Jane Raskin for the President

Whether you are for or against the POTUS, it's pretty impressive that Miami lawyer Jane Raskin is on the legal team representing him. She is the one lawyer on the President's team that has stayed below the radar, which is also impressive.  She's doing much better than Starr, who made the absurd argument that this is the age of impeachment.  That may be, but Starr gets all the credit for that.  How did they let him of all people make that argument?

Florida Supreme Court is now a political body

Rumpole is covering the stunning reversal by the Florida Supreme Court on the issue of the death penalty and unanimity.  So are all of the major news outlets. The Court just a few years ago ruled X, and then there was some turnover with new justices, and then two went to the 11th Circuit, and a new 5-justice majority now ruled Y.  It's jaw-dropping.  Here's a piece by Slate:

The Florida Supreme Court has become a laboratory of judicial conservativism since 2019, and now the justices have given themselves a new tool to clear away remaining obstacles. On Thursday, they issued a decision of extraordinary breadth, overturning a landmark precedent and letting judges once again impose the death penalty without the unanimous recommendation of a jury. Their decision authorizes the legislature to revive a scheme that empowers judges to issue a death sentence when the jury does not recommend it.

At the same time, the court effectively overruled precedents that limited its ability to reverse past decisions. In all, the decision announces an aggressive new campaign to toss out liberal precedents and move the court far rightward.

Thursday’s decision in State v. Poole overturns a momentous ruling, State v. Hurst, handed down in October 2016. Hurst dealt with Florida’s capital sentencing scheme, a notorious outlier even among states that retained the death penalty. Like these other states, Florida required a jury to determine whether “aggravating circumstances” exist that justify a sentence of death.

Unlike almost every other state, however, the jury’s determination was not binding. Instead, jurors issued an “advisory verdict”—approved by a bare majority—for the judge to consider. But the judge could then hold a separate hearing, analyze the facts independently, and issue a sentence regardless of the jury’s advice.

The U.S. Supreme Court invalidated this system in January 2016. It reiterated that the Sixth Amendment requires a jury, not a judge, to find all facts that increase the maximum punishment. Since Florida allowed a judge to find “aggravating circumstances” that justified a capital sentence, it ran afoul of this rule. The justices returned the case to the Florida Supreme Court to implement their decision, which, at that point, had a 5–2 liberal majority.

But the Florida Supreme Court did more than apply Hurst. The court also considered its state constitution, which declares that the “right of trial by jury shall be secure to all and remain inviolate.” Interpreting this guarantee, the majority expanded the role of the jury in capital trials beyond the federal minimum. It declared that a judge may not impose death unless the jury unanimously found all aggravating factors to be proven beyond a reasonable doubt, “sufficient to impose death,” and not outweighed by any “mitigating factors.” Moreover, the majority held that a jury must “unanimously recommend a sentence of death” before a judge “may consider imposing” it.

The Florida legislature begrudgingly updated state law to reflect these new rules and bring Florida in line with other death penalty states, which placed these decisions in the hands of the jury long ago. Their revisions left just one state, Alabama, that allowed a non-unanimous jury to impose capital punishment.

On Thursday, though, a reconstituted court gave the legislature the greenlight to repeal these reforms and expand judges’ control over death sentences. In a caustic opinion, the majority blithely threw Hurst—a 5–2 decision—out the window.

A lot has changed since October 2016: Four justices in the Hurst majority were forced to step down under Florida’s mandatory retirement law. Former Republican Gov. Rick Scott replaced one with the ultra-conservative C. Alan Lawson, who previously served as a lower court judge. Current Republican Gov. Ron DeSantis replaced the other three with conservatives selected by Leonard Leo, head of the Federalist Society, a partisan organization that elevates Republicans to the judiciary. Donald Trump has already placed two of DeSantis’ three justices on the 11th U.S. Circuit Court of Appeals. So Thursday’s decision in Poole was decided by a five-member court that split 4–1. The one remaining liberal was the lone dissenter.

Michael Avenatti should not be in solitary confinement

That's the title of my latest piece in The Hill.  Please let me know your thoughts.  From the introduction:

Imagine being held by yourself in a small, freezing cold cell 24 hours a day. Not allowed to go outside. Not allowed to make a phone call. Not allowed to go to the bathroom without being watched. Not allowed to shave. Not allowed to visit with a family member. Shivering and alone, day after day.
This is bad enough for a hardened convicted criminal who cannot safely be housed with others. But imagine being held in these conditions when you have not been convicted of any crime. And when the only crime of which you have been accused is a non-violent financial crime.
This is no crazy, off-the-wall hypothetical. It is a strategy too often used against accused first-time non-violent offenders in an attempt to crush them and coerce them into pleading guilty.
This is what is happening right now to Michael Avenatti.
And it is wrong.

Brrrrr!

It's finally winter!

And it's impeachment talk all the time.

But while everyone is talking impeachment, there are two big trials starting up in New York.

The first is Harvey Weinstein, where he won a motion to be able to show the jury in opening the "dozens and dozens" of loving emails from his accusers:

"What we will counter with are their own words, where they describe loving relations, sensual encounters with Mr. Weinstein," defense attorney Damon Cheronis said during oral arguments Tuesday. "Mr. Weinstein is described as someone they care about both before and after the alleged sexual assault."

"Another complaining witness who claims Harvey Weinstein sexually assaulted her sent him an email wanting to introduce him to her mother," Cheronis argued at another point, though he never specified to whom among the six he was referring.

Of course he should be able to do so, and it's weird that it was even a question. 

For the other big NY trial, we move to federal court where Scott Srebnick and Jose Quinon are representing Michael Avenatti.  The big fight right now is trying to get Avenatti out of the SHU, where it is impossible to prepare for trial.  Here's Scott's letter and the Warden's response. It's absurd to keep a first-time accused white collar defendant in solitary conditions like El Chapo.  Let's hope this doesn't break Avenatti into pleading as the government is trying to do.

Slow blogging

Sorry for the slow blogging over the long weekend. I’ll be back at it tomorrow (Wednesday). See you then.