SCOTUS Updates and RIP Louis Casuso

 1. KBJ starts her confirmation hearings this morning.  Right-wing attacks seem desperate and unhinged.  Here's Erwin Chemerinsky responding to some of the worst ones:

Lacking any grounds for opposition, Republicans are resorting to slime. Some are criticizing her because she worked as a public defender, including representing a Guantanamo detainee. But in our constitutional system, every criminal defendant is entitled to an attorney, and lawyers who perform this role are fulfilling the most noble goals of the legal profession. That Jackson will be the first public defender to be a Supreme Court justice should be celebrated, not attacked.

Missouri Sen. Josh Hawley is stooping even lower. He criticizes an article she wrote as a law student and has said that when she was a federal judge there were seven child pornography cases where she gave a sentence less than the Department of Justice recommended. But as the White House has pointed out, in five of those cases, Judge Jackson imposed the sentences that were the same as or greater than what the United States probation office recommended.

Hawley criticizes statements she made when she was a member of the United States Sentencing Commission but omits that the commission was bipartisan and voted unanimously to modify the recommended sentences for possession of child pornography, where there was no proof that the person was involved in producing or trafficking child pornography.

Kyle Martinsen, of the Republican National Committee, emailed reporters that Jackson has a “pattern of advocating for terrorists AND child predators. What other criminals is Ketanji Brown Jackson an advocate for?” Senate Minority Leader Mitch McConnell said, “Her supporters look at her résumé and deduce a special empathy for criminals.”

Have they no shame? Representing criminal defendants or Guantanamo detainees reflects a desire to uphold the Constitution, not “special empathy for criminals.” One cannot help but wonder whether Jackson being a Black woman is fueling this “soft on crime” attack.

2. Justice Thomas is sick in the hospital, but should be released soon.  From CNN:

 Supreme Court Justice Clarence Thomas was admitted to Sibley Memorial Hospital in Washington, DC, on Friday evening "after experiencing flu-like symptoms," the court's public information office said Sunday evening, but he does not have Covid-19.

"It is not COVID related. The Justice does not have COVID," a spokesperson for the Supreme Court said.

"He underwent tests, was diagnosed with an infection, and is being treated with intravenous antibiotics," the court's press release said.

"His symptoms are abating, he is resting comfortably, and he expects to be released from the hospital in a day or two. Justice Thomas will participate in the consideration and discussion of any cases for which he is not present on the basis of the briefs, transcripts, and audio of the oral arguments," it added.

 3. In non-SCOTUS news, RIP Louis Casuso -- a good guy, who always had a good story.  Rumpole and David Ovalle had nice obits about him.

St. Patrick's Day--a trial story

Sixteen years ago I was in a 10 defendant trial in Savannah.  Ten defendants in one courtroom with out of town lawyers... you can imagine the atmosphere.

The trial started on a Monday, and my daughter was born on a Friday.  Because the judge held court on most Saturdays, I only saw her once during the six week trial (and 9 days of deliberations).  But that's a story for a different day.  This one is about St. Patrick's Day, which was in the middle of trial and which is a BIG deal in Savannah.  Like the biggest holiday of the year there.  The whole city shuts down. There are parades and drinking and beads. Businesses are closed.  Banks and schools are closed.  It's a big party.

And it was a Friday that year, so all of Savannah was looking forward to having a little fun.

Except in our courtroom.  Our judge -- B. Avant Edenfield -- said business as usual.

Now for us, mostly lawyers from out of town, it was no big deal.  We wanted to get the trial over with.

But for the jurors and staff... well, they were PISSED to say the least.

To show solidarity with them, the men all bought green ties and wore them to court.  The women also had green scarves and such.

Court started at 8:30am every morning.  But on St. Patrick's Day, all of the streets were closed off.  So one juror was late.  He showed up sometime after 9:30.  The judge had us all in the courtroom waiting, including the other jurors.  That hour, sitting in silence, seemed like a century.

And when that one juror showed up, the judge brought him back into chambers and reamed him out for being late. He was screaming so loud that we all heard him in the courtroom.  We gave the jury empathetic looks.  And when the juror came back out, we all made eye contact with him as if to apologize for the jerk judge.

That juror ended up being our foreperson.  He acquitted a number of the defendants and hugged us after the trial.  I can't help but think that a small part of why he liked us was because he really didn't like the judge, who never ruled for the defense and always sided with the government.  

So, every St. Patrick's Day, I think of that trial in Savannah, and our crazy judge and the late juror -- and of course, my daughter who is wearing green today.

Magistrate Judge Lauren Louis detains Proud Boys Leader

 The Miami Herald covers it here:

Enrique Tarrio, the high-profile leader of the Proud Boys extremist group, appeared subdued in Miami federal court Tuesday as a magistrate judge ordered that he remains behind bars for release before his trial on charges of plotting the Jan. 6, 2021 attack on the U.S. Capitol building to stop Congress’ certification of the presidential election. Magistrate Judge Lauren Louis said evidence “that he’s a danger to the community is unrebutted,” rejecting a request by Tarrio’s defense attorney to release him on a $1.25 million bond secured by his family members in Miami. She did not rule on the Justice Department’s other basis for his detention, that Tarrio, a lifelong Miami resident, is a risk of flight. Tarrio, 38, who after his arrest last week remains in custody at the Miami Federal Detention Center, will now be transferred to Washington, D.C., to face an indictment accusing him and five other Proud Boy members of conspiring to obstruct an official proceeding and related charges including destroying government property.

JOHN GLEESON FOR THE HOLLOWAY PROJECT

 FOR THE DEFENSE SEASON 4, EPISODE 7
JOHN GLEESON FOR THE HOLLOWAY PROJECT

 

Season 4 of For the Defense continues today with former federal judge and former federal prosecutor John Gleeson (top picture), who is now a criminal defense lawyer.  Gleeson started the Holloway Project -- to help vacate unjust sentences imposed under the old mandatory-minimum regime. You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) 

Francois Holloway family after hearing the news about his release.

We launched a few weeks ago with Bruce Rogow for 2 Live Crew and Luther Campbell and followed up with Mark Geragos for Susan McDougal, Juanita Brooks for John DeLorean, Gerry Goldstein for Richard Dexter (Deep Throat), Geoffrey Fieger for Dr. Jack Kevorikian and last week with Brian Heberlig for Ali Sadr. 

At the end of the season, I will post the Florida CLE code.   

Our last episode of the season will be Ed Shohat (Carlos Lehder), which will air in two weeks.
 

Please send me your feedback -- and of course, subscribe, like and comment!  If you or a friend would like to receive these updates, please have them sign up here.

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur
 

Best trial movie of all time

Last week, Rumpole had a post about the best law movies... He's right -- I'm partial to A Few Good Men, but he doesn't give enough play to My Cousin Vinny.  The best.  Here's a recent NY Times piece covering the 30 year old classic:

When the culture-clash courtroom comedy “My Cousin Vinny” landed in theaters on March 13, 1992, the critical response was mostly positive. The Times’s Vincent Canby found it “inventive and enjoyable,” The Los Angeles Times’s Peter Rainer called it “often funny” and The Hollywood Reporter deemed it “a terrific variation on the fish-out-of-water/man-from-Mars story formula.”

One phrase you won’t find in any of those reviews is “Oscar worthy.” Yet “Vinny” proved just that, landing an Academy Award for best supporting actress a full year after its original theatrical release — one of the biggest upsets in Oscar history, and a trophy that would prove both a blessing and a curse for its recipient, Marisa Tomei.

Her performance as Mona Lisa Vito, the long-suffering fiancée and legal secret weapon of Joe Pesci’s title character, was a breakthrough for the Brooklyn-born actress, who had done her time Off Broadway and in the world of soaps and sitcoms. “I was fresh to the business and didn’t know how movies worked,” Tomei explained in 2017, “but Joe chose me for the part, then took me by the hand and guided me immensely, so I got very lucky.”

Here are the opening statements:

The Second Annual Riverside House Awards

By John R. Byrne

Prosecutors and defense lawyers may disagree on a lot of things, but most agree on the mission of rehabilitating convicted defendants.  Riverside House, a local halfway house for federal defendants here in Miami, is dedicated to that mission.  On Friday, April 8, 2022, Riverside House will host its Second Annual Luncheon recognizing those in our community who have supported this mission.  The award recipients this year include former federal district Judge Ursula Ungaro, Assistant U.S. Attorney Randy Hummel, and our blog’s own David Markus.  To hear about what these folks have done for ex-offenders and criminal defendants, please join us.  You can purchase tickets through the link below.

https://conta.cc/3HEnWlr

Bake On

By Michael Caruso

The pandemic reintroduced many of us to our kitchens.  In the very early days, after common household goods disappeared from stores, dried pasta and canned food were snatched up, leaving shelves bare. Next to go missing was flour and yeast, as millions made their own bread—particularly sourdough.  

And when we couldn't find anything worth streaming, many of us turned to The Great British Baking Show. What was more calming during a plague than watching the contestants bake a Battenberg Cake or make a Sussex Pond Pudding?

This past week two stories were in the news that concerned baking—one nostalgic and the other affirming. 

Growing up in New York, a reliable staple of our kitchen table was the see-through Entenmann's Bakery box, usually the classic crumb cake. Charles Entenmann—who took his family's Long Island bakery business national—passed away recently here in Miami. Although not as fancy as a madeleine, the Entenmann's crumb cake is a reliable memory trigger for many of us who grew up in that part of the country. 

The other baking news is the global effort on behalf of Ukrainian refugees—known as "Bake for Ukraine." And there is a particularly apt effort called Hamantashen for Ukraine. Hamantashen are a symbolic cookie for next week's Purim holiday—a celebration of the triumph of good over evil. If you follow the link, you'll find both national and local bakeries where you can get delicious treats and help those in need.

Bake on.

Rule of Lenity

 Today, the Supreme Court had another ACCA case that it unpacked, Wooden v. United States.  The Court held: “Wooden’s ten burglary offenses arising from a single criminal episode did not occur on different ‘occasions’ and thus count as only one prior conviction for purposes of ACCA.”

Okay, fine.  But the really interesting stuff was happening in the concurrences, where Justice Gorsuch (joined mostly by Justice Sotomayor) laid out the case for a more fulsome application of the Rule of Lenity:

Of course, most ordinary people today don’t spend their leisure time reading statutes—and they probably didn’t in Justice Marshall’s and Justice Story’s time either. But len- ity’s emphasis on fair notice isn’t about indulging a fantasy. It is about protecting an indispensable part of the rule of law—the promise that, whether or not individuals happen to read the law, they can suffer penalties only for violating standing rules announced in advance. As the framers un- derstood, “subjecting . . . men to punishment for things which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” The Federalist No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also McBoyle v. United States, 283 U. S. 25, 27 (1931) (“Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand”).

I particularly like this thought from the concluding paragraph:

The statute contains little guidance, and reasonable doubts about its application will arise often. When they do, they should be resolved in favor of liberty. Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.

Full Disclosure -- I signed onto the NACDL amicus brief filed in Wooden, which raised the following issue and which was cited by the Court in fn3:

 Two amici curiae have briefed another question arising from ACCA’s occasions clause: whether the Sixth Amendment requires that a jury, rather than a judge, resolve whether prior crimes occurred on a single occasion. See Brief for National Association of Criminal Defense Lawyers 13–19; Brief for National Association of Federal Defenders 21–32. We do not address that issue because Wooden did not raise it.

Here's what Gorsuch says about it in a footnote of his own:

A constitutional question simmers beneath the surface of today’s case. The Fifth and Sixth Amendments generally require the government in criminal cases to prove every fact essential to an individual’s punishment to a jury beyond a reasonable doubt. See United States v. Haymond, 588 U. S. ___, ___–___ (2019) (plurality opinion) (slip op., at 5–6). In this case, however, only judges found the facts relevant to Mr. Wooden’s punishment under the Occasions Clause, and they did so under only a preponderance of the evidence standard. Because Mr. Wooden did not raise a constitutional challenge to his sentence, the Court does not consider the propriety of this practice. But there is little doubt we will have to do so soon. See United States v. Dudley, 5 F. 4th 1249, 1273– 1278 (CA11 2021) (Newsom, J., concurring in part and dissenting in part) (questioning whether the Occasions Clause inquiry can be squared with the Constitution); United States v. Perry, 908 F. 3d 1126, 1134–1136 (CA8 2018) (Stras, J., concurring) (same); United States v. Thompson, 421 F. 3d 278, 287–295 (CA4 2005) (Wilkins, C. J., dissenting) (same). And it is hard not to wonder: If a jury must find the facts supporting a punishment under the Occasions Clause beyond a reasonable doubt, how may judges impose a punishment without equal certainty about the law’s application to those facts?