Sunday, February 27, 2022

NYT covers Palmetto Debate and KBJ

 Patty Mazzei has the wonderful lookback at Palmetto* debate here:

Let Miami Palmetto Senior High School brag for a moment: It has a swoon-worthy alumni roster. The Amazon founder Jeff Bezos, class of ’82. Dr. Vivek H. Murthy, the United States surgeon general, class of ’94. And Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme Court, class of ’88.

Decades have passed since Judge Jackson, 51, was a stellar student at Palmetto, a large public school nestled among the palm trees of the South Florida suburbs. But the school held outsize importance in her life, thanks to a competitive speech and debate team led by a famed coach who molded her protégés into sharp-tongued speakers and quick critical thinkers.

“That was an experience that I can say without hesitation was the one activity that best prepared me for future success in law and in life,” Judge Jackson said at a lecture in 2017.

From the tightknit and wonky debate team emerged accomplished professionals who remain unusually close 30 years later. (Judge Jackson’s prom date? A guy who would become a United States attorney, the chief federal prosecutor in Miami.) Now the team offers a glimpse into how Judge Jackson’s early life led to a Supreme Court nomination — and how her success is inspiring a new generation of debaters to dream big.


The debaters’ résumés are impressive. Nathaniel Persily, a constitutional law professor at Stanford. Judge Laura Anne Stuzin of Florida’s 11th Judicial Circuit. Benjamin G. Greenberg, the prom date turned United States attorney, now in private practice.

“It’s like doctor, doctor, professor, professor, lawyer, lawyer, professor, judge, judge, doctor,” said Stephen F. Rosenthal, a Miami lawyer who has known Judge Jackson since junior high and counts her as one of his best friends. He met his future wife, Mindy Zane Rosenthal, a debater at Miami Beach Senior High, in a competition. (Then he went to Harvard.)

Last month, when Judge Jackson’s name floated to the top of most lists of candidates to replace the retiring Justice Stephen G. Breyer, even Palmetto debaters who were no longer in frequent touch began texting each other to gawk. Someone sent around a photo of the debate team from back in the day, and also a photo of Judge Jackson and Mr. Rosenthal from their senior yearbook.

*I went to Killian high school and we often traveled with the Palmetto team as we were a much smaller team. Killian debaters have turned out pretty good too! -- Just to name a few off the top of my head: Aya Gruber (HLS, law professor at U of Colorado); Jodi Mazer (Wash U; Special AUSA for EPA); David Gevertz (HLS; Partner at Baker Donelson).  Some other debaters from that era from other South Florida schools that jump to mind: Magistrate Judge Jackie Becerra, Brad Meltzer, Mindy Zane Rosenthal, Esther Feuer...  who am I forgetting?

Friday, February 25, 2022

Ketanji Brown Jackson to be SCOTUS nominee


This is great news.

Miami Debate.

Palmetto High School.

First African American woman.

First former public defender.

And first Floridian!

This blog started back on July 2, 2005, arguing that it was time for President Bush to appoint a Floridian to the Court:

There has been a great deal of discussion about whom Bush should appoint. But perhaps an equally important question is where this jurist should come from. Florida is the best choice.
No Floridian has ever been appointed to the Supreme Court. True, 18 other states are also unrepresented, but Florida's population is more than three times the size of the next largest of the 18, Wisconsin. 
The current court is made up of justices from Arizona (Rehnquist and O'Connor), Illinois (Stevens), New York (Ginsburg), Massachusetts (Stephen Breyer), California (Anthony Kennedy), Georgia (Clarence Thomas), Virginia (Antonin Scalia) and New Hampshire (David Souter). Certainly there is a place for a Floridian. Consider the fact that we have produced some of the major cases to go before the court (Bush vs. Gore) and that we have more than 75,000 lawyers and judges to choose from. Only California (55), New York (31) and Texas (34) have more electoral votes than Florida (27).

17 years later, it's going to happen! The only member of the Court that's the same as the blog start is Thomas.  Crazy. 

Congrats to a wonderful person, Ketanji Brown Jackson.  She will make an excellent Supreme Court Justice.

Nuclear Regulatory Commission Reverses Course on Turkey Point


By John R. Byrne

Looking for some light reading on a Friday?  Check out the Nuclear Regulatory Commission's fifteen page order reversing its earlier decision allowing FPL to operate the nuclear reactors at Turkey Point until 2052 and 2053 respectively.  There's even a dissent!  In short, the Commission said that the Commission's staff didn't conduct a sufficient environmental analysis before extending the licenses.   The Herald covers the "unusual move" here.  The Commission said appeals from advocacy groups, including the Miami Waterkeeper, prompted its order.  So, at least for now, Turkey Point's "lease" expires in 2032/2033.

Thursday, February 24, 2022

Caroline Heck Miller retires

 Jay Weaver has the details here:

A couple of years before The Washington Post exposed the Watergate scandal, University of Chicago intern Caroline Heck worked for a summer in the newspaper’s style section. After earning a bachelor’s degree in English, the aspiring journalist headed for Florida to start a job covering courts for the St. Petersburg Times.

“Every day was a theatrical production,” she recalled. But the legal stagecraft often fell short. “I found myself watching a trial, and I would watch the closing arguments and say to myself, ‘Sit down. I could do this better.’ ‘’

So Heck Miller left the newspaper business for Harvard Law School, then wound up at the U.S. Attorney’s Office in Miami. Until retiring earlier this year, she worked for more than 40 years in a legal career highlighted by her role as the lead prosecutor in the Cuban Five spy case in 2001 — an internationally watched, politically charged throwback to the Cold War era

 Heck Miller came to be known as a trailblazer among prosecutors in the federal courthouse. She also was a “resident rabbi” offering sage advice on the law, ethics and trials to young prosecutors, and a polished writer who did all of her own pleadings and appeals. “She was a role model for everybody” in the U.S. Attorney’s Office, said retired Magistrate Judge William Turnoff, who in the 1980s was chief of the major crimes section while Heck Miller served as his deputy. “She and Pat Sullivan tried more huge, important federal cases than probably anyone in the history of the Department of Justice,” comparing her to a retired colleague known for taking on Miami’s most infamous criminals.

In other news, the feds tried to subpoena a sitting state judge to testify.  Judge Gayles said nope:

But after first expressing a “willingness” to testify, Pooler consulted with the Florida Attorney General Office, which advised her not to be a witness in the federal case, saying in a motion to quash the subpoena that she “no longer agrees to testify as to any aspect of this matter.” On Tuesday, U.S. District Judge Darrin Gayles granted the motion to quash the subpoena, saying Pooler was “excused from the subpoena” and that prosecutors can call other witnesses in her place. Afterwards, they decided to call the former assistant state attorney, Robert Guinn, who handled Hollie’s plea colloquy before Pooler in 2014. But Hollie’s assistant federal public defender objected to Guinn as a substitute witness, according to court papers. Gayles must still decide on whether to let Guinn testify. Prosecutors also tried to persuade Gayles to admit a letter that Hollie had written to the clerk of the Miami-Dade Circuit Court after he violated his five-year probation when he was arrested on the two false-statement gun-buying charges in 2019. Hollie asked the clerk to send him the special conditions of his probationary release for his “cases that I got a conviction four.” [sic] Gayles also rejected that request.

Wednesday, February 23, 2022

Daubert and Marshmallows

By Michael Caruso

As federal—and now Florida state—practitioners know, courts use the Daubert standard to assess whether an expert witness's scientific testimony is based on valid reasoning that a jury can properly apply to the facts at issue. Under Daubert, courts are to consider the "validity" or "reliability" of the evidence in question, its degree of "fit" with the facts and issues in the case, and the risks or dangers that the evidence will confuse the issues or mislead the jury.


In assessing reliability, the prevalence and significance of peer review can affect a court's decision when determining whether the scientific community has generally accepted an opinion. The weight given to peer-reviewed opinions, however, is not a bright-line rule. Depending upon the evidentiary standard and the offered expert opinion, the importance of peer review varies when assessing admissibility. Over the years, many "settled" scientific theories have been discredited by belated peer review —fiber analysis, hair analysis, ballistics, bite marks, and tool marks. 


Last week, another settled theory—"The Marshmallow Test"—took a hit. The marshmallow test is an experimental design that measures a child's ability to delay gratification. For this test, the researcher gives a child the option of waiting a bit to get their favorite treat or, if not waiting for it, receiving a less-desired treat. The minutes or seconds a child waits measures their ability to delay gratification. According to the study, the kids who couldn't hold out long generally grew through their teens, 20s, and 30s quicker to frustrate, weaker in academic and social skills, and with more drug use, mental health, and weight issues.


But the latest follow-up study casts doubt that a preschooler's response to a marshmallow test can predict anything at all about her future. Following the subject children into their 40s, the new study finds that kids who quickly gave in to the marshmallow temptation are generally no more or less financially secure, educated, or physically healthy than their more patient peers. The amount of time the child waited to eat the treat failed to forecast roughly a dozen adult outcomes the researchers tested, including net worth, social standing, high interest-rate debt, diet and exercise habits, smoking, procrastination tendencies, and preventative dental care, according to the study published in the Journal of Economic Behavior and Organization.

As Daubert acknowledges, peer review has its limitations: "in some instances well-grounbded ut innovative theories will not have been published . . . Some propositions, moreover are too particular, too new, or of too limited interest to be published." But, as we see here with marshmallows (and with fiber analysis, hair analysis, ballistics, bite marks, and tool marks), continued research and testing may be enlightening.

Tuesday, February 22, 2022

Should a criminal defense lawyer be sanctioned for altering a lineup during a state deposition?

 According to the Florida Supreme Court, the answer is yes, for 3 years! Three years even though the lawyer was simply trying to test the witness’ ability to pick out the witness. The court explained that the lawyer’s subjective intent was irrelevant. Rumpole covers it here. And here is the order

I can’t help to wonder what would have happened to a prosecutor who puts up false testimony at a hearing or trial. 

Thursday, February 17, 2022

Judge Ruiz holds Covid-19 Pandemic "Immunity Statute" Unconstitutional

By John R. Byrne

If you practice civil law in this district, you're probably aware of the wave of Covid 19-related litigation out there, with parties using the pandemic as both a sword and a shield.  One active area has been lawsuits against universities.  So active that the Florida legislature passed--and Governor DeSantis signed--the Florida Immunity Statute for Educational Institutions for Actions Related to the Covid-19 Pandemic.  The statute does what it sounds like it does, giving universities a legal pass for doing things like shifting in-person instruction online during the pandemic.  

But Judge Ruiz dealt a likely fatal blow to the statute yesterday.  In Ferretti v. Nova Southeastern University, Inc., Case No. 20-61431-CV-RAR, he held that the statute was unconstitutional.  Citing Supreme Court precedent, he noted that a cause of action is effectively a piece of property. By retroactively abolishing an accrued cause of action, the reasoning goes, the statute violated the Due Process Clause of the Fourteenth Amendment.  The order is an interesting (and quick) read.

Wednesday, February 16, 2022

News & Notes

In addition to the appointment of Tony Gonzalez (see post below), a few other items have come in today:

1. Congrats to Katie Phang, a wonderful lawyer in Miami, who now has her own show on MSNBC.

2. Jurors say that the push notifications they saw on their phones during deliberations about Judge Rakoff dismissing the Sarah Palin case did not affect their deliberations.  This is where I would put the wide eye emoji if blogger let me do so.

3. The 11th Circuit en banc acted as a backup for prosecutors again in this 7-5 decision, saying that even if the government made a decision not to raise the good faith exception on appeal in a 4th amendment case, the court could still affirm on those grounds.  Judges Newsom and Jordan pen a terrific dissent explaining that we have an adversarial system and that the court is supposed to adjudicate actual disputes.  That's, of course, the normal rule... except when it involves the government as a litigant.  Then the 11th Circuit must revert back to its two most important rules: Rule #1 -- never rule against the government.  Rule #2 -- when in doubt, see Rule #1.

Still no U.S. Attorney nomination in SDFLA

 Because President Biden hasn't nominated a U.S. Attorney for our District, the Chief Judge had to appoint Tony Gonzalez to the post in this order.

Juan A. Gonzalez was appointed by the Attorney General of the United States as the interim United States Attorney for the Southern District of Florida. His appointment expires on February 20, 2022.
Upon polling the District Judges, the Court agreed to appoint Juan A. Gonzalez as the United States Attorney for the Southern District of Florida. Therefore, it is
ORDERED that pursuant to 28 U.S.C. section 546(d), Juan A. Gonzalez is appointed as the United States Attorney for the Southern District of Florida, effective February 21, 2022, until the vacancy is filled.

Tuesday, February 15, 2022




Season 5 of For the Defense continues today with Geoffrey Fieger for Dr. Jack Kevorkian for the string of assisted suicide cases (and acquittals!) in the 90s. You can check it out on all podcast platforms (including AppleSpotify and Google. All other platforms can be accessed on this website.) 

We launched a few weeks ago with Bruce Rogow for 2 Live Crew and Luther Campbell and followed up with Mark Geragos for Susan McDougalJuanita Brooks for John DeLorean, and  Gerry Goldstein for Richard Dexter (Deep Throat),  

At the end of the season, I will post the Florida CLE code.   

We will have new episodes every other Tuesday.  Upcoming episodes include:
  • Brian Heberlig (Ali Sadr)
  • Ed Shohat (Carlos Lehder)
  • John Gleeson (Holloway Project)
Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here

Thank you! --David


Hosted by David Oscar Markus and produced by rakontur


Monday, February 14, 2022

Mental Health Matters: A Black Lawyer's Perspective

 The Judges of the United States District Court for the Southern District of Florida cordially invite you to their annual Black History Month program on Thursday, February 17, 2022, at 12:00 noon.   This will be a virtual event.   Please click this link to join the webinar.