Friday, January 27, 2023

RIP Judge Marcia Cooke

Judge Cooke, 68, passed away today in Detroit surrounded by her family.  What a heartbreaking and huge loss. The first black woman judge in Florida, she took over Wilkie Ferguson's seat back in 2003.  She was confirmed 96-0.

I know how much we all loved her.  

She was such a nice person.

And a great judge.




A huge heart.

Please share your Judge Cooke stories in the comments.  (Here is the Herald obit.)

She was the best.  I'll miss her very much.

Thursday, January 26, 2023

The Jersey Boys

By Michael Caruso

Yesterday, a friend alerted me to this article by an enterprising young reporter covering a Senate Judiciary Committee hearing. Among the nominees, two were for the federal court of New Jersey – Michael Farbiarz and Robert Kirsch. Senator Cory Booker called the nominees from his home state of New Jersey the “great Jersey boys.” “In the judicial world, this is the Bruce Springsteen and Bon Jovi of the legal profession,” Booker said. I'm certain Senator Booker meant both as a compliment, but I'm wondering who is The Boss and who is the other guy.

In addition to the author, one of the nominees has strong ties to our district. Robert Kirsch has been a New Jersey Superior Court judge since 2010. But, at the beginning of his legal career, Judge Kirsch clerked for District Court Judge William J. Zloch here in Fort Lauderdale. I met Robert as a law student when I interviewed for a position with Judge Zloch. His nomination is an example of good things happening for good people.

Interestingly, his co-clerk and interviewer at the time—Jack Blakey—has been a district court judge in Chicago for the last eight years. And before Judge Blakey moved back to Chicago, he worked as an AUSA in our district.

Good luck to Judge Kirsch, and congratulations to Judge Zloch—quite a testament to your mentorship.

And thank you, Ms. Markus, for being our eyes and ears in the Senate!

Tuesday, January 24, 2023

Prosecutors pursuing Alec Baldwin for all the wrong reasons

 That's the title of my latest article, this one for the Albuquerque Journal.

Here's how it concludes:

While it is true that the rich and famous often enjoy some advantages in the criminal justice system (mostly resources), they face obstacles that are unique and challenging.

Baldwin’s case is a good example. No one really thinks that the stunt double would have been charged with manslaughter if he was in Baldwin’s shoes.

District Attorneys (unlike federal prosecutors) are elected. And perhaps the New Mexico DA believes the old motto that all press is good press, thinking that this prosecution will help her in the next election. She may also be banking on the fact that many jurors are predisposed against wealthy and powerful defendants.

She will put more resources into this case than any other in her office because she will want to win this case at all costs. And, unlike most defendants, Baldwin will be subjected to immense media scrutiny because of who he is. This is a recurrent problem faced by wealthy and well-known defendants, who often are prosecuted much more aggressively than regular people.

In the United States, we put more people in jail than any other country on Earth. Now, we are going to prosecute accidents? Nah, that’s not really what’s happening here. What’s happening is that the DA is going after the well-known Baldwin for all of the wrong reasons.

Monday, January 23, 2023

11th Circuit trying to kill substantive due process

Check out the en banc decision last week in Sosa v. Martin County, Florida, which held that there is no recourse for falsely arresting someone and illegally holding him for 3 days. The judges on this issue, unlike the last en banc, fall into party lines.  Chief Judge Pryor’s majority opinion is short and to the point and says the law is straightforward.  

Judge Newsom concurs and goes after substantive due process, saying it makes no sense and it’s time to end it.  Chief Judge Pryor and Judge Lagoa join.

Judge Jordan “reluctantly” concurred.  He is joined by Judges Wilson and Pryor.  He says it’s time for SCOTUS to take a qualified immunity case.

And Judge Rosenbaum wrote a 60 page dissent saying that there has to be a remedy for someone like Sosa who was illegally arrested and detained.  Of course she’s right — that’s why we have the law.  I hope the Supreme Court take this case.

Friday, January 20, 2023

Who leaked Dobbs remains a mystery

 By John R. Byrne

"[I]nvestigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs v. Jackson Women’s Health Org. or how the draft opinion was provided to Politico."

That's the conclusion of the Marshal of the Supreme Court's investigation into the leak of draft opinion in Dobbs. Takeaways are:

  • (1) it's "unlikely" outsiders hacked into the Court's network to get the draft; 
  • (2) the "whodunit" list was long (in addition to the judges, 82 "employees" had access to electronic or hard copies). All were interviewed. All denied leaking it;
  • (3) the pandemic was blamed in part (according to the report, it led to more people working from home and more opportunities to remove sensitive information from the building);
  • (4) Chief Justice Roberts asked Michael Chertoff to review and assess the Marshal's investigation. Chertoff endorsed its thoroughness and findings.
It doesn't appear that the Justices were interviewed. The report refers to "formal interviews of 97 personnel," with personnel defined as "temporary (law clerks) and permanent employees." But hard to believe they didn't interview the Justices.

Excerpting the full report below.

***UPDATE***: The Marshal did interview the Justices but did not ask that they sign affidavits (the other employees were asked to do so). 

Wednesday, January 18, 2023

Major en banc decision in favor of criminal defendants

The case is United States v. Dupree.  And it's a biggie.

Judge Jill Pryor for the majority explains:

This appeal requires us to consider whether an inchoate of-fense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument. United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc. After careful consideration, and with the benefit of oral argument, we hold that the definition of “con-trolled substance offense” in § 4B1.2(b) does not include inchoate offenses. We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

It's a fascinating decision because it overrules the last 30 years of 11th Circuit precedent.  More importantly than the issue presented in Dupree, the en banc majority also holds that when Guideline Application Notes or Commentary conflict with the plain language of the Guidelines, the  Notes/Commentary are unenforceable.  It's a good example of when strict constructionists help criminal defendants.

A recent Third Circuit case made the same finding in the context of loss, saying that courts should only use actual loss and not intended loss because of the wording of the actual guideline.  So get ready for similar challenges -- which surely will be successful after Dupree -- here in the 11th.

Almost the entire court join Judge Jill Pryor's opinion.

Judge Luck, who has become the most reliable pro-government vote on the 11th Circuit, dissents (joined by Judge Branch).  He starts off this way:

Section 4B1.2(b) of the sentencing guidelines defines “[t]he term ‘controlled substance offense’” as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit sub-stance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). The issue in this case is whether conspiring to possess heroin and cocaine with the intent to distrib-ute them is a “controlled substance offense” under guideline sec-tion 4B1.2(b).
For thirty years, the answer was yes. See United States v. Weir, 51 F.3d 1031, 1031 (11th Cir. 1995) (“We hold that a convic-tion of conspiracy to possess with intent to distribute marijuana is a ‘controlled substance offense’ for purposes of career criminal sen-tence enhancement under section 4B1.1 of the United States Sen-tencing Guidelines.”). The guideline commentary provided that “‘controlled substance offense’ include[d] the offenses of aiding and abetting, conspiring, and attempting to” possess controlled sub-stances with the intent to distribute them. U.S.S.G. § 4B1.2(b) n.1. And, under Stinson v. United States, 508 U.S. 36 (1993), we owed deference to the commentary as an authoritative and “‘binding in-terpretation’ of the term ‘controlled substance offense’” because the commentary neither ran “afoul of the Constitution” or “a fed-eral statute,” nor was “it inconsistent with, or a plainly erroneous reading of,” the guidelines. United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995) (applying Stinson to the commentary in guideline section 4B1.2).
But, today, the majority opinion answers no. Placing our court with the minority of circuit courts, the majority opinion holds that we must ignore the guideline commentary and finds that conspiring to possess heroin and cocaine with the intent to distrib-ute is not a “controlled substance offense.”
The majority opinion reaches this result, and overrules thirty years of precedent, because, it says, Kisor v. Wilkie, 139 S. Ct. 2400 (2019) clarified Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) and Auer v. Robbins, 519 U.S. 452 (1997) and the Kisor clarification applies to Stinson and the guidelines commen-tary. Kisor, the majority opinion explains, clarified that commen-tary is not authoritative, and we do not defer to it, unless the guide-line it interprets is genuinely ambiguous.
I respectfully dissent for two reasons. First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson. Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day—total annihilation. The ma-jority opinion is actually applying Kisor to overrule Stinson. But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own. Only the Supreme Court can do that. Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.

Tuesday, January 17, 2023

Should an ex-con with law license be permitted to serve as a law clerk?

Controversy on the Michigan Supreme Court.  From AboveTheLaw:

Less than a week after making history for being Michigan’s first Black female Supreme Court Justice, Justice Bolden is in hot water. And here’s the kicker — it isn’t even for something she did! As it turns out, a clerk that she hired is being taken to task for something he did 30 years ago. From the ABA Journal:

A former inmate convicted for robbing a store and shooting at a police officer has resigned his new job as a law clerk for a Michigan Supreme Court justice.

Pete Martel resigned from his position as a clerk for new Justice Kyra Harris Bolden, who said Martel didn’t want to be a distraction following criticism of his hiring, report the Associated Press and the Detroit News.

Martel had pleaded guilty to armed robbery and assault with intent to do great bodily harm in 1994, according to the Detroit News. He attended the Wayne State University Law School after his release from prison in 2008, according to the AP. He went on to work for the state’s appellate defender office as a mitigation specialist.

Given the little I know about Justice Bolden, her decision to hire Martel as a clerk is on brand. If she has enough belief in redemption narratives to dedicate her life to serving as a judge in a legal system that utterly failed to do justice by her great grandfather after he was lynched, surely giving a second chance to an individual is a lesser act of faith. Here are her own words on the matter:

She explained her hiring decision in an interview with radio station WWJ.

“I don’t think you should be held to crimes for the rest of your life, especially crimes that were committed 30 years ago, and you have done everything possible to transform your life,” Bolden said,

And I think she has a point. Is it really fair for this guy to be defined as an ex-con 30 years after the fact because he shot a police officer? Since when does having a criminal record prevent you from being a force for justice?...


Thursday, January 12, 2023

The Revenge Of The Machines

By Michael Caruso

Because David’s readers are technologically adept, you know that artificial intelligence (AI) is having a profound effect on the practice of law. Lawyers use AI to review contracts, find relevant documents in the discovery process, and conduct legal research. More recently, AI has begun to be used to predict legal outcomes and recommend judicial decisions about sentencing or bail.

But AI is not yet ready to replace the most important quality a lawyer may possess—judgment. The risk of inherent bias in data that fuels AI and the inability to adequately understand the rationale behind AI-derived decisions must be overcome before using the technology in some legal contexts.

A company named DoNotPay wants to put this proposition to the test. DoNotPay has a robot lawyer powered by OpenAI’s GPT-3 API, the force behind the viral ChatGPT chatbot.

CEO Joshua Browder has offered any lawyer $1 million to let the AI lawyer argue a case at the United States Supreme Court. All the “human lawyer” would need to do is wear AirPods and repeat what DoNotPay’s robot lawyer argues to the Court.

Browder said he had not heard from any lawyers interested in partnering up for Supreme Court cases but had received “very serious offers” from several lawyers involved in Federal and Appeals Court cases.

But we can do this! Here's my offer: the Federal Public Defender will host a CLE where we have a mock argument with one side "argued" by the AI lawyer and the other side argued by a human lawyer. So, if you are a human judge or lawyer who wants to participate, please get in touch with me.