Stokeling is decided 5-4 for the Government

The Supreme Court affirmed the 11th Circuit in an odd 5-4 lineup in which Chief Justice Roberts (along withe Kagan and Ginsburg) joined Justice Sotomayor in dissent.  Justice Thomas held for the majority: The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.

It used to be mildly surprising when Justice Breyer voted against criminal defendants, but that is the norm now.  He is among the worst justices on criminal justice issues.  In this case, one friend put it this way:  Breyer literally snatched victory from Stokeling's hands, violently.

This case is a pretty good example of how Scalia's death really affected the Court on criminal justice issues.  Scalia wrote the Johnson decision on which Stokeling's argument was based.  He likely would have sided with the defense here, where his replacement sided with the government.

Congrats to Robert Luck (updated with pictures)

This morning Gov. DeSantis will appoint Robert Luck to the Florida Supreme Court.  Luck currently serves on the 3rd DCA and was an AUSA in this District before that.  He will serve with another former AUSA and former 3rd DCA judge, Barbara Lagoa.

Luck is 39 and after graduating from UF law school, clerked for Ed Carnes on the 11th Circuit.

Congrats to Robert Luck!

UPDATE — here are some pictures from the swearing in, where newly appointed Florida Supreme Court Justice Barbara Lagoa swore in Robert Luck:

Congrats to Robert Watson

Former AUSA and Kobre Kim partner Robert Watson will be joining the county bench on Monday. His appointment was one of Gov. Scott's last actions on Monday. Robert is a friend of the blog and we wish him well.  

Barbara Lagoa named to Florida Supreme Court

Really cool news ... former SDFLA AUSA, current 3rd DCA judge, and local Miamian Barbara Lagoa has been named to the Florida Supreme Court.  She’s a really good person and I know her family (including her husband Paul Huck, Jr., her three girls, and her father-in-law Paul Huck, Sr.) is very proud.

More prosecutorial misconduct...

...and yet again, another court finds no consequences.

The numerous instances of prosecutorial misconduct have been well-documented in this district (and around the country). Again and again, there have been no consequences for the prosecutors who have engaged in the misconduct or in the cases in which the misconduct occurred.

Another example is found in this unpublished opinion from the 11th Circuit, United States v. Foster.

In Foster, the district court found that there was insufficient evidence to support the jury’s verdict and granted a post-trial Rule 29 motion because the defendant withdrew from the conspiracy. The 11th Circuit reversed and reinstated the jury’s verdict. In Foster’s second appeal, decided today, the 11th Circuit found quite a bit of prosecutorial misconduct (without naming the prosecutor) in how it cross-examined a defense witness that was central to the withdrawal defense. Nevertheless, the court found that the misconduct was harmless:

On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.

But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient.  So more misconduct and nothing happens.  No consequences for the prosecutor.  And the conviction remains intact.  I understand that people make mistakes and that generally we should give others the benefit of the doubt.  But I wonder how a defense attorney would be treated if he or she did the same thing.  Or better yet, how do judges treat defendants who ask for second chances?  If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on.  Otherwise, it will just keep happening over and over again.