RIP Judge Peter T. Fay

Judge Fay had just turned 92.  He was beloved in the SDFLA and the 11th Circuit. He was appointed to our District in 1970 by President Nixon and to the 11th Circuit by President Ford.  Interestingly, Jeb Bush pushed his father to appoint Fay to the Supreme Court.

St. Thomas recently renamed its law school the Peter Fay School of Law.

A former clerk emailed me that he was the first person to master barefoot water skiing.  In fact, he was inducted into the Rollins sports Hall of Fame for water skiing, basketball, and football.

He was known for his civility and wonderful demeanor.  He will be missed.  

Please feel free to use the comments to tell stories and remember Judge Fay.

UPDATE WITH COMMENTS:

Here's Judge Federico Moreno:

Pete Fay’s five decades as a magnificent judge is well known. But his humility, faith and generosity with his time is his legacy. He was a true American hero, who never forgot what it was like to be a trial lawyer. FAM

 

Ursula Ungaro taking senior status

 Big news out of our district today. Judge Ungaro, who has served on the federal bench for 28 years (and before that as a state judge for 5 years), gave notice to President Biden today that she is taking senior status, effective in May.  Judge Ungaro turns 70 this week. She will still continue to take and hear cases.

When I started as an assistant federal public defender back in 1999, I was assigned to Judge Ungaro's courtroom (back in the Tower building) and tried many cases before her.  She always cut through all of the nonsense and taught me (and the other lawyers in front of her) to focus on what mattered.  She is extremely smart and has always been a force on the bench.  Her independence is her legacy, along with the graciousness of her chambers staff, Kathryn and Bill.

It will be interesting to see the process for filling her seat, which now makes two openings here (the other is Judge Moreno's).  I'm hearing lots of names including Melissa Damian Visconti, Michael Sherwin, Michael Caruso, David Leibowitz, Jackie Becerra, and others.  

In any event, congrats to Judge Ungaro and thank you for the many years of service to the community!

FOR THE DEFENSE SEASON 2 LAUNCH, ALAN DERSHOWITZ FOR O.J. SIMPSON

 

FOR THE DEFENSE SEASON 2 LAUNCH
ALAN DERSHOWITZ FOR O.J. SIMPSON

We're back! Season 2 of For the Defense launches today with Alan Dershowitz, who will be discussing the O.J. Simpson trial.  Here's a clip of Dersh answering whether the prosecution lost the trial or whether the defense won it.  Season 2 will continue with new episodes each Tuesday featuring the following guests:  

• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds.
• Rob Cary (Sen. Stevens): You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct.
• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.
• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

Our new Season 2 episode with Alan Dershowitz (as well as the entire Season 1) is currently available on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (we have applied for Season 2). 

Please send me your feedback -- and of course, subscribe, like and comment! If you would like to receive these updates, please sign up here. 

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

CONTACT: info@rakontur.com, dmarkus@markuslaw.com

How about a Libertarian AG?

I always enjoy reading Clark Neily's posts at CATO.  Here's an interesting one about what a Libertarian AG could accomplish under a Biden Administration: 

Inauguration Week seems like an opportune time to think how much more just the Department of Justice could be if President Biden took the bold step of putting a libertarian in charge of it. As I've written before, our criminal justice system is fundamentally rotten — it punishes vast amounts of morally blameless conduct, uses coercion-fueled mass adjudication to perpetuate mass incarceration, and insists upon a policy of near-zero accountability for its own transgressions. Indeed, it is doubtful whether any American institution inflicts more injustice than our so-called criminal "justice" system.
One might argue that because the vast majority of criminal enforcement occurs at the state level there's not much point in focusing on the federal system. I disagree. The U.S. Department of Justice looms large over the entire criminal-justice landscape by establishing norms, setting examples, providing oversight, and offering — or withholding — financial incentives to other agencies and jurisdictions. For better or worse, DOJ represents a kind of industry gold standard for criminal justice. And that's disturbing because, as discussed below, many of DOJ's standard practices are astonishingly unjust.
DOJ is a sprawling, $30 billion-a-year agency that wears many hats. Accordingly, it would be impossible to provide a comprehensive list of proposed reforms in a single blog post. But one of the most consequential things DOJ does — and an area in particular need of fundamental reform — is the enforcement of federal criminal laws. On that front, a libertarian attorney general would be well-advised to address three specific issues: accountability, prosecutorial tactics, and institutional culture.
1. Accountability. The lack of accountability among federal prosecutors is simply astonishing. Perhaps the most stark — but by no means isolated — illustration is the Ted Stevens case, in which prosecutors systematically cheated their way through the prosecution of a sitting U.S. senator, got caught, and were subjected to no meaningful discipline of any kind....
2. Prosecutorial tactics. Many of the tactics used by DOJ prosecutors — especially to induce people to waive their constitutional right to a jury trial and plead guilty, which more than 90 percent of federal defendants end up doing—are simply shocking....
3. Institutional culture. A major part of the problem is that people who work within the criminal justice system come to accept as perfectly normal and unobjectionable the kinds of policies and tactics described above, such as letting misbehaving prosecutors off with a slap on the wrist (if that) and applying such extraordinary pressure on defendants to plead guilty that almost no one chooses to exercise their constitutionally guaranteed right to a trial anymore....
The bad news is that our criminal justice system is fundamentally broken and unjust. The good news is that criminal justice reform represents a vast orchard of low-hanging fruit—policies that could be adopted overnight and would ameliorate some of the system's worst pathologies and realign many of its most perverse incentives.
Maybe putting someone whose core value is liberty in charge of an agency whose core mission is depriving people of it isn't such a crazy idea after all.

Former federal prosecutors from Miami upset about Trump commutations in white collar cases...

 ...but the truth is that there should have been so many more.  The sentences for first time, non-violent offenders are out of control.  Yet, these former Miami prosecutors (Pelletier, Ferrer, and Stefan were all mentioned in this N.Y. Times article) seem to be upset about any commutation, even for Judith Negron who was sentenced to 35 years. 35 years! An absurd and insane sentence.

Not far away, in Hialeah, Fla., Judith Negron, 49, who had been convicted in a separate scheme to siphon off hundreds of millions of dollars in fraudulent Medicare payments, was also at home for the holidays instead of in federal prison. Thanks to a commutation by Mr. Trump, she had been released after serving eight years of a 35-year sentence and was relieved of any remaining obligation to pay her share of $87 million in court-ordered restitution.

This was hardly the outcome that Paul E. Pelletier expected when he and a team of other top Justice Department prosecutors and federal investigators set out to expose what Mr. Esformes and Ms. Negron had done.

***

In explaining his decisions, Mr. Trump said that Ms. Negron was a “wife and mother” and had dedicated her time in prison to “improving her life and the lives of her fellow inmates.” Mr. Esformes, he said, spent his time in prison “devoted to prayer and repentance and is in declining health,” and others had raised claims of misconduct by prosecutors in his case.

The presidential rationales did not hold much weight with those who had sought to hold Mr. Esformes and Ms. Negron accountable.

“It is an incredible kick in the teeth to the agents and prosecutors who toil away every day under very difficult circumstances to achieve justice and some restitution to the taxpayers from the billions of dollars that has literally been stolen from them,” Mr. Pelletier said.

We need criminal justice reform so that these abusive sentences and abusive practices don't need to get to the point of requiring Presidential action.  

Ms. Negron, and lawyers for Dr. Melgen and Mr. Esformes, 52, argue that the commutations were justified. They said the Justice Department was overzealous in its prosecutions, either by using unethical practices during the investigation or by pushing for excessively long prison sentences and unrealistic restitution orders.

“I was sentenced based on numbers that were not relevant to me,” Ms. Negron said this month in an interview, referring to her 35-year sentence and multimillion-dollar restitution requirement. She argued that her earnings from the scheme were not more than her salary of about $250,000 a year. Prosecutors said during the trial that much of the stolen money was still missing.

The truth is that there should have been 10x the amount of commutations/pardons.   Anyone with the temerity to insist on his Sixth Amendment right to trial is made an example of by the system.

Instead of being upset with the few that were granted, we should all be pushing for more under a Biden presidency.

Significant pardons/commutations in SDFLA include Melgan and Lil Wayne

 Here's the link to the full list:

Salomon Melgen – President Trump commuted the sentence of Salomon Melgen. This commutation is supported by Senator Bob Menendez, Representative Mario Diaz-Balart, numerous members of Brigade 2506, Col. Mark D. Holten, as well as his friends, family, and former employees. Dr. Melgen was convicted of healthcare fraud and false statements. Numerous patients and friends testify to his generosity in treating all patients, especially those unable to pay or unable to afford healthcare insurance.

 

Dwayne Michael Carter Jr. – President Trump granted a full pardon to Dwayne Michael Carter Jr., also known as “Lil Wayne.” Mr. Carter pled guilty to possession of a firearm and ammunition by a convicted felon, owing to a conviction over 10 years ago. Brett Berish of Sovereign Brands, who supports a pardon for Mr. Carter, describes him as “trustworthy, kind-hearted and generous.” Mr. Carter has exhibited this generosity through commitment to a variety of charities, including donations to research hospitals and a host of foodbanks. Deion Sanders, who also wrote in support of this pardon, calls Mr. Wayne “a provider for his family, a friend to many, a man of faith, a natural giver to the less fortunate, a waymaker, [and] a game changer.”

When should we resume federal jury trials?

There's a pretty big internal debate going on with the SDFLA judges about whether to restart jury trials in April (as currently scheduled) or whether to postpone them again, either until the summer or fall.  

With virus numbers at all-time highs and with the new variant, it doesn't seem likely that we will be ready to restart jury trials in April.  For in-custody defendants, that would mean transportation of the defendant to and from FDC, use of the marshals, interpreters, court security officers, staff, prosecutors, defense lawyers, family members, jurors, and so on.  In other words, lots of risk...

Other districts that have tried to conduct trials have failed to keep the participants safe, pretty miserably.  For example, in in November, the EDTX tried to conduct a civil trial.  At least 13 people came down with COVID:

David O’Toole, clerk for the Eastern District of Texas, told Law360 on Tuesday that the number of trial participants who tested positive for coronavirus had increased from at least seven on Friday to 13 confirmed positives Tuesday. The positive cases include two jurors, at least three members of the defense team, a “handful of folks” on the plaintiff’s team, and three or four court staffers.

The outbreak occurred after testimony in the trial had begun:

Jury selection was held on Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Nov. 9, according to court records.

After lunch on Nov. 9, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.

The judge then suspended the trial and asked participants to get tested and provide the court with results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.

That case didn't have the added problem of in-custody defendants who are at much higher risk for contracting and spreading the virus.  

If we restart in April, would everyone be wearing masks?  Is that fair to the defendant? Or the prosecution?  How could jurors evaluate a witness wearing a mask?  How could lawyers communicate effectively with jurors if they were wearing masks?  Wouldn't the jurors be concerned the entire time about getting sick?  Would you be able to get a fair cross-section of jurors if many of them would be seeking to be excused (justifiably)?

On that last question, here's an article from the Texas Tribune that explains some of the issues:

For example, disproportionately white juries were already a problem before the pandemic. With the coronavirus disproportionally harming Black and Hispanic communities, many defense attorneys fear fewer people of color will show up to a jury summons, as at least one Texas study has already predicted. And masked jurors and attorneys shield one another not only from germs but also from facial expressions, often crucial in trials.
Even more concerning, attorneys say, is that fewer people are showing up. The state report on trials through September said most courts saw about a 5% to 10% drop in people reporting for jury duty during the pandemic. A June survey by the Tillotson Law Firm of 650 potential jurors in Dallas and Houston showed a majority said they wouldn’t go to court if summoned without being ensured of adequate safety precautions. The number was higher for Black and Hispanic respondents.
“We know that African Americans, Latinos and other people of color have been disproportionately affected by COVID-19,” Scheiner said. “If they don’t show up for jury service in as great a percentage as they have in previous years, it may be impossible for minority defendants to have anything close to a jury of their peers.”

It's hard enough to get a fair jury during normal times.  But during a pandemic...   Here's an AP article explaining that people, understandably, just aren't showing up for jury duty.

There's also the problem of how to prepare for trial with an in-custody defendant.  It's difficult (and dangerous) to get into the jail right now to see clients. In fact, FDC is closed again this week to all visits.  

I've spoken to a lot of criminal defense lawyers on this subject and the vast majority have said that we should not be trying cases in April, unless -- and this is the big caveat -- the defendant insists on a speedy trial.  In that case, of course, the Constitution trumps and we'd have to figure out a way to conduct a trial. 

It will be interesting to see how our Court, with extremely thoughtful judges on both sides of the debate, addresses this important issue.

Michael Sherwin, Acting U.S. Attorney in DC, representing!

 Former SDFLA AUSA (and current acting U.S. Attorney in DC) Michael Sherwin is doing a wonderful job in DC with all of the craziness:

BREAKING: DOJ says "we're looking at significant felony cases tied to sedition and conspiracy," charges that have prison terms of up to 20 years.

“You will be charged and you will be found," acting US attorney in DC Michael Sherwin says. pic.twitter.com/sFe4BmkBDN

— MSNBC (@MSNBC) January 12, 2021