Thursday, March 29, 2018

Ft. Lauderdale federal courthouse progress

Good news for federal practitioners in Ft. Lauderdale... we are a step closer to a new federal courthouse.  Here’s the Sun-Sentinel coverage, which also mentions that Sen. Nelson is now aiming to get a new one built in West Palm Beach as well:

Celebrating the award of $190 million to replace the aging Fort Lauderdale federal courthouse, U.S. Sen. Bill Nelson has set his sights on getting money for a new one for West Palm Beach, too.

Nelson requested U.S. District Judge William Dimitrouleas ask Chief Judge Michael Moore to form a task force to spearhead the effort for a new West Palm Beach district courthouse. Dimitrouleas is chairman of the task force created about a decade ago for Fort Lauderdale’s effort.

“We’re going to have to do the same for West Palm Beach because it has an old federal courthouse as well,” Nelson said during his Fort Lauderdale courthouse appearance Wednesday with Mayor Dean Trantalis and court officials. The West Palm Beach courthouse, built in 1973, is at 701 Clematis St.

Nelson said a site decision for the new downtown Fort Lauderdale courthouse could come from the General Services Administration as early as June and “then let’s get this project going.” He took a tour of the courthouse while officials pointed out many of the leaks that have plagued the building.

Monday, March 26, 2018

Reuben Cahn goes to DC

Reuben Cahn—the Defender in San Diego, the former first assistant here in the SDFLA, and all around good guy—argued in the Supreme Court today.  It looks like it was an interesting argument and that Reuben did very well.  Here’s the review from SCOTUSBlog:
The first case for argument in the Supreme Court this morning has a very interesting underlying issue: whether a policy of shackling all criminal defendants at pretrial appearances in a federal district court is constitutional.
But as United States v. Sanchez-Gomez comes before the justices, the questions presented are more procedural in nature, including whether the U.S. Court of Appeals for the 9th Circuit had the authority to review the “interlocutory” appeal of a group of detainees after the federal district court upheld the U.S. Marshals Service restraint policy in the Southern District of California, which is based in San Diego.
If Kedem comes across as the strait-laced, able Washington lawyer for the prosecution, Cahn has a bit of a Southern California vibe in his voice and manner.
“We believe the courtroom really is a sacred space,” he says, sometimes sticking his hand in his pocket and swaying back slightly from the lectern. “We believe judges control that space and assure that individuals come before the court with dignity and with autonomy and with their liberty interest protected, and that there was a well-established right at common law that, under this court’s precedent, is incorporated in the Due Process Clause to appear before courts free of bonds.”
Cahn mentions the notorious Newgate prison in London, where for centuries detainees faced “terrible conditions, shackled hand and foot, and without question, their bonds would be struck off for their arraignments.”

ICYMI CA11 Judge Julie Carnes to retire on June 18

Pretty surprising news announced late Friday afternoon — Julie Carnes, appointed by President Obama in 2014, is retiring.  This will give President Trump his third appointment to the 11th Circuit (Newsom, Branch) and a real opportunity to shape the small court.

It also shows a big difference between Obama and Trump.  If the measure is quickly filling openings with young judges who share your judicial philosophy on courts, Obama was slow and ineffective with his judicial appointments, while Trump  has been very successful. He has been aggressive, appointing young Federalist Society members in a relatively quick manner.  The Julie Carnes seat, for example, was open for quite some time before Obama cut a deal to put a right-leaning judge on the court, who only stayed for a few years.  Say what you will about Trump, he has been much more effective for his party on judicial appointments.

Carnes says she is going to “render substantial judicial service as a senior judge.”  That’s very nice, but she is also giving Trump an opportunity to replace her with a judge who will sit on the court for a long long time.

Friday, March 23, 2018

News and notes, Ultra Spring Break edition

It's Ultra time in downtown Miami, which means the lawyers will be fleeing around lunchtime today. And then it's spring break next week.

Scott Rothstein is writing his own motions. Paula McMahon has the interesting story here:

Ponzi schemer Scott Rothstein is imprisoned and disbarred from practicing as an attorney but it hasn’t stopped him from flexing his jailhouse lawyer muscles – on his own behalf.

Rothstein, 55, personally filed court documents on Thursday in his bid to try to force the feds to reduce his 50-year prison sentence.

Rothstein, who pleaded guilty to orchestrating a $1.4 billion Ponzi scheme, first had to obtain permission from Senior U.S. District Judge James Cohn to file his own court pleadings.

The judge consented and Rothstein, who is being held in the U.S. Bureau of Prisons’ secretive witness protection program for inmates, typed up a 13-page legal argument and submitted it Thursday.

In other news, Colbert asked RGB whether a hotdog is a sandwich. This is pretty funny.

Thursday, March 22, 2018

New Ft. Lauderdale federal courthouse is in the works

From the Sun-Sentinel:
A new federal courthouse for Fort Lauderdale is included in a massive $1.3 trillion federal spending agreement that has bipartisan support and is expected to be approved in the next few days.

News that the $190 million downtown project was part of the package reached the city Wednesday from U.S. Sen. Bill Nelson, who phoned the city’s current and former mayors with the good news.
The 39-year-old current courthouse at Broward Boulevard and Northeast Third Avenue has had a leaking roof and mold problems, doesn’t have sufficient office space and wasn’t designed for current federal security requirements. The courthouse has been No. 3 on the priority list for new courthouses since 2016.

The General Services Administration is conducting a feasibility study for the new courthouse that should be completed by June. It will then be up to the GSA to pick a site for the new courthouse.

In other news, the 11th Circuit held today that possession of a round of ammunition is not sufficient to conduct a search for a firearm. The suppression motion should have been granted. The case is United States v. Johnson. The court framed the issue this way:

This appeal requires us to consider whether the pat down of a burglary suspect and the identification of a round of ammunition in the suspect’s pocket constitutionally allowed the officer to retrieve the round and another item from the suspect’s pocket.

Wednesday, March 21, 2018

Newest 11th Circuit Judge Lisa Branch sworn in

Here are the cool pictures posted by Judge Stephen Dillard, who did the swearing in:

Imagine how prosecutors would react if your client gave this story

Tuesday, March 20, 2018

Federal Prosecutors take note

This blog often criticizes prosecutors and judges, but it's also important to highlight the good stuff going on as well.  Here's Philadelphia's new District Attorney trying to make change.  From Slate:
On Tuesday, [Larry] Krasner issued a memo to his staff making official a wave of new policies he had announced his attorneys last month. The memo starts: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”
“These policies are an effort to end mass incarceration and bring balance back to sentencing,” Larry Krasner said in an announcement on Tuesday.
The most significant and groundbreaking reform is how he has instructed assistant district attorneys to wield their most powerful tool: plea offers. Over 90 percent of criminal cases nationwide are decided in plea bargains, a system which has been broken beyond repair by mandatory minimum sentences and standardized prosecutorial excess. In an about-face from how these transactions typically work, Krasner’s 300 lawyers are to start many plea offers at the low end of sentencing guidelines. For most nonviolent and nonsexual crimes, or economic crimes below a $50,000 threshold, Krasner’s lawyers are now to offer defendants sentences below the bottom end of the state’s guidelines. So, for example, if a person with no prior convictions is accused of breaking into a store at night and emptying the cash register, he would normally face up to 14 months in jail. Under Krasner’s paradigm, he’ll be offered probation. If prosecutors want to use their discretion to deviate from these guidelines, say if a person has a particularly troubling rap sheet, Krasner must personally sign off.
“It’s the mirror of a lot of offices saying, ‘If you don’t ask for the max you’ve got to get my permission,’ ” says David Rudovsky, a prominent Philadelphia civil rights attorney. For longtime career prosecutors, this will take some getting used to. “You want to be sure your assistants are actually doing it,” Rudovsky says.
Krasner’s lawyers are also now to decline charges for marijuana possession, no matter the weight, effectively decriminalizing possession of the drug in the city for all nonfederal cases. Sex workers will not be charged with prostitution unless they have more than two priors, in which case they’ll be diverted to a specialized court. Retail theft under $500 is no longer a misdemeanor in the eyes of Philly prosecutors, but a summary offense—the lowest possible criminal charge. And when ADAs give probation charges they are to opt for the lower end of the possible spectrum. “Criminological studies show that most violations of probation occur within the first 12 months,” the memo reads, “Assuming that a defendant is violation free for 12 months, any remaining probation is simply excess baggage requiring unnecessary expenditure of funds for supervision.” When a person does break the rules of probation, minor infractions such as missing a PO meeting are not to be punished with jail time or probation revocation, and more serious infractions are to be disciplined with no more than two years in jail.
In a move that may have less impact on the lives of defendants, but is very on-brand for Kranser, prosecutors must now calculate the amount of money a sentence would cost before recommending it to a judge, and argue why the cost is justified. He estimates that it costs $115 a day, or $42,000 a year, to incarcerate one person. So, if a prosecutor seeks a three-year sentence, she must state, on the record, that it would cost taxpayers $126,000 and explain why she thinks this cost is justified. Krasner reminds his attorneys that the cost of one year of unnecessary incarceration “is in the range of the cost of one year’s salary for a beginning teacher, police officer, fire fighter, social worker, Assistant District Attorney, or addiction counselor.”
 Unfortunately, Jeff Sessions and Donald Trump are doing the exact opposite.  Sessions is pushing for more min/mans.  And Trump is now calling for the death penalty in drug prosecutions.  Here's Krasner's memo.  It's worth a read.

Sunday, March 18, 2018

NY Times covers “Testilying”

The NY Times has a nice piece about testilying — police officers lying under oath — in New York courts.  It’s been a problem for a long time across the county.
Officer Nector Martinez took the witness stand in a Bronx courtroom on Oct. 10, 2017, and swore to tell the truth, the whole truth, and nothing but the truth, so help him God.

There had been a shooting, Officer Martinez testified, and he wanted to search a nearby apartment for evidence. A woman stood in the doorway, carrying a laundry bag. Officer Martinez said she set the bag down “in the middle of the doorway” — directly in his path. “I picked it up to move it out of the way so we could get in.”

The laundry bag felt heavy. When he put it down, he said, he heard a “clunk, a thud.”

What might be inside?

Officer Martinez tapped the bag with his foot and felt something hard, he testified. He opened the bag, leading to the discovery of a Ruger 9-millimeter handgun and the arrest of the woman.

But a hallway surveillance camera captured the true story: There’s no laundry bag or gun in sight as Officer Martinez and other investigators question the woman in the doorway and then stride into the apartment. Inside, they did find a gun, but little to link it to the woman, Kimberly Thomas. Still, had the camera not captured the hallway scene, Officer Martinez’s testimony might well have sent her to prison.

When Ms. Thomas’s lawyer sought to play the video in court, prosecutors in the Bronx dropped the case. Then the court sealed the case file, hiding from view a problem so old and persistent that the criminal justice system sometimes responds with little more than a shrug: false testimony by the police.
Here’s an old post from this blog about the problem:

Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense: 
Those are interesting concepts, but the following 4 statements will encourage more discussion: 

So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 
There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.
What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor.  
--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).    
--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid.  
--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.       
--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

Friday, March 16, 2018

Congrats to Bruce Reinhart and Carolyn Bell

Bruce Reinhart was sworn in as our newest magistrate this week.
And Gov. Scott named Carolyn Bell to the circuit bench in Palm Beach County.
When is the last time a married couple both became judges in one week?
Here are some pictures from Reinhart's swearing-in:

Thursday, March 15, 2018

CA11: No right to privacy in cell phones at border

A battle of the Pryors.

The 11th Circuit held today in a short 7 page opinion, per Judge William Pryor and joined by a visiting judge, that there is no expectation of privacy to a cell phone searched at the border:
This appeal presents the issue whether warrantless forensic searches of two cell phones at the border violated the Fourth Amendment. U.S. Const. amend IV. Hernando Javier Vergara appeals the denial of his motion to suppress evidence found on two cell phones that he carried on a cruise from Cozumel, Mexico to Tampa, Florida. He argues that the recent decision of the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014)—that the search-incident-to-arrest exception to the warrant requirement does not apply to searches of cell phones—should govern this appeal. But we disagree. The forensic searches of Vergara’s cell phones occurred at the border, not as searches incident to arrest, and border searches never require a warrant or probable cause. At most, border searches require reasonable suspicion, but Vergara has not argued that the agents lacked reasonable suspicion to conduct a forensic search of his phones. We affirm.
  Judge Jill Pryor dissented:
In this case we decide for the first time whether a warrantless forensic search of a cell phone at the United States border comports with the Fourth Amendment. To determine whether a law enforcement practice is constitutional, courts must balance its promotion of legitimate government interests against its intrusion on an individual’s Fourth Amendment rights. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Here, we weigh the government’s interest in conducting warrantless forensic cell phone searches at the border with Hernando Vergara’s privacy interest in his cellular devices and the data they contain.
The majority opinion concludes that this balance weighs heavily in the government’s favor because the searches occurred at the border. I agree with the majority that the government’s interest in protecting the nation is at its peak at the border, but I disagree with the majority’s dismissal of the significant privacy interests implicated in cell phone searches, as articulated by the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014). Because Riley did not involve a border search, I acknowledge that I can, at best, attempt to predict how the Supreme Court would balance the interests here. But my weighing of the government’s heightened interest at the border with Vergara’s privacy interest in his cell phones leads me to a result different than the majority’s. I respectfully dissent because, in my view, a forensic search of a cell phone at the border requires a warrant supported by probable cause.

News & Notes

1.  It's tourney time.  So lots of "sick" lawyers will be staying home today and tomorrow.

2.  Notorious RBG is 85.  Happy birthday.

3.  RIP Stephen Hawking.  "I have noticed even people who claim everything is predestined, and that we can do nothing to change it, look before they cross the road."

4.  RIP Toys R Us.
I don't wanna grow up, I'm a Toys R Us kid
they got a million toys at Toys R us that I can play with
I don't wanna grow up, I'm a Toys R Us kid
they got the best for so much less, it'll really flip your lid
From bikes to trains to video games
it's the biggest toy store there is (gee whiz!)
I don't wanna grow up, cause maybe if I did
I couldn't be a Toys R Us kid
more games, more toys, oh boy!
I wanna be a Toys R Us kid

Tuesday, March 13, 2018

Should prosecutors be guided or unguided in their pursuit of a defendant?

Should prosecutors be “guided” or “unguided” in their pursuit of a defendant?

I thought it was interesting that Deputy Attorney General Rod Rosenstein defended Special Counsel Robert Mueller by saying he was a “guided missile.”  One criticism of a “special counsel” is that they are “guided” to investigate a particular person.  That was the criticism of Ken Starr when he was guided into the Clintons.  And that may be the criticism of Mueller, especially now that he is questioning witnesses about Stormy Daniels.

Meantime, here in Florida, what will happen with the Florida Supreme Court if Rick Scott runs against Bill Nelson for that Senate seat.  Here’s the AP:
Here’s the problem: If Scott, a Republican, is elected to replace Democratic U.S. Sen. Bill Nelson, he could be forced to step down nearly a week before his term is scheduled to end. That’s because Congress — at least for now — is scheduled to start its 2019 term on Jan. 3 — before a new governor is sworn into office on Jan. 8.

On paper, and looking back at history, that doesn’t seem like a big deal. Three decades ago, then-Gov. Bob Graham left office early because he was elected to the U.S. Senate.

But an early departure by Scott could complicate a brewing legal fight over the makeup of Florida’s Supreme Court. Scott plans to appoint three new justices on his final day in office. If he leaves early, he could lose his window to do that — although his immediate replacement, Lt. Gov. Carlos Lopez-Cantera, also a Republican, could appoint similar candidates.

Sunday, March 11, 2018

John Grisham on wrongful convictions in our criminal justice system

This is a good op-ed by Grisham outlining why we have so many wrongful convictions:
It is too easy to convict an innocent person.

The rate of wrongful convictions in the United States is estimated to be somewhere between 2% to 10%. That may sound low, but when applied to a prison population of 2.3 million, the numbers become staggering. Can there really be 46,000 to 230,000 innocent people locked away? Those of us who are involved in exoneration work firmly believe so.

Millions of defendants are processed through our courts each year. It's nearly impossible to determine how many of them are actually innocent once they've been convicted. There are few resources for examining the cases and backgrounds of those claiming to be wrongfully convicted.

Once an innocent person is convicted, it is next to impossible to get them out of prison. Over the past 25 years, the Innocence Project, where I serve on the board of directors, has secured through DNA testing the release of 349 innocent men and women, 20 of whom had been sent to death row. All told, there have been more than 2,000 exonerations, including 200 from death row, in the U.S. during that same period. But we've only scratched the surface.

In the federal system many innocent people are forced to plead guilty because of the risks of going to trial. Go to trial in the federal system and often times you are looking at more than 10 years in prison, at best. Plead and you get cut that exposure way way down. Other districts are starting to lessen the trial penalty. Martin Shkreli was just sentenced to 7 years even though prosecutors said his guidelines after trial were 15+ years. Many will say that 7 years was too low. Others will say that 7 years is a lot for a first-time non-violent offender. Regardless of what side you come out on, we should all agree that going to trial should not result in a upward risk of 3 or 4 times or more the sentence you'd receive for pleading guilty.

Thursday, March 08, 2018

News and notes

1. High school students are making change. They beat the NRA in the Florida Legislature with these gun control measures now on Gov. Scott's desk.  It's really incredible and inspiring to watch these energized kids do their thing.  I'm hoping some of them become criminal defense lawyers.

2.  Justice Kagan discusses her time clerking for Justice Marshall.  Here's one story: Kagan recalled how Marshall judged the fairness of death penalty trials. “I remember once he said to us that when a jury brought back a sentence of life imprisonment, that’s when he absolutely knew that the guy was innocent.”

3. It's a stormy time in the White House.  Stormy will be in the Southern District of Florida this weekend.  Not for her lawsuit.  Just a performance.  And no, she won't be auctioning off the dress...

4. RBG, the movie, is coming out soon.  Here's the trailer:

Tuesday, March 06, 2018

Good luck to Judge Jerald Bagley

Judge Jerald Bagley was a state circuit judge for many years in Miami and was a finalist to be a federal judge on 3 different occasions.  I wish he would have gotten it.  He's a great person and would have been an excellent federal judge.  He will be a great mediator in his new business.  The DBR covers his new gig here:

His new venture, J. Bagley Mediation Services, launches April 1 in Miami.


“I’m trying to go out with very little fanfare,” Bagley said Monday in a telephone interview. “I just tried to do my job — the good work that many of my colleagues do. … Serving the public is good enough for me, and I’m proud to have spent the last 35 years doing so.”

The longtime prosecutor served in the juvenile and felony divisions of the state attorney’s office before rising to the circuit bench in 1995. His ran unopposed in 2014, winning a six-year term that was set to expire in January 2021.

“I am very thankful for the privilege and honor of serving 23 years as a circuit judge, working alongside so many excellent colleagues and support and administrative staff,” he wrote in a Jan. 29 retirement letter to Gov. Rick Scott. “I retire knowing that I have given much but received more from so many opportunities gained from my previous position as an assistant state attorney and currently as a circuit judge.”

Monday, March 05, 2018

Jeffrey Toobin covers Fane Lozman

Fane Lozman, of SDFLA fame, has become the stuff of Supreme Court legend...  Jeffrey Toobin covers him and his cases here:
Lozman had an unusual problem before the Justices: his case was too good. Every Justice who spoke seemed to acknowledge that Lozman’s rights had been violated. As Chief Justice John Roberts put it, “I found the video pretty chilling. I mean, the fellow is up there for about fifteen seconds, and the next thing he knows he’s being led off in handcuffs, speaking in a very calm voice the whole time. Now, the Council may not have liked what he was talking about, but that doesn’t mean they get to cuff him and lead him out.” Still, several Justices worried that the egregious facts of Lozman’s case might lead them to create a standard that would subject many communities to similar lawsuits. They needed to figure out how to create a standard that would not discourage law enforcement from keeping order in public meetings, while preventing the kind of abuse that Lozman suffered. “I’m very concerned about police officers in difficult situations,” Justice Anthony Kennedy told Pamela Karlan, a Stanford Law professor who was representing Lozman. “In this case, there’s a very serious contention that people in elected office deliberately wanted to intimidate this person, and it seems to me that maybe in this case we should cordon off or box off what happened here from the ordinary conduct of police officers."

Here's the video of the arrest:

Friday, March 02, 2018

West Palm Beach State Courthouse dedicated to Judge Daniel T.K. Hurley (Guest Post by Ron Herman)

Judge Hurley Courthouse Dedication, Guest blog by Ron Herman of

Congratulations to District Court Judge Daniel T. K. Hurley on having the main Palm Beach County courthouse dedicated in his honor! More details on the event here.

Judge Hurley has just recently retired after a distinguished career, spanning service in state and federal courts. To dedicate the courthouse in his honor, the County had to waive its policy prohibiting naming buildings after people. Well deserved honor to one of the most respected jurists!

Thursday, March 01, 2018

Senate confirms Lisa Branch to the 11th Circuit

From the Daily Report:

After five months of waiting, Georgia Court of Appeals Judge Elizabeth “Lisa” Branch will be moving to the U.S. Court of Appeals for the Eleventh Circuit.

The U.S. Senate confirmed Branch’s appointment Tuesday by a vote of 73-23.
President Donald Trump nominated Branch to the federal bench in September 2017. When the year closed without a vote, Branch’s nomination was returned to the president at the end of 2017. She was re-nominated in early January. The Senate Judiciary Committee approved her appointment on a bipartisan vote of 19-2 on Jan. 18.

Branch has served as the 77th judge on the Georgia Court of Appeals since Sept. 4, 2012. Previously, she was a partner in the commercial litigation practice group at Smith, Gambrell & Russell in Atlanta, where she began her legal career. Branch served as a senior official in the administration of President George W. Bush as counselor to the administrator of the Office of Information and Regulatory Affairs at the U. S. Office of Management and Budget and as an associate general counsel at the U.S. Department of Homeland Security. Branch graduated from Davidson College and received her law degree from Emory University.

Congratulations to Judge Branch.