Monday, July 31, 2023

Big First Amendment and Voting Map Orders

By John R. Byrne

Happy Monday!

We're suffering through the dog days of summer. But at least we just had some big legal orders to keep things interesting.

First, Trump is in the news again (does he ever leave?) but this time it's about a civil lawsuit. He had sued CNN for defamation, claiming that CNN defamed him by comparing him to Hitler and the Nazi regime. On Friday, Judge Singhal dismissed his complaint.

The Court explained that the fatal flaw was that the complained of statements were opinions, not factually false statements. Comparing a Trump quote to a quote from Nazi propagandist Joseph Goebbels may be "bad rhetoric," the Court wrote, but it's "not defamation when it does not include false statements of fact." This is the second big order from Judge Singhal on the First Amendment, having previously granted summary judgment to CNN in Alan Dershowitz's defamation lawsuit against the company. 

The opinion is a good and quick (11 pages) read. You can find it below.

Trump v. CNN by John Byrne

Second, Judge Moore rejected the City of Miami's recent gerrymandering efforts, holding that its various redistricting plans were unconstitutional. The Court had previously enjoined the City's 2022 redistricting plan, adopting Magistrate Judge Louis's finding that "race predominated in the drawing of each of the five commission districts." The City then went back to the drawing board, proposing a "Remedial Plan" to the Court. But Judge Moore ruled that circumstantial evidence supported a finding that race motivated the Remedial Plan as well. The Court ultimately adopted a redistricting plan proposed by the Plaintiff, noting that the City hadn't even bothered to challenge the Plaintiff's proposal, instead "proffer[ing] a variety of grievances about potential political outcomes that would result from its implementation." 

The order is very thorough and technical (excerpting it below). 

Unsurprisingly, the City plans to appeal. City Attorney Victoria Méndez released the statement below:

“We appreciate the Court’s valuable insight into the City’s Redistricting process, but the Court waited to [sic] long in making this determination pursuant to case law,” Méndez said. “The Court did not truly give the City Commission the presumption of good faith with regard to their legislative functions.”

Looks like Joe Carollo is going to need to move. In the new map, his home is outside his district. 

Thursday, July 27, 2023

More judicial nominees...

 ...just not here.  

The latest includes 7th and 10th Circuits.

The 10th Circuit nominee caught my eye as a former defender.  We need more!

Rich Federico joined the Federal Public Defender for the District of Kansas in Topeka in 2017. He has served as the Senior Litigator since 2020 and previously served as an Assistant Federal Public Defender from 2018 to 2020 and as a Research and Writing Specialist from 2017 to 2018. Mr. Federico also serves as a Captain in the United States Navy Reserve, Judge Advocate General’s Corps. He has been a Military Judge for the Navy Reserve Trial Judiciary since 2019, and he served as an Appellate Defense Counsel from 2015 to 2019. Mr. Federico was an Assistant Federal Public Defender for the District of Oregon in Portland from 2015 to 2017. Before that, Mr. Federico served on active duty in the U.S. Navy JAG Corps as a prosecutor from 2002 to 2008 and as a defense counsel from 2008 to 2015. In his last duty station on active duty, he served as Officer in Charge of two defense offices. He received his LL.M., highest distinction, from Georgetown University Law Center in 2012, his J.D. from the University of Kansas School of Law in 2002, and his B.A.J. from Indiana University in 1999.

Meantime, some prosecutors continue to behave badly.  From Reuters:

A former high-level U.S. prosecutor in Florida was sentenced on Wednesday to six months of probation for a criminal ethics charge in which authorities said she approved contracts in her office for companies that financially benefited her husband.

Prosecutors said Kathryn Drey, who served from 2019 to 2021 as chief of the civil division of the U.S. attorney's office for the Northern District of Florida, did not request or receive a waiver for what the government called an "inherent conflict."

Drey, licensed to practice law in Florida since 1998, pleaded guilty in March. Prosecutors had asked U.S. District Judge M. Casey Rodgers to impose a sentence of two years of probation.

"The significant collateral consequences she has suffered — retirement from public service and impending loss of her license to practice law — provide a sufficient deterrent to promote respect for the law," prosecutors told Rodgers in a court filing last week.

I typically see the govt say that collateral consequences don't matter... so judges, please start taking this into account in all cases, not just prosecutors who get into trouble.

Wednesday, July 26, 2023

One Text is Enough....

By John R. Byrne

If you don't like getting unsolicited text messages, the Eleventh Circuit just invited you to federal court. In a unanimous, en banc decision, the Court held that receiving a single, unwanted illegal text message gives rise to Article III standing under the Telephone Consumer Protection Act. 

The opinion, authored by Judge Rosenbaum, noted that, when an intangible harm like receiving an unwanted text message is at issue, courts must ask whether that harm has a "close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." The Court stressed that the "close relationship" inquiry must focus on whether the harm is similar "in kind"--not "in degree"--to the harm caused by the "traditional" cause of action. 

The Court landed on the harm caused by the common-law tort of intrusion upon seclusion, holding the tort caused harm that was similar "in kind" to receiving an unwanted text.  

Always notable when all the circuit judges agree on something.

Drazen v., LLC, No. 21-10199 (11th Cir. July 24, 2023) (en Banc) by John Byrne on Scribd

Monday, July 24, 2023

DOJ to issue report on how to improve inmate's access to counsel

 USA Today has the story:

Making it easier for detainees to meet, call and email their lawyers are among more than 30 recommendations from the review led by two department divisions, the Bureau of Prisons and the Office for Access to Justice.

Other proposals aim to boost prison staffing to facilitate communication and create a central leadership position to coordinate policies across the Bureau of Prisons.

“We’re excited because the report is very comprehensively stating we recognize these are barriers and let’s figure out solutions,” Rachel Rossi, director of Access to Justice, told USA TODAY. “Implementation is the next piece of this.”

 How about just making FDC not a complete nightmare to get into and not forcing lawyers to wait excessively to see there clients?

Friday, July 21, 2023

Judge Cannon sets Trump trial for May 20, 2024

 You can see the order on my Twitter feed here.  It's not the December date the feds wanted and it's not post-election as Trump wanted.  There's a very detailed schedule, so I wonder if this date will move.


And the trial is in Ft. Pierce, which is going to be very tough on the media...  Judge Cannon's courtroom has only two rows for spectators.  The trial should probably be in Miami and it should be televised.

Thursday, July 20, 2023

Is another shortfall for federal PDs and CJA lawyers on the way?

This would be a disaster.

From Reuters:

The U.S. federal public defenders system could need to cut as many as 500 from its staff charged with protecting the rights of poor criminal defendants, because of a budgeting error by Congress that could leave it with a 3% to 5% shortfall, officials said.

That would mean a reduction of as many as 12% of the roughly 4,100 employees of the Federal Public and Community Defenders, the office that represents indigent federal criminal defendants, who could in turn be left to spend more time in jail awaiting trial.

The agency has already been found to be understaffed: A 2022 independent judiciary commission study found the offices need to add at least 250 more people to handle current case loads, defenders told Reuters.

An appropriations bill moving through the Republican-led House of Representatives would reduce spending during the 2024 fiscal year beginning Oct. 1 for federal public defender services by about $42 million from its current $1.49 billion budget.


Officials warn the resulting layoffs and furloughs for public defenders, along with possible cuts and delays to payments to the 8,000 private court-appointed lawyers nationwide, would be of the magnitude experienced in 2013 when similarly-sized belt-tightening was imposed by Congress.


Wednesday, July 19, 2023

Court Rules that State Must Stop Forced Institutionalization of Disabled Children

By John R. Byrne

In 1990, President George H.W. Bush signed the Americans with Disabilities Act, stating that the law meant “the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life.”

Last Friday, Judge Middlebrooks quoted these words in the introduction to a 79-page order ruling that the state of Florida violated the ADA by effectively forcing families to keep their disabled children in state-funded nursing homes instead of at home. The Court's order focused on Florida's failure to provide sufficient access to private duty nursing, a service that would help enable home care. 

The Agency for Health Care Administration, the state agency which oversees the Medicaid program, has  appealed and is seeking a stay of the Court's order. Order excerpted below and Herald covers it here.

Middlebrooks Order by John Byrne on Scribd

Tuesday, July 18, 2023



Welcome back to the podcast.  I hope everyone is having a great summer.  Some good news for Florida lawyers -- we applied for and received CLE credit for Season 5 of the podcast.  So once the season is over, I will include the CLE code for the whole season.

I'm very happy about this week's episode with NACDL director Lisa Wayne.  She successfully represented the New Orleans district attorney, Jason Williams, on federal tax charges before taking on her new role at NACDL.  Listen on your computer here or on any of your podcast platforms (Apple, Google, Spotify, or Amazon). 

Lisa and her client

I hope you enjoyed the last episode with Jerry Lefcourt (Abbie Hoffman) as well the episodes with Milton Hirsch (Pedro Guerrero) and Todd Blanche (Paul Manafort).

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, July 17, 2023

News & Notes

 1.  CA11 grants rehearing en banc on the question of whether Florida's law barring adults under 21 years old from purchasing long guns.

2.  Everyone saw Messi at Publix this weekend.  The big question is did he get a pub sub? 

3. Former prosecutor and current white collar professor Randall Eliason wrote a (very weak!) defense of using acquitted conduct at sentencing.  Prof. Berman, over at the Sentencing blog, persuasively refutes it here.


Thursday, July 13, 2023

Government replies on Trump court date

 The feds are really pushing for a speedy trial in the Trump case. (Reply here).  The reply starts with the Speedy Trial Act and says the to get outside the 70 days, the defense must give justification.  The problem for the government, of course, is that the 70 day clock hasn’t even started to tick yet… as there are motions pending.  And it may be a while until the clock starts running.  

As expected, the government did take the defense to task for not requesting a specific date.  I’m not sure why the left it so open-ended.

In any event, there’s just no way that this case can be tried in December as the government is requesting.  Even the most rocket docket judges in our district would give the defense more time.  

Tuesday, July 11, 2023

The Power Of The Press

By Michael Caruso

This past weekend, women’s sports shined: WNBA clashes, fantastic Wimbledon matches, two goals by Trinity Rodman in the USWNT friendly win with Wales, and Allisen Corpuz’s victory at the first U.S. Women’s Open to be played at Pebble Beach. Off the playing field, however, another woman shined.

David’s daughter Nicole is the Summer Editor in Chief of the Daily Northwestern. Over the last few days, Nicole led a group of intrepid investigative journalists at the school’s paper that broke a bombshell story involving the football team’s hazing, including coerced sexual acts, of student-athletes. The reporting played no small part in the dismissal of the football coach last night.

Rather than summarizing the amazing reporting of Nicole and her team—here's the work:

"Former NU football player details hazing allegations after coach suspension"

"University president Michael Schill says he “may have erred” in determining Pat Fitzgerald sanction"

"Former NU players describe racist environment in football program"

"Northwestern parts ways with football coach Pat Fitzgerald"

And here’s the media coverage of the reporting: Deadspin, Politico, Bleacher Report, and SI.

Congrats to Nicole and her team on this momentous effort! 


When is an appropriate time to try the Trump case?

The government is pushing for a quick trial date in December.

The defense has asked to wait to set a date until after some of the preliminary matters are done.  Here's the pleading.

From the motion:

Thus the Court should, respectfully, before establishing any trial date, allow time for development of further clarity as to the full nature and scope of the motions that will be filed, a better understanding of a realistic discovery and pre-trial timeline, and the completion of the security clearance process, such that the Defendants can be informed fully as to the involved evidence and thus be able to present more informed arguments as to the relevant legal issues. Moreover, Defendants expect that various key legal issues will be fully dispositive, thus negating the need for any trial. Given the broad discretion this Court has when evaluating application of Speedy Trial Act exclusions, and the demonstrative application herein of the factors enumerated in 18 U.S.C. § 3161(h)(7)(A) & (B), the Court should adopt and implement an approach which postpones establishment of any trial date. See United States v. Hatfield, 466 F. App’x 775, 777 (11th Cir. 2012) (recognizing trial court’s “broad discretion”).

I doubt Judge Cannon is just going to take the case off the calendar.  But a December setting is never going to happen.  I've said from the beginning that I don't think this case can or will be tried before the election.  I think the government made a mistake asking for a trial date so soon and the defense made a mistake not asking for a specific date after the election.

Monday, July 10, 2023

Trust Juries

 That's the title of this op-ed I wrote for the Messenger.  The intro:

Twitter and cable news is the land of the hot — and often, very bad — take. Need to know why the submersible lost contact with the surface? Just check Twitter and find out from @Steve054327, who joined in March 2023. Want in-depth analysis on the student loan case in the Supreme Court? Just tune in to the new cable “news” station five minutes after the opinion was released and get a quick hit from someone who has never filed a brief in the Supreme Court but who supposedly was able to digest all the argument — and nuance — made in multiple pages of the opinion.

And do you want to know how a Fort Pierce, Fla., jury will decide the case against former President Donald Trump? Well, apparently the internet is chock full of experts, most of whom have never tried a criminal case in Florida, let alone in Fort Pierce.

And the conclusion:

Our nation is no stranger to high-profile, politically charged cases — from the British soldiers represented by John Adams (six were acquitted and two convicted of lesser charges) to the Chicago 8 (convictions reversed on appeal) to the more recent trials of Sen. John Edwards (acquitted and hung counts dismissed) and Gov. Rod Blagojevich (convicted on most counts after a hung jury). What the lawyers in each of these cases would tell you is that until the verdict was read, no one had any idea what the verdict would be. That’s why in the recent case of the Parkland resource officer, which some said was political, the defendant sobbed when the verdict was read after a lengthy deliberation. He had no idea whether he would be going to prison or set free until the verdict was announced. 

The bottom line is that we must trust the jury in Mr. Trump’s case to reach the right result. And we must live with that result, no matter whether we personally disagree with it or not.


Friday, July 07, 2023

Guest Post by Gabriella Pinzon -- Samia v. United States (2023)

 Bruton: Still A Constitutional Safeguard Or Effectively Overruled? It Depends On Who You Ask.

By: Gabriella Pinzon

First, a big thanks to 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 Samiav. United States, the Court’s latest decision regarding the Confrontation Clause and nonconfessing codefendants. This issue, along with the one addressed in an earlier post by my teammate, Brandon Shinder, was the subject of the 2023 Gibbons Criminal Procedure Moot Court Competition, where Brandon and I represented the University of Miami School of Law in winning 1st place and contributed to a national ranking of No. 3 for UM Law’s Moot Court Board. I would also like to thank our coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition. We couldn’t have done it without them.

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

In Bruton v. United States, the Supreme Court “recognized a narrow exception to” the bedrock presumption that juries follow instructions. It held that the Confrontation Clause of the Sixth Amendment is violated “when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial,” even with a limiting instruction. Following Bruton, prosecutors began redacting confessions in joint trials when the confession named a nonconfessing defendant. In Richardson v. Marsh, the Court upheld the use of a redacted confession that completely removed all references to the nonconfessing defendant because it did not violate the Confrontation Clause when introduced with a limiting instruction, despite that the confession would incriminate the nonconfessing defendant when linked with the other evidence at trial.

But in Gray v. Maryland, the Court arguably expanded Bruton’s reach, holding that some redactions, like replacing the nonconfessing defendant’s name with “deleted,” infer that the redaction refers to the nonconfessing defendant. The Court explained that such a confession so closely resembled Bruton’s unredacted statement that the redaction violates the Confrontation Clause. After Gray, prosecutors began using a different kind of redaction, replacing a nonconfessing defendant’s name with a neutral placeholder, like “the other person,” when they needed to identify that there was an accomplice to the crime or otherwise provide necessary context.

That brings us to our most recent case, Samia. The Court clarified (over dissenting opinions) that these “placeholder” redactions do not violate the Confrontation Clause when introduced to the jury with limiting instructions.

The Court first noted that the use of altered confessions identifying “another person” is supported by a broader historical understanding that “altering a nontestifying codefendant’s confession not to name the defendant, coupled with a limiting instruction, was enough to permit the introduction of such confessions at least as an evidentiary matter.”

Next, the Court cited Bruton and its progeny as support for its conclusion, explaining how “the Court’s precedents distinguish between confessions that directly implicate a defendant and those that do so indirectly.” Because the confession did not directly name Samia, and because the confession was not obviously redacted in a manner resembling the confession in Gray, the confession fell outside Bruton’s narrow exception to the bedrock presumption that jurors will follow limiting instructions.

The Court went on to say that redacting the confession like in Richardson so as not to identify the existence of the nonconfessing defendant at all would be infeasible given the nature of the crime: conspiracy. Samia’s coconspirator confessed that he was driving a car while “the other person” he was with shot the victim. To make it appear that the coconspirator acted alone by redacting the confession to eliminate the existence of an accomplice, the Court explained, would not only prevent the Government from proving an essential element of its case against the confessing defendant, but would potentially confuse the jury into believing that it was the confessing defendant, Samia’s coconspirator, who shot the victim.

Finally, the majority declined to adopt Samia’s proposed rule that would require trial courts to “conduct extensive pretrial hearings to determine whether the jury could infer from the Government’s case in its entirety that the defendant had been named in an altered confession.” Such an approach, the Court explained, would be burdensome and “far from foolproof” since it would be impractical to fully police juror inferences. As an alternative, Samia proposed that the Government “forgo use of the confession entirely,” to avoid the practical consequence of severance in which Samia’s rule would result. “But, this ignores the fact that confessions are ‘essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’”

            Justice Kagan, joined by Justice Sotomayor and Justice Jackson, dissented. The dissent argued that Bruton’s application had always turned on the confession’s inculpatory impact, but that the majority instead focused on whether Samia was directly named and whether the confession used obvious indications of redaction, such as the word “deleted,” thereby “warping” Bruton’s precedent. Because the jury would obviously know that “the other person” named in the coconspirator’s confession was Samia, the confession, as admitted, violated the Confrontation Clause in the dissent’s view:

And so one might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block. The one reason it may not be is that there is now no need for formal overruling: Under this decision, prosecutors can always circumvent Bruton’s protections. . . . The Bruton rule will still bar the prosecution from using the original version of [a codefendant’s] confession, expressly naming [a nonconfessing defendant]. So too the rule will prevent the prosecution from swapping out [a nonconfessing defendant’s] name for a blank space or the word “deleted.” But no worries—the government now has a functionally equivalent placeholder at its (Court-sanctioned) disposal. It can simply replace [the nonconfessing defendant’s] name with [a placeholder], and the Bruton issue will go away. But contrary to today’s decision, the serious Sixth Amendment problem remains. Now, defendants in joint trials will not have the chance to confront some of the most damaging witnesses against them. And a constitutional right once guaranteeing that opportunity will no longer. It will become, in joint trials, a shell of its former self.

So, does Bruton still play a role in protecting the rights of the accused? It depends on who you ask.

Thursday, July 06, 2023

Walt Nauta turns to Sasha Dadan as local counsel

 How many hits is her website getting today?  I like that she's a former public defender.  From her website:

As a Florida bar licensed attorney, Sasha began her legal career at the Office of the Public Defender in the 19th judicial Circuit. As an Assistant Public Defender she represented over 3,000 clients in felonies, misdemeanors, DUIs, and juvenile cases where she gained significant trial experience. She achieved favorable results for her clients that ended in the dismissal of many criminal cases, acquittals, and suppression of evidence. Her ability to write, research, and analyze case law was key in her ability to suppress evidence and win appeals. Taking depositions of essential witnesses, police officers, and experts proved promising in settlement of her cases leading to satisfied clients. While at the Public Defender’s Office she received over 100 hours of continued legal education training in criminal law and trial preparation. She is also licensed to practice in the Middle District and Southern District of Florida.

After leaving the Public Defender’s Office, she handled civil cases involving domestic violence injunctions, time-sharing and child support matters. She helped establish the first Injunction for Protection program on the Treasure Coast assisting survivors of domestic violence seeking an injunction in the courtroom. Her profound knowledge of domestic violence injunction cases has led to the issuance of many injunctions and her aggressive trial tactics has made her invaluable and sought after for legal representation.

Here's the Herald coverage of the arraignment:

An aide to former President Donald Trump pleaded not guilty to a charge of conspiring with the former president to obstruct the U.S. government’s efforts to retrieve classified documents during a brief hearing in Miami federal court on Thursday. Walt Nauta, a Navy veteran who served as a Trump aide in the White House and now works for him as his personal valet, uttered only three words during the arraignment. When asked by Magistrate Judge Edwin Torres if he had reviewed the indictment, he replied, “Yes, your honor.” It was Nauta’s third scheduled hearing for what is typically a simple proceeding. Because he did not have a local attorney with credentials to appear in South Florida federal court, he had been unable to enter a plea with Trump on June 13. He missed a second hearing because a flight was canceled due to bad weather and he also had not yet retained a local counsel. On Thursday, he had one — Sasha Dadan, a Fort Pierce attorney and former public defender, who formally entered his please with the court. His Washington, D.C., defense attorney, Stanley Woodward, also appeared in court.

Tuesday, July 04, 2023

The blog is 18 today.

It's really hard to believe that I started this experiment back in 2005 when I was 32 years old (I'm 50 now). Since then, there have been over 4,400 posts, over 16,000 comments, and over 6.3 million page views.  It's hard to believe!  (The first post called for President Bush to appoint a Floridian to the Supreme Court in Justice O'Connor's seat.  It didn't happen then; instead we got John Roberts.  Of course, we got the first Floridian with Justice Jackson last year.)

The podcast, For the Defense, is catching up. Today is our 33rd episode and we've had over 128,000 downloads. Pretty cool!

Today's episode -- Gerald Lefcourt for Abbie Hoffman -- marks our 33rd episode and we've had over 128,000 downloads. Pretty cool!  The release is below.

The blog and the podcast are labors of love and I really do love keeping up with our district and with the great trials.  Thanks again for reading, listening, and sending tips.  



Happy Fourth of July! This is the perfect episode to celebrate our freedom and independence -- Jerry Lefcourt for Abbie Hoffman in the Chicago 8 trial. (Listen on your computer here, or on Apple, Google, Spotify, or Amazon). Jerry is a legend and you're going to love the stories he tells about this once-in-a-lifetime trial -- from how he got the case to getting sent to jail to the impact on our country.

Next up, in two weeks, is Lisa Wayne, the executive director of NACDL.  She will discuss her representation of New Orleans district attorney, Jason Williams.  Thanks for your feedback on the first two episodes with Milton Hirsch (Pedro Guerrero) and Todd Blanche (Paul Manafort).

That's Jerry and Abbie leaving court in 1969.

 As always, you can catch these episodes on all podcast platforms including Apple, Spotify, Amazon, 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.  

Hosted by David Oscar Markus and produced by rakontur