Investiture for Roy Altman

It will be a big party on the top floor of the Wilkie Ferguson courthouse tomorrow afternoon for Judge Roy Altman.  Congrats to Judge Altman.

Judge Rodney Smith’s investiture will be next.

Then, if all goes according to plan, Judge Raag Singhal will be confirmed and have his.

We are still waiting on that 5th open district seat in Fort Pierce.

Lagoa and Luck on the Senate calendar

Judges Barbara Lagoa and Robert Luck will have their first hearings before the Senate tomorrow (Wednesday) morning at 10am and will answer any questions the Judiciary Committee might have.  After this hearing, they'll answer written questions from the Senators.  Floor votes should come relatively quickly. 

If you are interested in getting all the news as it happens, you should follow @fedjudges on Twitter.

Will the Dems address federal judges in tonight's debate?

Trump has placed an emphasis on remaking the federal judiciary and he has been extremely successful. Obama (and Clinton) never had such an emphasis. And the Democratic candidates so far have barely mentioned the judiciary in their campaigns and debates. Hopefully it will be discussed tonight.

Others, however, have been pressing for a new narrative on judging. Clark Neily of Cato has called for a moratorium on appointing prosecutors to the bench.

Given the government’s vast resources, nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice. To further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

It is perfectly understandable that current government officials wish to stock the courts with former government advocates. But it’s a bad deal for the rest of us and a doubtful way to ensure equal justice under law.

And Demand Justice has put out its own Supreme Court shortlist (as Trump did when he was a candidate) since no Dem has done so. There are no Floridians on the list, and it's not a realistic list in my view (with only 2 Circuit judges), but it's a conversation starter.

Kudos to Judge Scola for being compassionate

It’s not every day that a federal judge is compassionate. But Judge Scola deserves a lot of credit today for releasing 84-year old Hafiz Khan, who is dying. The federal public defender’s office filed the motion for Khan, which received very strong opposition from the U.S. Attorney’s Office. From the Miami Herald:

“I do find that his demise is imminent, and he can no longer speak and does not pose a danger to the community,” Scola said Friday, after holding three hearings this week on the Khan family’s petition.
***
Earlier this week, a prison doctor testified that Khan has a host of dire health issues and could die within weeks. But he also said he may be too weak to be moved from the prison medical facility, let alone to Miami. Scola, the judge, raised concerns about the logistics of transferring Khan because of his fragile state.

The family, with the help of Federal Public Defender Michael Caruso and colleague Sowmya Bharathi, found a solution that satisfied the judge’s concern: a hospice center in Raleigh that could accommodate Khan on Friday.

“No one wants him released without proper medical care available,” Bharathi said, adding that Khan’s family had the finances to pay for his ambulance transfer to the Raleigh facility and the daily hospice care.

The judge said that because of Khan’s rapidly deteriorating health and inability to speak, he believed the defendant would be unable to spread any possible propaganda to incite the Taliban to take violent action against Americans — evidence that surfaced during his 2013 terrorism trial in Miami.

“Mr. Khan’s danger was his ability to speak and influence other people,” said Scola, who in his order prohibited Khan from any access to a telephone, computer or the internet. He also limited his visitors at the Raleigh hospice facility to immediate family members.

CA11 issues interesting opinion on experts

There are 3 opinions in this lengthy case, with the majority written by visiting district judge Lewis Kaplan, a concurrence by Julie Carnes, and a dissent by Tjoflat.

Of note is that many practitioners think that the criminal discovery rules require less disclosure from prosecutors on experts than the civil case counterparts. But Tjoflat explains that that understanding is wrong. Prosecutors must make real expert disclosures or risk full reversal:

In closing, to understand just how significantly Mentor has been wronged today, consider what we would do if this case were criminal rather than civil. Under Federal Rule of Criminal Procedure 16(a)(1)(G), the government has a duty to “give to the defendant a written summary of any [expert] testimony that the government intends to use.” Fed. R. Crim. P. 16(a)(1)(G). The government’s summary must include the expert witness’s “opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Id. As with the Civil Rules, the government has the continuing duty to inform the defendant of changes to the expert’s opinion. Id. 16(c). And, like Civil Rule 37(c), Criminal Rule 16 empowers the district court to “prohibit [a non-compliant] party from introducing
the undisclosed evidence.” Id. 16(d)(2)(C).

Now imagine this were a criminal trial. The government identifies Dr. Porter as an expert witness. Mentor obtains Dr. Porter’s summary, deposes Dr. Porter and—based on the information obtained—builds its defense. All seems to go as planned until, mid-trial, Dr. Porter changes his tune in a way that prejudices Mentor. Moreover, the circumstances of the reversal indicate that the government induced Dr. Porter to change his opinion. Mentor moves for a mistrial citing the
prejudicial and deliberate Rule 16 violation. The district judge denies Mentor’s motion, and Mentor appeals. Now the case is before our Court. What result?

Reversal. See United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999) (“[W]here it is apparent . . . that the defense strategy may have been determined by the failure to disclose, there should be a new trial.” (citation omitted) (second and third alterations omitted)). Reversal, and perhaps—because of the violation’s deliberateness—a citation of criminal contempt for the prosecution. But over on the civil side—with the same degree of prejudice and the
same degree of deliberateness—we inadvertently reward this behavior.

Why is that? Why do we tolerate in a civil case the same kind of behavior that would require reversal in a criminal case? It seems that we have two standards of ethics and professionalism—one for criminal cases, and another, significantly more lenient standard for civil cases. Lawyers do without a hint of shame in a civil case what they would never think to do in a criminal one. This bifurcated sense of what ethics and professionalism require of the bar is sadly nothing new. But what is new—and what is made worse by today’s majority opinion—is the extent to which we will let civil lawyers get away with behavior that would be unthinkable in a criminal trial.