Thursday, April 29, 2021
It was a wonderful interview. Two great guys just talking. Relaxed and interesting. What makes them both great is that they are real people. We learned lots about Judge Singhal -- his love of trials, comics, Presidents, and the law. His unbelievable background and parents. We need more judges like him. I'm glad so many of you were able to see it as I am told it was the best attended event of the pandemic.
Wednesday, April 28, 2021
No one knows. Jay Weaver covers a lot of the competing interests in this piece. The article starts this way:
When Joe Biden won the presidency, Florida’s congressional Democrats thought they might finally get a chance to serve up his picks for federal judges.
But they had a significant hurdle: Florida’s two Republican senators still dominated the commission that scrutinizes judicial candidates to be nominated by the Democratic president.
So, in an unprecedented move, longtime Democratic Reps. Alcee Hastings and Debbie Wasserman Schultz created their own Florida judicial nominating commission earlier this year to compete with the GOP-controlled Senate panel — even though the House of Representatives has no authority to confirm federal judges for lifetime appointments. The Senate has that power.
The shifting political landscape has caused confusion for judicial candidates seeking to fill two openings for federal judges in the Southern District of Florida and a new vacancy for the U.S. attorney’s job in the same region. Some said it is not clear who will have the last word in recommending finalists for each of the coveted positions.
The judicial openings in South Florida have been created by two U.S. District Court judges assuming “senior status,” Federico Moreno and Ursula Ungaro. The U.S. attorney’s post became vacant with the recent resignation of Trump-appointed U.S. Attorney Ariana Fajardo Orshan.
Among the several candidates who have expressed interest in applying for the judges’ two seats: U.S. Magistrate Judge Jacqueline Becerra, Federal Public Defender Michael Caruso, Miami-Dade Circuit Judge Lisa S. Walsh, Miami-Dade Circuit Judge Tanya Brinkley and Miami-Dade County Judge Ayana Harris.
The U.S. attorney’s post has drawn the interest of former South Florida federal prosecutors Jacqueline Arango, Andres Rivero, David Buckner and Markenzy Lapointe, along with Palm Beach County State Attorney Dave Aronberg.
In the end, President Biden has the sole authority to nominate whomever he wants to be a federal judge or U.S. attorney. But as senators, Florida’s two Republicans, Marco Rubio and Rick Scott, have the unique power to block anyone from being confirmed by the Senate. During the Obama administration, Rubio refused to issue a “blue slip” for two of the Democratic president’s nominees for federal judges in South Florida, Miami-Dade Circuit Judges William Thomas and Mary Barzee, preventing them from going through Senate confirmation hearings. As a result, their nominations stalled.
Tuesday, April 27, 2021
Well, the pool of 49 applicants has been narrowed to 5:
The district court judges will be conducting interviews on May 13. Good luck to all.
Defense attorneys make the argument all of the time -- hold the client responsible for the actual loss in the case, not the "intended" loss. The Third Circuit raised this interesting point about the issue in a case where a defendant made about $30,000 but the "intended" loss, according to the district court, was $36 million:
Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly. Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended. By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.” United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring). But Kirschner assumes the comment is correct, and so we will too.
I haven't seen this argument before, which I'm sure will be making its way into all sentencing briefs and appeals going forward. Let's hope some more sensibility comes around for these crazy loss calculations. By the way, the 3rd Circuit reversed the loss finding on other grounds and remanded to the district court for a fuller hearing and analysis.
Saturday, April 24, 2021
1. Amy Comey Barrett finally got to meet her colleagues in person. From CNN:
2. Can Chauvin win on appeal? From the AP:
The defense has said it was impossible for Chauvin to get a fair trial in Minneapolis because of pretrial publicity and community pressure on jurors to convict. That claim is sure to underpin any appeal.
As they arrived at and left the courthouse each day for testimony, jurors passed clear signs that the city was preparing for renewed protests. The courthouse downtown was encircled by razor wire and guarded by armed troops. Most storefront windows were boarded up.
A prime target of an appeal would be key rulings by trial Judge Peter Cahill, including that the trial should remain in Minneapolis rather than be moved and that jurors should be sequestered only for deliberations.
Cahill also refused to delay the trial after Minneapolis announced a $27 million settlement with Floyd’s family during jury selection. The defense says that suggested guilt before jurors even heard evidence.
The defense has decried as prosecutorial misconduct remarks by the state during closings, including that aspects of the defense case were “nonsense.” That claim could make its way into an appeal.
3. Is it a federal crime to inflate your law schools U.S. News rankings? Orin Kerr has this thread looking at this interesting question. The 11th Circuit's Takhalov opinion will be a hurdle...
Wednesday, April 21, 2021
That's the title of my latest article in The Hill. Below is the introduction. Let me know your thoughts.
It’s hard to fight any case at trial. Defense lawyers often face hostile prosecutors, judges, prison guards, and probation officers every day — but in a high-profile case, add to that a hostile media, public, and even popular movements.
CNN’s Jake Tapper said Nelson was gaslighting the jury during the closing. While the jury was deliberating, the President of the United States said he was praying for the victim and that the evidence was overwhelming. A congresswoman said that if the jury returned a verdict of not guilty, protestors should become more confrontational. And I’m sure closer to home, Nelson’s friends and family asked him “How can you represent that person?”
There’s no other profession in America where everyone is rooting against you.
If Chauvin had been shot on his way to the courthouse, it’s hard to imagine anyone sending hate mail to or criticizing the surgeon who operated in an attempt to save his life. No one would protest outside of the surgeon’s office or home. That’s not the same for the criminal defense lawyer.
Tuesday, April 20, 2021
There's the Congressional JNC. And now there's the Rubio JNC. Scott is not participating. So it's unclear how Biden will go about selecting judges and U.S. Attorneys. Here is the list from Rubio, which includes some prominent Democrats (like Dan Gelber and Seth Miles):
Southern District JAC:
Carlos Lopez-Cantera – Statewide Chair
Manny Kadre – District Chair
Georgina A. Angones
Renier Diaz de la Portilla
Albert E. Dotson, Jr.
Robert H. Fernandez
Yolanda Cash Jackson
Steve L. Waserstein
2. Joe DeMaria is rightfully fighting the mask protocols in Miami for trials. It's impossible to cross examine a witness wearing a mask. Here's his petition in the 3rd DCA (Law360 subscription necessary) and the article in the DBR (subscription necessary). The argument section starts out like this:
The constitutional right to due process in judicial proceedings requires that a party be allowed to examine a witness in a form that allows the factfinder to fully assess the witness’s credibility. Under the circumstances of this case, the process due to Dresser includes the right both to testify unmasked, and to require to her witnesses to testify without a mask.
3. Who is the greatest Supreme Court Justice of all time? SCOTUSblog ran a pool and your winner is... Earl Warren. Here's the intro to the post:
Forget Ali vs. Frazier, Celtics vs. Lakers, or Evert vs. Navratilova. It’s time for Marshall vs. Warren.
After three rounds of the first-ever SCOTUS bracketology tournament, only two justices remain. Both held the title of chief justice. Both reshaped American law and society. Both are legal titans who defeated a string of worthy contenders to reach the championship. But only one can be chosen by SCOTUSblog readers as the greatest justice in the court’s history.
To see how we got here, you can review the first-round results, the second-round results and the semifinals. We explained our original seeding and selection criteria here. Of course, no March Madness tournament is without controversy, and a few malcontents have sneered at ours. Too triumphalist? Lousy seeding? Skewed in a liberal direction? Skewed in a conservative direction? We heard those complaints and more. Our bracket even inspired a rival tournament with a slightly different agenda – an event premised on underachievement that no one should be proud of winning. Kind of like the NIT.
But enough with March Madness melodrama. This is the final round of the Big Dance, and it’s time to vote. Here’s the championship match-up.
Monday, April 19, 2021
The reason Brooklyn Center police pulled over Daunte Wright is unclear and largely irrelevant. The Department’s chief of police said the car he was driving had expired tags. His mother said he thought he was pulled over because he had air fresheners hanging from the rearview mirror. Regardless of the reason, 20-year old Wright was shot to death by a police officer minutes after the traffic stop began.
Traffic stops figure prominently in some of the most high-profile police killings of Black people. We remember many of their names—Walter Scott, Sandra Bland, Philando Castile —but they are just a few of the many people who have been killed or died as the result of law enforcement’s expansive authority to enforce traffic laws.
Traffic stops might seem like a local matter, or a subjective police decision, but actually the practice is built on five decades of Supreme Court precedent, a set of decisions that has successively opened the door to — and given police an incentive to — use traffic stops as an invasive tool of policing aimed mostly at people of color, primarily Black people.
As a result, reckoning with police violence must include a reckoning with how U.S. Supreme Court precedent has enabled it through its decades-long campaign to empower law enforcement in the so-called War on Drugs. Litigators must continue to push the Court to revisit these damaging decisions with the goal of overturning or weakening the precedents that have put too much power and discretion in the hands of police. Federal, state, and local policymakers, meanwhile, must recognize that these precedents provide a constitutional floor for police behavior; laws and policies can and should be adopted to hold police to a higher standard.
“Driving While Black” is a tongue-in-cheek expression that describes a frightening reality—police can, and often do, find any reason to pull over Black drivers. Given the glut of traffic rules, police rarely have to concoct a reason to pull over any driver they choose. Their job as traffic enforcers enables police officers to pull over Black drivers whenever their implicit or explicit biases tell them that a Black driver is “up to no good.” Harassment, intimidation, violence, and sometimes death, too often ensue.
The Supreme Court opened the door to legally permissible racialized policing with the 1967 case Terry v. Ohio, by allowing police to conduct certain cursory searches, now known as stop-and-frisks, based on the low legal standard of “reasonable suspicion.” As our country’s experience with stop-and-frisk vividly demonstrates, however, for police, reasonable suspicion is too often synonymous with being a Black or brown person in public.
The practice of racially profiling Black drivers was effectively endorsed by the Court in the 1996 ruling in Whren v. United States, which decided that police are allowed to use minor vehicle infractions as a pretext to initiate traffic stops with the goal of investigating other possible unrelated crimes.
According to an analysis of over 100 million traffic stops, Black drivers are about 40 percent more likely to be pulled over than their white counterparts. This analysis also reveals that Black and Hispanic drivers are twice as likely as white drivers to have their cars searched after being pulled over.
Friday, April 16, 2021
Married in her early teens, Evelyn Bozon Pappa says she was abused for years by her husband, a former helicopter pilot for the Medellin cartel kingpin, Pablo Escobar.
The husband would move on to direct his own drug-smuggling operation from a Colombian seaside city, pressuring his wife to manage a ring of passengers who carried suitcases packed with cocaine on commercial flights to Miami.
“If you don’t help me, you know what will happen to your mother,” he threatened her.
The couple, Carlos Horacio Romero-Paez and Bozon, would later both be charged with drug trafficking by U.S. authorities. He would never be caught. Her life would be destroyed. She was arrested in Miami, convicted and sentenced to life in prison in the mid-1990s, when the Cali cartel dominated the world’s cocaine trade.
But 26 years later, in a turn of fate, Bozon has finally attained her freedom. It took a village, as the saying goes, with collaborative support from her four grown children in Colombia, a team of former prisoners, a Florida State University law professor, two former federal prosecutors and a retired Customs Service agent, who recently came to her defense after putting her behind bars.
***Bozon, now free and reunited with her family in Colombia, is mindful of all the people who helped guide her through her legal odyssey. “They all fought for me,” she said.Now back in Colombia after a couple of weeks of freedom, Bozon says she is slowly adapting to her new life — just being with her four children, a medical doctor, architect, clothing designer and logistics coordinator. She said several members of her extended family have been infected with the coronavirus but that she has been vaccinated.“My priority right now is to be with my family, make them happy and feel comfortable with them,” Bozon said.In the long run, she said she hopes to join an organization that helps other women who have suffered from abuse and battery. “I want to get involved in that because I have the spirit now,” Bozon said. “I can give to them a lot of positive things and make them free.”
Wednesday, April 14, 2021
It's not every day that you see an en banc opinion authored by two judges on the 11th Circuit. Even rarer is for that combination to be Chief Judge Pryor and Judge Martin. But they team up in this case, with Judge Newsom dissenting.
From the joint en banc intro:
WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge, delivered the opinion of the Court, in which WILSON, JORDAN, ROSENBAUM, JILL PRYOR, GRANT, LAGOA, BRASHER, and BLACK, Circuit Judges, joined.
WILLIAM PRYOR, Chief Judge, and MARTIN, Circuit Judge:
In 2013, Conraad Hoever was incarcerated at the Franklin Correctional Institution (FCI) in Carrabelle, Florida. According to Mr. Hoever’s complaint, correctional officers there subjected him to harassment and threats of physical violence in retaliation for his filing grievances about his mistreatment. Proceeding on his own (without counsel), Mr. Hoever successfully defended against the officers’ attempts to dismiss his case, and he was ultimately able to present his claim of First Amendment retaliation to a jury. After a three-day trial, during which the jury heard testimony from Mr. Hoever, the defendant officers, and witnesses who corroborated the threats, the jury returned a verdict in Mr. Hoever’s favor. But vindication of Mr. Hoever’s constitutional rights was limited. That is because this circuit has interpreted the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), as barring punitive damages for a prisoner’s civil action where no physical injury is shown. The jury, therefore, awarded Mr. Hoever only one dollar in nominal damages.
Our circuit stands alone in enforcing § 1997e(e) as a complete bar to punitive damages, no matter the substantive claim, in the absence of physical injury. Because our interpretation runs counter to the text of the statute, today we correct our course. We now recognize that §1997e(e) permits claims for punitive damages without a showing of physical injury.
And here's how the dissent starts:
NEWSOM, Circuit Judge, joined by BRANCH, Circuit Judge, and joined in Parts I and III by LUCK, Circuit Judge, concurring in the judgment in part and dissenting in part:
There is a subtle but important difference in how the Court and I read 42 U.S.C. § 1997e(e). In the phrase “civil action . . . brought . . . for mental or emotional injury suffered while in custody,” the Court sees a distinction between requests for compensatory damages, which it says are covered, and requests for punitive damages, which it holds are not. I can’t find that compensatory-punitive divide in the statutory text. As I read it, § 1997e(e) doesn’t distinguish between different forms of monetary relief, but rather between different forms of harm. In particular, the dispositive question, to my eye, is simply whether an inmate-plaintiff ’s action concerns “mental or emotional injury,” as opposed to some other kind of injury. To the extent that it does, I would hold—contra the Court—that § 1997e(e) precludes him from recovering either compensatory or punitive damages unless he has made the statutorily required showing of “physical injury.” To the extent, by contrast, that the inmate’s suit alleges injuries that are not“mental or emotional,” I would hold that § 1997e(e) permits him to seek both compensatory and punitive damages.
Tuesday, April 13, 2021
I'm excited to let you know that we have a bonus episode of For the Defense that has been released this morning. It's an interview with Judge Jed Rakoff about his book: Why the Innocent Plead Guilty and the Guilty go Free. The book is a fascinating set of essays that Judge Rakoff wrote about the craziness of our criminal justice system. We discuss those essays, including the trial tax, sentencing, the death penalty, how to get the system back on track, and other really great issues during our talk.
You can check out the bonus episode on Apple, Spotify, and Google, All other platforms,
including a regular desktop player, can be accessed on our website. And you can pick up
a copy of Judge Rakoff's book here.
It's also not too late to catch up on Seasons 1 and 2 of For The Defense. If you have a friend that would like to receive these updates, please have them sign up here.
Monday, April 12, 2021
This is just awful. The driver was a woman named Snape, who said she was Harry Potter.
CNN covers the tragedy here:
A woman has been arrested in connection to a hit-and-run accident that killed federal judge Sandra Feuerstein and injured a 6-year-old in Boca Raton, Florida, on Friday.
Nastasia Andranie Snape was arrested Saturday and faces charges of vehicular homicide, leaving the scene of a crash involving death and leaving the scene of a crash with injury, according to jail booking records from the Palm Beach County Sheriff's Office.
CNN has been unable to determine if Snape is represented by an attorney who would comment on her behalf.
Feuerstein was a judge for the US District Court in the Eastern District of New York.
Snape didn’t stop until she reached Delray Beach, where officers found her unconscious inside her vehicle, which had crashed at an intersection, arrest documents state.
As a Delray Beach Police officer approached the crashed car, “he could see Snape begin to convulse and have seizure-like movements,” the report said.
Snape came to shortly thereafter, but was unable to make eye contact or hold conversation. Once inside an ambulance, she “began to scream and fight with medics stating that she was ‘Harry Potter,’” the report read.
The paramedics had to give Snape 400 milligrams of Ketamine to calm her down. At the hospital, officers found a designer drug known as “T” in her purse, the report said.
Thursday, April 08, 2021
So says Chief Judge Moore in the latest administrative order. I've heard chatter that this will be the last extension and I've also heard some people saying that there will be at least one more. Who knows! I guess it depends on how these pilot trials go.
Tuesday, April 06, 2021
This is very sad news. He was a great guy and public servant. RIP.
The Sun-Sentinel has the sad news here:
Congressman Alcee Hastings, whose life was marked by perseverance, calamity and a comeback, has died. He was 84.
Hastings crusaded against racial injustice as a civil rights lawyer, became a federal judge who was impeached and removed from office, and went on to win 15 congressional elections, becoming Florida’s senior member of Congress.
He died Tuesday morning, a longtime friend said.
In late 2018, Hastings was diagnosed with Stage 4 pancreatic cancer. For much of the ensuing two years, he continued public appearances between medical treatments, but more recently he hadn’t been in public. In recent days, he had been in hospice care.
More to follow.
Monday, April 05, 2021
He sent this letter to Middle District of Florida Chief Judge Corrigan railing against the Middle District's decision to post on its website the "House based" JNC's notice and application process. Our District quickly took down the same links on its website.
From the letter (footnotes omitted):
By posting this notice, your Court is giving credibility to the “Commission” against the stated views of Senators Rubio and Scott. For example, there is no similar announcement for how interested parties can reach out to Florida’s U.S. Senators. The Middle District of Florida is, therefore, taking a side in a pending, partisan political dispute. As a result the federal judiciary has found itself in the middle of a purely political conflict between the House, the Senate, and the President. This bodes ill for its perceived independence.
I have the following questions for you.
1. At whose request did you place this notice on the Middle District’s website?
2. Were you aware that Florida’s Senior Senator, Marco Rubio, said of this “Commission,” “We can’t stop Joe Biden from consulting with whomever he wants in picking nominees, but this effort has no legitimacy in our eyes with regards to our advise-and-consent role.”
3. Were you aware that Florida’s Junior Senator, Rick Scott, upon hearing of this “Commission,” wrote to President Biden to oppose this “attempt [by House Democrats] to insert themselves into the nomination process”?
4. Did you consult with either Senator Rubio or Scott before issuing your Court’s announcement about the “Commission”?
5. What, if any, ethics advice did you receive before announcing the House “Commission” on the Middle District’s website?
6. Will you agree to take remedial action in order to prevent the appearance of partisan political activity on the part of your Court? In particular, will you (a) remove the notice about the House “Commission” and (b) issue a further notice that the Court takes no part in or position on the nomination process for federal office in Florida? If not, why not?
The complaint that "there is no similar announcement for how interested parties can reach out to Florida's U.S. Senators" is strange. Have Rubio or Scott announced how they intend to vet candidates? I'm sure the MDFLA would be fine posting that information as well. The problem, though, is that Scott has said he will try to block any Biden nominee. I wonder if Grassley has a problem with that.
We all know it exists everywhere, but NACDL is doing a nice job exposing the trial penalty. Here's the latest report about the penalty in New York. It has 15 recommendations. Here are the first 3:
- Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
- Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
- Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.
Thursday, April 01, 2021
And that's not an April Fool's joke!
Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable. Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months. We agree.
In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.” See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)). Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense. See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).
It was a 2-1 decision, with Judge Thapar dissenting.