Friday, March 31, 2023

Mickey Strikes Back


By John R. Byrne:

Everyone’s talking about the Trump indictment but, since it’s Friday, we’re going with some lighter fare. Disney!

You may have read about Governor DeSantis's takeover of the Reedy Creek board, which governs the district where Walt Disney World operates. But, apparently, on the eve of the takeover, the old board significantly curbed the new board's powers by having the district enter into a Declaration of Restrictive Covenants in favor of Walt Disney Parks. 

As one of the new board members said, “This [document] essentially makes Disney the government. This board loses, for practical purposes, the majority of its ability to do anything beyond maintain the roads and maintain basic infrastructure.” 

The new board has hired multiple law firms to look into undoing the covenants. 

As a side note, remember the Rule Against Perpetuities? You know, that rule you learned for the bar exam and then promptly forgot about after the test? It makes an appearance in the Declaration! The restrictive covenants are in place "in perpetuity" unless that violates the Rule Against Perpetuities, in which case they will be in place "until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration." I think that works. 

If you're interested in reading the Declaration, the Orlando Sentinel includes it in their article.

Enjoy the weekend and go Canes!

Wednesday, March 29, 2023

Oath Keepers juror speaks

 Wowee.  You should read this entire Politico article about the deliberations, but there's this:

Ellen indicated that she and another juror who happened to be a lawyer helped spearhead a lot of the deliberations. Some jurors, she said, did not seem to have followed every twist and turn of the trial. Others, she said, seemed to have preconceived notions against convicting anyone regardless of the facts — which the jury had to overcome to arrive at its verdict. And when she completed her service, after a five-week trial and lengthy deliberations, Ellen came away with a conclusion: If she were ever on trial, she would waive her right to a jury and instead let the judge decide her fate.

“I would never want my fate in the hands of people who are mostly completely ill-equipped to understand what’s going on,” she said.

Ellen described the extraordinary volume of evidence jurors had to sift through as they considered the 34 counts against the six defendants — part of prosecutors’ video evidence trove that is unparalleled in American history. She said she grew exasperated at times with some jurors’ insistence that they had to rely only on direct evidence to reach a conviction, rather than circumstantial evidence that can point to someone’s guilt. But despite these frustrations, she ultimately compared the experience to “12 Angry Men” and a “made-for-TV movie” in which jurors understood the gravity of their charge and the significance of the case they had just witnessed.

Ellen indicated that of the four defendants who took the stand “three did harm to themselves by testifying.” One of them, she said, was Bennie Parker, whose testimony she said helped convince the jury that there was a plan to storm the Capitol even before the group arrived at the building. That testimony, she said, damaged other defendants, including Parker’s wife Sandra, who was convicted on several counts for which Parker — who didn’t enter the building — was acquitted.


Ellen saved her harshest remarks for some of the defense lawyers in the case, who she said at times acted in ways that perplexed and even upset the jury. For example, the lawyer for one defendant, Laura Steele, didn’t put on a case for his client but noticeably laughed repeatedly throughout the trial, Ellen said.

“I was horrified,” she said.


Tuesday, March 28, 2023

Justice Gorsuch dissents from cert denial

 It's the well-known Donziger prosecution, which involved a lawyer being held in contempt.  Justice Kavanaugh joined the dissent, which explains:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.


However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.  In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.

Monday, March 27, 2023

News & Notes

1. Thank you Michael Caruso for a great post on Friday.

2.  Hope everyone enjoyed their spring break.  Back to the crazy traffic.

3. Go CANES.

4. What's going on with the Israel Supreme Court.  CNN explains here:

For months, hundreds of thousands of Israelis have been taking to the streets across the country to protest far-reaching changes to Israel’s legal system some say threaten the country’s democratic foundations.

At its core, the judicial overhaul would give the Israeli parliament, the Knesset, and therefore the parties in power, more control over Israel’s judiciary.

From how judges are selected, to what laws the Supreme Court can rule on, to even giving parliament power to overturn Supreme Court decisions, the changes would be the most significant shakeups to Israel’s judiciary since its founding in 1948.

The proposed reforms do not come out of nowhere.

Figures from across the political spectrum have in the past called for changes to Israel’s judiciary.

Israel has no written constitution, only a set of quasi-constitutional basic laws, making the Supreme Court even more powerful. But Israel also has no check on the power of the Knesset other than the Supreme Court.

5.  Will Trump be indicted this week?  Should he be?  Rumpole discusses bail over at his blog.  

Friday, March 24, 2023

Triple Crown Winner

By Michael Caruso

As David noted in a prior post, Judge Williams and I had the privilege of speaking at Magistrate Judge Augustin-Birch's investiture last week. In addition to telling the audience what a wonderful person and lawyer the Judge is, we both noted the "firsts" she's accomplished–the first judge of Haitian-American descent on our court and in the 11th Circuit and the first career public defender on our bench.

Because this is Women's History Month, I wanted to note some (but not all) other relevant judge "firsts."*

Chief Judge Altonaga–the first Cuban American woman federal judge in our country and the first woman Chief Judge in our district.

Judge Barkett–the first woman on the Florida Supreme Court.

Judge Cooke–the first African American woman in our district.  

Judge Lagoa–the first Cuban American woman on the 11th Circuit, Florida Supreme Court, and Third DCA.

Judge Maynard–the first African American woman Magistrate Judge in our district. 

Judge Nesbitt–the first woman in our district.

Special mention to Judge Seitz–the first woman Florida Bar President.  

But the Triple Crown belongs to Judge Susan Black of the 11th Circuit Court of Appeals–Judge Black was the first woman to be a county court, circuit court, and federal judge in Florida. (Judge Black was also the first woman ASA in our state). Quite the accomplishments! 

If you're interested in reading more about women "trailblazers," I highly recommend this ABA oral history series– 

At this site, you'll find fascinating interviews with Judges Barkett and Kravitch, Justice Quince, Janet Reno, and many others. 

*I gathered this information from public sources; please let me know if incorrect. 


Thursday, March 23, 2023

Magistrate judge in Denver has never heard of Brady v. Maryland

I hate gotcha moments but wow, you gotta watch district court nominate (and current magistrate judge) Kato Crews bomb this question about Brady v. Maryland. 

There are so few trials that *judges* do not even know what Brady is. This is a magistrate judge, who hears discovery disputes among the parties… and who is also supposed to order disclosure of Brady material at arraignment per Rule 5.

And he’s been nominated to the district bench. Ouch. 

Here’s the story about the nominee, Kato Crews.

And here’s a video of the exchange  

Tuesday, March 21, 2023

Penny Birch's investiture

 A big congrats to Magistrate Judge Birch, who had her formal investiture last week.  Judge Kathy Williams, FPD Michael Caruso, and her family members spoke.  Sadly, one of her mentors Judge Brannon was not there to see it. But his wife, Dr. Pamela Brannon, gave one of Judge Brannon's robes to Judge Birch in a touching moment.  

Monday, March 20, 2023

Judge Brannon's portrait hanging

Judge Brannon’s portrait was hung in the West Palm Beach federal courthouse last week.  It was an informal setting but according to several sources, there was an incredible turnout.  Dr. Pamela Brannon, his surviving spouse, flew in for the occasion.  Judge Matthewman gave remarks focused on how much Judge Brannon loved his job and how fortunate everyone was to have known him.

His portrait was created by the Court’s portrait artist, Cyd Wicker, and he was involved in the process before he passed.  It was important to Judge Brannon that his portrait be hung in the West Palm Beach courthouse where he devoted many years of service as an Assistant Federal Public Defender and Magistrate Judge.  Judge Brannon  chose to include his U.S. Coast Guard pin in his portrait as a tribute to his USCG days, which he loved.  In fact, his final resting place will be the USCG Academy in New London, CT.   His wife was wearing the pin at the ceremony. 

Wednesday, March 15, 2023

It's all Kyle Duncan talk

 Everyone in legal circles is discussing the Stanford Law/Federalist Society controversy with Judge Kyle Duncan. 

Here's the entire audio of the event, courtesy of David Lat.

Here's George Will, calling the protestors brats:

The noun “parent” has become a verb as many people embrace the belief that perfectibility can be approximated if parents are sufficiently diligent about child-rearing. So, “helicopter parents” hover over their offspring to spare them abrasive encounters with the world. And “participation trophies” are given to everyone on the soccer team, lest the excellence of a few dent others’ self-esteem — the fuel that supposedly propels upward social mobility.

Larded with unstinting parental praise and garlanded with unearned laurels, these cosseted children arrive at college thinking highly of themselves and expecting others to ratify their complacent self-assessment. Surely it was as undergraduates that Stanford’s law school silencers became what they are: expensively credentialed but negligibly educated brats.

Stanford’s president and the law school’s dean jointly say they are sorry about the unpleasantness. Not, however, so sorry, as of this writing, that they have fired Steinbach — although they say she refused to do her job: “Staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” The depth of that commitment can be gauged by this tepid rebuke, in bureaucracy-speak, of Steinbach for being improperly “aligned.” As this is written, many of Stanford’s future lawyers are demanding that the dean apologize for apologizing.

Stanford has not expelled any of the imperfectly “aligned” disruptors. The school might be improved by the departure of the student whose idea of intellect in the service of social justice was to shout sexual boastings and scabrous insults. Readers can find in the Washington Free Beacon the insulter’s unintended proof that there is indecent exposure of the mind as well as the body.

And finally, Elie Mystal saying the protestors aren't disrespectul; instead they are American

Judges are not used to being treated like politicians. They’re used to being treated like they’re above the political fray, like they’re scientists musing about whether the laws allow for covalent or ionic bonds, as opposed to jackboots determining who gets to have a family. Conservative judges, like Duncan, have chosen to insert their unreconstructed thoughts into our national political debates. Duncan purports to tell us where we can go to the bathroom, what pronouns we must use, and how many minutes after a rape people have before their bodies become incubators in service of the state. And conservative judges like Duncan have used their power to do everything from overruling health experts on virus response to telling us which innocent people still deserve to die. But the rest of us aren’t allowed to scream and shout and stomp our feet when these unelected, unaccountable rulers poke their heads out long enough to indoctrinate the next generation of fascist sympathizers?

Please. Old-school monarchs didn’t enjoy the level of protection from public abuse Federalist Society judges claim to be entitled to. Duncan is lucky nobody at Stanford brought any unneeded vegetables.

But conservative judges want to have their cake and eat it too. They want all the political power they have to remake society in the image of a fragile white man’s dream, but none of the political blowback that comes from trying to force their nightmares upon others. They want to speak only to the antebellum remnant that agrees with them and expect those who will lose their rights from conservative victories to sit quietly.

Tuesday, March 14, 2023

Guest post by the Presidents of the the Palm Beach, Broward, and South Florida Chapters of the FBA

Guest post by the Presidents of the the Palm Beach, Broward, and South Florida Chapters of the FBA

A message to rising 2L law students at UM, FIU, Nova, and St. Thomas (and for attorneys please read to the end): 

As you near the end of your 1L year, many of you are inevitably still evaluating options for summer. Law firm jobs, government jobs, vacations, and more.

You’ve hopefully also recognized and considered the value of a judicial internship.

Enter the Judicial Intern Academy, or “JIA,” a partnership between US District Judge Beth Bloom and the South Florida, Broward, and Palm Beach Chapters of the FBA. The JIA is a summer internship program that provides learning opportunities for rising 2L students unable to devote the summer to a full-time, 40-hour per week judicial internship. The student commits to 20 hours each week. Each intern is paired with a former federal judicial law clerk who has agreed to serve as that intern’s advisor during the internship. Law Clerk Advisors (LCAs) volunteer their time and expertise to assist students in refining their oral advocacy, research, analytical, and writing skills. The LCAs are intended to serve as a resource to the intern, similar to the experience enjoyed by other full-time summer judicial interns who work in chambers with the judge’s law clerks.

This past summer, the JIA implemented a pilot program in the SDFL with two local law schools. The 2022 inaugural class consisted of 19 students selected from the University of Miami School of Law and Florida International University College of Law. Each student was paired with a former federal judicial law clerk. The interns received a case-specific writing and oral advocacy assignment. They researched and drafted a bench memorandum and then argued the issues during a mock hearing in the courtroom. The South Florida, Broward and Palm Beach FBA Chapters have formally adopted the Academy and this summer the JIA is expanding to each of the four ABA accredited law schools – UM, FIU, Nova, and St. Thomas.

Internships provide an invaluable opportunity for growth, yet are highly competitive and selective. As a result, well-qualified and motivated students are often rejected. For other students, a full-time, unpaid summer internship is not feasible due to financial or personal obligations. The Judicial Intern Academy was developed to give more law students this opportunity to learn.

The deadline to apply to the JIA is March 31, and applications should be submitted to Final decisions will be made by April 10, and the program runs for 8 weeks from June 5 through July 28. Please feel free to contact Yaniv Adar at with any questions.

FOR ATTORNEYS** If you are a former federal judicial law clerk practicing in Palm Beach, Broward, or Miami and are interested in serving as an LCA, let us know! You can email Trevor Jones at to volunteer. Finally, the JIA is always looking for input and suggestions on additional student learning opportunities during the program. Please email Yaniv Adar at the address above with any ideas. Thank you.

Sunday, March 12, 2023

News & Notes

1.   Students (and sometimes judges) have gone off the rails at our law schools.  David Lat covers the latest debacle at Stanford Law School here, involving the Federalist Society, 5th Circuit Judge Duncan, and a bunch of protestors.  Here's a snippet of the long piece, which is worth reading:

Then the event got underway. Approximately 100 protesters lined up outside the event to boo those who entered, with some students calling out individual classmates—e.g., “Shame, John Smith”—Ć  la Cersei’s Walk of Atonement on Game of Thrones. Another 50 to 70 students came into the room where the event took place, compared to about 20 FedSoc students (if that). The protesters carried signs reading "RESPECT TRANS RIGHTS," "FEDSUCK," "BE PRONOUN NOT PRO-BIGOT," and "JUDGE DUNCAN CAN'T FIND THE CLIT" (among others), along with trans-rights flags.


But here’s where things went off the rails. When the Stanford FedSoc president (an openly gay man) opened the proceedings, he was jeered between sentences. Judge Duncan then took the stage—and from the beginning of his speech, the protestors booed and heckled continually. For about ten minutes, the judge tried to give his planned remarks, but the protestors simply yelled over him, with exclamations like "You couldn't get into Stanford!" "You're not welcome here, we hate you!" "Why do you hate black people?!" "Leave and never come back!" "We hate FedSoc students, f**k them, they don't belong here either!" and "We do not respect you and you have no right to speak here! This is our jurisdiction!"

Throughout this heckling, Associate Dean Steinbach and the University's student-relations representative—who were in attendance throughout the event, along with a few other administrators (five in total, per Ed Whelan)—did nothing. FedSoc members had discussed possible disruption with the student-relations rep before the event, and he said he would issue warnings to those who yelled at the speaker, but only if the yelling disrupted the flow of the event. Despite the difficulty that Judge Duncan was having in giving his remarks, plus the fact that many students were struggling to hear him, no action was taken.

After around ten minutes of trying to give his remarks, Judge Duncan became angry, departed from his prepared remarks, and laced into the hecklers. He called the students “juvenile idiots” and said he couldn’t believe the “blatant disrespect” he was being shown after being invited to speak. He said that the “prisoners were now running the asylum,” which led to a loud round of boos. His pushback riled up the protesters even more.

Eventually, Judge Duncan asked for an administrator to help him restore order. At this point, Associate Dean Steinbach came up to the front and took the podium. Judge Duncan asked to speak privately between them, but she said no, she would prefer to speak to the crowd, and after a brief exchange, Dean Steinbach did speak. She said she hoped that the FedSoc chapter knew that this event was causing real pain to people in the community at SLS. She told Judge Duncan that “she was pained to have to tell him” that his work and previous words had caused real harm to people.

“And I am also pained,” she continued, “to have to say that you are welcome here in this school to speak.” She told Judge Duncan that he had not stuck with his prepared remarks and was partially to blame for the disruption for engaging with the protesters. She told Judge Duncan and FedSoc that she respected FedSoc’s right to host this event, but felt that “the juice wasn't worth the squeeze” when it came to “this kind of event.” She told the protestors that they were free to either stay or to go, and she hoped they would give Duncan the space to speak—but as one FedSoc member told me, the tone and tenor of her remarks suggested she really wanted him to self-censor and self-deport, i.e., end his talk and leave. [UPDATE (10:57 p.m.): The Foundation for Individual Rights and Expression (FIRE) posted a transcript of Dean Steinbach’s remarks at the Judge Duncan event, if you’d like to read her words for yourself.]

“This invitation was a setup,” Judge Duncan interjected at one point while Dean Steinbach criticized him. And I can see what would give him that impression: as you can see from this nine-minute video posted by Ed Whelan, when Dean Steinbach spoke, she did so from prepared remarks—in which, as noted by Whelan, she explicitly questioned the wisdom of Stanford’s free-speech policies and said they might need to be reconsidered. (At least at Yale Law School, Dean Heather Gerken had the decency to criticize disruptive protesters, instead of validating them.)

SLS has rightfully apologized.  But Judge Duncan could have acted more professionally himself.  

2.  CA11, per Judge Rosenbaum, upholds the Marjory Stoneman Douglas High School Public Safety Act in this interesting opinion:

Tragically, under-21-year-old gunmen continue to intentionally target others—now, with disturbing regularity, in schools. So along with math, English, and science, schoolchildren must be-come proficient in running, hiding, and fighting armed gunmen in schools. Their lives depend upon it.
But State governments have never been required to stand idly by and watch the carnage rage. In fact, during the Reconstruction Era—when the people adopted the Fourteenth Amendment, thereby making the Second Amendment applicable to the States—many States responded to gun violence by 18-to-20-year-olds by prohibiting that age group from even possessing deadly weapons like pistols.
Acting well within that longstanding tradition, Florida responded to a 19-year-old’s horrific massacre of students, teachers, and coaches at Marjory Stoneman Douglas High School in a far more restrained way. The Marjory Stoneman Douglas High School Public Safety Act (“the Act”) precludes those under 21 only from buying firearms while still leaving that age group free to possess and use firearms of any legal type. See 2018 Fla. Laws 10, 18–19 (codified at Fla. Stat. § 790.065(13)).
That kind of law is consistent with our Nation’s historical tradition of firearm regulation. Indeed, the Supreme Court has al-ready identified “laws imposing conditions and qualifications on the commercial sale of firearms” as “longstanding” and therefore “presumptively lawful” firearm regulations. District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008). Florida’s law does just that by imposing a minimum age as a qualification for buying firearms.
Because Florida’s law is consistent with our Nation’s historical tradition of firearm regulation, we affirm the district court’s judgment.

Thursday, March 09, 2023

Wednesday, March 08, 2023

KBJ speaks at Palmetto High School and also gets a street named after her

Very cool.

Earlier this week she was inducted into the Palmetto High Hall of Fame.  The students must have gotten a kick seeing her speak in their auditorium. Even other HOF inductees, like the wonderful Katie Phang, snapped selfies with her:

Tuesday, March 07, 2023

Shake it Off

That’s Merrick Garland's favorite Taylor Swift song. Apparently he's a huge fan. Anyone with daughters, like Garland, can relate. From the WSJ:

At a congressional hearing on Wednesday, senators grilled Attorney General Merrick Garland on the Justice Department’s investigation into Ticketmaster, which botched ticket sales for Taylor Swift’s coming tour and is dominant in the concert industry.
Holding court

“Channeling Taylor Swift, I know that ‘All Too Well,’” Mr. Garland said, name-dropping the title of one of her songs. “I’m pretty familiar with Taylor Swift.”

Everyone in the Capital has been talking about Taylor Swift and Ticketmaster, from senators in congressional hearings to White House officials in public reports and fans holding protest signs on the streets.

Mr. Garland has been talking about her for years. In his home, in his car, and in his wood-paneled office suite on Pennsylvania Avenue, where he has prominently displayed nearly all of her CDs in a curio cabinet. He’s a die-hard Swiftie, as her fans are known, and he drops lyrics into legal arguments and discussions all the time.


Mr. Garland learned of Ms. Swift from his two daughters, who insisted on blasting the singer’s self-titled debut and 2008 follow-up album “Fearless” while Mr. Garland, then a federal appeals court judge, drove the girls to school when they were young.

“We invented carpool karaoke before it was a thing,” Mr. Garland said in his office, where the Swift CDs, given to him by his daughters, occupy a special place shared only by Bruce Springsteen’s autobiography “Born to Run” and a collection of Beatles albums. Now, whenever Ms. Swift releases a new album, the Garland family gathers on the phone to swap notes.


And Congress and pop culture have intersected in interesting ways before. Frank Zappa, John Denver and Dee Snider of Twisted Sister testified at a 1985 Senate hearing on explicit rock lyrics. People packed the hearing room to get a look. “I’ve been a fan for a long time, Mr. Denver,” then-Sen. Al Gore told the singer.
Dee Snider, right, of the metal band Twisted Sister appears at a packed Senate hearing on Capitol Hill in 1985.PHOTO: MARK WEISS/GETTY IMAGES

Things got chillier when Mr. Snider, who had long hair and wore a sleeveless T-shirt, asked if Mr. Gore planned to praise his music too. Mr. Gore conceded he enjoyed Mr. Zappa and Mr. Denver. “I am not, however, a fan of Twisted Sister.”

In legislative fights, House Republicans have deployed pulp-culture GIFs of celebrities, such as singer Britney Spears, the cartoon character Ariel of “The Little Mermaid” and Will Ferrell’s “More cowbell!” skit from “Saturday Night Live.”

Well before becoming a parent, Mr. Garland was at the vanguard of popular music. He recalled seeing the little-known Bruce Springsteen and the E Street Band open for Bonnie Raitt at the Harvard Square Theater in Cambridge in 1974, when he was in college there. “Nobody I knew had ever heard of Springsteen before,” he said. “And it was great.”

Obama White House aide Brian Deese let it slip in a videotaped interview years ago that Mr. Garland was “reasonably into Taylor Swift.” That prompted Mr. Garland’s clerks to present him with a (mock) tweet from TayTay that said: “I’m reasonably a big fan of yours too!”

Monday, March 06, 2023

Get off my lawn....

By John R. Byrne

If you live in the Village of Pinecrest--or any other municipality in Miami-Dade--you may want to read Judge Altman's recent order in Megladon, Inc. v. Village of Pinecrest and Miami-Dade County. Looks like Pinecrest was strong-arming new owners into effectively gifting the Village (or "dedicating," to use Pinecrest's term) 7 1/2 feet of their property. The leverage used was Pinecrest conditioning the approval of a certificate of occupancy on the "dedication." Instead of giving in, Megladon challenged the condition as violating the Florida Constitution's Takings Clause. Pinecrest threw out a host of defenses, the main one being that it had not taken anything yet because Megladon never gave in. Judge Altman rejected the argument, noting that the "whole point of the unconstitutional-conditions doctrine" was to prevent the government from "pressuring" a person into giving up a constitutional right. Worth a read, particularly if you want to keep your local friendly municipality off your lawn!

Order by John Byrne on Scribd

Friday, March 03, 2023

DOJ meets with FPD Michael Caruso and local bar re "Gideon Tour"

 It was the big ABA White Collar shindig this week in Miami.  1200 white collar prosecutors, defense lawyers, and federal judges descended upon the Hyatt and mingled all week.  DAG Lisa Monaco was also here.  In addition to giving a speech at the conference, she sat down with Michael Caruso, Henry Bell, Margot Moss, and others as part of DOJ's "Gideon Tour."  The Miami Herald has more:

Caruso, who oversees 50 assistant public defenders in the Southern District of Florida, described how the landmark Gideon decision and then passage of the Criminal Justice Act paved the way for indigent people to be represented by federally funded private attorneys and eventually public defenders in the 1960s. But at the meeting, Caruso highlighted shortcomings in the system, zeroing in on a defendant’s lack of access to a lawyer immediately after his arrest and placement in the Federal Detention Center. “In our district, an accused may not have a lawyer at various critical stages — like the initial appearance and bail hearing [in court],” Caruso said. “Those in prison — many of whom are seriously ill or who have a loved one who requires care-taking — may not have a lawyer to seek a compassionate release.

Thursday, March 02, 2023

Federal Gideon "Explained"

By Michael Caruso

Because David’s readers are the most informed in the district, you know that this year marks the 60th anniversary of the Supreme Court’s decision in Gideon v. Wainwright. “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” the Court found, and “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

But people accused in federal court obtained the right to counsel twenty-five years earlier in Johnson v. Zerbst, and Gideon was a decision about incorporating the right and applying it to the states. Notwithstanding, Gideon profoundly affected the federal system. Before 1964 and the passage of the Criminal Justice Act (CJA), appointed attorneys were not paid to represent indigent federal defendants. Nor was there any funding for case-related expenses, much less investigators or experts. Gideon, along with the highly influential report of Professor Francis Allen (years later my 1st year Crim Law professor) to then-Attorney General Robert F. Kennedy (the Allen Report), was a significant reason for passage of the CJA and the creation of a funded federal defense system.

The Report’s words still ring true: 

When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused’s liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice. The essence of the adversary system is challenge. Survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions. It follows that insofar as the financial status of the accused impedes vigorous and proper challenges, it constitutes a threat to the viability of the adversary system. We believe that the system is imperiled by the large numbers of accused persons unable to employ counsel or to meet even modest bail requirements and by the large, but indeterminate, numbers of persons, able to pay some part of the costs of defense, but unable to finance a full and proper defense. 

The Allen Report proposed legislation that became the template for the landmark (CJA). The Report was submitted to Attorney General Kennedy on February 25, 1963, three weeks before the Supreme Court decided Gideon.

The CJA was not fully completed, however, until 1970. The original statute did not create federal public defender offices but relied solely on assigned private attorneys paid by the hour. The Department of Justice and the Judicial Conference convened another study in 1967, and the subsequent findings contained in the Oaks Report recommended Congress amend the CJA to include public defender offices. The bill passed, and aside from occasional minor amendments, the current structure of federal public defense has remained the same ever since. 

Wednesday, March 01, 2023

SDFLA Black History Month Event


By John R. Byrne:

Last Friday, the Court held its annual Black History Month event. Kozyak Tropin partner Detra Shaw-Wilder moderated a panel comprised of Judge Graham, Marilyn Holifield, and Markenzy Lapointe that discussed the advancement of Black lawyers in South Florida. The ceremonial courtroom was packed and, though the conversation was serious for the most part, there were some laughs to be had (as illustrated by the photo!).  

A good portion of the event served as a tribute to the late Judge Cooke, who was the first Black female federal judge in the State of Florida (2004, if you can believe that). Judges Altonaga, Gayles, Graham, and Williams—along with EnjoliquĆ© Aytch Lett, a former law clerk—gave heartfelt speeches about her. She was loved by many and her absence will be felt at the Wilkie D. and beyond.