You can watch the "3 big moments" from CourtTV here.
And highlights here:
I think the interesting thing is how they are dealing with the pandemic... lawyers and witnesses behind dividers but not wearing masks when speaking.
Even though everyone was focused on the new U.S. Attorney and judge positions, there is also an opening for magistrate judge in the Southern District of Florida. Applications were due March 19. I don't have the list of the 49 people who applied, so if someone has it, please forward it. Your identity will be kept secret. As always, thanks to all of my sources over the years... Since this blog started back in 2005, no source has ever been revealed.
Jay Weaver covers her departure here. From The Herald:
Barely on the job as the new U.S. attorney in Miami, Ariana Fajardo Orshan confronted her first crisis in the fall of 2018 — a sensational terrorism investigation of a homeless man who was sending crudely made pipe bombs in the mail from South Florida to politicians in the Northeast.
Her office, along with the FBI, jumped all over it. But as the probe generated national headlines, she received back-to-back phone calls from the U.S. attorney in Manhattan and the deputy attorney general in Washington, D.C.
“Stand down,” they both told her, the case would be prosecuted by the Southern District of New York, aka the “sovereign district” because of its long tradition of power and independence among the 94 U.S. attorney’s offices in the country.
“They grabbed the case,” Fajardo told the Miami Herald Wednesday. She was nominated by President Donald Trump, became the first woman to serve as U.S. attorney in Miami, and is now leaving office Friday following Trump’s defeat to Democrat Joe Biden in November. Like other top federal prosecutors nationwide, Fajardo, 48, must step down as part of the transition in presidential power.
For Fajardo, a former Miami-Dade circuit judge and assistant state prosecutor, the New York power play was an immediate “sore spot” for the federal newcomer. She argued that the perpetrator was local and mail bombs were all made here, so the case belonged in South Florida, but the Southern District of New York outmaneuvered her by opening a grand jury first to make the terrorism case. Some of the mail bombs were received by former President Barack Obama and other politicians in D.C., New York and elsewhere.
Fajardo, who was raised in a Cuban family in Hialeah, handpicked a dozen women and men who were Hispanic, Black, Asian, Indian and white to fill executive and supervisory positions. “I knew I wanted a greater representation in our office that reflected the community,” she said.
Fajardo, who acknowledged she doesn’t like meetings, collaborated with Gonzalez, a techie type, and other advisors to develop a methodical system of hiring new assistant U.S. attorneys — going beyond tapping only the best students from the nation’s top law schools and federal clerkships.
Her team recruited civil and criminal lawyers with trial experience in either law firms or the Miami-Dade State Attorney’s Office, hiring more than 90 new prosecutors over the past two years. Among the new hires: two Haitian Americans, which, though a small number, was significant because of their lack of presence in the office. Fajardo also recruited candidates from the conservative legal group known as the Federalist Society. It gained tremendous influence during the Trump administration.
I really wanted to write this post in Garamond font, but the Blogger platform doesn't allow it. The D.C. Circuit, which just banned the font, would be proud. Twitter took notice. I don't understand the dust-up as Garamond is a perfectly acceptable font. Slate covers the scandal here:
So if a lawyer’s brief is written in a difficult font, that might make it seem more complicated than it actually is. But Schwarz says the biggest problem with Garamond is its small size, especially for older judges. He describes Garamond as “elegant” and “pretty” but “thin to print” and notes that it becomes impossible to read on your tablet or computer screen. The court’s notice nods toward this as the reason behind the change, stating that Garamond “appears smaller than the other two typefaces.” And now that most documents are digitized and printing is less common, Schwartz predicts larger fonts will continue to become more popular.
But why did the courts decide to be anti-Garamond now? Theories have abounded: As Merrick Garland traded his post as head circuit judge for attorney general last week, people wondered if Garland’s exit and Garamond’s ousting were at all related. Was Garland a secret Garamond tyrant, forcing the font on the courts? “It’s unlikely,” says lawyer Sean Marotta, a partner with Hogan Lovells. “But yeah, Merrick Garland got one vote like everyone else on the court on these issues.” Instead, Marotta thinks that the D.C. Circuit’s message was targeted at the U.S. Department of Justice’s Civil Appellate Staff, who are known to use Garamond in their briefs.
John Elwood, a partner with the law firm Arnold & Porter, tweeted that Garamond is a popular trick used to “shave serval pages off a brief.” He said on a phone call that federal filing rules for rehearing petitions switched from having a 15-page limit to a word limit in 2016. “But, before that point,” he says, “people would file a Times New Roman opening brief, a Times New Roman reply brief, they would lose, and then they would file a rehearing petition, and suddenly it would be in Garamond.” Elwood decided after reading the D.C. Circuit’s notice to test Garamond out for himself: His 25-page Times New Roman brief became 21 pages.
I can't believe Elwood gave up a trick that all of us have used... snitches get stitches.
David Oscar Markus recently wrote an editorial on behalf of his clients, the family of Ghislaine Maxwell, in which he said that “the rich do not enjoy enormous advantages in a federal criminal case.”1 If anything, they are greatly disadvantaged.” I’d love to live in a world where this was true. But justice ain’t cheap, and the tools a criminal defendant needs to rebut the presumption of guilt our system heaps upon them often require significant investment.
First off, there’s choosing the correct lawyer. Justice Roberts was not exaggerating when he wrote that a defendant’s inability to pay for their counsel of choice “raises substantial concerns about the fairness of the entire proceeding.”
Few things could do more to ‘undermine the criminal justice system’s integrity,’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.
But the grim reality for Kaley, a woman whose money for her lawyer was forfeited by the State, is a fact of life for the vast majority of criminal defendants who have no say in who will represent them. It can mean an experienced advocate who knows all the local players or a real estate attorney on a side hustle. It’s the difference between a lottery ticket and a paycheck.
The criminal justice system crushes people. Men and women. Black and white. Rich and poor. A federal criminal case impacts your liberty, your family, your finances, your mental health, and every other aspect of your life whether you are rich or poor. Each broad category of defendants faces their own hurdles in the system. There is no question that poor defendants face enormous challenges in trying to mount an effective defense again a government with unlimited resources, what Andrew rightly calls “a bit like [fighting] a grizzly bear.” There’s an unfortunate perception out there, however, that the governmental grizzly bear isn’t as interested in gobbling up the rich. But that perception is wrong. This particular bear loves plump and shiny prey.
... and does a great job discussing the Capitol Riots.
You can watch the whole thing here.
Prosecutors have not yet charged any Capitol rioters with sedition. But asked whether he anticipates those charges, federal prosecutor Michael Sherwin says, “I believe the facts do support those charges.” https://t.co/QttmisXpO1 pic.twitter.com/CLq0xYdAzh— 60 Minutes (@60Minutes) March 21, 2021
There's been a big push by some liberals because they see a tight window for Biden to get a Justice confirmed and they don't want another RBG situation. Here's the AP covering the story:
Forgive progressives who aren’t looking forward to the sequel of their personal “Nightmare on First Street,” a Supreme Court succession story.
The original followed Justice Ruth Bader Ginsburg’s decision to forgo retirement from the high court, located on First Street in Washington, when Democrats controlled the White House and the Senate during six years of Barack Obama’s presidency, until 2015.
Despite some pointed warnings of what might happen, Ginsburg remained on the bench until her death last year at age 87. President Donald Trump replaced the liberal icon with a young conservative, Justice Amy Coney Barrett, and cemented a 6-3 conservative majority on the court just over a month before he lost his bid for a second term.
In the updated version, 82-year-old Justice Stephen Breyer plays the leading role. He is the oldest member of the court and has served more than 26 years since his appointment by President Bill Clinton.
With spring comes the start of the period in which many justices have announced their retirement. Some progressives say it is time for Breyer to go, without delay. Other liberal voices have said Breyer should retire when the court finishes its work for the term, usually by early summer.
“He should announce his retirement immediately, effective upon the confirmation of his successor,” University of Colorado law professor Paul Campos wrote in The New York Times on Monday.
Campos’ plea stems from the Democrats’ tenuous hold on power.
A Democrat, President Joe Biden, lives in the White House and his party runs the evenly divided Senate only because the tie-breaking 51st vote belongs to Vice President Kamala Harris.
But there is no margin for a senator’s death or incapacitating illness that could instantly flip control to Republicans. Campos noted that the party composition of the Senate has changed more often than not in each two-year session of Congress since the end of World War II.
Breyer has remained mum about his plans, at least publicly. His last comment on the topic of retirement was made to Slate’s Dahlia Lithwick in an interview published in December. “I mean, eventually I’ll retire, sure I will,” Breyer said. “And it’s hard to know exactly when.”
The judicial conference is recommending 3 more district judges in the SDFLA. But there's a real question of whether any judges will be confirmed right now, with the JNC not being supported by Rubio or Scott. Rubio apparently has his own JNC. Scott wants nothing to do with that either. So will any judges get blue slips going forward? There's a real concern with people I'm speaking with that no judges will be confirmed unless President Biden and the Democratic Senate get rid of the blue slip process in Florida. We shall see.
Here's a recent TBT article about the back and forth on the JNC:
Florida’s two Republican senators, Rick Scott and Marco Rubio, are refusing to participate in a longstanding, bipartisan system for nominating federal judges that Florida legal insiders say has produced non-political, competent judicial nominees for decades.
Both Scott and Rubio have said they won’t participate with Florida House Democrats who are setting up Florida’s federal Judicial Nominating Commissions — even though bipartisan cooperation has long been typical.
Scott and Rubio called it an infringement on the Senate’s exclusive right to confirm judges.
Instead, the two senators say they’ll rely on their own sources for recommending judicial nominees, as well as on senators’ traditional prerogative to single-handedly block nominees in their home states.
What a season! I hope you had as much fun as I did with Season 2. And we have a great final episode for you. Who would represent Terry Nichols, one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar. You can check it out on Apple, Spotify, and Google, All other platforms, including a regular desktop player, can be accessed on our website.
That's the response from over half of Florida's corrections officers when asked whether they would get the COVID vaccine. Sigh....
A Florida correctional officer polled his colleagues earlier this year in a private Facebook group: "Will you take the COVID-19 vaccine if offered?"
The answer from more than half: "Hell no." Only 40 of the 475 respondents said yes.
At FCI Miami, a federal prison in Florida, fewer than half the facility's 240 employees had been fully vaccinated as of March 11, according to Kareen Troitino, the local corrections officer union president. Many of the workers who refused had expressed concerns about the vaccine's efficacy and side effects, Troitino said.
In January, Troitino and FCI Miami warden Sylvester Jenkins sent an email to employees saying that "in an act of solidarity," they had agreed to get vaccinated and encouraged staff to do the same. "Even though we recognize and respect that this motion is not mandatory; nevertheless, with the intent of promoting staff safety, we encourage all staff to join us," the Jan. 27 email said.
Only 25 employees signed up. FCI Miami has had two major coronavirus outbreaks, Troitino said: last July, when more than 400 prisoners out of 852 were suspected of having the disease, and in December, when about 100 people were affected at the facility's minimum-security camp.
That's the title of my latest op-ed, which was run in the Jerusalem Post. From the introduction:Ghislaine Maxwell’s case has led to many uninformed takes about the American criminal justice system. One common theme is that rich people are treated better than the poor by the system.
I don't usually post about CLE events, but this one is free, remote, has lots of credits, and looks interesting. It's UF's 8th annual e-discovery conference and our very own Judge Matthewman will be speaking.
Law.com also covers it here:
Just how active should judges be in the e-discovery process? It’s something that’s been pondered for years—perhaps most notably in the debates leading up to the 2015 e-discovery amendments to the Federal Rules of Civil Procedure.
Judges are often the guardians of justice for society. Thus, it’s reasonable to ask whether they should be forced to waste their time with games of rock-paper-scissors to settle discovery disputes between litigants in overzealous combat.
Check out this Linda Greenhouse piece in the NY Times:
Anyone who still needs proof of how the Supreme Court is changing need look no further than the single decision the justices handed down this week. The court held that a dispute that had become moot in the usual sense of that word — the problem was resolved before the case even went to trial — could be litigated nonetheless, because there was still something at stake: the one dollar the plaintiffs were seeking as damages for an asserted violation of their First Amendment right to free speech.
The holding was surprising in its generosity to the plaintiffs, as was the 8-to-1 vote, but that’s not what made Uzuegbunam v. Preczewski remarkable. Rather, it was the identity of the lone dissenter: Chief Justice John Roberts.
In more than 15 years on the court, the chief justice had never before filed a solitary dissenting opinion. In fact, he has rarely voted in dissent at all, and has written dissenting opinions even less frequently. During the term that ended last July, he was in the majority 97 percent of the time. No chief justice since Fred Vinson, during the 1949 term, has displayed that degree of alignment with his court. To the extent that the Roberts court had a center of gravity, Chief Justice Roberts was it.
Justice Amy Coney Barrett’s arrival in late October changed all that, and quickly. A few minutes before midnight on the night before Thanksgiving, the court issued an order suspending the indoor attendance limits that Gov. Andrew Cuomo had placed on religious services in areas of New York with high rates of Covid infection.
And 20 Republicans joined in to confirm.
The Senate voted to confirm attorney general nominee Merrick Garland on Wednesday, sending the appellate judge on his mission to uphold the integrity of the Justice Department after its actions over the past years threatened to undermine it.
Garland was confirmed in a 70-30 vote.
The former chief judge of the US Court of Appeals for the DC Circuit has been praised by members of both parties. He pledged in his nomination hearing last month to "fend off any effort by anyone" to politically influence the Justice Department's investigations, and that his first priority would be to fully prosecute the "heinous" crimes committed in the attack on the US Capitol on January 6.
"America can breathe a sigh of relief that we are finally going to have someone like Merrick Garland leading the Justice Department," said Senate Majority Leader Chuck Schumer, a Democrat from New York. He called Garland "someone with integrity, independence, respect for the rule of law and credibility on both sides of the aisle."
The Deepwater Horizon explosion was arguably the worst environmental disaster in United States history. In its effort to assign blame, the government pointed the finger at a number of individuals who turned out to be scapegoats, including Robert Kaluza, the off-duty rig supervisor who was filling in for a few days. David Gerger discusses his successful defense in this episode of For the Defense.
Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused. These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury. Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt. However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes. The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....
The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:
Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).
The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.
As the senators say, it's un-American.
Let's hope the bill passes.
COMES NOW Defendant Cross-Plaintiff David Markus (hereinafter referred to as “Defendant” or “Cross-Plaintiff” or “Mr. Markus”), by and through undersigned counsel, who hereby files this motion for summary judgment (the “motion” or “MSJ” or “summary judgment” ) pursuant to Federal Rules of Civil Procedure (hereinafter “the Rules”) and states as follows.
Oy vey. Did that introduction help in any way to persuade you of anything? Of course not. But Rumpole laps up the legalese in this post over at his blog, which is usually wonderful, but is very wrong on this point.
We no longer write motions on a typewriter with carbon paper. We don’t rent videos from Blockbuster. We don’t take film to a camera store to be developed. We don’t use curled up paper in a fax machine. Or even a fax machine at all.
Likewise, we don’t need words like COMES NOW, hereby, herein, aforementioned, inter alia, heretofore, know all men by these premises, and so on. If the goal of legal writing is to persuade, we should do away with archaic legalese. Plain and easy to understand English is the way to go. Phrases like COMES NOW do not add anything to a motion. They are not persuasive. They are meaningless.
Bryan Garner, the legal writing authority, says the term COMES NOW should be banned and asks whether lawyers who use such terms “think that the phrase made them sound more thunderous and authoritative?” Justice Scalia started this plain English trend at the Supreme Court. And it has taken root with the best legal writers across the courts. From Robin Rosenbaum and William Pryor in the Eleventh Circuit to Alex Kozinski, former Chief Judge of the Ninth Circuit.
Rumpole wants to stick to tradition, but this is a tradition that needs to be abandoned. Lawyers also used to wear wigs to court. Saying things like: I’ve received the your blog argument and “ hereby acknowledge same” doesn’t sound lawyerly. It sounds like you’re a wanna-be lawyer.
Rumpole, PLEASE GOVERN YOURSELF ACCORDINGLY.
Okay, don’t use that one either!
The South Florida Federal JNC is:
Vivian de las Cuevas-Diaz
Retired Judge Ilona Holmes
Retired Justice Barbara Pariente
I've been told that 5 Dem picks, two Rubio picks (update, this is incorrect; see below), and that Scott refused to participate. These 7 people will make recommendations for federal judges and U.S. Attorney. More to follow.
In Texas prisons, food is so bad the staff are finding mold on it. This photo came w/a leaked email a shocked official sent to every unit.— Keri Blakinger (@keribla) March 3, 2021
“If there is mold on the bread don’t make a sandwich w/it,” he wrote.
Here’s a THREAD on more internal emails abt the food situation. pic.twitter.com/JyMmUUb7BF
Typically a federal trial about election law doesn't involve extramarital affairs, the National Enquirer, and a Presidential candidate. You'll get all of that in today's episode of For The Defense, in which I discuss the John Edwards trial with the great Abbe Lowell. You can check it out on Apple, Spotify and Google, All other platforms can be accessed on our website.
That's the title of this nice piece about Judge Altman in the DBR. Here's a cool shout-out to his grandfather:
And when Altman had one of his last conversations with his grandfather in Caracas, Venezuela, those American historical figures and what they stood for was the basis of a topic of discussion. At the time, his grandfather was dying from cancer. The two men were playing several games of chess on the balcony of his grandfather’s apartment overlooking tens of thousands of protestors.
That afternoon was a few weeks after Hugo Chávez, the president of the island nation in which corruption had become increasingly more widespread, padded the Venezuelan Supreme Court with loyalists in his party so he could seek unlimited terms in office.
Altman expressed to his grandfather his intentions to apply to law school as people took to the streets to protest the “gross violation of their constitutional charter.”
“One of the last things my grandfather said was: ‘This is what happens to a country when good people don’t serve it. When the worst people become public servants. If you’re going to be a lawyer, remember to be the right kind of lawyer that serves its country, so this never happens in America,’ ” Altman recounted. “ I carried those words with me. That story was my essay for my application to Yale Law School.”
And as Altman was nearing graduation from Yale in New Haven, Connecticut, he had no doubt in his mind that he wanted to return to Miami to start his legal career.
“This is the community that brought my family in when we came here from Venezuela,” Altman said. “We built a life here, we built friendships here, and I owed this community, I still do, for taking us in.”
He posts his 10 Rules here, which he says apply via Zoom or in person. I like them. Check them out, especially young lawyers. One quibble with Rule #4 -- are you really standing up during Zoom court?
Updated -- one rule Rumpole should think about adding is that clients shouldn't show up while performing surgery. This plastic surgeon thought it was a good idea to appear for trial during while his unconscious patient was on the operating table.
Speaking of Zoom court, I'd like to see the statistics for Zoom sentencings. Are judges giving more significant downward variances because of the pandemic? Or are sentences higher because it's harder to humanize the client over Zoom?
My experience has been that most judges recognize the difficulties in presenting arguments during a Zoom sentencing as well as the challenges of custodial sentences. They have been giving the "Zoom discount." It depends, of course... for some judges, it's business as usual. But overall, I have seen better (lower) sentences over the past year.
My hope is that these slightly lower sentences start to become normalized and don't change once the pandemic is over. If Biden can prioritize judges and appoint some progressives to the bench, we may even start to see real change in sentencing. Let's see.