum. “Criminological studies show that most violations of probation occur within the first 12 months,” the memo reads, “Assuming that a defendant is violation free for 12 months, any remaining probation is simply excess baggage requiring unnecessary expenditure of funds for supervision.” When a person does break the rules of probation, minor infractions such as missing a PO meeting are not to be punished with jail time or probation revocation, and more serious infractions are to be disciplined with no more than two years in jail.In a move that may have less impact on the lives of defendants, but is very on-brand for Kranser, prosecutors must now calculate the amount of money a sentence would cost before recommending it to a judge, and argue why the cost is justified. He estimates that it costs $115 a day, or $42,000 a year, to incarcerate one person. So, if a prosecutor seeks a three-year sentence, she must state, on the record, that it would cost taxpayers $126,000 and explain why she thinks this cost is justified. Krasner reminds his attorneys that the cost of one year of unnecessary incarceration “is in the range of the cost of one year’s salary for a beginning teacher, police officer, fire fighter, social worker, Assistant District Attorney, or addiction counselor.”
Officer Nector Martinez took the witness stand in a Bronx courtroom on Oct. 10, 2017, and swore to tell the truth, the whole truth, and nothing but the truth, so help him God.Here’s an old post from this blog about the problem:
There had been a shooting, Officer Martinez testified, and he wanted to search a nearby apartment for evidence. A woman stood in the doorway, carrying a laundry bag. Officer Martinez said she set the bag down “in the middle of the doorway” — directly in his path. “I picked it up to move it out of the way so we could get in.”
The laundry bag felt heavy. When he put it down, he said, he heard a “clunk, a thud.”
What might be inside?
Officer Martinez tapped the bag with his foot and felt something hard, he testified. He opened the bag, leading to the discovery of a Ruger 9-millimeter handgun and the arrest of the woman.
But a hallway surveillance camera captured the true story: There’s no laundry bag or gun in sight as Officer Martinez and other investigators question the woman in the doorway and then stride into the apartment. Inside, they did find a gun, but little to link it to the woman, Kimberly Thomas. Still, had the camera not captured the hallway scene, Officer Martinez’s testimony might well have sent her to prison.
When Ms. Thomas’s lawyer sought to play the video in court, prosecutors in the Bronx dropped the case. Then the court sealed the case file, hiding from view a problem so old and persistent that the criminal justice system sometimes responds with little more than a shrug: false testimony by the police.
Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense:
IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS.
V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV.
Those are interesting concepts, but the following 4 statements will encourage more discussion:
VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.
VII. ALL JUDGES ARE AWARE OF RULE VI.
VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING
IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.
So what is to be done about lying police officers? We need to change rules 8 and 9. Judges need to start calling them on it. And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years.
There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.
What can be done? Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor.
--Dismiss more cases. (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).
--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety. There are too many people in jail for too long because of the Sentencing Guidelines. A federal conviction ruins people's lives. Not every case necessitates lengthy sentences and many don't require jail at all. The Guidelines are made up numbers without any real data to back them up. I trust judges more than I do the grid.
--Don't punish defendants for going to trial. There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe. Going to trial doesn't mean that every enhancement applies or that variances are off the table.
--Grant some pretrial motions and require prosecutors to turn over evidence. I know that judges hate dealing with pretrial motions, especially those dealing with discovery. But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more. The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved. It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.
This appeal presents the issue whether warrantless forensic searches of two cell phones at the border violated the Fourth Amendment. U.S. Const. amend IV. Hernando Javier Vergara appeals the denial of his motion to suppress evidence found on two cell phones that he carried on a cruise from Cozumel, Mexico to Tampa, Florida. He argues that the recent decision of the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014)—that the search-incident-to-arrest exception to the warrant requirement does not apply to searches of cell phones—should govern this appeal. But we disagree. The forensic searches of Vergara’s cell phones occurred at the border, not as searches incident to arrest, and border searches never require a warrant or probable cause. At most, border searches require reasonable suspicion, but Vergara has not argued that the agents lacked reasonable suspicion to conduct a forensic search of his phones. We affirm.Judge Jill Pryor dissented:
In this case we decide for the first time whether a warrantless forensic search of a cell phone at the United States border comports with the Fourth Amendment. To determine whether a law enforcement practice is constitutional, courts must balance its promotion of legitimate government interests against its intrusion on an individual’s Fourth Amendment rights. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Here, we weigh the government’s interest in conducting warrantless forensic cell phone searches at the border with Hernando Vergara’s privacy interest in his cellular devices and the data they contain.
The majority opinion concludes that this balance weighs heavily in the government’s favor because the searches occurred at the border. I agree with the majority that the government’s interest in protecting the nation is at its peak at the border, but I disagree with the majority’s dismissal of the significant privacy interests implicated in cell phone searches, as articulated by the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014). Because Riley did not involve a border search, I acknowledge that I can, at best, attempt to predict how the Supreme Court would balance the interests here. But my weighing of the government’s heightened interest at the border with Vergara’s privacy interest in his cell phones leads me to a result different than the majority’s. I respectfully dissent because, in my view, a forensic search of a cell phone at the border requires a warrant supported by probable cause.
I don't wanna grow up, I'm a Toys R Us kid
they got a million toys at Toys R us that I can play with
I don't wanna grow up, I'm a Toys R Us kid
they got the best for so much less, it'll really flip your lid
From bikes to trains to video games
it's the biggest toy store there is (gee whiz!)
I don't wanna grow up, cause maybe if I did
I couldn't be a Toys R Us kid
more games, more toys, oh boy!
I wanna be a Toys R Us kid
Here’s the problem: If Scott, a Republican, is elected to replace Democratic U.S. Sen. Bill Nelson, he could be forced to step down nearly a week before his term is scheduled to end. That’s because Congress — at least for now — is scheduled to start its 2019 term on Jan. 3 — before a new governor is sworn into office on Jan. 8.
On paper, and looking back at history, that doesn’t seem like a big deal. Three decades ago, then-Gov. Bob Graham left office early because he was elected to the U.S. Senate.
But an early departure by Scott could complicate a brewing legal fight over the makeup of Florida’s Supreme Court. Scott plans to appoint three new justices on his final day in office. If he leaves early, he could lose his window to do that — although his immediate replacement, Lt. Gov. Carlos Lopez-Cantera, also a Republican, could appoint similar candidates.
It is too easy to convict an innocent person.
The rate of wrongful convictions in the United States is estimated to be somewhere between 2% to 10%. That may sound low, but when applied to a prison population of 2.3 million, the numbers become staggering. Can there really be 46,000 to 230,000 innocent people locked away? Those of us who are involved in exoneration work firmly believe so.
Millions of defendants are processed through our courts each year. It's nearly impossible to determine how many of them are actually innocent once they've been convicted. There are few resources for examining the cases and backgrounds of those claiming to be wrongfully convicted.
Once an innocent person is convicted, it is next to impossible to get them out of prison. Over the past 25 years, the Innocence Project, where I serve on the board of directors, has secured through DNA testing the release of 349 innocent men and women, 20 of whom had been sent to death row. All told, there have been more than 2,000 exonerations, including 200 from death row, in the U.S. during that same period. But we've only scratched the surface.
His new venture, J. Bagley Mediation Services, launches April 1 in Miami.
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“I’m trying to go out with very little fanfare,” Bagley said Monday in a telephone interview. “I just tried to do my job — the good work that many of my colleagues do. … Serving the public is good enough for me, and I’m proud to have spent the last 35 years doing so.”
The longtime prosecutor served in the juvenile and felony divisions of the state attorney’s office before rising to the circuit bench in 1995. His ran unopposed in 2014, winning a six-year term that was set to expire in January 2021.
“I am very thankful for the privilege and honor of serving 23 years as a circuit judge, working alongside so many excellent colleagues and support and administrative staff,” he wrote in a Jan. 29 retirement letter to Gov. Rick Scott. “I retire knowing that I have given much but received more from so many opportunities gained from my previous position as an assistant state attorney and currently as a circuit judge.”
Lozman had an unusual problem before the Justices: his case was too good. Every Justice who spoke seemed to acknowledge that Lozman’s rights had been violated. As Chief Justice John Roberts put it, “I found the video pretty chilling. I mean, the fellow is up there for about fifteen seconds, and the next thing he knows he’s being led off in handcuffs, speaking in a very calm voice the whole time. Now, the Council may not have liked what he was talking about, but that doesn’t mean they get to cuff him and lead him out.” Still, several Justices worried that the egregious facts of Lozman’s case might lead them to create a standard that would subject many communities to similar lawsuits. They needed to figure out how to create a standard that would not discourage law enforcement from keeping order in public meetings, while preventing the kind of abuse that Lozman suffered. “I’m very concerned about police officers in difficult situations,” Justice Anthony Kennedy told Pamela Karlan, a Stanford Law professor who was representing Lozman. “In this case, there’s a very serious contention that people in elected office deliberately wanted to intimidate this person, and it seems to me that maybe in this case we should cordon off or box off what happened here from the ordinary conduct of police officers."
