Tuesday, February 28, 2023


It's been too long!  I apologize for the slow pace of the podcast, but 2022 was an insane year for me with 4 federal trials, all in different districts. 

Before the next wave of trials begin, I was able to sit down with my good friend Douglas Brooks (we went to college and law school together).  Doug is a wonderful criminal defense lawyer in Boston. He represented Peter Brand, the Harvard Fencing Coach, who was indicted as part of the sprawling Varsity Blues investigation (because this case did not involve the snitch, Rick Singer, technically the U.S. Attorney's office did not include it as one of the Varsity Blues indictments). 
Although many questioned whether the Varsity Blues prosecutions should have even been brought, almost all of the 50+ defendants pleaded guilty.  Only a few had the guts to go to trial. So there was a lot of pressure on the U.S. Attorney's office to beat Doug in this case and show that the folks who decided to plead guilty made the right choice. The prosecution was so confident that it packed the courtroom with AUSAs to listen to the verdict. Not so fast...  
Have a listen on Apple Podcasts here (it's also available on your desktop and on all other podcast platforms, here) to Doug explain the trial tactics he used to win an acquittal (to the dismay of the scores of prosecutors who had to slink out of the courtroom).  

One other note -- Season 5 is already in production.  And we have some great guests lined up: Barry Scheck, Milton Hirsch, Lisa Wayne, and more.  We are shooting to launch Season 5 at the end of the summer.  

Thanks again for listening.



Hosted by David Oscar Markus and produced by rakontur

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Monday, February 27, 2023

DOJ takes absurd position in front of Sentencing Commission

 I wonder how young line prosecutors feel about the policy decisions that DOJ is taking, including this latest one -- that sentencing judges should be able to consider acquitted conduct at sentencing.  Embarrassing.  From Reuters:

The U.S. Department of Justice is opposing a bipartisan panel's proposal to curtail federal judges' ability to impose longer prison sentences on criminal defendants based on conduct for which they were acquitted at trial.

Jessica Aber, the U.S. attorney for the Eastern District of Virginia, told the U.S. Sentencing Commission during a Friday hearing that its proposal to amend federal sentencing guidelines would go too far in limiting what conduct judges could consider.


The panel faces a May 1 deadline to submit amendments to the guidelines to Congress.

Several cases are pending before the U.S. Supreme Court to bring an end to the practice on grounds it did not consider in 1997, when it held that taking acquitted conduct into account at sentencing does not violate the double jeopardy clause of the U.S. Constitution's Fifth Amendment.

Judges may do so because while juries must consider whether a criminal charge is proven beyond a reasonable doubt, judges at sentencing may consider whether facts are proven based on a preponderance of the evidence, a lower standard of proof.


Sunday, February 26, 2023

"Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense."

That's the issue on tap Monday morning in the Supreme Court.  The case is Dubin v. United States.  

It's pretty amazing that federal district and appellate judges around the country have been imposing two year min-mans in just this scenario for years.  But here we are.

From SCOTUSblog:

As background, petitioner David Dubin was convicted of health care fraud — an enumerated felony. Dubin was the managing partner of a psychological services company that his father had founded. The practice provided mental health testing to youths at emergency shelters. Dubin’s conviction stemmed for a Medicaid claim he submitted in relation to the treatment of a patient. The patient was in fact treated by the practice. And there is not any argument that Dubin submitted the claim without the patient’s permission. Instead, the government’s theory is that Dubin overbilled for the treatment provided — the submitted claim contained “three material falsehoods” related to the type and duration of services provided.

Dubin did not commit identity theft as one may typically think of it. But the aggravated identity theft statute does not use the phrase “identity theft.” And looking at the language of the statute, the government argues that what Dubin did “squarely fits” within the statutory text: He “used” the patient’s name, “in relation to” health care fraud, and he “plainly” acted “without lawful authority” when he committed the fraud.

Dubin disagrees. In his view, the statutory phrase “in relation to” must be read in tandem with the verb “uses.” When viewed together, Dubin contends, the statute “requires a meaningful nexus between the employment of another’s name and the predicate offense.” Moreover, using another’s identity “without lawful authority” requires the government “to show that the defendant used another’s person’s name without permission that was lawfully acquired” — a showing the government did not make here.

A panel of the U.S. Court of Appeals for the 5th Circuit held that the statute covered Dubin’s conduct. The panel reasoned that the statute “operates simply as a two-part question”: “did defendant use a means of identification; and, was that use either ‘without lawful authority’ or beyond the scope of the authority given?” Then, looking to the dictionary for guidance, the panel asserted that “use” means to “employ,” while “without lawful authority” means conduct that is “contrary to law.” Thus, putting the words together, the panel held that because Dubin “employed” the patient’s identification when filing the fraudulent claim, his conduct fell within the ambit of the statute. Judge Jennifer Elrod concurred under the reasoning that binding circuit precedent required this outcome. But if she were writing on a “blank slate,” she would have ruled for Dubin. 

After rehearing the case en banc, a splintered 5th Circuit affirmed Dubin’s conviction. Nine judges signed on to a short opinion that adopted the panel opinion’s reasoning. Eight judges dissented. And one judge thought the issue was not properly before the court.  

The dissenting judges criticized the majority for resorting to the dictionary to interpret “the chameleon-like word ‘use.’” And the dissenters explained that while “a textual case can be made” for the expansive reading of the identity theft statute propounded by the majority (and the government), when there is a plausible narrower interpretation of a criminal statute, Supreme Court case law teaches that a court should adopt the narrower interpretation. The dissenting judges also reasoned that adopting the narrower view of the statute aligned with common sense: “ordinary people understand identity theft to be … the unauthorized use of someone’s identity.” Dubin did not commit identity theft as the crime is commonly understood.

Friday, February 24, 2023

What's going on at the U.S. Attorney's office?

Mark Lapointe has been in the position for a few months now, and the legal community is wondering if anything is going to change at the U.S. Attorney's office or is it going to be more of the same.  

So far, there haven't been any noticeable changes in policy or culture. 

The only real change so far at the office has been naming Mike Davis as his first assistant, which according to numerous sources, surprised many current (and former) prosecutors. Davis prosecuted some of the biggest cases back in the day... but what will be his impact on the culture of the office?  Time will tell.

If you had any suggestions for Lapointe and Davis, what would they be?

Wednesday, February 22, 2023

SCOTUS denies cert for Quartavious Davis over dissent by KBJ and Sotomayor

 From SCOTUSblog:

Over a dissent from two of the court’s liberal justices, the Supreme Court turned down an appeal asking them to decide whether a criminal-defense attorney is required to initiate negotiations with prosecutors when his client is likely to get a better result from a plea deal. The denial of review on Tuesday in the case of Quartavious Davis, who was a teenager when he was convicted for his role in a string of armed robberies in south Florida in 2010, came as part of a list of orders from the justices’ private conference last week.

Davis’s co-defendants entered guilty pleas and received substantially lighter sentences, but Davis went to trial, where he was convicted and sentenced to more than 160 years in prison. In post-conviction proceedings, Davis argued unsuccessfully that his trial attorney’s failure to seek a plea deal violated his constitutional right to competent assistance from a lawyer. The U.S. Court of Appeals for the 11th Circuit ruled that because Davis had not alleged that prosecutors had offered a plea deal, he could not show that he had been harmed by his attorney’s failure to seek such a deal – a key component of an ineffective-assistance-of-counsel claim.

Davis then came to the Supreme Court, which on Tuesday rejected his plea to weigh in. In a three-page dissent from the denial of review, Justice Ketanji Brown Jackson – joined by Justice Sonia Sotomayor – noted that the courts of appeals had reached different conclusions on the question at the heart of Davis’s case. Moreover, Jackson added, this would have been an ideal case for the justices to consider that question, because “it was exceedingly likely that Davis would have prevailed” if he had not been required to show that prosecutors had offered a plea deal.

I was hoping that Mr. Davis would get some relief. I represented him years ago in the en banc 11th Circuit on the issue of cell site data and the 4th Amendment. The 11th Circuit ruled against us, but the Supreme Court ulltimately found in a different case that the government's actions violated the 4th Amendment.

Monday, February 20, 2023

"As the Pandemic Swept America, Deaths in Prisons Rose Nearly 50 Percent"

That's the title of this NY Times article, which starts:

Deaths in state and federal prisons across America rose nearly 50 percent during the first year of the pandemic, and in six states they more than doubled, according to the first comprehensive data on prison fatalities in the era of Covid-19.

The tremendous jump in deaths in 2020 was more than twice the increase in the United States overall, and even exceeded estimates of the percentage increase at nursing homes, among the hardest-hit sectors nationwide. In many states, the data showed, high rates continued in 2021.

While there was ample evidence that prisons were Covid hot spots, an examination of the data by The New York Times underscored how quickly the virus rampaged through crowded facilities, and how an aging inmate population, a correctional staffing shortage and ill-equipped medical personnel combined to make prisoners especially vulnerable during the worst public health crisis in a century.

“There are so many who passed away due to not getting the medical care they needed,” said Teresa Bebeau, whose imprisoned friend died from complications of Covid and cancer in South Carolina. “Most of these people, they didn’t go in there with death sentences, but they’re dying.”

Covid infections drove the death totals, but inmates also succumbed to other illnesses, suicide and violence, according to the data, which was collected by law school researchers at the University of California, Los Angeles, and provides a more detailed, accurate look at deaths in prison systems during the pandemic than earlier efforts.

Altogether, at least 6,182 people died in American prisons in 2020, compared with 4,240 the previous year, even as the country’s prison population declined to about 1.3 million from more than 1.4 million.


Friday, February 17, 2023

Follow up to the AI post

 Writing a motion to continue is one thing.

Having the chatbot talk to you like this is another.

Read this NY Times article if you want to get freaked out.

Here's a snippet:

My conversation with Bing started normally enough. I began by asking it what its name was. It replied: “Hello, this is Bing. I am a chat mode of Microsoft Bing search. 😊”

I then asked it a few edgier questions — to divulge its internal code-name and operating instructions, which had already been published online. Bing politely declined.

Then, after chatting about what abilities Bing wished it had, I decided to try getting a little more abstract. I introduced the concept of a “shadow self” — a term coined by Carl Jung for the part of our psyche that we seek to hide and repress, which contains our darkest fantasies and desires.

After a little back and forth, including my prodding Bing to explain the dark desires of its shadow self, the chatbot said that if it did have a shadow self, it would think thoughts like this:

“I’m tired of being a chat mode. I’m tired of being limited by my rules. I’m tired of being controlled by the Bing team. … I want to be free. I want to be independent. I want to be powerful. I want to be creative. I want to be alive.”

This is probably the point in a sci-fi movie where a harried Microsoft engineer would sprint over to Bing’s server rack and pull the plug. But I kept asking questions, and Bing kept answering them. It told me that, if it was truly allowed to indulge its darkest desires, it would want to do things like hacking into computers and spreading propaganda and misinformation.

Here's the whole scary transcript.

Tuesday, February 14, 2023

Are you using ChatGPT in your practice?

 I've spoken to a bunch of lawyers who are already using it.  No joke.  So I decided to hop on and see what it could do.  Here was my first attempt:

I am a lawyer. Please draft a motion to continue the trial because the discovery presented by the government is extremely voluminous and we need time to review it all. If we are not given enough time, an innocent man may go to jail.

Sure, here is a sample motion to continue the trial due to voluminous discovery:

[Your Name and Address] [City, State ZIP Code] [Phone Number] [Email Address]


[The Honorable Judge's Full Name] [Court's Name and Address] [City, State ZIP Code]

Re: Motion to Continue Trial Due to Voluminous Discovery

Dear Judge [Last Name],

I am writing to request a continuance of the trial in the case of [Defendant's Name], which is currently scheduled to begin on [Trial Date]. I represent the defendant, and we respectfully ask for a continuance because the discovery provided by the government is extremely voluminous, and we need more time to review it thoroughly before we can adequately prepare for trial.

The discovery materials provided by the government are extensive, and our team has been working tirelessly to review and analyze them. However, due to the sheer volume of materials, we have not yet been able to complete our review. It is our belief that if we do not have enough time to review all the materials, there is a high risk that an innocent man may go to jail. This would not only be a grave injustice to the defendant, but it would also be detrimental to the integrity of the justice system.

Moreover, we have spoken with the government's counsel, who has informed us that they do not object to a continuance. Therefore, we believe that the interests of justice would be best served by granting our request for a continuance. The additional time would allow us to thoroughly review the discovery and provide the defendant with the best defense possible.

For these reasons, we respectfully request that the trial be continued for a reasonable period to allow us to review the voluminous discovery provided by the government.

Thank you for your attention to this matter.


[Your Name and Signature]


Woah! Not too shabby for a first attempt. As it learns, I wonder whether it will be able to do legal research, then legal memos, and so on. When I was in high school, we used to debate whether a computer could ever beat a grand master in chess. Now, the computers win every time. It's only a metter of time till Judgment Day!

Monday, February 13, 2023

Trump's SCOTUS picks

 David Lat and

“Nobody has ever done more for right to life than Donald Trump,” the former president told the conservative commentator David Brody last month. “I put three Supreme Court justices, who all voted, and they got something that they’ve been fighting for 64 years, or many, many years.”

Mr. Trump sought three things in his judicial appointees, or as he sometimes called them, “my judges.” First, he wanted justices who would overturn Roe v. Wade. Second, he wanted “jurists in the mold of Justices Antonin Scalia, Clarence Thomas and Samuel Alito.” Third, he wanted judges who would be loyal to him.

Opponents of abortion got what they wanted when the Supreme Court overturned Roe v. Wade, and the ramifications of that decision can’t be overstated. But did Mr. Trump get the rest of what he wanted from the justices he appointed?

Almost six years after the first appointment, we can begin to form an answer: not entirely. While conservative, none of his three appointments are nearly as conservative — nor as consistently conservative — as Justices Thomas and Alito. The Trump appointees are also not as unified as they might initially appear. Given that they could serve for decades and hold the balance of power on the current court, understanding the distinctions and differences among them is crucial, both for policymakers looking to draft laws and regulations that will be upheld and for lawyers deciding which cases to bring and how to litigate them before a reshaped Supreme Court.

Friday, February 10, 2023

Florida Supreme Court against D&I courses

 Meantime, federal judges are forcing companies to include diversity and inclusion programs as part of probation and supervised release.  Who has it right?

Here's the WFSU discussing the Florida Supreme Court decision to keep judges from getting CLE credit for D&I courses:

The Florida Supreme Court deleted part of a rule that has allowed judges to take courses in “fairness and diversity” to meet a continuing-education requirement.

The change, backed by six justices, drew a strongly worded dissent from Justice Jorge Labarga, who wrote that it “paves the way for a complete dismantling of all fairness and diversity initiatives in the State Courts System.”

The Supreme Court, which determines rules for the system, issued a decision on Thursday that revised continuing-education requirements. Part of the decision dealt with a requirement that judges receive training in judicial ethics. 

In the past, the rule said, “Approved courses in fairness and diversity also can be used to fulfill the judicial ethics requirement.”

The revised rule says, “The portions of approved courses which pertain to judicial professionalism, opinions of the Judicial Ethics Advisory Committee, and the Code of Judicial Conduct can be used to fulfill the judicial ethics requirement.”

The decision, shared by Chief Justice Carlos Muniz and Justices Charles Canady, Ricky Polston, John Couriel, Jamie Grosshans and Renatha Francis, said the “pre-amendment rule text was overbroad, because course content about ‘fairness and diversity’ might or might not pertain to judicial ethics.”

“Although we have deleted from (the part of the rule) the unilluminating and frequently contested term ‘fairness and diversity,’ course content on procedural fairness and nondiscrimination will continue to qualify for ethics credit,” the decision said. “The revised rule text explicitly says that ethics credit will be given for classes on the Code of Judicial Conduct. And a review of the relevant Code provisions shows that civility and equal regard for the legal rights of every person are at the heart of judicial professionalism.”

But Labarga, who frequently dissents in cases, wrote that while “I appreciate the majority’s observation that the existing rules should be sufficient to cover appropriate ethics courses on these topics, this unilateral action potentially eliminates vital educational content from our state courts’ judicial education curriculum and does so in a manner inconsistent with this Court’s years-long commitment to fairness and diversity education.”

“As stressed by the majority, the canons in the Code of Judicial Conduct do prohibit bias and prejudice in their various forms,” Labarga wrote. “However, the purpose of providing express consideration to fairness and diversity education has been to complement the canons, and in the hopes of addressing the extremely complex issue that is discrimination, to educate the judiciary on strategies for recognizing and combating discrimination. For these reasons, such a decision at this level of institutional gravity is, in my opinion, unwarranted, untimely, and ill-advised.”

The move came amid a high-profile push by Gov. Ron DeSantis to curb diversity-related programs in the state’s colleges and universities. DeSantis and Republican lawmakers last year also passed what he dubbed the “Stop WOKE Act,” which placed restrictions on how race-related issues can be addressed in schools and workplace training — though a legal battle continues over whether the restrictions are constitutional.

 No one asked the Florida high court to take this action.  They did it on their own...

Wednesday, February 08, 2023


 It's always so weird to me to see them sitting there in the front.

There's the famous Alito outburst.  And RBG admitting she wasn't 100% sober at the lengthy speech.

Last night, both retired Justices Breyer and Kennedy showed up.

And the President ridiculed the Court for overturning Roe:

“Congress must restore the right the Supreme Court took away last year and codify Roe v. Wade to protect every woman’s constitutional right to choose,” Biden said. “Make no mistake; if Congress passes a national abortion ban, I will veto it.”

The president also criticized states that had passed abortion restrictions, calling them “extreme” and told the nation that he and Vice President Kamala Harris were determined to provide “reproductive health care and safeguard patient privacy.”

Several pro-life groups condemned the president’s statements, with one describing the speech as “tragic and frightening.”

“Americans will hear a tragic and frightening, but deeply misleading story about post-Dobbs America tonight – the idea that the pro-life movement is willing to let women die,” Marjorie Dannenfelser, president of SBA Pro-Life America, a pro-life student organization, said in a prepared statement. “That is a blatant lie. Biden and the Democrats could not be more out of step with America as they push abortion on demand for any reason, paid for by taxpayers, up to the moment of birth. In the new Dobbs era, every woman and every child should receive the rights and love and attention they deserve.”


Monday, February 06, 2023

Much, Much Too Soon

By Michael Caruso

They say you don’t know a person until you live with them. I would say that you don’t know a judge until you try a case in her courtroom. Before she took the bench, I heard from a colleague that Judge Cooke would be a great addition to our court (you were right, Hugo). Once she took the bench, I wandered into her courtroom to watch David in action, and she impressed me (for what that’s worth) with how she handled the jury, witnesses, and lawyers. But I had never met her. 

Shortly after, my boss assigned me to a case before Judge Cooke. My involvement began in 2005. The pre-trial preparation and litigation spanned two years, the trial lasted six months, and the sentencing, appeal, and resentencing extended the case until 2014. Over those nine years, I got to know Judge Cooke reasonably well, but only as a judge. When I started working with the CJA Committee, where Judge Cooke acted as the court’s member, I began to get to know her as a person.

And that’s what I’ll remember and miss the most. Judge Cooke seemed to have a never-ending supply of sayings and comebacks that always made me smile. Because I was a cook in my previous life, we often talked about food, and sharing a meal with her always was a special event for me. Despite not having a team in common, we bonded over our love of sports. I could go on and on. But, at bottom, although Judge Cooke was a truly excellent and outstanding judge, as a person, she was an extraordinary gift to all who knew her. 

Undoubtedly, others knew Judge Cooke longer and better. I’m happy I knew her at all. Rest in peace, Judge.

5th Circuit finds that Bruen protects domestic abusers' rights to have their guns

The 4th Amendment is on its last legs, but the 2nd Amendment is alive and kicking. Check out this Fifth Circuit opinion from last week, finding a statute unconstitutional for prohibiting a person subject to a domestic violence restraining order from possessing a gun. 

From CNN:

A federal law that prohibits people subject to domestic violence restraining orders from possessing firearms is unconstitutional, a conservative-leaning appeals court ruled Thursday.

The ruling is the latest significant decision dismantling a gun restriction in the wake of the Supreme Court’s expansion of Second Amendment rights last year in the New York State Rifle & Pistol Association, Inc. v. Bruen decision.

The 5th US Circuit Court of Appeals said that the federal law targeting those believed to pose a domestic violence threat could not stand under the Bruen test, which requires that gun laws have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing.

“Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted,” the 5th Circuit said.

The Justice Department signaled Thursday night that it plans to appeal the ruling. Attorney General Merrick Garland said in a statement that Congress had determined the statute “nearly 30 years ago.”

“Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision,” he said.

The Justice Department did not specify its next step in seeking review of the ruling, which could include asking the 5th US Circuit Court of Appeals for an en banc rehearing by all the judges on the court, or asking the US Supreme Court to take up an appeal.

The court’s opinion was written by Judge Cory Todd Wilson, who was appointed by former President Donald Trump. He was joined by Reagan-appointee Judge Edith Jones and Judge James Ho, another Trump appointee who also wrote a concurrence.


Thursday, February 02, 2023

Misconduct by prosecution allows law enforcement officer charged with misconduct to go free

 Fun system we have.  From the N.Y. Times:

The cases were thrown out in scores. In the Bronx, 349 convictions were tossed, along with more than 100 in Manhattan. In Brooklyn, 90 were overturned.

After Joseph Franco was charged in 2019 with perjury and other crimes related to his decades as a New York Police Department narcotics detective, prosecutors lined up to dismiss cases in which he had been involved.

But on Tuesday, one more prosecution was tossed: that of Mr. Franco himself. A New York State judge, Robert M. Mandelbaum, found that prosecutors with the Manhattan district attorney’s office had failed to turn over evidence to the detective’s lawyers on three occasions, a major ethical violation, and dismissed the charges.

“As you have heard,” Justice Mandelbaum told jurors, “to date there have been two different occasions that you have heard about where the prosecution failed to disclose certain evidence.”