Thursday, June 29, 2023

Bench and Bar Conference

Here's an email that went out from Chief Judge Altonaga,  Looks to be a great conference.

On behalf of all of the Judges of the United States District Court for the Southern District of Florida, I am pleased to invite you to attend our Court's biennial Bench and Bar Conference. The Conference will be held at the Miami Beach Convention Center on September 8, 2023, in Miami Beach, Florida. The Bench and Bar Conference Ad Hoc Committee has put together a wonderful program.

It is our hope that attorneys with a variety of practice areas and diverse experience levels will attend the Conference. To encourage newer members of the Bar to attend, the Committee has allocated 100 seats for young lawyers (defined as lawyers in their first five years of practice). The discounted price for the first 100 qualifying young lawyers will be $50 for general admission. Once the first 100 spots are filled, all tickets will be sold at the full price of $200. We anticipate that tickets will sell quickly, so if you plan to attend please register as soon as possible. Kindly note that receipt of this invitation does not automatically reserve your spot.

Building on the success of prior Bench and Bar Conferences, the 2023 Conference promises to be exceptional. In addition to attending two plenary sessions, you will also have the choice to attend two of six breakout sessions. During these breakout sessions, attendees will have the chance to communicate informally with Judges and other attorneys in smaller, seminar-type groups.

Please visit the website, for additional information on the sessions and to register before the Conference sells out. 

Best wishes, and we hope to see you at the Conference.


Cecilia M. Altonaga

Chief United States District Judge

Wednesday, June 28, 2023

Local Lawyer Gets Huge Win Before Supreme Court

By John R. Byrne

Local lawyer and all-around good guy Ashley Keller just got a huge win on a Supreme Court case he argued this term. Personal jurisdiction issue. If a state requires a corporation to consent to personal jurisdiction in the state as a condition of doing business in the state, can that corporation be sued in the state even where (1) the dispute does not have any connection to the state; (2) the state is not the corporation's principal place of business; and (3) the state is not the corporation's place of incorporation? Answer: Yes. 

In a landmark reaffirmance of some century-old precedent, the Court held that nothing in the due process clause prevents a state from requiring a foreign corporation to consent to general (personal) jurisdiction as a condition of registering to do business in that state. 


The opinion is below and it’s a good read with an interesting mixed majority.

Now all the lawyers down here need to get the Florida legislature to pass the same law! 

Mallory Opinion by John Byrne on Scribd

Tuesday, June 27, 2023




I'm very excited about this bonus episode we have with Todd Blanche, who is currently representing Donald Trump. (Listen on your computer here, or on Apple, Google, Spotify, or Amazon). Todd hasn't spoken with the media so I am very grateful that he took the time to speak with me about his representation of Paul Manafort and others on For the Defense.  There are some wild stories, including his visit to the infamous MCC to visit with Manafort.  You'll hear about the other incarcerated individuals who were in the attorney's rooms to his left and his right.  As you'll hear, Todd is a very nice and humble guy who is now representing the former President of the United States. 

Next week on July 4, we will pick back up with Season 5, where we will have Jerry Lefcourt discussing the Chicago 8 trial and his client, Abbie Hoffman.  I hope you enjoyed the premiere last week with Milton Hirsch for World Series MVP Pedro Guerrero.  I know the sound was a little off for that episode and we are working on that.  Thanks for your patience.  

 As always, you can catch these episodes on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website

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, June 26, 2023

Finger Pointing Defense Fails in High-Profile 1983 Lawsuit

 By John R. Byrne

A few years back, you may have read about--or seen pictures of--the injury suffered by a woman named Latoya Ratlieff. During a protest of the killing of George Floyd, Ratlieff was hit in the face by a "Direct Impact Round" (a projectile that seems akin to a rubber bullet but with a tear gas payload). 

Ratlieff brought 1983 claims against the City of Fort Lauderdale and the Fort Lauderdale police force. Judge Ruiz issued an order (which got picked up by the Herald last week) that rejected the officers' qualified immunity defense. Very detailed order on crowd control policies, riot control weapons, and how the police deviated from its own policies as well as third-party guidance on weapons use (e.g., the manufacturer of Direct Impact Rounds advises users to aim the rounds at areas below the belt and, on the day in question, a captain apparently told officers to aim for "center mass").

On the legal front, the opinion addressed the officers' qualified immunity defense. The officer who shot Ratlieff argued that he was entitled to qualified immunity because he was simply "following orders" and that it wasn't "clearly established" that, under the facts here, doing so could violate a person's First Amendment rights. The Court rejected the argument, and, in so doing, quoted an Eleventh Circuit opinion: "[S]ince World War II, the ‘just following orders’ defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a ‘reason why any of them should question the validity of [an] order.’"

Good read.

Ratlieff Order by John Byrne on Scribd

Thursday, June 22, 2023

Guest post by Brandon Shinder -- Smith v. United States (2023)

No Venue, No Problem: SCOTUS Unanimously Decides For Federal Government

By: Brandon Shinder

            First, I would like to thank David Oscar Markus and John R. Byrne for the opportunity to submit this guest post. This post will cover the Supreme Court’s recent decision in Smith v. United States, which entails a legal issue that was the subject of the 2023 Gibbons Criminal Procedure Moot Court Competition, where my partner, Gaby Pinzon, and I represented the University of Miami School of Law in winning First Place at the competition.  I would also like to thank our incredible coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition. 

(L to R) Gaby Pinzon, Adam Stolz (coach), Brandon Shinder; not pictured: Luis Reyes (coach).

            On Thursday June 15, 2023, the Supreme Court decided Smith and reaffirmed that—even in 2023—there are some things on which the Justices unanimously agree. In Smith, it was that the proper remedy for a criminal trial in the incorrect venue is not acquittal, but a retrial in the proper venue:

When a conviction is reversed because of a trial error, this Court has long allowed retrial     in nearly all circumstances. We consider in this case whether the Constitution requires a different outcome when a conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location. We             hold that it does not.

            The Court’s holding in Smith is the first time the Court has addressed the proper remedy for a violation of venue. Historically, when constitutional rights are violated during the trial process, the Court has held that the proper remedy is a retrial:

Therefore, the appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the award of a retrial, not a judgment barring reprosecution . . . [i]n all other circumstances, we have found that retrial is the strongest appropriate remedy, and we   have applied this rule to every other      Clause of the Sixth Amendment [.]

However, the Court was careful to say “in almost all circumstances” because the Court reaffirmed that violations of the Speedy Trial Clause are categorically different from other Sixth Amendment violations, and as such require the remedy of acquittal.

            The Court rejected all three of Petitioner’s arguments. First, Petitioner argued that the Venue and Vicinage Clauses were incorporated into the Constitution to limit hardships in trial; however, the additional hardship of a retrial was not a reason to require acquittal, as the Court noted:

But any criminal trial, whether or not in the right venue, imposes hardship, and any retrial after a reversal for trial error adds to that initial harm … [and that] the mere burden of a second trial has never justified an exemption from the retrial rule . . . we have repeatedly rejected objections based on the serious hardship in . . . prosecutions in places distant from the [defendant’s] home.

            Second, Petitioner argued that the historical backdrop underlying the Clauses supports the remedy of acquittal. Under English common law, however, venue violations were remedied by retrial.  Nevertheless, Petitioner argued that the incorporation of the Venue and Vicinage Clauses into the Constitution elevated the right to proper venue in American law more so than in common law. The Court again disagreed:  

[A]lthough the Clauses depart in some respects from the common law—most notably by providing new specifications about the place where a crime may be tried—there is no meaningful evidence that the Constitution altered the remedy prescribed by common law for violations of the vicinage right.

            Lastly, Petitioner argued that the Double Jeopardy Clause likewise supports the remedy of acquittal. Petitioner argued that, when juries acquit for improper venue, “a judicial ruling that venue was improper on a motion to acquit should have the same result.” The Court rejected this argument and distinguished judicial decisions from a jury’s general verdict:

[B]ecause it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations, the jury holds an unreviewable power . . . to return a verdict of not guilty even for impermissible reasons.


The reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of         acquittal” under Rule 29, plainly does not resolve the bottom-line question of             criminal culpability . . . [i]nstead, such a reversal is quintessentially a decision that “the Government’s case against [the defendant] must fail  even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.”


            The Court’s opinion, however, leaves unanswered public policy concerns as posed by the NACDL Amicus Brief, co-authored by our very own David Oscar Markus, which explains how the remedy of retrial “invites prosecutors to engage in even more creative endeavors because it fails to associate any consequence with incorrect choices.”