Thursday, March 31, 2022

House Republicans block naming of federal courthouse in honor of Joseph Hatchett

In the last post, I said how rare it was for a bill to get bipartisan support.  This is a good example.  Even though Florida Senators Rubio and Scott pushed naming the federal courthouse in Tallahassee after Judge Hatchett, House Republicans shot it down.  Hatchett was an unbelievable trailblazer: veteran, first black federal appellate judge in the South, 5th Circuit judge, 11th Circuit judge, Florida Supreme Court Justice, etc.  I don't get it. 

From Politico:

The U.S. House on Wednesday blocked consideration of a bill pushed by Sen. Marco Rubio that would rename the federal courthouse and federal building located in downtown Tallahassee after Judge Joseph Woodrow Hatchett. Hatchett, who died in 2021, was the first Black person appointed to the Florida Supreme Court and eventually became a federal appeals court judge.

Both Rubio and Florida Sen. Rick Scott backed the effort to rename the courthouse after Hatchett with Rubio saying back in December that “his story is worthy of commemoration.” But it took a two-thirds vote — a process setup for legislation considered uncontroversial — for the House to take up the Senate bill and the effort failed largely due to opposition from House Republicans.

Ten of the 16 Republicans from Florida voted against Rubio’s bill: Reps.. Dunn, who is from Panama City, Gus Bilirakis, Vern Buchanan, Kat Cammack, Byron Donalds, Neil Dunn, Scott Franklin, Matt Gaetz, Brian Mast, John Rutherford and Greg Steube, who represents part of Tallahassee and in the most recent map vetoed by Gov. Ron DeSantis would have represented the entire city. Axios reported that Rep. Andrew Clyde (R-Ga.) was “behind the defeat of the bill because Clyde said he ‘let it be known’ to colleagues that Hatchett authored a 1999 opinion banning prayer at public school graduations."

Wednesday, March 30, 2022

"Prohibiting Punishment of Acquitted Conduct Act of 2021"

That's the name of the bill that passed in the House by a vote of 405-12.  Here's hoping for the Senate to pass it as well.  

Nothing passes with such bipartisan support anymore, so this is pretty big.  

From the House press release:

Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.

Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.

In his speech on the House floor today, Congressman Cohen said, in part:

“I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”

See those remarks, including part of the debate, here.

When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement:

“The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

Tuesday, March 29, 2022

For the Defense Season Finale: Ed Shohat for Carlos Lehder


It's the Season 4 Finale of For the Defense this morning with the wonderful Ed Shohat for Carlos Lehder -- one of the biggest (and longest -- 7 months!) drug trials in U.S. history.  You can check it out on all podcast platforms (including AppleSpotify and Google. All other platforms can be accessed on this website.) 
It's been a really great and fun season, which included:
Thank you to all of these great lawyers for sitting down with me this season. Also thank you to Alfred Spellman and to Cliff Bumgardner for all of their support in producing this labor of love.

CLE CREDIT FOR FLORIDA LAWYERS:  If you are a Florida lawyer and have listened to the whole season, you qualify for 8 CLE credits, including 1 technology credit and 1 ethics credit.  Please use course number 2110734N and course title: "For the Defense", with David O. Markus-Season 4.  This is free CLE credit -- woohoo! All that I ask in return is that you spread the word and leave a review.

Thanks again for all of your feedback and suggestions throughout the course of the season. 

Hosted by David Oscar Markus and produced by rakontur

If you have a friend that would like to receive these updates, please have them sign up here

Sunday, March 27, 2022

Happy birthday to Sandra Day O'Connor

She is 92, and sadly mostly withdrawn from public life because of the onset of dementia.

I wonder what she would think of the confirmation hearings and how Republicans acted and how they treated KBJ.

I wonder what she would think of the current Court and how they may undue Roe v. Wade.

I wonder what she would think about Ginni Thomas and January 6.

Thursday, March 24, 2022

Trump Sues Clinton

By John R. Byrne

It's a long complaint and you can read it here.   In short, he alleges that, in the lead up to the 2016 election, Hillary Clinton, the DNC, and Congresswoman Debbie Wasserman Schultz, among others, conspired to craft the false narrative that he was colluding with Russia.  It's a nine count complaint that includes counts for RICO, RICO conspiracy, malicious prosecution, and theft of trade secrets.  Judge Middlebrooks drew the case.  Peter Ticktin of the Ticktin Law Group signed the complaint.  

Miami attorney Richard Rosenthal testifies for KBJ

Well done, Richard!


Wednesday, March 23, 2022

What is the GOP doing at the KBJ hearings? (UPDATED)


Political theatre at its worst.... and nothing to do with judging or being a Justice.

These two -- Cruz and Jackson -- were on law review together at HLS.  One is blowing up pictures of books that KBJ has never discussed or written about.... literally nothing to do with her. But he wants to run for president. 

The other is trying to stay poker-faced and answer questions about her record.  She's doing a wonderful job and will be confirmed.  

UPDATE -- if the first day of questioning was disappointing for those of us who want a fair and objective Senate, the second day was a total embarrassment.  Cruz, Hawley, Cotton... wow. 

Tuesday, March 22, 2022

Judge Bloom Rules Against Cruise Lines Over Cuban Travel


By John R. Byrne

It looks like four major cruise lines will be paying for ferrying passengers to Cuba.  In a 169 page order, Judge Bloom ruled that the cruise lines--Carnival, Norwegian, Royal Caribbean, and MSC Cruises--engaged in "prohibited tourism" and "trafficking activities" in Cuba during the time cruising there was briefly sanctioned by the federal government.  The lawsuit was brought under the Helms-Burton Act.  The Herald covers the case here

Monday, March 21, 2022

SCOTUS Updates and RIP Louis Casuso

 1. KBJ starts her confirmation hearings this morning.  Right-wing attacks seem desperate and unhinged.  Here's Erwin Chemerinsky responding to some of the worst ones:

Lacking any grounds for opposition, Republicans are resorting to slime. Some are criticizing her because she worked as a public defender, including representing a Guantanamo detainee. But in our constitutional system, every criminal defendant is entitled to an attorney, and lawyers who perform this role are fulfilling the most noble goals of the legal profession. That Jackson will be the first public defender to be a Supreme Court justice should be celebrated, not attacked.

Missouri Sen. Josh Hawley is stooping even lower. He criticizes an article she wrote as a law student and has said that when she was a federal judge there were seven child pornography cases where she gave a sentence less than the Department of Justice recommended. But as the White House has pointed out, in five of those cases, Judge Jackson imposed the sentences that were the same as or greater than what the United States probation office recommended.

Hawley criticizes statements she made when she was a member of the United States Sentencing Commission but omits that the commission was bipartisan and voted unanimously to modify the recommended sentences for possession of child pornography, where there was no proof that the person was involved in producing or trafficking child pornography.

Kyle Martinsen, of the Republican National Committee, emailed reporters that Jackson has a “pattern of advocating for terrorists AND child predators. What other criminals is Ketanji Brown Jackson an advocate for?” Senate Minority Leader Mitch McConnell said, “Her supporters look at her résumé and deduce a special empathy for criminals.”

Have they no shame? Representing criminal defendants or Guantanamo detainees reflects a desire to uphold the Constitution, not “special empathy for criminals.” One cannot help but wonder whether Jackson being a Black woman is fueling this “soft on crime” attack.

2. Justice Thomas is sick in the hospital, but should be released soon.  From CNN:

 Supreme Court Justice Clarence Thomas was admitted to Sibley Memorial Hospital in Washington, DC, on Friday evening "after experiencing flu-like symptoms," the court's public information office said Sunday evening, but he does not have Covid-19.

"It is not COVID related. The Justice does not have COVID," a spokesperson for the Supreme Court said.
"He underwent tests, was diagnosed with an infection, and is being treated with intravenous antibiotics," the court's press release said.
"His symptoms are abating, he is resting comfortably, and he expects to be released from the hospital in a day or two. Justice Thomas will participate in the consideration and discussion of any cases for which he is not present on the basis of the briefs, transcripts, and audio of the oral arguments," it added.

 3. In non-SCOTUS news, RIP Louis Casuso -- a good guy, who always had a good story.  Rumpole and David Ovalle had nice obits about him.

Thursday, March 17, 2022

St. Patrick's Day--a trial story

Sixteen years ago I was in a 10 defendant trial in Savannah.  Ten defendants in one courtroom with out of town lawyers... you can imagine the atmosphere.

The trial started on a Monday, and my daughter was born on a Friday.  Because the judge held court on most Saturdays, I only saw her once during the six week trial (and 9 days of deliberations).  But that's a story for a different day.  This one is about St. Patrick's Day, which was in the middle of trial and which is a BIG deal in Savannah.  Like the biggest holiday of the year there.  The whole city shuts down. There are parades and drinking and beads. Businesses are closed.  Banks and schools are closed.  It's a big party.

And it was a Friday that year, so all of Savannah was looking forward to having a little fun.

Except in our courtroom.  Our judge -- B. Avant Edenfield -- said business as usual.

Now for us, mostly lawyers from out of town, it was no big deal.  We wanted to get the trial over with.

But for the jurors and staff... well, they were PISSED to say the least.

To show solidarity with them, the men all bought green ties and wore them to court.  The women also had green scarves and such.

Court started at 8:30am every morning.  But on St. Patrick's Day, all of the streets were closed off.  So one juror was late.  He showed up sometime after 9:30.  The judge had us all in the courtroom waiting, including the other jurors.  That hour, sitting in silence, seemed like a century.

And when that one juror showed up, the judge brought him back into chambers and reamed him out for being late. He was screaming so loud that we all heard him in the courtroom.  We gave the jury empathetic looks.  And when the juror came back out, we all made eye contact with him as if to apologize for the jerk judge.

That juror ended up being our foreperson.  He acquitted a number of the defendants and hugged us after the trial.  I can't help but think that a small part of why he liked us was because he really didn't like the judge, who never ruled for the defense and always sided with the government.  

So, every St. Patrick's Day, I think of that trial in Savannah, and our crazy judge and the late juror -- and of course, my daughter who is wearing green today.

Why Is Savannah the St. Patrick's Day Capital of the South? – Garden & Gun

Tuesday, March 15, 2022

Magistrate Judge Lauren Louis detains Proud Boys Leader

 The Miami Herald covers it here:

Enrique Tarrio, the high-profile leader of the Proud Boys extremist group, appeared subdued in Miami federal court Tuesday as a magistrate judge ordered that he remains behind bars for release before his trial on charges of plotting the Jan. 6, 2021 attack on the U.S. Capitol building to stop Congress’ certification of the presidential election. Magistrate Judge Lauren Louis said evidence “that he’s a danger to the community is unrebutted,” rejecting a request by Tarrio’s defense attorney to release him on a $1.25 million bond secured by his family members in Miami. She did not rule on the Justice Department’s other basis for his detention, that Tarrio, a lifelong Miami resident, is a risk of flight. Tarrio, 38, who after his arrest last week remains in custody at the Miami Federal Detention Center, will now be transferred to Washington, D.C., to face an indictment accusing him and five other Proud Boy members of conspiring to obstruct an official proceeding and related charges including destroying government property.




Season 4 of For the Defense continues today with former federal judge and former federal prosecutor John Gleeson (top picture), who is now a criminal defense lawyer.  Gleeson started the Holloway Project -- to help vacate unjust sentences imposed under the old mandatory-minimum regime. You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) 

Francois Holloway family after hearing the news about his release.

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, Gerry Goldstein for Richard Dexter (Deep Throat), Geoffrey Fieger for Dr. Jack Kevorikian and last week with Brian Heberlig for Ali Sadr

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

Our last episode of the season will be Ed Shohat (Carlos Lehder), which will air in two weeks.
Please send me your feedback -- and of course, subscribe, like and comment!  If you or a friend 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, March 14, 2022

Best trial movie of all time

Last week, Rumpole had a post about the best law movies... He's right -- I'm partial to A Few Good Men, but he doesn't give enough play to My Cousin Vinny.  The best.  Here's a recent NY Times piece covering the 30 year old classic:

When the culture-clash courtroom comedy “My Cousin Vinny” landed in theaters on March 13, 1992, the critical response was mostly positive. The Times’s Vincent Canby found it “inventive and enjoyable,” The Los Angeles Times’s Peter Rainer called it “often funny” and The Hollywood Reporter deemed it “a terrific variation on the fish-out-of-water/man-from-Mars story formula.”

One phrase you won’t find in any of those reviews is “Oscar worthy.” Yet “Vinny” proved just that, landing an Academy Award for best supporting actress a full year after its original theatrical release — one of the biggest upsets in Oscar history, and a trophy that would prove both a blessing and a curse for its recipient, Marisa Tomei.

Her performance as Mona Lisa Vito, the long-suffering fiancée and legal secret weapon of Joe Pesci’s title character, was a breakthrough for the Brooklyn-born actress, who had done her time Off Broadway and in the world of soaps and sitcoms. “I was fresh to the business and didn’t know how movies worked,” Tomei explained in 2017, “but Joe chose me for the part, then took me by the hand and guided me immensely, so I got very lucky.”
Here are the opening statements:

Friday, March 11, 2022

The Second Annual Riverside House Awards

By John R. Byrne

Prosecutors and defense lawyers may disagree on a lot of things, but most agree on the mission of rehabilitating convicted defendants.  Riverside House, a local halfway house for federal defendants here in Miami, is dedicated to that mission.  On Friday, April 8, 2022, Riverside House will host its Second Annual Luncheon recognizing those in our community who have supported this mission.  The award recipients this year include former federal district Judge Ursula Ungaro, Assistant U.S. Attorney Randy Hummel, and our blog’s own David Markus.  To hear about what these folks have done for ex-offenders and criminal defendants, please join us.  You can purchase tickets through the link below.

Wednesday, March 09, 2022

Bake On

By Michael Caruso

The pandemic reintroduced many of us to our kitchens.  In the very early days, after common household goods disappeared from stores, dried pasta and canned food were snatched up, leaving shelves bare. Next to go missing was flour and yeast, as millions made their own bread—particularly sourdough.  

And when we couldn't find anything worth streaming, many of us turned to The Great British Baking Show. What was more calming during a plague than watching the contestants bake a Battenberg Cake or make a Sussex Pond Pudding?

This past week two stories were in the news that concerned baking—one nostalgic and the other affirming. 

Growing up in New York, a reliable staple of our kitchen table was the see-through Entenmann's Bakery box, usually the classic crumb cake. Charles Entenmann—who took his family's Long Island bakery business national—passed away recently here in Miami. Although not as fancy as a madeleine, the Entenmann's crumb cake is a reliable memory trigger for many of us who grew up in that part of the country. 

The other baking news is the global effort on behalf of Ukrainian refugees—known as "Bake for Ukraine." And there is a particularly apt effort called Hamantashen for Ukraine. Hamantashen are a symbolic cookie for next week's Purim holiday—a celebration of the triumph of good over evil. If you follow the link, you'll find both national and local bakeries where you can get delicious treats and help those in need.

Bake on.

Monday, March 07, 2022

Rule of Lenity

 Today, the Supreme Court had another ACCA case that it unpacked, Wooden v. United States.  The Court held: “Wooden’s ten burglary offenses arising from a single criminal episode did not occur on different ‘occasions’ and thus count as only one prior conviction for purposes of ACCA.”

Okay, fine.  But the really interesting stuff was happening in the concurrences, where Justice Gorsuch (joined mostly by Justice Sotomayor) laid out the case for a more fulsome application of the Rule of Lenity:

Of course, most ordinary people today don’t spend their leisure time reading statutes—and they probably didn’t in Justice Marshall’s and Justice Story’s time either. But len- ity’s emphasis on fair notice isn’t about indulging a fantasy. It is about protecting an indispensable part of the rule of law—the promise that, whether or not individuals happen to read the law, they can suffer penalties only for violating standing rules announced in advance. As the framers un- derstood, “subjecting . . . men to punishment for things which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” The Federalist No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also McBoyle v. United States, 283 U. S. 25, 27 (1931) (“Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand”).

I particularly like this thought from the concluding paragraph:

The statute contains little guidance, and reasonable doubts about its application will arise often. When they do, they should be resolved in favor of liberty. Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.

Full Disclosure -- I signed onto the NACDL amicus brief filed in Wooden, which raised the following issue and which was cited by the Court in fn3:

 Two amici curiae have briefed another question arising from ACCA’s occasions clause: whether the Sixth Amendment requires that a jury, rather than a judge, resolve whether prior crimes occurred on a single occasion. See Brief for National Association of Criminal Defense Lawyers 13–19; Brief for National Association of Federal Defenders 21–32. We do not address that issue because Wooden did not raise it.

Here's what Gorsuch says about it in a footnote of his own:

A constitutional question simmers beneath the surface of today’s case. The Fifth and Sixth Amendments generally require the government in criminal cases to prove every fact essential to an individual’s punishment to a jury beyond a reasonable doubt. See United States v. Haymond, 588 U. S. ___, ___–___ (2019) (plurality opinion) (slip op., at 5–6). In this case, however, only judges found the facts relevant to Mr. Wooden’s punishment under the Occasions Clause, and they did so under only a preponderance of the evidence standard. Because Mr. Wooden did not raise a constitutional challenge to his sentence, the Court does not consider the propriety of this practice. But there is little doubt we will have to do so soon. See United States v. Dudley, 5 F. 4th 1249, 1273– 1278 (CA11 2021) (Newsom, J., concurring in part and dissenting in part) (questioning whether the Occasions Clause inquiry can be squared with the Constitution); United States v. Perry, 908 F. 3d 1126, 1134–1136 (CA8 2018) (Stras, J., concurring) (same); United States v. Thompson, 421 F. 3d 278, 287–295 (CA4 2005) (Wilkins, C. J., dissenting) (same). And it is hard not to wonder: If a jury must find the facts supporting a punishment under the Occasions Clause beyond a reasonable doubt, how may judges impose a punishment without equal certainty about the law’s application to those facts? 

Sunday, March 06, 2022

11th Circuit year in review

 I usually don't post events on the blog, but this looks like a cool one by ACS on March 10:

Event Details

A discussion about the Eleventh Circuit's jurisprudence in criminal cases over the last year, featuring:

Andrew Adler, Appellate Attorney, Federal Public Defender's Office, Southern District of Florida
Tamara F. Lawson, Dean and Professor of Law, St. Thomas University College of Law, Miami
Hon. Kathleen Williams, U.S. District Judge, Southern District of Florida
Emily Smachetti, Executive Assistant United States Attorney and Co-Chief, Appellate Division, U.S. Attorney's Office, Southern District of Florida

Moderated by:
Michael Caruso, Federal Public Defender, Southern District of Florida

Wednesday, March 02, 2022

"Senators, it’s time to add some 305 to the U.S. Supreme Court"

 That's the title of my op-ed in the Miami Herald, urging Sens. Rubio and Scott to confirm Judge Ketanji Brown Jackson.  Here's the intro:

No Floridian has ever been appointed to the Supreme Court. Even though Florida has the third most electoral votes in the country, we have been shut out on the highest court in the land. It’s time to change that. This is a wonderful opportunity for Florida’s two senators to get behind the first Florida-reared nominee, Ketanji Brown Jackson. Miami is absolutely bursting with pride, and U.S. Sens. Marco Rubio and Rick Scott should embrace this nominee.

Jackson went to Miami Palmetto High School, where she was a rock-star national debate champion. Her parents started their careers as public school teachers. While Jackson was in preschool, her father went to law school. She spoke glowingly about sitting next to him reading law-school text books while she was doing her preschool homework.

Ryon McCabe sworn in as your newest Magistrate Judge

 Congrats to Magistrate Judge McCabe, who was sworn in yesterday by Judge Marra.  

Tuesday, March 01, 2022




Season 5 of For the Defense continues today with Brian Heberlig for Ali Sadr, the big prosecutorial misconduct case in New York. 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 DeLoreanGerry Goldstein for Richard Dexter (Deep Throat), and last week with Geoffrey Fieger for Dr. Jack Kevorikian.  

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

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

Thank you! --David


Hosted by David Oscar Markus and produced by rakontur