Shame on you prosecutors. Shame.

 Prosecutors were very bad in a recent trial before Judge Cooke. So bad, the 11th Circuit called them out:

More broadly, however, I feel compelled to address the  prosecution’s conduct and the tactics it employed throughout the trial. The prosecution fell short of the high level of professionalism that we expect prosecutors to embody, even if their actions did not rise to the level of misconduct. An unfortunate but notable feature of this trial was that the district court exerted considerable time and energy corralling the prosecution’s often wayward tactics. Starting in voir dire and continuing through the testimony of multiple witnesses, the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them, eliciting remarks from the court including:

• “Counsel, you know that’s improper.”
• “[W]hy would you go there?”
• “We went over this. . . . I may be wrong, but I ruled. Let’s go.”
• “We’ve had this conversation through other witnesses. Counsel, move on.”
• “We did this yesterday. I’m not revisiting. Anybody [who] wants to go back to the transcript, can.”
• “I don’t know . . . how many other languages to speak to you. . . . I said how to proceed. Proceed that way.”
• “What you have to do is to remember we have had some rules in this trial and somehow they seem to have been forgotten.”

The court’s admonitions, it seems, had little effect. After a particularly volatile exchange between a prosecutor and defense witness Miller, in which the prosecutor admitted that he lost his composure, the district court warned that he was “close” to causing a mistrial. Afterward, outside the presence of the jury, she admonished the prosecutor, telling him: “You’re better than having to go to the lowest part of your anger in order to examine this witness. . . . [Y]ou’re an experienced cross-examiner. You didn’t have to do
that. I would have expected that of someone of less experience than you.” The district court lamented that things “got very messy and uncontrolled.”

But apparently not bad enough to get a new trial or reversal. Instead of any actual consequences, the court says, in a concurrence by all three judges, that the prosecutors shouldn't do this again.  

Ha!  

Nothing is going to change regarding the epidemic of prosecutorial misconduct until there are some consequences.  I mean, the prosecutors in this case aren't even named in the opinion.  Defendants receive obstruction enhancements for less.  Walks of shame are not enough...

11th Circuit changes font and format of its opinions

 You thought we only covered the bickering amongst our district judges?  No, dear readers! We also break the important news in the 11th Circuit, including that the court finally updated its font and format.  It used to look like this:

And here's the new one:

Breaking -- Ryon McCabe is your new Magistrate Judge

 

It looks like the judges worked through their deadlock... by turning to the AO's published guidance which permits for a revote and if that doesn't result in a majority, then the Chief Judge gets to choose.  It's unclear whether the revote broke up the logjam or whether the Judge Altonaga had to make the selection, but either way, it's over.

Congratulations to Ryon McCabe, a really good guy.  We had cases against each other when we were both new lawyers (he was an AUSA and I was an AFPD).  He was also honorable and is a smart guy.  He's been in private practice for some time now and McCabe Rabin.  The FBI will do its background check, which usually takes a few months, and then he will sit in West Palm Beach.

RIP Shirley Henderson

 She covered all of the big trials in Miami back in the day.  The Miami Herald has the obit here.

She once said the cast of characters she captured in her renderings — the cops, terrorists, judges, lawyers, drug smugglers, exiles and everyday folk — was just so Miami. “This is about our mix — this is the socio-political and economical history of Miami.” Henderson’s bold pastel strokes have also been exhibited at HistoryMiami Museum in a popular exhibit in 2010, and are on permanent display at the University of Miami School of Law, the Museum of Art of Fort Lauderdale, the Polk Museum of Art in Lakeland and nationally at museums in Michigan and Ohio.

Her courtroom work even hangs on the walls of South Beach’s Joe’s Stone Crab after Jo Ann Bass bought 10 of her pieces in 1995 to hang on permanent exhibit at the landmark restaurant. “I have done every major trial in federal court for the last 35 years. These are historical documents. I think it’s very important to record the trials,” Henderson told the Herald in 2015.

 

How do federal judges break their own tie?

That's the difficult question facing the federal judges in our district right now.  

I previously reported on the short list for Magistrate Judge in West Palm Beach.  This short list was recommended by a committee appointed by our Chief Judge.  Last week, the district judges interviewed the five finalists (as is the practice in the Southern District of Florida). After the interviews, the 16 active judges voted on who would be the next Magistrate Judge.  

The usual procedure would have the announcement that very day, but strangely I didn't hear that evening who got the nod.  And my sources weren't talking.   

Now we've found out why -- the vote ended in a tie* with no tie-breaking procedure.  And no one is budging.

So now what?  Our jury of judges seem to be hung.

Any advice for our brothers and sisters on the bench?

Do we need a good Allen charge for this situation?  

Members of the Judiciary: I'm going to ask that you continue your deliberations in an effort to agree on a magistrate judge. And I have a few additional comments I’d like for you to consider as you do so. Remember at all times that no district judge is expected to give up an honest belief about the merits of an applicant. But after fully considering the interviews and application, you must agree upon a magistrate judge if you can. You should not be hurried in your deliberations and should take all the time you feel is necessary. I now ask that you retire once again and continue your deliberations with these additional comments in mind. Apply them in conjunction with all the other instructions I have previously given to you.

*I have heard conflicting stories about whether the tie is 8-8 between two candidates of 5-5-5 (with one judge not voting) for three candidates.  Because I can't get confirmation on the vote, I am not posting the names just yet.