Political TVPA Trial Before Judge Ruiz

By Jordi C. Martínez-Cid

Since September 8, a jury before Judge Rodolfo A. Ruiz II has been hearing evidence about what happened inside Bogotá’s Palace of Justice on November 6 and 7, 1985.

If you are like me and had not heard about this until now, in 1985, several dozen members of the M-19 guerrilla movement seized the Palace of Justice. They took hundreds of hostages, including nearly the entire Supreme Court. Then-Colombian President Belisario Betancur refused to negotiate with the guerilla. The military retook the building by force over the next twenty-eight hours, using tanks and heavy weapons. More than one hundred people died, including eleven of the court’s justices. Eleven more people who survived the initial assault, hostages and cafeteria staff supposedly among them, disappeared and were never seen again.

The case is Urán, et al. v. Plazas Vega, No. 0:22-cv-60338-RAR. The three plaintiffs are the daughters of Magistrate Carlos Horacio Urán Rojas, who died during or sometime after the retaking of the palace. The defendant is retired Colonel Luis Alfonso Plazas Vega, who commanded the Cavalry School unit involved in that operation and who has lived in Weston since roughly 2015. The lawsuit was brought under the Torture Victim Protection Act of 1991.

According to reports, Magistrate Urán’s family spent decades believing he died in the crossfire. That supposedly changed in 2007, when evidence surfaced suggesting that he walked (or was assisted) out of the palace alive, in military custody, before he was killed. The plaintiffs’ theory, as laid out in opening statements by Trina Higgins of Wilson Sonsini, is that Magistrate Urán was mistaken for a guerrilla because he had injured his leg, as had a number of the M-19 fighters. He was taken to a triage building called Casa del Florero, was possibly tortured, and was then executed.

Col. Plazas was convicted in Colombia in 2010 for his role in forced disappearances and sentenced to thirty years before Colombia’s Supreme Court reversed that conviction in December 2015 for insufficient evidence of his direct responsibility. The TVPA suit essentially seeks to hold Col. Plazas legally responsible for Magistrate Urán’s death under a preponderance of the evidence standard.

There is a political subplot to the trial too. Colombia’s new president, Abelardo de la Espriella, took office just over two months ago. Days before trial, he called for public support of Col. Plazas, calling him “a hero of the Nation” and describing the lawsuit as a kind of “strategic litigation.” President de la Espriella said it is the State's duty to back its soldiers.

Apart from being noteworthy, it is a fitting blog post for today because of Col. Plazas’s opening statement. His defense counsel, Valerie Hassan, ended the opening by comparing the lasting impact of the assault on the Palace of Justice on Colombia to the impact of September 11 on the United States, functionally arguing that the jury should not allow the magnitude of the tragedy to act as a substitute for actual proof that Col. Plazas is personally responsible. She highlighted the lack of certainty regarding what happened to Magistrate Urán, the presence of multiple military units, and how overall command belonged to General Jesús Armando Arias Cabrales, not Col. Plazas.

Trial is expected to run through September 18, and possibly longer. If you want play-by-play coverage in both English in Spanish, you will not be able to find better than the Miami Law Human Rights Program’s Substack. Their coverage is worth reading and can be found here. They even have wonderful courtoom sketches like the one below.

Credit to the artist, Ignacio Hernández (everyone is getting their accent marks today), FIU College of Communication, Architecture and The Arts

“If you want indictments where there’s no evidence, you have an ethical problem.”

 By David Oscar Markus

That was Joe diGenova today after resigning from being special prosecutor in SDFLA to look into the "grand conspiracy."

What a mess.

From the NY Post:

Counselor to the Attorney General Joe diGenova abruptly resigned Thursday from a sprawling probe into former officials in the Obama administration, The Post has learned.

“I did resign today by letter to the attorney general. I said that it was a privilege and an honor to serve the president and the department, and I was very grateful,” diGenova told The Post by phone on Thursday night.

DiGenova was investigating Obama-era figures who allegedly pushed claims of collusion between Donald Trump and Russia during the 2016 presidential campaign,

Sources said diGenova had lost support from Department of Justice leaders and the White House amid his “grand conspiracy” investigation, with one source suggesting that the 81-year-old prosecutor and former Trump defense lawyer was “slow-rolling” indictments and getting lost down “rabbit holes.”

Asked whether he had lost focus, diGenova dismissed the accusation and shot back: “If you want indictments where there’s no evidence, you have an ethical problem.”

Another source added that the diGenova had been sharing “unrealistic expectations” for the probe with the president about what was possible and not possible, leading to a confrontation with Attorney General Todd Blanche.

Remember that he started with lots of fanfare and pictures, after the last prosecutor -- Maria Medetis Long -- said the same thing...

UPDATE -- Of course all of this is going to lead to fighting at DOJ.  From CNN, which has interviews with a number of inside sources:

Justice Department officials always intended Quiñones, as the top Senate-confirmed prosecutor in the district, to continue to oversee the probe, the people familiar said. The appointment of diGenova was a clear sign that Justice Department leadership didn’t have confidence that Quiñones could deliver, one of them added.

In a recent clash with top Justice officials, Quiñones sought to disavow any responsibility for what has gone wrong with the investigation, one person familiar with the investigation told CNN. Quiñones was told to stop traveling to Washington and elsewhere and to focus on his job in Miami, a person familiar with the investigation said.

A spokesperson for Quiñones didn’t immediately respond to a request for comment.     

Magistrate Judge Louis Denies Bond to Tate Brothers

 By John R. Byrne

We've posted before about the extradition proceedings involving the Tate brothers. These are the two social media personalities who are facing extradition to the UK on allegations that they choked and raped women. Judge Louis denied their request for bond. And when you have material like this to work with, the order writes itself:

"In the audio recording described above, Emory Tate exhorted that one must amass multiple passports, explaining that it is no longer

possible to live 'off the grid' but rather, that one should seek to live on as many grids as possible; he very specifically describes how he has passed himself off to various law enforcement agencies using identification documents issued by different countries as a method of evading law enforcement."

Defense counsel came up with some creative arguments. Among them? The Court shouldn't believe much of what the Tates say publicly because their online personas are built on hyperbole, exaggeration, and performance. Still, when a main pitch to the Court is that it should disbelieve your clients' statements, the boomerang risk is real. You can read the whole order here.

Foundations of the Federal Bench: A Journey of Hispanic Legal Excellence

By Jordi C. Martinez-Cid

I hope everyone enjoyed their Labor Day. The title of the post comes from an upcoming webinar event which features two of our district’s judges. Seems like a good event, requires little effort (given that it is through Zoom), and you get an hour of CLE credit. Flyer below and registration link here.

Also, in order to preserve my spot on the committee, do not let this event deter you from joining the district’s Hispanic Heritage Program on September 23, at 4 p.m. at the Wilkie D. Ferguson, Jr. Courthouse. You can RSVP for that event by emailing FLSD_Program@flsd.uscourts.gov.

Lindsay Clancy should not be tried twice

By David Oscar Markus

Eleven jurors voted to acquit Lindsay Clancy, while one juror held out against acquittal.  After almost two months of trial, more than 80 witnesses, and seven days of deliberations, Judge William Sullivan declared a mistrial on Friday. Plymouth County District Attorney Timothy Cruz said he will decide later whether to try her again.

He should not. And the law should not let him.

Most people wrongly assume the Constitution already takes care of this. The Double Jeopardy Clause says no person shall "be twice put in jeopardy of life or limb" for the same offense. That seems pretty straightforward – the government should get one shot at a conviction.  But the Supreme Court has said otherwise.

It started back in 1824 with United States v. Perez. Josef Perez was tried for piracy, a capital offense. The jury hung.  The Supreme Court explained that the defendant could be tried again where there was “manifest necessity” for the mistrial. Then in 1984, the Court decided Richardson v. United States, in which a jury acquitted the defendant on one narcotics count and hung on the two others. He argued that because the government had already had its chance at a trial to convict him, it should not be able to have a second bite at the apple. Justice Rehnquist disagreed. The failure of a jury to reach a verdict, he wrote, "is not an event which terminates jeopardy."  Justice Brennan was right in his dissent where he said that the defendant was being subjected to a second trial, which the Constitution did not permit.

The Court took up a similar issue about 15 years ago in Blueford v. Arkansas. Before deliberations ended, the foreperson told the judge the jury was unanimous against guilt on capital murder and on first-degree murder, deadlocked on manslaughter, and had not yet voted on negligent homicide. The jury kept deliberating, got nowhere, and the judge declared a mistrial. Chief Justice Roberts wrote that the foreperson's report "was not a final resolution of anything." So Arkansas could retry Blueford on everything, including the two charges all twelve jurors had rejected out loud in open court. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

The Supreme Court has cleared a path for Clancy to be tried again. But prosecutors should not do so and the Supreme Court should take another look at this issue.

The prosecution had a chance to put on its best case. Twelve people listened to all of it. Eleven of them had reasonable doubt. Judge Sullivan told the jurors on Thursday that a strong probability of guilt is not enough. By any honest measure, the prosecution failed to carry its burden.  If the government cannot prove its case at a trial, that should be the end of the matter.

Think about what a retrial means for Clancy. She goes back to the state hospital and waits. It could be a long time. Another seven weeks of testimony about the deaths of her children. Another set of experts. Another bill. Another enormous imposition on jurors, court staff, the judge. 

Plus, it’s not fair.  The prosecution gets a preview of the defense theory, its cross-examinations, its opening and summation. One of the only advantages the defense has in a criminal trial is the element of surprise.  All of that is gone in a retrial, which is why prosecutors typically do not lose twice in a row.

Of course, Massachusetts did just that recently. Karen Read's first jury hung in July 2024. The Norfolk County District Attorney tried her again. In June 2025, the second jury acquitted her of second-degree murder and leaving the scene, and convicted her only of operating under the influence. She got a year of probation. It took two trials and years of her life to get there, in addition to the huge expense to taxpayers.

The Supreme Court explained in Green v. United States, that the State, "with all its resources and power," should not be allowed to make repeated attempts to convict a defendant where he was acquitted because it subjects a defendant to "embarrassment, expense and ordeal" and compelled “him to live in a continuing state of anxiety and insecurity.” So too with a retrial after a hung jury.  Those costs do not disappear because the first jury deadlocked.

The Supreme Court should revisit this issue. "Twice put in jeopardy" means what it says. Jeopardy attaches when the jury is sworn. If the government cannot persuade that jury, the case should be over.

If the Court will not act, Congress or the States should. Nothing in the Constitution stops Massachusetts from barring retrials after a hung jury.

Cruz can make all of this moot. He can announce that he will not retry Lindsay Clancy. Eleven jurors already told him what they think of his case. The prosecution had the burden to prove Clancy guilty beyond a reasonable doubt and it failed to do so.  That should be it.

Investiture of Magistrate Judge Yeney Hernandez

By Jordi C. Martínez-Cid

Yesterday was the investiture of The Honorable United States Magistrate Judge Yeney Hernandez. Two things stood out. First, Judge Hernandez's story is remarkable. Second, I think everyone who attended left with a very clear picture of Judge Hernandez's character.

Judge Hernandez was born in Batabanó, Cuba, and came to the United States with her parents at a very early age. Raised in Hialeah, she completed her undergraduate education at Duke Univeristy and got her juris doctor from Yale Law School. From there, a clerkship on the Sixth Circuit Court of Appeals, several years at Skadden Arps in D.C., and, from 2017 until her recent elevation, a position as an Assistant United States Attorney in this district. The judge and others relayed the sacrifices her parents made, how hard they worked, and how they encouraged and inspired confidence in the then-future judge. From humble beginnings, to lofty heights. It is inspiring to see a true American dream come true.

All the speakers, including the judge and her husband, AUSA Jason Wu, were great. Full disclosure, Judge Hernandez, her husband, and I, were all in the same class in law school. Also, I was a speaker, but the least of them. All of the speakers hit on the same themes, which is indicative of the judge's quality. Judge Hernandez is a person of integrity, remarkably smart, hardworking, humble, and dedicated to public service. The examples and stories are too many to recount here and my retelling would cheapen the speeches of the aforementioned and Wifredo A. Ferrer, Alejandra López, The Honorable Deborah L. Cook, and the judge's mother, Lismeli Alfonso.

I wish my classmate all the the luck in the world.

Judicial Grace

By John R. Byrne

I clerked for Judge Jeffrey R. Howard, who is now a senior judge on the U.S. Court of Appeals for the First Circuit. He was (and is) a great person and a true gentleman. 

When I started my clerkship, he shared his philosophy when it came to drafting opinions. He never wanted to see drafts that were overly dismissive or critical of the parties making the arguments or the trial judge who made the rulings below. He preferred phrases like, "We disagree" over ones like "The trial court erred" or Party A or B "is wrong." His thinking was that the practice of law is hard enough and taking a shot at a lawyer or another judge, particularly with the benefit of hindsight, isn't productive or gracious.

Just recently, I read a concurrence from one of our own judges, Judge Singhal, that felt like something Judge Howard would have written. 

The case was Georgia Atlas, Inc., et al v. Executive Director of the Georgia Access to Medical Cannabis Commission, et al. Judge Singhal was sitting by designation on a panel that vacated the trial judge's dismissal of a complaint for lack of standing. Judge Singhal wrote separately and said the following:

"On the arguments presented below, the distinction between being heard and obtaining relief was less developed. Our review of jurisdiction, however, is independent, and the arguments before us constitute a fuller presentation of the issues. While I cannot fault the district court on the ruling it reached on what it was given, I must conclude the district court was mistaken. Accordingly, I concur."

I think sometimes judges can lose sight of the stinging effect a negatively worded order or opinion can have on a lawyer (who may have to share that order with an important client) or even a judge (yes, even judges with life tenure). 

Judge Singhal also included the following joke in his concurrence, which I'm sure district judges enjoy telling at the Eleventh Circuit Judicial Conference:

A Supreme Court justice, a circuit judge and a district judge go duck hunting. A duck flies overhead and the Supreme Court justice, before she picks up her shotgun, ponders the policy implications of shooting the duck. How will the environment be affected if she shoots the duck? How will the duck-hunting business be affected if she doesn’t shoot the duck? By the time she finishes, the duck has flown away.

Another duck flies overhead, and the circuit judge goes through a five-part test before pulling the trigger: He lifts the shotgun to his shoulder, he sights the duck, he measures the velocity of the duck’s flight, he aims, and he shoots. And he misses.

Finally, another duck flies by, and the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and tells the other two judges to explain what he did over dinner.

You can read the opinion here. 

Eleventh Circuit Saves False Claims Act

By John R. Byrne

The False Claims Act is one of the federal government’s tools for fighting fraud against the government. Among other things, it allows private individual who are called “relators" to bring qui tam lawsuits in the government’s name. If the suit succeeds, the relator can receive up to 30% of the recovery. Most of time, these people are insiders who are blowing the whistle on something they've seen.

About two years ago, you may have read or heard that a federal judge had declared the False Claims Act was unconstitutional. That judge was Judge Mizelle out of the Middle District of Florida, and she held that the False Claims Act violated the Constitution's Appointments Clause. Judge Mizelle reasoned that, because relators exercise "significant authority pursuant to the laws of the United States" and "occupy a continuing position established by law" they were "officers of the United States" and needed to be "presidentially appointed." Because the False Claims Act didn't require relators to be so appointed, it was, she said, unconstitutional.

The Court's ruling created quite the stir. And no doubt people pondered the logistics and practicalities of having the President of the United States formally appointing whistleblowers to file qui tam actions in one-off case after one-off case.

Well, ponder no longer. The Eleventh Circuit (a panel comprised of Judge Branch, Judge Luck, and Judge Moreno sitting by designation) vacated the court's order dismissing the case and held that the qui tam provisions of the False Claims Act don't violate the Appointments Clause. 

Writing for the panel, Judge Branch concluded that a relator is not a federal “officer” because a relator does not occupy a continuing position established by law. A relator’s job is tied to a particular case, carries no continuing salary, and cannot simply be handed off to a replacement. There is, the Court put it rather pointedly, “no ‘office of relator.’”

That doesn’t quite end the constitutional fight. Judge Mizelle never reached the defendants’ separate arguments under the Take Care Clause and Vesting Clause, so the Eleventh Circuit sent the case back for her to consider those arguments.

In case you're going on Jeopardy soon, the Latin phrase "qui tam" comes from the longer Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which translates to "Who sues on behalf of the King as well as for himself." 

Scribbed is not allowing uploads right now but you can find the opinion here.