Wednesday, November 29, 2023

SDFLA nominees perform well before the Senate Judiciary Committee

 Here are their opening statements.  Really well done.  I thought each of the nominees gave personal and touching openings.  And they were all very well spoken.

SDFLA Senate Judiciary Hearing this morning

 Good luck to Jackie Becerra, Melissa Damian, and David Leibowitz who will be appearing before the Senate Judiciary Committee at 10am this morning.

You can watch it here.

Monday, November 27, 2023

AFPD Andrew Adler argues 3rd case before SCOTUS

 The case is Brown v. U.S. and the issue is: Whether the "serious drug offense" definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense or the federal drug schedules that were in effect at the time of the prior state drug offense.

Bloomberg has a nice article about Adler, his office (including support from Michael Caruso) and trend of FPDs arguing more cases:

Andrew Adler will make his third trip to the US Supreme Court lectern on Monday as one of a handful of federal public defenders to argue more than once.

Federal defenders from across the nation have argued at least one case every term except for one since at least 2000, according to Adler. Most often, it’s their first and only time in front of the justices.

With the Supreme Court hearing fewer and fewer cases each term, the criminal defense attorneys—like most first-time advocates—face intense pressure from elite law firms to turn over their Supreme Court cases to experienced advocates.

In response to that pressure, and to criticism from the justices, federal defenders have developed support systems to help prepare for a successful argument—both of which Adler took advantage of again this time around.

The Defender Supreme Court Resource & Assistance Panel, for example, partners first time advocates with federal defenders with high court experience.

The goal is to provide resources to offices that want to argue their cases themselves, according to Fran Pratt, an assistant federal public defender in the Eastern District of Virginia who co-chairs the group.

“I think the work product and advocacy has improved immeasurably, the best of both worlds,” said Michael Caruso, the federal public defender for the Southern District of Florida, which is based in Miami.


Sunday, November 26, 2023

Is it time to withdraw from the Federalist Society?

 Yes, according to George Conway, Michael Luttig, and Barbara Jean Comstock, who wrote this essay in the New York Times.

Why, you ask?

Because it's still beholden to Trump.  So they've started the Society for the Rule of Law Institute -- a competitor to the Federalist Society with no Trump ties.  It is "an organization of conservative lawyers committed to the foundational constitutional princoples we once all agreed upon," including "the primacy of American democracy, the sanctity of the Constitution, and the rule of law.?

From the NY Times:

We were members of the Federalist Society or followed the organization early in our careers. Created in response to left-liberal domination of the courts, it served a principled role, connecting young lawyers with one another and with career opportunities, promoting constitutional scholarship and ultimately providing candidates for the federal bench and Supreme Court.

But the Federalist Society has conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration. Most notably, it has failed to reckon with his effort to overturn the last presidential election and his continued denial that he lost that election. When White House lawyers are inventing cockamamie theories to stop the peaceful transition of power and copping pleas to avoid jail time, it’s clear that we in the legal profession have come to a crisis point.

We are thankful that there were lawyers in the Trump administration who opted to resign or be fired rather But these exceptions were notably few and far between. More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. The actions of these conservative Republican lawyers are increasingly becoming the new normal. For a group of lawyers sworn to uphold the Constitution, this is an indictment of the nation’s legal profession. Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.

We must rebuild a conservative legal movement that supports and defends American democracy, the Constitution and the rule of law and that incentivizes and promotes those lawyers who are prepared to do the same. To that end, we have formed a nonprofit organization, the Society for the Rule of Law Institute, to bring sanity back to conservative lawyering and jurisprudence.

There is a need and demand for this new legal movement that the legal profession can readily meet. Pro-democracy, pro-rule-of-law lawyers who populate our law school campuses, law firms and the courts decry what is happening in our profession. They deserve an outlet to productively channel these sentiments.

Or you could just join the American Constitution Society!

Wednesday, November 22, 2023

Congress and Football


By John R. Byrne

Thanksgiving is one of the best times to watch football. And we have a Dolphins game on Black Friday. If you're racking your brain trying to remember the last time the NFL played on a Friday, there's a reason for that. They don't do it often. And it's because of a law! From the Herald:

"The NFL traditionally doesn’t play Friday games in part because of Congress’ Sports Broadcasting Act. A 1966 amendment withdrew antitrust immunity for any pro football telecast if a high school or college football game is played within 75 miles of the station airing the NFL game."

Since 1978, the NFL has played only eight Friday games. So, enjoy this rare opportunity for Friday NFL football with your home team.

Monday, November 20, 2023

Human lawyers sue robot lawyers — and lose!

 As we all recover from post-it note gate during this Thanksgiving holiday week, this story caught my eye. And I love it. A bunch of lawyers don’t like AI and sued, saying it was involved in the unauthorized practice of law. The robot filed motion to dismiss and won! However, the judge did give leave to amend. Here’s the Reuters story

A federal judge on Friday agreed to dismiss, for now, a lawsuit by a small Illinois law firm that accused artificial intelligence company DoNotPay of engaging in the unauthorized practice of law.

Chief U.S. District Judge Nancy Rosenstengel in East St. Louis, Illinois said in the decision that law firm MillerKing's claims are not sufficient to give it legal standing to sue DoNotPay in federal court.

"This case pits real lawyers against a robot lawyer," Rosenstengel said, finding that the real lawyers had not shown how they were harmed.

MillerKing in March sued DoNotPay, which says on its website that it uses artificial intelligence to help consumers "fight big corporations, protect your privacy, find hidden money, and beat bureaucracy."

MillerKing, which has six attorneys who work in areas including personal injury, wrongful death and family law, claimed DoNotPay advertises and provides legal services without having a license to practice law.

Friday, November 17, 2023

Howe Comes to the Southern District


By John R. Byrne

Amy Howe, of SCOTUSblog and Howe on the Court blog fame, once again brought her talents to the Southern District of Florida yesterday. She speaks every fall to the South Florida Chapter of the FBA and it's always a great program. She talked about the current term, which seems to have fewer controversial cases this year. Still, big decisions coming on redistricting and the Chevron doctrine. Only Judge Huck managed to stump her during the Q & A portion of the program, asking her to identify the most humorous or under-the-radar case on the docket (she says the reporters usually have one, but drew a blank). Definitely worth seeing her when she comes back next fall.

Tuesday, November 14, 2023

Preet Bharara calls for prosecutors to announce when an investigation closes

This is a no-brainer in my opinion, but one that Preet himself did not do as a U.S. Attorney in New York.  From his piece in the New York Times:

Prosecutors formally advised lawyers for former Vice President Mike Pence this past June that he would not be charged for retaining classified materials after leaving office. I expect that the special counsel Robert Hur will similarly soon announce that President Biden will not face charges for his own handling of classified documents. The merits of those determinations, no less than the one to indict Donald Trump for hoarding such documents in Mar-a-Lago’s bathrooms and ballrooms, are properly debated.

Criminal investigations into holders of high office invariably raise questions about equal treatment and equal justice under the law. Is there, people ask, a double standard?

Well, there is one species of double standard and special treatment that reveals an overlooked unfairness in our justice system: It is generally only the famous and the powerful who get the courtesy of closure, who get the benefit of formal notice that the case against them is over. In too many cases and for no good reason, people never know when they are out of jeopardy.

Outside of the most high-profile cases, a prosecutor’s decision to close an investigation remains a secret — from the public, the victim, and even the target of the inquiry.

For targets who have never appeared in the pages of this paper, that means there is no news conference at the Department of Justice or letter to their lawyers to dispel the cloud of uncertainty and fear that accompanies the threat of prosecution. There is only silence. Many involved in perpetuating this purgatory — including the prosecutors themselves, as I know from my time as the United States attorney for the Southern District of New York — understand it serves no real purpose. Yet routine nondisclosure continues unquestioned.

It can, and should, stop.

Monday, November 13, 2023

Post-it Note Gate

 Okay, I think this one is really silly, but everyone seems to be talking about the two post-it notes left in the elevators at the U.S. Attorney's Office for hours last week.  Someone posted two yellow sticky notes, one that says "LaPointe has to GO!!!" and the other "Congrats on Destroying Morale, LaPointe!"  

Instead of taking them down, pictures were taken and head shaking emojis were texted around town.  

The anonymous note author did not explain where his or her (is that handwriting from a man or woman?) angst is coming from.  And I'm not sure this is the best way to express it or get things done (feel free to email me and I will post your complaints anonymously on the blog, and I will also post Mark Lapointe's response if he'd like to write one).  

Anyway, here are pictures of the two notes.

Rumpole, was this you?

Friday, November 10, 2023

Groundbreaking for Fort Lauderdale Courthouse

By John R. Byrne

Yes, we're finally getting a new federal courthouse in Fort Lauderdale. The groundbreaking ceremony was this past Wednesday. So, if you ever wanted to see a bunch of federal judges wearing hardhats and wielding shovels, this was your chance.

There's a push to name the courthouse for Judge Dimitrouleas, known affectionally as "Judge D." He's well-deserving of such an honor. Some great pictures of the event below. 

Wednesday, November 08, 2023

Government press release crosses the line

 Government press conferences and press releases about arrests have always bothered me.  It's especially infuriating when the government complains about defense lawyers speaking to the press after they issue their press releases.  Well, finally, a judge in New York said "too much."  Here's the AboveTheLaw article about it:

Eastern District of New York judge Eric R. Komitee was not pleased with one of U.S. Attorney Breon Peace’s press releases.

Carlos Watson, founder of Ozy Media, was arrested for allegedly lying about the company’s financials to investors. In touting the action, Peace wrote a press release that reads:

“As alleged, Carlos Watson is a con man whose business strategy was based on outright deceit and fraud — he ran Ozy as a criminal organization rather than as a reputable media company. Investment fraud undermines confidence in our nation’s markets and investors and makes it harder for honest businesses to compete. Our office and the Department of Justice have made it clear that prosecuting corporations and their corrupt executives who flagrantly violate the law are top priorities.”

But Watson is seeking the removal of the release from the U.S. Attorney’s website, saying it could impact the fairness of his trial.

The judge seems sympathetic, saying grouping Watson with “corrupt executives who flagrantly violate the law” could impact the trial.

As reported by Law360:

“Despite being styled as a statement of law enforcement priorities, rather than a comment on the defendants themselves, this language (and its placement) directly implies that Watson’s and Ozy’s indictment reflects these priorities in action,” Judge Komitee wrote. “Accordingly, this statement, too, walks the line between legitimate and illegitimate commentary.”


Tuesday, November 07, 2023

Charlie Adelson convicted

 Lots of folks down here have been talking about the case and Dan Rashbaum’s representation of Charlie. I haven’t been posting about the case because I was involved pre-charge.  Here’s the Tallahassee Democrat article about the conviction:

Charlie Adelson, the wealthy and wily Fort Lauderdale dentist who managed to elude justice for years in the 2014 killing of Florida State law professor Dan Markel, was convicted Monday on all counts in his murder.
The 12-person jury deliberated only about three hours before announcing it had reached a unanimous decision. The quick verdict was a bad sign for the defense, which was hoping to walk away with a mistrial at least.
Adelson, 47, mouthed the word "no" and slowly put his head down on the defense table after the first verdict was read: guilty on first-degree murder. He stared ahead and showed little reaction as guilty verdicts were read on the remaining counts, conspiracy and solicitation to commit murder.

Sunday, November 05, 2023

Judge Altman named "Judge of the Week" by David Lat

 Here's the newsletter, which you should subscribe to.  And his discussion about Judge Altman:

Judge of the Week: Judge Roy Altman.

Pro-Palestine or even pro-Hamas law students aren’t the only ones getting into controversies over opining on the Israel-Hamas conflict. It’s happening to federal judges too—specifically, Judge Roy Altman (S.D. Fla.).

On Thursday, Judge Altman published an opinion piece for the National Review, The Israelis Slaughtered by Hamas Were Not ‘Settlers.’ Responding to Yale professor Zareena Grewal—who defended Hamas’s October 7 attack on Israel by asserting that the victims were “settlers, not civilians,” and deserved what they got—Judge Altman employed historical and legal analysis to argue that “under international law, they had just as much right to be where they were as an American does in New York City.”

Given how passionate people can get about the Israel-Palestine conflict, it should come as no surprise that Judge Altman received flak for his piece. After prominent Florida litigator David Oscar Markus took to his SDFLA Blog, the outlet of record for the Southern District of Florida, to praise the judge, anonymous commenters argued that it was inappropriate, perhaps even unethical, for Judge Altman to opine on a controversial issue in this way. The next day, also at the SDFLA Blog, Judge Raag Singhal defended Judge Altman, arguing that he had the right to speak out and praising him as “an exceptional judge, colleague, and friend.”

After reviewing the potentially relevant provisions, I don’t believe Judge Altman violated the Code of Conduct for U.S. Judges. Canon 4, which governs so-called “Extrajudicial Activities,” provides that “[a] judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice”—which would include the application of international law to the Israel-Hamas conflict. Nor did his commentary violate Canon 5, “A Judge Should Refrain from Political Activity,” which focuses on running for political office, endorsing candidates, and political fundraising.

That said, was it imprudent for Judge Altman to have weighed in on such a hot-button issue? The case for that is stronger—and my husband/editor Zach thinks that writing this National Review piece was unwise. I don’t know if I’d go that far, but I do believe Altman should recuse in future cases where his NR essay might cause his impartiality to be reasonably questioned—for example, as posited by one commenter, a case involving a local professor fired for antisemitic or pro-Hamas remarks (even if recusal might not be strictly required, as Judge Singhal argued in his SDFLA Blog post).

Even before this latest controversy, some South Florida lawyers have wondered whether Altman, although highly respected as a jurist, might be more suited to politics than the monastic life of the federal bench. He’s gregarious, well-connected, and well-credentialed, with degrees from Columbia, where he was a star on both the football and baseball teams, and Yale Law. Rumor has it that Senator Marco Rubio (R-Fla.) pushed Altman as a judicial nominee to prevent him from becoming a political rival. So don’t be shocked if, at some point in the next few years, Judge Altman leaves the bench to plunge into politics.

As one judge enters hot water, two others are exiting it. In a two-page, unsigned order, the Second Circuit Judicial Council declined to reconsider its earlier order clearing Chief Judge William Pryor (11th Cir.) and Judge Corey Maze (N.D. Ala.) of misconduct in connection with their hiring of controversial clerk Crystal Clanton. As you might recall, Clanton was accused of making racist statements in a pre-law-school job—and defended against the racism charges by none other than Justice Clarence Thomas. Based on my latest SCOTUS clerk hiring report, Justice Thomas still has one open spot for October Term 2025; don’t be shocked if it gets filled by Crystal Clanton. (If you have any intel on this, please drop me a line.)

In nominations news, the Biden Administration named its forty-first round of judicial nominees: Magistrate Judges Jacquelyn Austin (D.S.C.), Jacqueline Becerra (S.D. Fla.), Melissa Damian (S.D. Fla.), and Julie Sneed (M.D. Fla.), and former federal prosecutor David Leibowitz (S.D. Fla.), now an in-house lawyer. I’m struck by how common it is these days to pick district-court nominees from the ranks of magistrate judges. This strategy makes sense, since magistrate judges tend to be highly competent, not too political, and relatively easy to confirm—helpful in states like South Carolina and Florida that have two Republican senators. But I also think it reflects the reality that serving as a federal trial judge isn’t as attractive as it once was for high-powered practitioners; given the growing gap between law firm and judicial pay, they give up a lot more financially compared to sitting magistrate judges.

Friday, November 03, 2023

In defense of Judge Roy Altman

By Judge Raag Singhal

I write today to come to the defense of my colleague and close friend Judge Roy Altman.  I’ll call him Roy because that’s who wrote the piece in National Review that causes today’s heavy anonymous blog comments.  First, let me state the obvious.  I don’t write like Roy.  I wish I did, but I don’t.  If I did, I hope I would have the tempered confidence to write so well about a variety of topics.

Second, Roy wrote the subject article sometime around October 18, 2023.  I know this because we talked about it and he would have liked to have not published it.  He sat on it for two weeks hoping someone else would write and publish a factual article that explained why an associate professor (Grewal) at his cherished university (Yale) should not receive tenure.  That article never came.  Instead, the Yale Daily News whitewashed an article by sophomore Sahar Tartak by removing facts negative to Hamas in a method reminiscent of denying the Holocaust.  And so, Roy went ahead and stated his view on this very important topic.  For those who take the time to actually read what Roy wrote, he never says Grewal should be kept from stating her views.  What he did say is she should not receive tenure and be in a position to influence impressionable students when she is wrong on both the facts and the law.

Third, today’s blog comments call for a muzzle over recusal.  But, when Justice Jackson was on the Harvard Board of Overseers immediately before her historic SCOTUS nomination—a position where she made decisions on tenure and student admissions—no one had an issue.  She was at that time also an Article III federal judge.  And, while she recused herself from consideration in Students for Fair Admissions, Inc. v Harvard College, because it involved students and policies that actually came before her in her Board position, she did not recuse herself on the companion case versus University of North Carolina, a decision that was viewed as appropriate and proper.  The point is that recusal is not required when the same issue with different litigants appears before the judge.  Of course, a Motion to Disqualify may be filed, and the judge may grant it but it is not required. 

Two cases are worth consideration.  In Texas v. Johnson, 491 U.S. 397 (1989), Justice Scalia famously wrote “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.” Id. at 420-21.  The case involved flag burning and Justice Scalia had previously gone on record in an interview saying if he could, he would jail all flag burners, but when a flag burning case came before him, he voted with the majority to reverse the conviction in Johnson because his personal view could never trump the U.S. Constitution.  And of course, Justice John Paul Stevens—who spent most of his late retirement in Fort Lauderdale—was quite clear in his dissenting opinion in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) on the topic of judicial impartiality.  Justice Stevens noted the fundamental attribute of judicial office requires countless judges to routinely make unpopular “rulings that are surely disliked by at least 50 percent of the litigants who appear before them. It is equally common for them to enforce rules that they think unwise, or that are contrary to their personal predilections.” Id. At 798. “It is the ability both to reevaluate [personal views] in the light of an adversarial presentation, and to apply the governing rule of law even when inconsistent with those views, that characterize judicial openmindedness.” Id. At 801. No doubt, Judge Altman’s reputation is one of fairness and impartiality.

At some point, truly, Roy Altman will move on from our Court as 10:34 and 10:55 seem to want and suggest.  That day will be a sad one for me although I will be happy for him.  He is an exceptional judge, colleague and friend.