SCOTUS Takes a Florida Six-Person Jury Case

 By David Oscar Markus

In Florida state court, you try your non-capital felonies to six jurors. The Supreme Court blessed that setup in Williams v. Florida, 399 U.S. 78 (1970), and for fifty-six years that was the end of the conversation.

Maybe not anymore.

Yesterday the Court granted cert in Kian v. Florida, No. 25-6623, to decide whether the Sixth Amendment entitles a defendant charged with a serious felony to a jury of twelve. 

The defendant is Hamed Kian, a chiropractor out of Jupiter. A six-person jury convicted him on five counts of practicing with a suspended license, and he drew a year and a day. The Fourth DCA affirmed with a PCA. Kian v. State, 421 So. 3d 439 (Fla. 4th DCA 2025). 

The argument is one that has been kicking around lately, including an order from Judge Milton Hirsch* in 2022 saying that the Constitution demanded 12 jurors. Justice Gorsuch also said as much three years ago, dissenting from the denial of cert in Khorrami v. Arizona. 

The cert petition came out of the Public Defender's office in West Palm Beach. Paul Petillo and the PD15 appellate shop got the Supreme Court to grant review in a case the Fourth DCA did not bother to write an opinion on. We really should get rid of PCAs.

Argument is set for the fall. If Williams falls, a whole lot of Florida verdicts get interesting in a hurry. 

*Speaking on Judge Hirsch, the New York Times covered an fascinating only-in-Miami story and Order that he wrote here. Plus, the story was written by Dave Ovalle who is back covering Miami court stories, now for the Times.  

Talk of the town

By David Oscar Markus

For sure the talk of the town right now is in state court, not fed land.  It's the George Pino trial, who is being represented by Howard Srebnick. The State is represented by Laura Adams. It's such a tragedy all the way around.  Unlike federal court where cameras are not permitted, Florida permits cameras in the courtroom so there is wall to wall coverage of the trial.  Because the case has affected so many members of the community, the whole town is watching and discussing.  

All eyes have been on Pino and there have been lots of comments about his demeanor.  On day one, minutes into the defense opening, Pino broke down. He cried, he shook, he could not catch his breath. Judge Marisa Tinkler Mendez stopped the trial, sent the jury out, and called paramedics. She told him to "get a hold of yourself." She also warned the defense not to let him hug his family and friends in the courtroom. "Even gestures are inappropriate," she said. "This is a court of law. We're not at a sporting event."

True, trials are not sporting events.  But I'm not so sure that defendants should not be permitted to show emotion during trial.  Imagine if Pino was stone cold and showed no emotion.  The jurors would certainly pick up on that and discuss it in the jury room.  Justice Kennedy discussed this in Riggins v. Nevada, 504 U.S. 127 (1992), where he wrote that at every stage of trial the defendant's "behavior, manner, facial expressions, and emotional responses, or their absence," combine to shape the jury's overall impression, and that impression "can have a powerful influence on the outcome of the trial." Id. at 142 (Kennedy, J., concurring in the judgment). A drug that flattens a man into looking bored and unfeeling, he warned, is its own kind of prejudice. Id. at 142-43. 

And of course, the system rightfully lets the victim's side show emotion. Families pack the courtroom and wear buttons with the victim's photo. They weep on the stand. The Supreme Court looked at exactly that in Carey v. Musladin, 549 U.S. 70 (2006), and refused to find any clearly established constitutional problem with a victim's family wearing the dead man's face on their chests through an entire trial. Emotion from that side of the aisle is treated as human and expected. 

Meantime, that hasn't been the only drama in the trial... Pino and Adams had an exchange on Friday that was all over the news.

The Court Begins Summer Program for Interns and Law Clerks

By Jordi C. Martínez-Cid

From personal experience, it seems that everyone who is lucky enough to get a federal clerkship or internship enjoys the experience, or at the very least found it incredibly rewarding. There has been a trend, pushed in significant part by The Legal Accountability Project, to highlight instances where law clerks might have been mistreated or mismanaged. This gives all the more reason to call out our district on going above and beyond for its law clerks and interns.

Under the leadership of Judge Bloom, our district has put together an eight-week orientation and ethics program. The program covers everything from federal practice, substantive areas of law, civics, state court practice, how to prepare a job application, wellness, and everything in between. The presenters include practitioners, professors, representatives from the U.S. Attorney's Office and the Federal Public Defender's Office, and whole host of judges from both within and outside our district.

When I clerked, I recall there being a single day where Judge Huck and a few other judges spoke to us about how to write and practice in federal court. There are things I learned that day that I still think about in my practice, so I cannot imagine how beneficial this would be for a young lawyer.

Trump v. BBC Update

By Jordi C. Martínez-Cid

Various news outlets have been reporting on Judge Altman's Show Cause Order in the Trump v. BBC lawsuit. The Judge, having noted that no response to the motion to dismiss was timely filed, issued the order requiring an explanation why and why he should not issue sanctions.

Trump's lawyers responded yesterday saying that opposing counsel had received a copy of the opposition and exhibits by the deadline, but did not docket a response. Instead, that same day they filed a motion to file under seal. The motion to file under seal made no mention of the deadline. The case number is 1:25-cv-25894 for those of you who wish to follow along on your own.

Life in prison, even if your drugs were stolen

By David Oscar Markus

Yesterday, the 11th Circuit affirmed two concurrent life sentences for Lebarron under the death-results enhancement in 21 U.S.C. 841(b)(1)(C). United States v. Lebarron, No. 21-12157 (11th Cir. June 8, 2026). The panel was Rosenbaum, Abudu, and Tjoflat. The lineup is the interesting part.

Judge Abudu wrote the majority. Then Judge Abudu wrote a concurrence, joined by Judge Rosenbaum, requesting the full court to take the case en banc and undo what the majority just did. Judge Tjoflat dissented, with a persuasive opinion.

Lebarron ran a drug house. J.B. was one of his sellers and an addict. The government's theory was that she went into the bedroom where the drugs were kept, came out with narcotics, shot up in the living room, and died. Lebarron wanted to tell the jury one thing. He didn't give her the drugs. She stole them. The district court said no. Possess with intent, somebody steals them and dies, you're still guilty.

So the jury answered two questions. Did Lebarron possess with intent to distribute? Was that the but-for cause of death? Two yeses, and a man goes away forever. No proximate cause. No intervening cause. No scienter as to the death. 

The majority says:

In short, subsection 841(b)(1)(C) is triggered once there is any substantive violation of subsection 841(a), including the possession of a controlled substance with the intent to distribute, that results in serious bodily harm or death.

The government never had to prove Lebarron handed these drugs to anyone, or even put them into the stream of commerce. The opinion calls that irrelevant.

But Judge Abudu, joined by Rosenbaum, also concurs and says that the result isn't just:

Although the majority opinion, given our precedent, is the correct one today, it is not the just one. While a dissent in this case is not in order, a reconsideration of Webb is more than ripe.

Tjoflat dissents: 

Should a man spend the rest of his life in prison because his drugs were stolen? According to the Majority, Congress would have it no other way, and our hands are tied. I disagree.

He gives the following hypo: John Doe gets hooked on pain pills after knee surgery. He keeps his stash in a safe by the bed. Burglars drill the safe, take the pills, and one of them overdoses and dies. Charge Doe with possession with intent, attach the enhancement, and under today's rule the judge can't even let him tell the jury his safe was robbed. Life sentence. Whether the judge likes it or not.

Watch for an en banc vote.

Priscilla Perez-Lopez sworn in as Marshal

A big congratulations to Marshal Perez-Lopez.  She's really terrific.  I remember when we both started out in the federal family -- she as a new deputy Marshal and me as a law clerk.  It's pretty cool to see someone rise through the ranks who is so well-deserving.  

District Accepting Clerkship Applications

By Jordi C. Martínez-Cid

The court's website reflects more than a handful of recently listed open clerkship spots in our district: https://www.flsd.uscourts.gov/job-listings.

Judges Martinez, Lenard, Sanchez, and Hernandez are all looking for applicants as well as the "U.S. Magistrate Judge Pending Appointment" in Fort Pierce. Two other spots are open for clerks to handle pro se filings. A clerkship is a great resume builder and a professionally and personally rewarding experience. The job are listed as "open until filled" so, if interested, apply promptly.

Lawyer Not a Person Under FDCPA

By Jordi C. Martínez-Cid

A local lawyer represented a consumer in a small-claims debt-collection case. The lawyer alleged that the parties in that case had reached a settlement, but through the wrongful acts of defense counsel (including the submission of default final judgment papers), the plaintiff was defaulted.

The lawyer then brought a lawsuit in his own name against the defendant in the previous lawsuit and their counsel, primarily relying on the Fair Debt Collection Practices Act, 15 U.S.C. § 1692. The FDCPA authorizes lawsuits by “any person” harmed by a debt collector’s prohibited conduct. Title of this post aside, the Eleventh Circuit held that the lawyer-turned-plaintiff had no Article III standing.

Opinion can be found here.

2 Live Crew Case Presents Issues of First Impression

By Jordi C. Martínez-Cid

Yesterday, the Eleventh Circuit issued an opinion in Lil’ Joe Records, Inc. v. Ross, addressing a question of first impression at the intersection of copyright and bankruptcy law: whether an author’s “termination rights”—the statutory ability to reclaim previously assigned copyrights—become part of the debtor’s Chapter 7 estate. The case arose from attempted termination of copyrights in several 2 Live Crew albums, including by a member who had previously filed for bankruptcy but had not disclosed any termination interests as assets. The court held that those termination rights, even though characterized under the Copyright Act as “inalienable,” nonetheless qualify as “property” under the Bankruptcy Code’s broad definition and the member’s interest belonged to the bankruptcy estate, not to him personally.

In other words a super nerdy and esoteric question, which has little to do with Shake a Lil' Something. This is something I shouldn't say, but I am going to say this anyway. The trial judge was not Martínez. It was Judge Gayles. I wonder if any of the law clerks involved knew 2 Live Crew and their place in Miami lore before the litigation.

The Court's Fourth of July Extravaganza

By John R. Byrne

The SDFLA is going to party like it's 1776. In honor of our nation's 250th birthday, the Court is holding an event at the Wilkie D. This will be July 1 (Wednesday). Judge Ruiz is going to lead a discussion on the Declaration of Independence. It's going to be fun, and I hope to see many a blog reader there. 

You can RSVP to: flsd_program@flsd.uscourts.gov

Is it me...

 ... or does it seem like every case involves Trump in some way.  

By David Oscar Markus 

The Trump/IRS case, which through a settlement established the "weaponization fund" or "slush fund" depending on who you ask, as well as immunity from audit, has been subject to *a lot* of criticism.  So much criticism that 35 former federal judges urged Judge Williams to reopen the case to examine the terms of the settlement.  (One of those judges is former SDFLA judge Ursula Ungaro).

Judge Williams agreed to do so. The must-read order is here.  

The NY Times covers the story:

Judge Williams said that she wanted to investigate the circumstances surrounding Mr. Trump’s efforts to settle the lawsuit in a way that benefited him and his allies. If she succeeds in moving forward with her inquiry, it could ultimately result in questions being asked of the Justice Department leaders who signed the agreements to settle the suit — chief among them, Todd Blanche, the acting attorney general, and Stanley Woodward Jr., the No. 3 official in the department.

In her order, Judge Williams asserted that she was “empowered to investigate serious misconduct” in any case before her, and ordered Mr. Trump’s lawyers to tell her by June 12 whether the lawsuit should be formally reopened because “the court was the victim of a fraud.”

She also wanted Mr. Trump’s lawyers to respond to the question of whether he had colluded with his own government to settle the case “to avoid judicial scrutiny.”

The White House did not immediately respond to a message seeking comment.

Judge Williams pointed to reporting by The New York Times that described how the I.R.S. had prepared a 25-page memorandum outlining defenses against the suit that the Justice Department did not take up in court.

***

The $1.8 billion fund has faced separate legal headwinds. A federal judge in the Eastern District of Virginia temporarily blocked the Trump administration from taking any further steps to set it up or disburse money from it. Lawmakers on Capitol Hill, including many Republicans, have also been critical of the fund, which upended G.O.P. plans to pass a party-line bill funding immigration enforcement efforts last week.

Mr. Trump, along with two of his sons and the Trump family business, first sued the I.R.S. in January, claiming they were owed at least $10 billion because a former contractor at the agency had leaked their tax returns (and hundreds of others) during the president’s first term in the White House. The Trumps claimed that the I.R.S. should have done more to prevent the contractor, Charles Littlejohn, from disclosing tax information to The New York Times and ProPublica.

Mr. Trump’s suit, as I.R.S. officials laid out in their memo and other lawyers have noted, had clear legal flaws. Potential defenses against it include that it was filed after the statute of limitations, and that it incorrectly faulted the I.R.S. for the actions of Mr. Littlejohn, previously a contractor employed by Booz Allen Hamilton. But the Justice Department never made an attempt to contest Mr. Trump’s suit. No government lawyer entered an appearance in the case.

That has fueled criticism that the deal the Justice Department struck with Mr. Trump was not a genuine attempt to avoid a loss on the merits to the president in court, but instead a scheme to provide him and his political allies with public benefits.

 

Reflections on Judge King's Life

By Jordi C. Martínez-Cid

On Wednesday, there was a Celebration of Life for Judge James Lawrence King. His long and storied life is difficult to summarize but perhaps the fact that best encapsulates his standing in this community is that he was blessed to serve the people and administer justice in a building named after for many years. Hard to imagine that even many legends get that honor.

Part of his legacy are his clerks, among them: Ricardo M. Martínez-Cid, Yara Lorenzo Klukas, Mark Heise, Gera Peoples, Jennifer Olmedo-Rodriguez, and Jose Ortiz among many other well-respected lawyers in our community. Two of them, Peter Klock and Richard Rosengarten, attended the Celebration of Life and were kind enough to share what happened that day and their personal reflections on Judge King and what he meant to South Florida. Their writing can be accessed here.

To Recuse or Not to Recuse?

By John R. Byrne

You're a lawyer and you represent Party B in a lawsuit filed by Party A. You later become a judge. Can you now impartially adjudicate Party A's different lawsuit against Party C?

When you strip away the high-profile names of the people/parties involved, that's the essence of the recusal issue in Trump v. British Broadcasting Corp. (better known as the "BBC"). 

Just recently, Law 360 reported on President Trump's motion to recuse Magistrate Judge Lett from his lawsuit against the BBC. His basis? He argues that, prior to taking the bench, Judge Lett represented a company that Trump had sued in the SDFLA. That company, Orbis Business Intelligence, Ltd., was one of the defendants in Trump v. Clinton (the case, not the election). Trump argues that Judge Lett's defense of Orbis right before she took the bench creates at least the appearance of impropriety such that she should not be handling discovery disputes in his case. The BBC says that Judge Lett previously represented a different party (Orbis, not the BBC) in litigation that is unrelated to the current litigation and that the motion is just a stall tactic. 

You can read the motion to recuse here and the BBC's response here. 

A federal district judge had sex in chambers and got reprimanded... (UPDATED)

...but the reprimand is private!  (UPDATED with the potential identity of the judge below).

By David Oscar Markus* 

The Eleventh Circuit issued a private reprimand to a sitting United States District Judge after a Special Committee investigation confirmed that the judge had engaged in a multi-year extramarital affair with a uniformed local police officer, including sexual intercourse in the judge's chambers during business hours, within earshot of law clerks.

The order is here. It is worth reading in full.

The affair ran roughly from late 2022 through October 2025. The officer, a high-ranking commander at a local police department since 1998, made frequent lunchtime visits to the judge's chambers in uniform, signing in on law enforcement logs. At least three former law clerks heard sounds consistent with sexual activity coming from the judge's closed office. One clerk had to leave the building. Another described the chambers as having an "eggshell culture." The Special Committee confirmed the visits through courthouse security footage and sign-in logs, interviewed six former clerks, and even removed a sofa cushion from the judge's office and transported it to an out-of-state laboratory for acid phosphate testing. (The test came back negative.)

When Chief Judge Pryor first wrote to the judge in September 2025, the judge denied everything. Called the allegations "outrageous" and "baseless." Blamed the reporting clerk for retaliating over a phone-use reprimand. Then, eleven days later, the judge hired a lawyer and admitted the affair and sex in chambers. By the time the judge came clean, the committee had already reviewed footage, interviewed five clerks, inspected the chambers layout, and driven a sofa cushion to a laboratory. The false statements were themselves a separate misconduct finding.

The judge also attended a District Attorney's campaign victory party, then reportedly joked to summer interns the next morning about having "too many martinis" the night before a criminal hearing. That was finding number two.

The court issued a private reprimand. Plus: written apologies to all six clerks. No eligibility to serve as chief judge. No Judicial Conference committee service, indefinitely. The judge keeps the seat and continues to hear cases.

The Special Committee considered a public reprimand. Mitigating factors: eventual candor, termination of the affair, and what the committee called "otherwise exemplary service to the court." That was enough to keep it private.

The order uses gender-neutral language throughout. Not a single pronoun for the judge, the clerks, or the officer. The identity is not public.

What the order does tell us: this is a sitting district judge, not a chief judge (the chief of the judge's district blew the whistle). The judge is a former prosecutor, friends with a sitting DA since 1999.  Handles all criminal cases personally without law clerk assistance. Uses staggered two-year clerk terms.

The DA victory party is probably the most identifiable data point. The Special Committee found news coverage, including video and photos, of a campaign event with martini glasses. That is a specific, locatable event in a specific 11th Circuit city. Someone with local knowledge could likely find it.

As of today, no outlet has publicly named the judge.

*I never used to put the byline on my posts but decided to do so because I want it to be clear it's me writing as I don't want John or Jordi getting any heat for what I write. 

 UPDATE --  Marco Polo says the judge is Eleanor Ross out of Atlanta (NDGA).  

Alex Saab: Former Venezuelan Minister of Industry To Be Tried in the District

By Jordi C. Martinez-Cid

Alex Saab, a long-time ally of Nicholas Maduro, was extradited from Venezuela and had his first appearance before Magistrate Judge Fulgueira Elfenbein last week. She ordered him to be detained without bond.

Though I write first appearance, this is not his first run-in with our court. Saab previously faced an indictment for conspiracy to commit money laundering. Media outlets report that the charges were dropped as part of a deal with the Maduro regime, which may be accurate, but the government's motion to dismiss in that case mentions a full pardon granted by President Biden. Judge Scola ended up dismissing that case on the same day as the motion.

With Maduro out of power and Alex Saab seemingly on the outs with the current powers that be, Venezuela deported him. Mr. Saab now faces money laundering charges stemming from his alleged involvement with Venezuelan food and oil contracts. Should be an interesting case to follow given the geopolitical ramifications and the previous factual and procedural history.

Big Victory at the Supreme Court for Havana Docks

By John R. Byrne

We’ve blogged several times about the ongoing litigation between Havana Docks and various cruise lines. To bring everyone up to speed, the Helms-Burton Act makes it unlawful to “traffic” in private property confiscated by the Cuban government. Havana Docks sued several cruise lines, arguing that they used its confiscated docks to bring tourists to Cuba. Havana Docks won a roughly $400 million judgment at the trial court level before Judge Bloom. But the Eleventh Circuit reversed, holding that the company’s concession to operate the docks had expired before the alleged trafficking occurred.

There was a dissent. Judge Brasher said the expiration date didn’t matter. What mattered was that the cruise lines trafficked in the confiscated property (the docks themselves).

Yesterday, the Supreme Court weighed in. It agreed with Judge Brasher and Judge Bloom and convincingly so (the vote was 8-1). Justice Thomas, writing for the Court, held that the Act targets the use of confiscated property itself, not merely the specific property interest the plaintiff once held. Cuba’s 1960 takeover “tainted” the physical docks as confiscated property, and the cruise lines later used those same docks commercially without Havana Docks’ authorization. 

Justice Kagan dissented. She thought the Eleventh Circuit majority had it right. Havana Docks owned only a time-limited concession (not the docks themselves). And because the concession expired in 2004, which was years before the cruise lines’ use of the docks, there was no trafficking. 

You can read the whole thing here. 

This was a big win for the law firm of Colson Hicks Eidson and the team of Bob Martinez, Stephanie Casey, Tom Kroeger, and Zach Lipshultz. Speaking for the team, Bob Martinez gave this quote to the SDFLA Blog:

“We are gratified by the Court’s decision. Havana Docks has waited 66 years for justice and today marks one step closer to obtaining it. No one should be allowed to profit from and subsidize Raúl Castro and the Cuban military by doing business with that brutal dictatorship.”

And with that, Bob dropped the mic.

I hope everyone enjoys the Memorial Day weekend.

Two big SDFLA indictments

Everyone has seen the Raul Castro news.  But another case -- that of a Ft. Pierce AUSA -- is also making headlines.  Here's your summary of the two cases:

Raúl Castro

Castro, 94, of along with five co-defendants — Lorenzo Alberto Perez-Perez, Emilio José Palacio Blanco, José Fidel Gual Barzaga, Raúl Simanca Cardenas, and Luis Raúl Gonzalez-Pardo Rodriguez — for their alleged roles in the February 24, 1996 shoot-down of two unarmed U.S. civilian aircraft operated by Brothers to the Rescue over international waters. 

The charges include four counts of murder, two counts of destruction of aircraft, and conspiracy to kill U.S. nationals. The four men killed were Carlos Costa, Armando Alejandre Jr., Mario de la Peña, and Pablo Morales, including three U.S. citizens.

Castro served as Cuba's defense minister at the time of the shoot-down. The indictment alleges he had authorized the use of deadly force against the Brothers to the Rescue. 

Acting Attorney General Todd Blanche announced the charges, saying: "For the first time in nearly 70 years, senior leadership of the Cuban regime has been charged in the United States for alleged acts of violence resulting in the deaths of American citizens."

The indictment and DOJ press release are here.

Judge Seitz drew the case, but that's before she retired, so I'm assuming it will be reassigned. 

News coverage: Reuters/CNBC | CBS News | NBC Miami | CNN

---

Former SDFLA Prosecutor Indicted

The other big indictment today is Carmen Mercedes Lineberger, 62, the former Managing Assistant U.S. Attorney for the Fort Pierce division of the U.S. Attorney's office.  She was indicted on four counts: two counts of theft of government property, destruction/alteration of records in a federal investigation, and concealment/removal of public records.

The government alleges that in late 2025, Lineberger compiled portions of an internal DOJ memorandum and transmitted messages from her government email to her personal Hotmail account with the subject line "chocolate cake recipe." She is also accused of accessing an email containing a Volume II Report in December 2025 and sharing it to her personal Gmail account with the file renamed "Bundt_Cake_Recipe.pdf." 

The indictment notes that Judge Cannon had issued an order in January 2025 regarding the report that prohibited any distribution or disclosure outside DOJ. Lineberger allegedly transmitted it anyway. 

Lineberger was in a supervisory role at the Fort Pierce office during the time of the investigation and prosecution of Trump, and while she was not on the special counsel team, the U.S. Attorney's Office played a supporting role to parts of Jack Smith's work, including before the special counsel was appointed and after the search of Mar-a-Lago in 2022. 

She was arraigned before Chief Magistrate Judge Matthewman in West Palm Beach. The case is being prosecuted by AUSA Christie Utt from the Northern District of Florida, brought in as a special prosecutor to avoid conflicts.

The indictment is here. 

News coverage: CNN

New Emoluments Clause Case Filed in the SDFLA

A new 57-page complaint landed in the Southern District of Florida last week, and it's an interesting one.

The case is Sistrunk Seeds Inc. v. Trump, Case No. 1:26-cv-23365, filed May 13 by Jerry Greenberg, Dan Gelber, and Shane Grannum of Gelber Schachter & Greenberg and the Constitutional Accountability Center. The plaintiffs are two Downtown Miami condo owners, a Miami Dade College student, and a nonprofit urban farm co-founded by historian Dr. Marvin Dunn.

The claim: Florida violated the Domestic Emoluments Clause by gifting a 2.63-acre waterfront parcel in Downtown Miami — previously owned by MDC — to President Trump's library foundation. For free. The land sits next to the Freedom Tower. Experts say it's worth north of $300 million. The county appraiser says $67 million. Either way, it went for $0.

The defendants include the President (official capacity), the Trump Library Foundation, Governor DeSantis, AG Uthmeier, CFO Ingoglia, Commissioner Simpson, the Florida Board of Trustees of the Internal Improvement Trust Fund, and the entire MDC Board.

The constitutional hook is Article II, § 1, cl. 7, which says the President "shall not receive within that Period any other Emolument from the United States, or any of them." Plaintiffs argue the land transfer is a textbook state gift to a sitting president in violation of that clause.

The complaint cites a bunch of Trump's own words, including: "I don't believe in building libraries or museums... it's most likely going to be a hotel." The case is assigned to Judge Ruiz.  Coverage from the Miami Herald, CNN, NBC News, and The Hill. 

Meantime, yesterday, six days after the lawsuit was filed, U.S. Attorney Jason Reding Quiñones posted a photo of the Freedom Tower on X with the caption: "South Florida knows what this building stands for." The Freedom Tower, of course, sits directly adjacent to the MDC Parcel at the heart of this case. But the post likely has to do with the press conference that JRQ has scheduled with Todd Blanche, Ashley Moody, and James Uthmeier announcing the indictment of Raul Castro of Cuba.  

Judge Stanley Marcus

 By Wifredo Ferrer

Judge Stanley Marcus is widely regarded as one of the keenest and sharpest legal minds on the federal bench—a true legal giant. Those of us who have had the privilege of clerking for him know that reputation is well earned—and that it only tells part of the story.

I clerked for Judge Marcus in 1990, fresh out of law school. That year remains one of the most formative of my professional life. I learned more during that clerkship than I did in all three years of law school combined. Every morning brought rigorous, Socratic-style questioning—not to intimidate, but to sharpen thinking, test assumptions, and demand intellectual honesty. Precision mattered. Preparation mattered. The facts mattered. The law mattered. And above all, getting to the right answer mattered. Judge Marcus’s work ethic truly knows no bounds—he approaches every case, no matter how large or small, with the same intensity, discipline, and sense of responsibility.

Judge Marcus exemplifies the highest standards of excellence, integrity, and professionalism. He teaches his clerks that public service is not abstract or aspirational—it is practical, demanding, and deeply consequential. He insists that each case be approached with care, fairness, and respect for the parties, and that every opinion reflect both intellectual rigor and clarity of thought. He believes that judges and lawyers alike play a critical role in promoting fairness, equal opportunity, and the enduring promise of equal justice under the law. His leadership on the bench sets a standard not only for those who work with him, but for the broader legal community.

What makes Judge Marcus exceptional, however, is not only his intellect, but his humanity.

During my clerkship year, my father was diagnosed with cancer. Judge Marcus could not have been more compassionate or understanding. In a profession that often rewards detachment, he demonstrated something far more lasting: empathy, perspective, and grace. He reminded me—by example—that while the work of the law is important, it should never eclipse what matters most: our families and the people we love.

Over the years that followed, and especially after my father passed away five years later, Judge Marcus became a lifelong mentor and, in many ways, a “young uncle” figure to me. His guidance extends well beyond legal analysis. Whenever I face difficult professional moments, I still find myself asking, “What would Judge Marcus do?” The answer is usually the same: analyze the facts carefully, find the answer in the law, use common sense, and give the “bottom line”—clearly, directly, and with conviction.

Judge Marcus sets the standard for what it means to be both a jurist and a lawyer: relentlessly pursuing the cause of justice, never losing sight of the obligation to seek the truth—not merely to win—and always carrying oneself with character, discernment, humility, and respect for others. His legacy is reflected not only in his decisions, but in the generations of lawyers he has trained to think carefully, write clearly, and act with integrity.

Our bench, our bar, and our community are better because of his service. I am profoundly grateful to have learned from him, and even more grateful to have him in my life—not only as a mentor, but as a friend.

And that is the bottom line.

FBA Write Up below:

Judge Stanley Marcus was nominated to the district court by President Reagan in 1985. A native of New York, Judge Marcus received his BA from Queens College of the City University of New York before receiving his JD from Harvard University. Judge Marcus served on the district court until 1997, when he was elevated to the Eleventh Circuit Court of Appeals by President Clinton. In 2022, as part of a three-judge panel, Judge Marcus ruled that Alabama's proposed redistricting maps were unlawful under Section 2 of the Voting Rights Act. Singleton v. Merrill, 582 F.Supp.3d 924 (N.D. Ala. 2022). Judge Marcus continues to serve as a senior judge on the Eleventh Circuit. 

11th Circuit Conference

 Well we had the 11th Circuit Conference this week in Aventura.  The conference is every two years and rotates among the states in the 11th Circuit.  This was our year.  Chief Judge Pryor, Chief Judge Altonaga, and the rest of the planning committee put on a lovely and well-attended conference.  Almost all of the district and circuit judges attended.  And the final talk was with Justice Thomas, our Circuit Justice.  

BREAKING -- Your newest Magistrate Judge is Brandy Galler

 

 

Congratulations.  Ms. Galler will be sitting in Ft. Pierce.  

Let 'er Rip

By John R. Byrne

Hollywood has come to the SDFLA. Or at least a case involving Hollywood has.

Did you see Netflix’s The Rip? If not, I can’t blame you. It was one of those direct-to-Netflix movies. But it had real star power. Ben Affleck and Matt Damon reunite on screen as members of a Miami narcotics tactical unit that discovers millions in cash inside a stash house. Netflix describes it this way: “Trust frays when a team of Miami cops discovers millions in cash inside a run-down stash house, calling everyone — and everything — into question.”

The movie opens by saying it was “inspired by true events.” According to a new complaint filed in the Southern District of Florida, the true event was a June 29, 2016 Miami-Dade narcotics investigation that led to the seizure of more than $21 million in currency from a suspected marijuana trafficker’s home in Miami Lakes.

The officers who say they supervised and led that real investigation are not happy with the movie or what it allegedly implies about them. Last week, they sued the production companies behind the film, including Artists Equity, LLC, which was founded by Affleck and Damon.

The complaint alleges that, although the film uses fictional names, it copied highly specific details from the real seizure (Miami-Dade narcotics officers, the Miami Lakes/Hialeah setting, cash hidden in orange buckets inside walls, a cash-sniffing dog, a TEC-9). It then “Holly-fied” the rest, presenting a story about corruption, theft, cartel communications, arson, and murder. As the complaint puts it, third parties began asking the plaintiffs “which character they were and how many buckets they kept.”

You can read the complaint, which is getting national media coverage, here. The case is Smith v. Falco Pictures, LLC, No. 1:26-cv-23213, in the Southern District of Florida. It’s in front of Chief Judge Altonaga.

As a postscript, Affleck apparently plays a character named “J.D. Byrne.” No comment.

Judge Lenore Nesbitt

 By John R. Byrne

We probably should have featured Judge Nesbitt's portrait back in March when it was Women's History Month--but better late than never. 

Judge Nesbitt was certainly a trailblazer. A few milestones worth noting:

She was the first woman appointed to the federal bench in the Southern District of Florida.

She graduated first in her class at University of Miami law school in 1957, where she was the only woman in the class. 

And yet, when she applied to law firms after graduation, she was only offered a secretarial job. She pressed on, practicing law with her husband, Joseph Nesbitt, before becoming a state trial court judge in 1975 and then a federal judge in 1983.

FBA write up below:

Judge Lenore Nesbitt was nominated to the district court in 1983 by President Reagan. Judge Nesbitt graduated first in her class at the University of Miami School of Law in 1957. While on the state bench, Judge Nesbitt presided over the trial of the police officers charged with the beating death of Arthur McDuffie and coverup of the same. She moved the trial to Tampa, due to the volatile atmosphere in Miami, which Judge Nesbitt described as a “time bomb”; the acquittal of the officers nonetheless sparked protests and riots through our city. Described by Judge Davis as the “true first lady of the court,” Judge Nesbitt was the first female judge appointed to the bench in this district. She served on the bench until 2001. 

By John R. Byrne

Happy Friday. Some positive news to end the week. 

Last night, I attended an awards ceremony at Holland & Knight. This time, the awards were not being handed out to lawyers or judges. The room was filled with middle school kids, ages 12-14. 

The event was part of the "Do the Write Thing" violence prevention program, which invites middle school students to write essays, poems, songs, or stories about the impact of violence on their lives and to offer solutions for reducing it. 

During the ceremony,  Miami-Dade County Public Defender Carlos Martinez talked about the positive impact the program has had on the community and on himself personally (Martinez volunteers to review the submissions). 

Kudos to Holland & Knight, and especially to attorney Eduardo A. Ramos. Ramos has run the program in Miami since 2010, a clear labor of love and service to our community. 

And, yes, I had a good reason to be there. My daughter, Vera, was one of the finalists! Alas, she didn’t win, so there’s no free trip to Washington D.C. in my future. But I could not have been prouder. 

                                             Eduardo A. Ramos and Carlos Martinez

News & Notes

1.  On Tuesday, the court had its Jewish American History Month presentation at the courthouse.  Judge Leibowitz presided over an interesting panel and his family Norman and Irman Braman were honored.

2.  While we are on Jewish American History Month, Judge Roy Altman's book Israel on Trial is #12 on the New York Times best seller list.

3.  Switching gears, the Haitian murder jury is deliberating.  Day #2 starts today.

4.  Lots of immigration battles occurring now in our courts.  The 11th Circuit had this 2-1 opinion yesterday covering 110 pages of debate between Judges Marcus and Rosenbaum on one side, and Judge Lagoa on the other.  Marcus starts this way:

The question we face today is whether unadmitted aliens found in the interior of the United States are eligible for bond while they go through immigration proceedings. For nearly thirty years, the answer to that question was, for most aliens, “yes.” Last year, the Department of Homeland Security (“DHS”) took a different view. It now maintains that these aliens must be detained without bond under 8 U.S.C. § 1225(b)(2)(A). We are called on to decide if the Government’s new reading of § 1225(b)(2)(A) is correct. Hundreds of district courts and four other circuits have already weighed in, reaching well-reasoned yet distinctly contrary conclusions. See Cunha v. Freden, No. 25-3141, 2026 WL 1146044 (2d Cir. Apr. 28, 2026); Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026); Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048 (7th Cir. 2025); see also Castañon-Nava v. U.S. Dep’t of Homeland Sec., No. 25-3050, 2026 WL 1223250 (7th Cir. May 5, 2026). This is the first time our Court has addressed the question. In these consolidated appeals, Petitioners -- Fidencio Hernandez Alvarez and Ismael Cerro Perez -- were detained without the possibility of a bond hearing pursuant to § 1225(b)(2)(A). Each challenged his detention under the Immigration and Nationality Act (“INA”), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8, 18, and 28 U.S.C.). On review of Petitioners’ habeas claims, the district court held that the discretionary detention provisions found in § 1226 governed their detention instead, rendering each of them eligible for bond. The Government appeals that decision. It insists that under § 1225(b)(2)(A), Petitioners -- as aliens present in the United States without having been lawfully admitted -- are “applicants for admission,” and so they must be detained without the possibility of bond unless they can establish clearly and beyond a doubt that they are entitled to be admitted. We are unpersuaded by the Government’s re-interpretation of § 1225(b)(2)(A). That provision limits no-bond detention to applicants for admission who are “seeking admission,” and on the facts of this case, neither Petitioner was seeking lawful entry into the United States after inspection by an immigration officer when he was arrested, nor was either Petitioner taking any cognizable step to obtain the rights and privileges of lawful entry. In fact, neither Petitioner was pursuing any object, let alone “lawful entry,” when he was detained following a traffic stop. The text and statutory structure of the INA, bolstered by the long history of detention across our immigration laws and the congressional purpose in passing IIRIRA, yield the conclusion that nobond detention generally applies to arriving aliens seeking lawful entry to the country, and not to aliens who are simply present here. Finally, we reject the Government’s claim that even if it has misread the INA, Petitioners are now “seeking admission” because they did not voluntarily self-deport after the initiation of removal proceedings. We do not hold that Congress is without the power to authorize the detention of unadmitted aliens who are simply present in the country. That question is not before us. We hold only that Congress has not done so under the provisions found in the INA. Nor do we decide whether either Petitioner is a flight risk or would pose a danger to the community if he were released on bond. That, too, is not before us. We affirm the grant of habeas relief in each of these consolidated cases.

Judge Lagoa starts her dissent:

The majority concedes that “applicant for admission” and “seeking admission,” on their ordinary meaning, are “synonymous.” Maj. Op. 15–16. It then spends fifty pages explaining why the ordinary meaning does not apply. The Fifth and Eighth Circuits disagree. See Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026). So do I. I respectfully dissent.  

Judge Edward B. Davis

Thank you to John and the Federal Bar Association for these wonderful portrait posts.  I really enjoy them. This week we have my old boss, Chief Judge Edward B. Davis.  I wanted to say a few words about this giant of a man – both literally and figuratively.  Judge Davis was the ideal judge.  I have so many great stories about him from my clerkship back in 1997. 

The first Friday of my clerkship, around 4:30pm, he asked me to get the other clerks and to pour everyone a drink.  He gestured to the cabinet.  We sat around and had scotch and discussed the first week.  Hard to describe the moment of sitting with your boss, drinking scotch, and discussing the law and cases. 

I remember the Frank Quintero trial and Frank walking out the door.  Judge Davis was happy for him.

I remember driving Judge Davis in his huge Cadillac to Fort Pierce and him telling me to “step on it, son.”

I remember watching Dick Gregorie try a case against Hugo Rodriguez and Hector Flores and watching Judge Davis turn his chair around and laugh when there was some pushing and pulling of a big poster board during opening.

But the thing that sticks with me the most is how he treated everyone – lawyers, litigants, defendants, staff – the same.  With humility and respect.  And humor.  The absolute best. 

After seeing how some of our judges treat lawyers and their clients these days, we really need more like Judge Davis.

***FBA Post Below***

Judge Davis was nominated to the district court by President Carter in 1979; he served on the court until 2000. In his youth, Judge Davis achieved athletic excellence in baseball, basketball, and football, earning the nickname “Boomer.” He signed with the Detroit Tigers out of high school, but his professional baseball career ended as a result of two years’ service in the U.S. Army, where he served in the Korean War. On the bench, Judge Davis was known for treating all who came before him with respect. Described as “selfless, compassionate, caring, bright and kind,” Judge Davis left a legacy of service and excellence. 

RIP James Lawrence King

 An icon. 98 years old and was on the federal bench since 1970... one of the longest serving ever.

From Judge Moreno:

Judge King died this morning. He was a great trial judge particularly in his first 4 decades of service. I tried several cases , including a murder trial in the early 80s and can attest how fair he was pre trial and even at sentencing. He was a great Chief Judge, got the buildings for Miami. Appointed by Nixon in 1970 he served as an active judge until he took senior status as soon as he was eligible to help the court get a replacement in those busier days. He was no

longer taking cases because of illness but served for 55 years. May he rest in peace. FAM

I will post other comments here as well.

Judge Williams Appoints Amici in Trump v. IRS

By Jordi C. Martínez-Cid

Judge Williams sua sponte appointed three friends of the court to opine as to whether the court has subject-matter jurisdiction in the lawsuit President Trump brought against the Internal Revenue Service. The parties had asked for 90 days to explore potential settlement and Judge Williams expressed concerns regarding whether the parties are truly adverse.

Judge Williams appointed heavyweights from outside the district to opine, namley: John Gleeson and David A. O’Neil of Debevoise and Plimpton; Donald B. Verrilli, Jr. of Munger Tolles; and Faith E. Gay, Philippe Z. Selendy, and Corey Stoughton of Selendy Gay. Their memorandum is due on May 21. The order can be found here.

Well-Deserved Award Recipients (Past and Future)

By John R. Byrne

Sharing some news from the awards circuit. This past Tuesday, the American Jewish Committee presented its Learned Hand Award to attorney Bobby Gilbert. In addition to being an exceptional lawyer (and golfer), Bobby is a great person who has done so much for the Jewish community, both here in South Florida and abroad. Plus, he graduated from the best high school in the country, Miami Palmetto Senior High. Several of our state and federal judges were there to celebrate Bobby. 

Next up, on May 28, 2026, Transition will honor federal judge Raag Singhal and state judge Marisa Tinkler Mendez at its Heroes Reception. Transition does important work helping people leaving the prison system reenter our community. 

Well-deserved recipients and causes.  

Vodou Assasination Expert?!

 By John R. Byrne

The big trial involving the assassination of the Haitian president is winding down. Closing arguments could be next week. And this sounds like it's been an interesting one. Just this week, the defense attempted to call a Vodou expert. Yes, a Vodou expert. The theory was apparently that the manner in which President Moise's body was treated after being murdered (both his arms were broken and his face "was destroyed") suggested something more or different than a simple assassination for pay.  

But Judge Becerra wasn't going for it. “I find it curious that a Vodou priest would be able to take the stand and say that he is well-versed in Vodou assassinations, which appears to me to be something, on its face, impossible because it’s not something that that religion condones."

I guess we'll never find out what the hourly rate of a Vodou expert is.

The Herald recaps where things stand here. 

Increasing the Price of Admission to Federal Court

By John R. Byrne

Since 1996, for diversity cases, the price of admission to get your lawsuit into federal court has been $75,000-plus — i.e., the amount in controversy had to exceed $75,000.

It’s safe to say that a dollar doesn’t go as far today as it did back then. And, finally, it looks like Congress may do something about it. Last week, Rep. Laurel Lee introduced the Federal Diversity Jurisdiction Modernization Act. If passed, the Act will raise the amount in controversy from $75,000 to $500,000. To give you some context, $75k in 1996 is roughly equivalent to $158k today, so this is more than just an inflation adjustment.

The reason for the increase? Our federal courts are slammed. Since 1990, federal filings have increased by 30% while the number of authorized district court judgeships has grown by only 4%. Legislation creating more judgeships has stalled out because of political bickering, so this looks like an alternative path to addressing the federal caseload.

This is long overdue. But the Act needs a cooler name. How about the “Don’t Make a Federal Case Out of It” Act?

You can read the press release for the Act here. 

Roy Moore's $8.2 Million Verdict Goes Poof at the Eleventh Circuit

By John R. Byrne

Do you remember Roy Moore? He was the Republican nominee in the special election to fill the Alabama Senate seat Jeff Sessions vacated when he became Attorney General. You may also remember the wave of news coverage reporting allegations that several women had accused Moore of inappropriate sexual conduct when they were young.

Moore later sued a political action committee (Senate Majority PAC) over a political ad that quoted and juxtaposed some of those reports. A jury sided with Moore, finding the ad defamatory and awarding him $8.2 million in compensatory damages.

But Moore will not be collecting a penny. In an opinion issued Friday, the Eleventh Circuit held that the trial court should have granted judgment as a matter of law to Senate Majority PAC. The issue was not simply whether the ad could be read to imply something defamatory (the Court said it could). The problem for Moore was that, because he was a public figure, he had to prove that the PAC acted with “actual malice." The court found the evidence lacking on that front, emphasizing, among other things, that the ad quoted and cited existing news reports and that the PAC had a fact-checking process before publication.

It's just the latest case applying the NY Times v. Sullivan standard, a standard that's come under fire recently from judges in our circuit (both district and appellate). The panel in the case again acknowledged the criticism of the Sullivan standard in a footnote, writing that "unless and until the Supreme Court decides to revisit the actual malice standard, we must continue to apply it."

You can read the opinion here.

Alligator Alcatraz Injunction Vacated

By Jordi C. Martínez-Cid

As a follow-up to the last post about Alligator Alcatraz, the Eleventh Circuit has reversed and remanded the preliminary injunction issued by Judge Williams. Judges Pryor and Brasher were in the majority with Judge Abudu in dissent.

There has been a trend, even in appellate opinion writing, to use simpler, more forceful language. The disssent's conclusion fits right in: "In sum, the majority, under the guise of de novo review, disregards the district court’s well-supported factual findings in favor of its own, thereby blurring in more than just an idiosyncratic way, the important distinction between legal conclusions and factual findings. [...] Therefore, the majority’s decision to vacate the district court’s order is just plain wrong. I dissent."

The full opinion is available at this link.

Judge Eugene Spellman

By John R. Byrne

Today we're featuring the portrait of Judge Eugene Spellman. Like a few of the judges we've featured before, Judge Spellman was a "Double Gator," getting his undergraduate degree from UF in 1953 and his law degree in 1955. Appointed to the federal bench by Jimmy Carter in 1979, he served until 1991 (leaving the bench just a week before his death from cancer at the age of 60). His most historically significant public case appears to be the Haitian-refugee litigation in Louis v. Nelson / Jean v. Nelson, discussed more below.

I don't know much about Judge Spellman, but it's clear that his colleagues must have liked him because the attorney lounge in the Wilkie D. Ferguson courthouse is named after him. 

FBA write up here:

Judge Eugene Spellman was nominated to the district court by President Carter in 1979; he served on the court until 1991. In 1982, Judge Spellman held in Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla. 1982), that a policy by the Immigration and Naturalization Service, which resulted in the detention of Haitian migrants, was unlawful, resulting in the release of hundreds of migrants who had been unlawfully detained. Known for his humor and empathy, Judge Spellman was remembered as follows: “His personal and professional integrity and the intellectual rigor with which he confronted his tasks were beyond reproach.”

Update on Brennan probe

 In an update to John's post below, here is the Legion of Doom the official photo swearing Joe DiGenova in today:

 

JUST IN: Former US Atty for DC Joe diGenova sworn in as a counselor to the attorney general to pursue alleged anti-Trump conspiracy related to 2016 election. Official photo: pic.twitter.com/R7t4MmSEM5

— Josh Gerstein (@joshgerstein) April 20, 2026

Miscellaneous Monday

By John R. Byrne

Our country turns 250 years old on the Fourth of July and, to mark the occasion, Judge Bloom is hosting a National Law Day of Action on May 1 at the Wilkie D. Lawyers will symbolically re-take their oaths during the ceremony. You can RSVP here. Space is limited, so, if you're interested, you should sign up sooner rather than later. Just email Judge Bloom's chambers email, which is included in the link.

The blog proprietor would never post this Politico article himself. But if it were about any other lawyer from our district, we'd be all over it. It’s a fascinating read, with some behind-the-scenes insight into a few of the biggest cases in our district and the country.

Also, some big local news landed late afternoon on Friday. The DOJ probe into ex-CIA director James Brennan over the Trump-Russia investigation is now being helmed by Joseph diGenova. DiGenova is a former Trump attorney and is replacing SDFLA prosecutor Maria Medetis Long. Article here. 

And, in non-legal news, if you've grown up in Miami, there's a good chance you've stepped onto one of those oversized scales in Publix. It's a tradition that sadly may be going away. The company that makes the scales stopped manufacturing them in 2015, and new Publixes are opening without them. Herald covers that here. 

Friday News and Notes

By Jordi C. Martínez-Cid

• The Miami Herald is covering Sean Combs' continued legal fight with the headline: "Diddy’s ‘freak-offs’ were his right as an American, lawyers argue." Not quite as catchy as "Freak-O does not equal RICO" but evocative nonetheless.
• Since the shuttering of Godwhacker’s South Florida Lawyers Blog, there are less posts about cruise line cases. On Monday, however, a jury rendered verdict of $300,000 against Carnival Corporation, a number reportedly above what plaintiff was asking. According to the plaintiff, Carnival served a California nurse 14 tequila shots over an approximately 8.5-hour period. She later suffered a fall and resulting injuries. She was found 40% negligent to Carnival’s 60%. The case is D.S. v. Carnival Corp., no. 1:24-cv-244258-KMW. Carnival intends to appeal.
• Judge Altman was a guest on The Remnant with Jonah Goldberg to discuss his new book: "Israel on Trial: Examining the History, the Evidence, and the Law." I won't spoil it, but the podcast is available online or through Apple podcasts.

Judge Milton Hirsch shows how it's done

 I can't do this Order justice in a short blog post.  I recommend reading the whole thing here.  A quick summary on this incredible opinion:

The Hialeah Police Department ran a reverse sting. They didn't pose as buyers. They posed as sellers, used a paid informant to lure in would-be buyers, then seized the buyers' cash, kept 75 percent for the department, and paid the informant a 25 percent commission. Judge Hirsch's questioning exposed that the undercover detective handed out free cocaine to close deals. Over seven years, once or twice a month. By the judge's own math at the hearing, that's a quarter kilo of cocaine put onto the streets. "You don't know if it ended up in the hands of children?" the judge asked. "Correct," the detective said. The informant, meanwhile, had a rap sheet that included a decade in federal prison for cocaine trafficking, a conviction for conspiracy to export stolen cars to Colombia, and a stint as a fugitive. The detective who supervised him had never run a background check. "Not in depth," he testified. "Not at all," counsel pressed. "No, ma'am. No, ma'am."

Judge Hirsch found two independent due process violations. First, the police committed crimes to make their case. The legislature exempts law enforcement from drug laws for "bona fide law enforcement purposes," but no statute authorizes handing out free cocaine at an IHOP. No police chief, no governor, no president can authorize that. "If the constitutional promise of due process of law does not protect against such governmental outlawry," he wrote, "it is difficult to imagine what it protects against." Second, the informant was paid a 25 percent bounty on every dollar seized. The Florida Supreme Court struck down a 10 percent bounty arrangement in Glosson as a due process violation. This was two and a half times worse. On top of that, two jurors told the court they would hold it against Elysse if he didn't testify. His lawyers left them on the jury anyway. He didn't testify. They convicted him.

The conclusion is worth reading in full. Judge Hirsch opens with Thomas Erskine, one of the giants of the English bar: "Unjust prosecutions lead to the ruin of all governments. Whoever will look back to the history of the world in general, and of our own particular country, will be convinced that exactly as prosecutions have been cruel and oppressive, and maintained by inadequate and unrighteous evidence, in the same proportion, and by the same means, their authors have been destroyed instead of being supported by them." Then comes the line that will be quoted for years: "Jason Elysse may be a villain, but he is a villain possessed of due process rights." He invokes Hamlet — the State, like King Claudius, is "still possessed of those effects for which it violated the law in this case: the conviction and imprisonment of Jason Elysse. 'That cannot be.'" He closes with Justice Kogan's dissent in a Florida Supreme Court case: "Drugs injure some of us. The loss of liberty injures all." Motion granted.

Here's some of Judge Hirsch's questioning of the police officer (you really missed out if you didn't see Judge Hirsch in action as a lawyer):

BY THE COURT:

Now, you are in narcotics, you said, for seven years?

A:

Correct.

BY THE COURT:

Do I understand you – you tell me. During that seven-year period, you regularly – with some regularity engaged in reverse stings, is that correct?

A:

Correct.

BY THE COURT:

Throughout the seven-year period?

A:

Correct.

BY THE COURT:

And in connection with each of them, you were – as part of playing your role of a drug dealer, you – you gave sample cocaine away.

A:

Yes, I did, sir.

BY THE COURT:

Over the seven-year period, if we said once to twice a month, on average, is that a fair ballpark average?

A:

Yeah.

BY THE COURT:

You tell me.

A:

Yes, sir.

BY THE COURT:

Okay. So if we give out one to two grams of coke one to two times a month, say, eighteen grams – eighteen times would times one to two grams, so between a hundred and twenty-six and two hundred and fifty-two grams over a seven-year period. Would that be correct?

 

BY THE COURT:

So if we say two – a hundred and twenty-six to two hundred and fifty-two – two hundred and fifty would be a quarter of a kilo, correct?

A:

Yes.

BY THE COURT:

So in the seven years you were there, you – you may have given out a quarter of a kilo in cocaine?

A:

Fair – fair to say.

BY THE COURT:

Once you gave it away, there was no way to know what happened to it?

A:

Correct.

BY THE COURT:

You don’t know if the person you gave it to used it?

A:

Correct.

BY THE COURT:

You don’t know if he sold it?

A:

Correct.

BY THE COURT:

You don’t know if he gave it away?

A:

Correct.

BY THE COURT:

You don’t know if it ended up in the hands of children?

A:

Correct.

BY THE COURT:

You made no effort to find out?

A:

Correct.

BY THE COURT:

There was no way to find out?

A:

No, no way.

BY THE COURT:

It was just a risk you took as part of doing this business?

A:

Yes, sir.