Wednesday, July 31, 2019

“Of course, I concur in every word of the Court’s opinion.”

That’s Chief Judge Ed Carnes concurring with his own majority opinion in this case involving Royal Caribbean:
Of course, I concur in every word of the Court’s opinion. See United States v. Hough, 803 F.3d 1181, 1197 (11th Cir. 2015) (Carnes, C.J., concurring) (“Not surprisingly, as the author of the Court’s opinion I concur in all of it.”). Usually, there is nothing else for the author of a majority opinion to say, but here there is.
There’s been a lot of this lately. Judge William Pryor has done it twice in the last couple of days, here and here. In fact, in the latter case the whole panel concurred, per Judge Pryor, with the majority opinion, written by Judge Pryor. But unlike Carnes’ concurrence, which was written to make some additional points, Pryor takes on prior precedent in the 11th Circuit in both of his concurrences.  I wonder how conservative judges would have viewed the Pryor concurrences (saying the 11th Circuit had gotten it wrong in the past) had they been written by the more liberal wing of the 11th Circuit.

Tuesday, July 30, 2019

Who should investigate police officers when they commit crimes?

This interesting NY Times op-ed says that it should be public defenders, not prosecutors. It’s pretty convincing:

After a police officer in South Bend, Ind., shot and killed Eric Jack Logan last month, contentious meetings between the public and Mayor Pete Buttigieg showed that there is often a serious lack of faith that allegations of police misconduct will be fairly investigated. We can fix this: Public defenders, not law enforcement officials, should be responsible for determining whether police misconduct occurred.

The skepticism about the way investigations are currently conducted makes sense: Police departments’ internal investigations are reliably lenient. The New York Police Department, for example, took nearly 2,500 reports of biased policing from residents since 2015 and found not a single one credible. Prosecutors and state police, the two other entities most likely to carry out an investigation of police misconduct, often decline to press charges even when video evidence seems to leave little doubt that an officer’s conduct has violated departmental policy.


Not surprisingly, communities of color, who are disproportionately exposed to police violence and misconduct, have a much less favorable view of the police than the population overall, and little belief that misdeeds will be revealed or punished. In a 2017 Pew Research poll, 64 percent of Americans said they had generally warm feelings toward the police. But for black Americans it was just 30 percent. If mayors, police chiefs and legislatures are serious about instilling real faith in these communities, they should hand over full control of investigations to the one group of lawyers used to treating the police in an adversarial fashion, all of them experts in police rules and procedures: public defenders.

Unlike prosecutors, who often work hand-in-hand with the police to make a case for conviction, defenders are used to questioning the stories police officers tell. For example, in a case of mine many years ago, the prosecutor and his police witness seemed confident that their evidence was unassailable: Two officers had walked up to the car my client was sitting in, looked in the windows, and seen what looked like cocaine. What never occurred to them, although it was easy enough for me to find out, was that their walk from the police car to my client’s car took them from one city to another. When they arrived, they were out of their jurisdiction and had no authority to make an arrest. It seems minor, but it exemplifies the different approach that defenders must take to protect our clients’ interests — and the rigor we are accustomed to bringing to our investigation of everything the police say and do.

A good-thought provoking article. I wonder how the juvenile prison guard case would have turned out if the Federal Public Defender’s office was prosecuting instead of defending.

Thursday, July 25, 2019

Breaking — White House sets interviews for Fort Pierce slot (UPDATED)

Rubio’s JNC interviewed six candidates.

And now it’s down to three (UPDATED):

Michael Sherwin;
Aileen Cannon; and
David Leibowitz

Sherwin (Miami) and Cannon (Fort Pierce) are AUSAs, and Leibowitz is a former AUSA (SDNY). Leibowitz is currently working as General Counsel for Braman.

All are very impressive.

Good luck!

Tuesday, July 23, 2019

Not guilty verdict in Miami Detention Guard case

The guard, Antwan Lenard Johnson, was accused of putting up a bunch of juveniles to attack a 17-year old (Elord Revolte) that led to his death. The attack was captured on video. The trial took place before Judge Altonaga over the past two weeks. Johnson was represented by AFPDs Hector Dopico and Helaine Batoff, both excellent lawyers, who prevailed in a very difficult case.

The Miami Herald has the background on the case here.
Elord had been in the Miami-Dade Regional Juvenile Detention Center for only three days when he and Johnson confronted each other in the lockup’s cafeteria, records show. Elord rose from his seat without asking Johnson for permission. Johnson told the teen to return to his seat. Elord cursed at the officer, telling him to “f--- off,” prosecutors say.

Prosecutors say Johnson, unwilling or unable to dispense discipline himself, did the next best thing: He ordered the other detainees in Module 9 to beat him up, instead.

Elord died at Jackson Memorial Hospital at 11:17 p.m. on Aug. 31. An autopsy concluded he died from a tear to a vein under his left shoulder, which slowly oozed blood until he stopped breathing.

Federal agents arrested Johnson last April, after a grand jury indicted him. The indictment was handed down a year after state prosecutors concluded they lacked sufficient evidence to charge Johnson with either homicide or official misconduct, and after an internal investigation by the state Department of Juvenile Justice failed to confirm allegations that Elord was the victim of a “honey bunning,” or a beating orchestrated by officers.

In October of 2017, the Miami Herald published a series of stories, called “Fight Club,” that detailed a host of abuses within facilities operated by DJJ, or by private providers under contract with the state. The improprieties included rampant unnecessary and excessive force, sexual misconduct and an unspoken disciplinary tool called “honey bunning,” in which officers deputized detainees to act as enforcers against other youths who got out of line, often rewarding them with a honey bun from the employee vending machine.

The Herald also covered the opening statements:

Johnson “unleashed a commonly used, illegal bounty scheme on Elord,” McLaughlin said in opening remarks to the jury. He emphasized that detention officers are not allowed to hit or discipline the juveniles in their charge, so when Elord began violating rules and mouthing off, Johnson decided “to take matters into his own hands and discipline Elord for disrespect.”

“You will hear testimony from these Mod 9 kids, especially those in the know, that they knew, as they put it, ‘exactly what time it was,’ ” McLaughlin said.

Prior to Monday’s hearing, U.S. District Judge Cecilia M. Altonaga denied a series of motions filed by prosecutors, including a motion to exclude references to Johnson’s good character from his DJJ employment records.

Altonaga’s decisions could make it more difficult for prosecutors to get a conviction. In one such decision, Altonaga forbade prosecutors to show video footage to jurors of other fights and what prosecutors claim are officer-directed beatdowns — which prosecutors claim could help them build the case for the conspiracy charge.

Johnson’s defense counsel argued that the “honey bunning” bribery system that is the crux of the federal conspiracy charge simply does not exist.

“The idea that these kids could be incentivized by a 75-cent doughnut is ridiculous,” said Hector Dopico, Johnson’s lawyer.

Dopico described the juvenile offenders in custody as “carjackers, some of which carry guns to school, some of which are rapists” who are “filled with piss and vinegar.” Dopico accused the federal government of conspiring with the witnesses to cover up the true motive behind the attack that killed Elord.

“The government knows the name of every one of those kids,” the defense counsel said. “Not one of them has been charged with a single crime. The government made a deal with them and Antwan is the scapegoat.”

Monday, July 22, 2019

WSJ takes on Miami Herald re Epstein Reporting

Check out "Bad Reporting Took Down Alex Acosta" here

The intro:

Trying to inoculate journalists against hindsight bias is like trying to teach your cat algebra—it’s an uphill slog.Happily, the Washington Post last Sunday gave us a history of the decade-old Jeffrey Epstein sex-crimes prosecution that didn’t rely on the anachronistic innuendo that filled a Miami Herald series entitled “Perversion of Justice.” The furor caused by that series led last week to the resignation of Labor Secretary Alexander Acosta, who had the misfortune of being the U.S. attorney whose office prosecuted the long-ago case. 

The Post investigation, with a non-tabloidal realism the Herald couldn’t muster, found “not a crisp portrait of white hats tilting against black hats, but rather a mottled mural of prosecutors who were eager to stop Epstein from preying on girls, but also sensitive to the young women’s desire not to have their names made public.” It adds that Mr. Epstein’s high-priced defense team “took advantage of the fact that many victims felt a bond with their accused abuser.”

To put it more bluntly than even the Post wants to, prosecutors seem to have feared losing in court because their witnesses were unreliable. If so, this echoes the apparent experience of a state prosecutor in Palm Beach County in the same matter, who ended up going before a grand jury with a single witness, who wasn’t even underage. It also echoes a declaration, in the Herald’s own words, by the Manhattan district attorney in a subsequent matter that the “underage victims failed to cooperate” in the Florida prosecution.

There was also a shout-out to Jeff Sloman's op-ed:

Most cogent about the paper’s own role was an op-ed published in February in the Herald itself by Jeffrey H. Sloman, another member of Mr. Acosta’s team. He points out that though the Herald’s decade-after-the-fact revelations “made a strong case that [Epstein] should have gone to jail for much longer,” the paper “never explained or substantiated its accusation that we schemed with Epstein’s lawyers to avoid that result.”

Bingo. However disappointing, inadequate or even weak-kneed the punishment may look in retrospect, nothing in the record even slightly suggests prosecutors were anything but hostile to Mr. Epstein and eager to extract the strongest realistic sanction. The Herald itself only began metronomically referring to the outcome as a corrupt “sweetheart deal” in 2017 when Mr. Acosta became associated with the Trump administration.

Notice something else: Between 2005 and 2009, when the case was unfolding and making news in South Florida and around world, the Herald produced a single item about Mr. Epstein’s travails, according to the Factiva database. It was buried in a news roundup and portrayed the matter as a simple prostitution case. It didn’t mention underage girls or Mr. Epstein’s status as a crony of Bill Clinton.

I guess this was some kind of sweetheart treatment.

Saturday, July 20, 2019

Judge Robin Rosenberg’s important NY Times piece

Judge Robin Rosenberg wrote a really nice piece in the New York Times about the First Step Act.  The intro:
In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.” But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year. Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.
Rosenberg was Judge Paine’s law clerk! She goes on to explain her decision:
Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December. The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases. The First Step Act also allows a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life. The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999. Before me, he was remorseful, dignified and hopeful. He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available. Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety. As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available.

I wanted to know how Mr. Potts had managed his life in prison. He told me, “A lot of times I felt like giving up, but I didn’t want to let my mom down, my family.”

He continued: “I kept myself away from a lot of people in prison. I wasn’t around the average people in prison. Prison is an awful place. You have all these different types of organizations and gangs and foolishness. That is not me, ma’am. I’m not like that.

“I made some bad decisions in my life," he added, “but I am not a bad person.”

The true marker of a person’s character is what he does when he thinks no one is watching. Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing. But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future wasn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center .

I believe Mr. Potts’s story is one of redemption through self-improvement. His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

Thursday, July 18, 2019

Jackie Becerra investiture

Although she’s been presiding for quite some time now, Jackie Becerra has her formal investiture tomorrow (Friday). Congratulations!

Tuesday, July 16, 2019

RIP Justice John Paul Stevens

He was 99.

And one of the greats.

He served for 35 years.

Appointed by a Republican, but never ideological in his rulings. We need more like him.

Although there’s never been a Justice from Florida, he retired down here so we will count him!


"Your honor this is the Southern District of New York."

That was the SDNY AUSA during the Epstein bail hearing yesterday. I wonder how SDFLA AUSAs think of the way that New York prosecutors look down on this (and every other) office.

Monday, July 15, 2019

Will Jeff Epstein get bail today?

Here is the Government’s bail memo and the defense’s.

Some of the arguments for bail:

—complied with previous conditions of house arrest and probation

—enormous bail package including house arrest and guard

—waiver of extradition

—easily recognizable

—old offense with legal defenses

Some of the arguments against:

—enormous wealth with means to travel

—potential witness tampering

—potential new offenses re images found in safe

—nature and strength of the case

Thursday, July 11, 2019

"Dear Florida Supreme Court: We need your help."

That's how Judge Newsom starts off this opinion, which certifies a question to the Florida Supreme Court. 
Dear Florida Supreme Court: We need your help. Among other much simpler issues, this case presents a knotty and important state-law contract question that is more appropriately answered by you than by us. Accordingly, after clearing away some underbrush, we will respectfully certify to you the following question:
Is a contractual “exculpatory clause” that purports to insulate one of the signatories from “any … damages regardless of kind or type … whether in contract, tort (including negligence), or otherwise” enforceable? Or, alternatively, does the clause confer such sweeping immunity that it renders the entire contract in which it appears illusory? Or, finally, might the clause plausibly be construed so as to bar some but not all claims and thus save the contract from invalidation?
Each possibility finds at least some support in Florida law, each comes with its own equitable pros and cons, and each has dramatically different implications for the case before us.

Alex Acosta press conference

Watch here:

It's strange to me that people are just as angry with Acosta (the prosecutor) as they are with Epstein (the sex offender).  As I've written about here in the Miami Herald, Acosta ensured Epstein had to plead, register, and go to jail. Ten years later, the deal looks too lenient, but to say that he cut the deal for some nefarious reason is not fair.  Anyone who worked with or against Acosta knows that he would not have done that.  Some of the details in the piece are now dated because it was written back in December, but the main point is still the same.  I also wrote this piece for The Hill about Acosta, differentiating a bad deal from real prosecutorial misconduct.

This morning, the WSJ has a similar take here.

Monday, July 08, 2019

RIP Meenu Sasser

Very sad. Sasser was only 48. She had esophageal cancer. 

She was the first Asian American judge in Palm Beach. 

She was also a short lister for the district seat in Fort Pierce. 

The Palm Beach Post has the obituary here

Sunday, July 07, 2019

Questions after Jeff Epstein charges

1. How does this affect the SDFLA civil litigation?

2. Will he get bond?

3. How will the SDNY get around Epstein’s previous non-prosecution agreement?  Is alleging different girls enough?

4. Will the case go to trial?

5. Will Epstein put the same defense team back together?

6. How will these charges affect other defendants considering pleading guilty if they might later be charged for the same conduct in a different district if that other district considers the sentence too lenient?

7. Why is the public corruption unit handling the case?

Monday, July 01, 2019

Happy blog birthday!

It’s 14 years of blogging... 14!

Thank you again for reading and for the tips. It’s been a fun run.

A lot has changed for the District in 14 years. For starters, the district and magistrate benches are a lot younger and more diverse.

Parties for the new judges are now hosted on the 13th floor of the Ferguson courthouse. When I was clerking 22 years ago, parties were hosted in the Dyer courtyard and were catered by Christy’s. Old school. If you were lucky, Judge Davis would invite you to the after party for scotch in his chambers.

More reminiscing later... for now, I’m going to take the week off from posting unless something really important happens. I’ll see you all next week.