Phase 2 in Miami-Dade

Things are starting to reopen.  We even had sports this weekend.  School may reopen before October 5.  And the rumors are flying around that Chief Judge Moore may update his order on grand juries to allow them to reopen before the Jan 2021 date.  But before we get too optimistic and happy, check out these horrific numbers from the prison system, via the Marshall Project:

Deaths

The first known COVID-19 death of a prisoner was in Georgia when Anthony Cheek died on March 26. Cheek, who was 49 years old, had been held in Lee State Prison near Albany, a hotspot for the disease.  Since then, at least 1,016 other prisoners have died of coronavirus-related causes.  By Sept. 8, the total number of deaths had risen by 5 percent in a week.

There have been at least 1,017 deaths from coronavirus reported among prisoners.

Florida is second only to Texas in number of prisoner deaths.  And the death rate in prison is 130% higher than in general in Florida.  This doesn't account for the number of deaths by staff members, which is also extremely high in Florida (75 as of now).  Extremely sad.

Florida Supreme Court says Gov. DeSantis must appoint new Justice by Monday (UPDATED)

 Read the unanimous opinion here.

UPDATE -- while DeSantis lost this battle, he won a big one in the en banc 11th Circuit.  William Pryor writes the majority opinion backing DeSantis' position that felons cannot vote until they have paid all court costs, fees, etc.  Judges Jordan, Martin, and Jill Pryor all write dissents.  Judge Jordan's ends this way:

Our predecessor, the former Fifth Circuit, has been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s. See generally Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality 259–77 (1981). I doubt that today’s decision—which blesses Florida’s neutering of Amendment 4—will be viewed as kindly by history.

Pryor responds like this:

I write separately to explain a difficult truth about the nature of the judicial role. Our dissenting colleagues predict that our decision will not be “viewed as kindly by history” as the voting-rights decisions of our heroic predecessors. Jordan Dissent at 189 (citing Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality (1981)). But the “heroism” that the Constitution demands of judges—modeled so well by our predecessors—is that of “devotion to the rule of law and basic morality.” Patrick E. Higginbotham, Conceptual Rigor: A Cabin for the Rhetoric of Heroism, 59 Tex. L. Rev. 1329, 1332 (1981) (reviewing Bass, Unlikely Heroes, supra). As a distinguished colleague presciently warned decades ago, there is a “genuine risk” that later judges will “easily misunderstand” this lesson. Id. Our duty is not to reach the outcomes we think will please whomever comes to sit on the court of human history. The Constitution instead tasks us with “administering the rule of law in courts of limited jurisdiction,” id. at 1343, which means that we must respect the political decisions made by the people of Florida and their officials within the bounds of our Supreme Law, regardless of whether we agree with those decisions. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.

Barbara Lagoa makes Trump’s short list for SCOTUS

 You can watch Trump’s press conference here where he lists all of the candidates here, including our very own Barbara Lagoa. The other Florida short-lister is Carlos Muniz on the Florida Supreme Court. 

Update to Florida Supreme Court Justice controversy by Kyle S. Roberts

 Here's a further update to Kyle S. Robert's post on the Florida Supreme Court:

On September 8, 2020, the Florida Supreme Court denied Thompson’s motion for rehearing, but granted her motion for leave to amend the Emergency Petition for Writ of Quo Warranto and Writ of Mandamus.

 The Court ordered the Governor to show cause why he should not be required immediately to fill the vacancy in office of justice of the supreme court by appointing a candidate who was on the JNC's certified list of January 23, 2020, and is now constitutionally eligible for appointment. The Governor shall respond by Wednesday, September 9, 2020.

 

Curtis Flowers won't be retried

 It would have been his 7th -- SEVENTH! -- trial.  The AP covers the decision here:

A Mississippi man freed last year after 22 years in prison will not be tried a seventh time in a quadruple murder case, a judge ruled Friday after prosecutors told him they no longer had any credible witnesses.

Curtis Flowers was convicted multiple times in a bloody slaying and robbery at a small-town furniture store in 1996. The U.S. Supreme Court threw out the most recent conviction in June 2019, citing racial bias in jury selection.

“Today, I am finally free from the injustice that left me locked in a box for nearly twenty three years,” Flowers said in a statement released by his lawyer. “I’ve been asked if I ever thought this day would come. I have been blessed with a family that never gave up on me and with them by my side, I knew it would.”

Montgomery County Circuit Judge Joseph Loper signed the order Friday after the state attorney general’s office, which had taken over the case, admitted the evidence was too weak to proceed with another trial.

“As the evidence stands today, there is no key prosecution witness ... who is alive and available and has not had multiple, conflicting statements in the record,” Assistant Attorney General Mary Helen Wall wrote in a filing presented to Loper on Friday.

 Vangela Wade, one of Flowers' current lawyers, wrote an op-ed in the Washington Post.  It starts this way:

Nearly 23 years. More than 8,000 days. That’s how long Curtis Flowers — a Black man who was tried an astonishing six times for the same crime — was locked away in a cramped jail cell with little ability to see his family. Until Friday, when Mississippi’s attorney general decided to drop the charges, Flowers was waiting to find out whether he would be subjected to yet another trial.

My organization, the Mississippi Center for Justice, has been defending Flowers since summer 2019, working with the team of lawyers that has represented him for many years. We are thrilled that he will finally go free. The accusations against Flowers were never grounded in facts, but rather fueled by improper conduct by Montgomery County District Attorney Doug Evans — the prosecutor in each of Flowers’s six trials.

Unfortunately, the Flowers case offers just a tiny snapshot of prosecutorial misconduct. Such misconduct — which can include introducing false evidence, using dubious informants, withholding evidence that could exonerate the defendant or discriminating in jury selection — puts countless innocent people behind bars. As a former prosecutor — notably, the only Black staff member in the office — I witnessed firsthand the disproportionate number of African Americans entangled within the criminal justice system.

Prosecutors wield enormous control over the criminal justice system. They determine which charges to pursue — if any — and make recommendations on bail, pretrial incarceration and sentencing, which are often accepted by judges. In each of these instances, prosecutors have the potential to abuse civil rights — with few, if any, consequences.

One analysis by the Innocence Project of 660 cases in which courts confirmed prosecutorial misconduct revealed that the prosecutor was ultimately disciplined in only one. Another report of 707 cases of prosecutorial misconduct in California found that just six prosecutors were disciplined.

Michael Sherwin is a good example of a U.S. Attorney with principles

 Check out this Washington Post article here. Sherwin is being criticized by both the left and the right.  But he's just trying to do the right thing by not bringing charges where there is no evidence.  Good for Sherwin!

Federal prosecutors on Tuesday accused D.C. police of using insufficient evidence to arrest demonstrators accused of rioting, putting the U.S. attorney’s office and local authorities at odds over how to deal with days of unrest in the District.

The written rebuke came one day after D.C. Mayor Muriel E. Bowser (D) publicly criticized the U.S. attorney’s office for not pursuing most of the criminal ­charges filed by police against nearly 70 people arrested during protests since mid-August. She also sent a letter to prosecutors detailing her complaints.

Noting the mass arrests three weeks ago of 42 people who police said were in a group that spray-painted buildings and set fire to patio umbrellas in Northwest Washington’s Adams Morgan area, acting U.S. attorney Michael Sherwin told Bowser in his own letter that he had no choice but to drop charges against all but one defendant.

“The ‘42 rioters’ were arrested as a collective by MPD and presented to the Office without any articulable facts linking criminal conduct to each individual arrested,” Sherwin wrote in his letter. “Simply put, we cannot charge crimes on the basis of mere presence or guilt by association.”

In his letter, Sherwin says he met with police leaders to request help “to further develop these cases to establish a bare minimum of probable cause. To date, no sufficient evidence has materialized.”

***

“As I am sure you are aware, without some evidence to establish probable cause of a particular arrestee’s criminal conduct — e.g., a police officer’s observation or video footage of the alleged crime — we cannot bring federal ­charges,” Sherwin wrote. “Surely, by your comments, you are not suggesting that this Office skirt constitutional protections and due process.”

 

I’m no fan of Steve Bannon.

 But the way DOJ is treating him and his co-defendants in the press isn’t right.  I call it chutzpah in this piece in the Hill:

Chutzpah is defined as “shameless audacity.” In his book of the same name, Alan Dershowitz said the concept is more easily demonstrated than defined. He gave the classic illustration of the kid who murders his parents and then pleads for mercy on the ground that he is an orphan. The Department of Justice’s recent actions with respect to Brian Kolfage (Steve Bannon’s co-defendant) — issuing press releases with inflammatory quotes about the allegations and the arrest while at the same time filing a motion with the court saying that the defense should not be able to respond in the press — is another good example of chutzpah. So too is DOJ's handling of the press in the Ghislaine Maxwell case — holding a lengthy press conference with pictures and charts and opposing the defense’s motion to curtail the prosecution’s media blitz.
On Aug. 20, the DOJ arrested Kolfage, Bannon and other alleged co-conspirators for fraud in connection with an online fundraising campaign for “We Build the Wall.” Regardless of what you think of Steve Bannon, President Trump, or “the wall” — and as a liberal Democrat, I have pretty strong views — all defendants are presumed innocent and should be treated fairly.

Please read the whole thing and let me know your thoughts.  Try to imagine a defendant that you don’t hate in Bannon’s or Maxwell’s place.

GUEST POST BY KYLE S. ROBERTS (UPDATED)

Florida Supreme Court Said Governor DeSantis Exceeded His Authority In Appointing Judge Renatha Francis, But Held Petitioner Thompson To The Remedy She Requested And Denied The Petition

By Kyle S. Roberts

The August 27^th Opinion denied Representative Geraldine F. Thompson’s challenge to Governor DeSantis’ appointment of Judge Renatha Francis to the Florida Supreme Court because the remedy sought was “legally unavailable under these circumstances.”

For those keeping an eye on this case, this dispute stems from Governor DeSantis’ appointment of Judge Francis to the Florida Supreme Court on May 26, 2020, and the undisputed fact that she has not been a member of the Florida Bar for the preceding ten (10) years—a milestone she will reach on September 24, 2020. Petitioner took the position that to be eligible for a seat on the Florida Supreme Court, the person must meet the requirements laid out in Florida’s Constitution at the time of appointment. Governor DeSantis took the position that the person must meet the requirements laid out in Florida’s Constitution at the time of actually taking the oath and assuming the duties of her office, which Judge Francis intends to do on September 24, 2020.

Rather than simply ask the Court to 1) find that Judge Renatha Francis is ineligible for office and 2) issue a writ of mandamus compelling Governor DeSantis to appoint someone else from the short list sent up on January 23, 2020, Petitioner asked the Court to compel the JNC to create a new list from the original applicants and to compel Governor DeSantis to appoint someone from that new list.

The Court found that “[w]hen we read Article V, section 8 together with article V, section 11, the only reasonable conclusion is that the Bar eligibility requirement attaches at the time of appointment.” This is contrary to the Governor’s position.

Although the Court cleared up the dispute as to the time all constitutional eligibility requirements must be met, it ultimately denied the petition because of the relief sought by Petitioner:

There is no legal justification for us to require a replacement appointment from a new list of candidates, rather than from the one that is already before the Governor. And the correct remedy (an appointment from the existing list of eligible nominees) would be contrary to Thompson’s stated objectives in filing this case. Therefore, we hold Thompson to the remedy she requested and deny her petition.

This Opinion leaves us wondering what will happen next as there is still close to a month before Judge Francis meets the constitutional eligibility requirement and the Court clearly stated that she needed to have met it at the time of appointment. Will Petitioner, or another Florida Citizen, challenge the appointment of Judge Francis, and this time request the correct relief as pointed out by the Court? Will Governor DeSantis revoke his appointment and select one of the remaining 7 individuals on the January 23, 2020, list to avoid further litigation? Will it be status quo until September 24^th and Judge Francis becomes Justice Francis?

The remaining individuals on the January 23^rd list, aside from Judge Francis and now Justice Couriel, are:

Jonathan Gerber

Jamie Grosshans

Norma Lindsey

Timothy Osterhaus

Eliot Pedrosa

Lori Rowe

Meredith Sasso

Kyle is a commercial litigator at Conrad & Scherer LLP in Fort Lauderdale.

Update--

Petitioner Thompson filed a Motion for Leave to amend, and also filed an Amended Emergency Petition for Writ of Quo Warranto and Writ of Mandamus yesterday.

 She is asking the Court to do exactly what it said would be the appropriate remedy and declare that Judge Francis was ineligible for appointment, and to compel Governor DeSantis to immediately appoint one of the 7 remaining on the January 23, 2020, list.

Media matters

 There's been a ton of publicity about the Steve Bannon arrest and charges.  The prosecution has issued its press releases and even held a press conference.  DOJ is a media machine these days.  It wasn't always like that.  But heaven-forbid that a defendant try to respond to the press... 

Bannon's co-defendant called the case a witch hunt and DOJ has filed a letter complaining to the judge that the defendants are making extra-judicial statements which may taint the jury pool.  DOJ had the chutzpah to cite to Sheppard v. Maxwell, F. Lee Bailey's Supreme Court case which found that the defendant (Sam Sheppard, a/k/a the Fugitive) could not get a fair trial with all of the publicity surrounding his trial.  

If DOJ is going to speak to the press, then defendants should be permitted to respond.

“The Department of Justice has been casting a wide net charging these SBA loan fraud cases, and I look forward to discovering if this is an example of that net having been cast too wide.”

That was Bradley Horenstein discussing his new COVID-19 case. His client is accused of getting a relief loan for a farm in Miami... according to the feds, no farm. From the Herald:

As the coronavirus spread havoc in South Florida, prosecutors say Latoya Stanley and Johnny Philus hauled in $1 million in federal relief loans while claiming they were struggling to operate a beauty supply store, an auto leasing business and a couple of farms in North Miami.

Their loan applications were all made up, the feds say — especially the part that they were “farmers” on tiny residential lots in the urban community.

Stanley, 38, and Philus, 33, were arrested Wednesday. They are charged with committing wire fraud and making false statements when they applied for Small Business Administration loans under a new federal program that provides financial assistance to businesses ailing from the impact of COVID-19. Both were released on a $100,000 bond and face arraignment on Sept. 9 in Miami federal court.

***

“In actuality, the complaint alleges that Stanley and Philus employed no one and the farms did not exist,” according to the U.S. Attorney’s Office.

In their government loan applications filed in May and June, Stanley and Philus claimed to operate two businesses — Dream Gurl Beauty Supply and Elegance Auto Boutique — out of a duplex building on one-sixth of an acre at 1275 NE 118th St.

Which circuit is the worst on qualified immunity?

You may have thought it was the 11th... but it’s the 5th actually.  We aren’t far behind, according to this interesting Reuters report.  And the best is the 9th Circuit. But the disparities is a good reason to abolish the doctrine altogether.  Here’s a small portion from Reuters:

For years, the words “qualified immunity” were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine — created by the U.S. Supreme Court itself — a target of broad public demands for comprehensive reform to rein in police behavior.
The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyd’s death, the immunity defense has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years — even when judges found the behavior so egregious that it violated a plaintiff’s civil rights — thanks largely to continual Supreme Court guidance that has favored police.
The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. “It’s essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas,” said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court. “It shouldn’t turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.”
The “happenstance of geography” shows up in a comparison of Collie’s case to the one Benny Herrera’s family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collie’s case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.

Lori Loughlin gets two months...

... which is two months too long. 

First, she was bullied into pleading guilty.

Second, the government appears to have committed serious misconduct.

But most importantly, the sentence really doesn't serve any legitimate purpose.  I wrote about the same issue in the two-week Felicity Huffman sentence here.  Here's a snippet:

With as much subtlety and sophistication as a sledgehammer, social media erupted after Felicity Huffman’s 14-day sentence was announced, with commenter after commenter saying her sentence was way too light. A rich, white woman only received two weeks in jail. The system must be corrupt! Well, the system is corrupt, but not because Huffman’s sentence was too light, but because it was too severe.

But wait, you might be saying, she only received a few weeks; how can that be too severe?

Her sentence is wrong for at least four reasons:

1.    Our criminal justice system still has an unjust “jail-first” mentality. The default sentence for a first-time non-violent offender who accepted responsibility where no one suffered any loss should obviously be something other than incarceration. If that type of offender — with no aggravating factors — isn’t getting probation, then who is? The problem is that we are so tied to putting people in jail, even people we know will never do anything similar again, that our default is some prison. That’s wrong. It’s important to keep things in perspective: Huffman didn’t hurt anyone and it’s not altogether clear that paying someone to take a test should even be a federal crime in the first place.   

2.    Comparisons to other sentences show that those sentences are too high, not that Huffman’s is too low. With no sense of irony, the Huffman prosecutor cited other cases in which defendants received grossly and inappropriately high sentences as a reason to impose prison time on Huffman. For example, the prosecutor pointed to the case of Kelley Williams-Bolar, an African-American woman who originally was sentenced to five years in prison for using her dad’s address to get her kids into a different school district. The sentenced was later suspended to 10 days in jail. Everyone agrees: That sentence — even after it was reduced to 10 days — was obscene. Saying that Huffman should not get a probationary sentence because another prosecutor obtained an unjust sentence in another case demonstrates why we have a mass-incarceration problem. The prosecutor said at the Huffman sentencing: “If we believe in just punishment, we should not put the Williams-Bolars in jail while letting the Huffmans go free.” That’s true, but it means that we shouldn’t put the Williams-Bolars in jail, not that we should put both in prison. 

John Byrne discussed high school football

It's a little off-topic, but hey, it's Friday afternoon. Check out his Miami Herald op-ed here.  The intro:

 On Aug. 14, the Florida High School Athletic Association’s board of directors approved Aug. 24 as the start of practice for the fall sports seasons, including football. Under the FHSAA’s plan, the regular season will start on Sept. 4, and there will be a nine-week regular season. As in past years, there will be playoffs in November and a state championship in December.

Of course, this isn’t like past years in one major respect: the coronavirus pandemic. The pandemic has had an undeniable impact on this country — and on Florida and Miami-Dade County, in particular. And, in the sports arena, it’s already led major college football conferences to cancel the football season. The FHSAA however, plans to move forward as if it’s business as usual, with the only exception being that it’s giving high schools until Sept. 18 to opt-out of its proposed schedule and set their own, the consequence being that these schools can’t compete for a state championship.

The FHSAA plan is unacceptable.

If Judge Wilson takes senior status next year, who will take his spot on the 11th Circuit?

The vetting room blog says that Roy Altman is a likely candidate if Trump wins:

Judge Roy Altman (S.D. Fl.)

The 38 year old Altman was the youngest district court judge in the country when he was appointed in 2019, and, despite that youth, he sailed to confirmation by a 2-1 margin, a landslide among recent confirmation votes.  Altman will likely be strongly considered for a seat on the Eleventh Circuit if Judge Charles Wilson moves to senior status in a second Trump term, or if Judges Lagoa or Luck are elevated to the U.S. Supreme Court.

And if Biden wins:

Judge Leslie Abrams Gardner (M.D. Ga.)

The sister of the famous Stacey Abrams, Judge Leslie Abrams Gardner made history as the first woman ever appointed to the Middle District of Georgia.  The 45-year-old Gardner is poised to potentially make history again as the first black woman appointed to the Eleventh Circuit (and potentially further to the Supreme Court).

11th Circuit Zooms

Here's the picture from the Tampa Bay Times of the Zoom hearing regarding the felon voting rights case:

More:

In a case that could have major ramifications ahead of the November election, a panel of federal judges in Atlanta questioned lawyers Tuesday about Florida’s decision to require felons pay off all court fees and fines before voting. Ten judges from the U.S. Court of Appeals for the 11th Circuit, half of whom were appointed by President Donald Trump, peppered lawyers representing Gov. Ron DeSantis and more than a dozen felons about the state’s law and whether its requirements to pay off all fees equated to a modern-day “poll tax.” Most of the questioning, however, fixated on complicated judicial precedents. After more than two hours of back-and-forth that was carried on Zoom, the video conferencing site, judges gave little indication how they would rule. One exception was Judge Barbara Lagoa, who, along with Judge Robert Luck, was appointed to the court by Trump after Gov. Ron DeSantis named them to the Florida Supreme Court last year. Lagoa asked many questions that indicated she agreed with DeSantis’ position on Amendment 4, passed by Floridians in 2018 that wiped away the state’s Jim Crow-era ban on voting by people convicted of felonies. At one point, Lagoa questioned whether the court, if it finds parts of Amendment 4 unconstitutional, shouldn’t simply void the entire amendment. American Civil Liberties Union attorney Julie Ebenstein responded that not even DeSantis’ attorneys have said that Amendment 4 should be tossed out. Judges routinely “sever” parts of a law, striking some parts while preserving others. “Everybody agrees that nullifying Amendment 4 would be an absurd result that should be avoided,” Ebenstein said.

Should judges be elected?

Appointing judges has its problems, but after reading Rumpole’s blog and speaking to the state practitioners, it seems that electing judges is much worse and doesn’t make much sense. What do you all think?

In the meantime, watch this John Oliver clip in juries:

https://youtu.be/1f2iawp0y5Y

It is very possible that the next Supreme Court Justice went to high school in Miami

Ketanji Brown Jackson, a Miami Palmetto High School grad, is on Biden’s short list.  She currently sits on the district bench in D.C.  She was a star debater in high school. I got to know her as she was a few years ahead of me in high school (I went to Killian) and a year ahead of me at law school.  She’s a great person.  A former PD, she would be a wonderful addition to the Court.  

Here’s what Noah Feldman has to say:

Joe Biden has fulfilled his promise to choose a woman as his running mate. Let’s turn our attention to another promise he made: to name a Black woman to the Supreme Court. A number of women with different kinds of legal experience have been suggested by NGOs and journalists. But to legal insiders, Biden’s options narrow down very quickly to two names: Justice Leondra Kruger of the California Supreme Court, and Judge Ketanji Brown Jackson of the federal district court in Washington, D.C. 

*** 

Jackson became a federal judge in 2013. There was no major fight over her nomination, probably because it was for a district court position, which is not the traditional path to the Supreme Court. (Of the current justices, only Justice Sonia Sotomayor was a district court judge, and she followed that with a long stint on the court of appeals.) She’s now just shy of her 50th birthday. Jackson’s national profile rose significantly in 2019 when she presided over a case in which the House Judiciary Committee sought to enforce its subpoena against Donald McGahn, the former White House counsel. Jackson’s opinion rejected the Trump administration’s claim of absolute immunity and insisted that “presidents are not kings.” No comparably high-profile case has come before Kruger.

Michael Nadler leaving the U.S. Attorney’s Office

 He’s joining Stumphauzer Foslid Sloman Ross & Kolaya. A big get for them. Big enough for the AP to cover the move here:

A federal prosecutor who has jailed some of Venezuela’s biggest crooks is stepping down, The Associated Press has learned, leaving a void that could dampen U.S. efforts to expose criminal activity in the South American country amid rising tensions with the Trump administration. Michael Nadler, an assistant U.S. attorney, is leaving to enter private practice next month at a boutique Miami law firm— Stumphauzer Foslid Sloman Ross & Kolaya—said a person familiar with the move who insisted on speaking anonymously because it hadn’t been made public. Nadler, 48, has indicted multiple Venezuelan Cabinet ministers, businessmen and Swiss bankers as part of a sustained effort by investigators in the Southern District of Florida to recover some of the $300 billion estimated to have been stolen from Venezuela in two decades of socialist rule.

Nadler had this to say about the move:

It's has been an honor and privilege working as an AUSA for almost 10 years. Having the opportunity to work on some of the biggest cases in the country and focusing on high-level complex money laundering, Foreign Corruption Practices Act, foreign bribery cases, and targeting corruption at the highest levels in these international cases has been the highlight of my career to date. I thank the US Atty Fajardo for entrusting me and having the confidence in me to work these cases and to Willy Ferrer for hiring me. Leaving was an incredibly difficult decision. But when the opportunity presented itself to join a fantastic group of people and really talented lawyers at a well-respected and prominent boutique law firm, the choice was much easier. I look forward to this new chapter in my life.

President Trump nominates Judge Moore to chair the U.S. Sentencing Commission.

Here’s the link to the announcement:

Today, President Donald J. Trump announced his intent to nominate the following individuals to key positions in his Administration: Judge K. Michael Moore, of Florida, as Chairman of the United States Sentencing Commission. Judge Michael Moore serves as the Chief Judge of the United States District Court for the Southern District of Florida, a post which he has held since 2014. Judge Moore was appointed to the Southern District of Florida by President George H. W. Bush in 1992. Before his appointment to the Federal bench, Judge Moore served as the Director of the United States Marshals Service and as the United States Attorney for the Northern District of Florida. Judge Moore also spent over a decade of service as an Assistant United States Attorney.

Court order postponing jury trials AND grand juries until January 4

 The order is here.  

My earlier comments on the order are here.  

How will Kamala Harris be on criminal justice issues?

 It’s hard to tell.  She’s faced a ton of criticism when she was the District Attorney in San Francisco and Attorney General of California (who can forget this exchange in the democratic debates).  But she is pitching herself as a “progressive prosecutor” and there are some who have supported this view, including this public defender.  Last September, Harris release her criminal justice plan, which sounds pretty good (summarized from Newsweek)

Among the goals she listed were ending mass incarceration, investing in programs aimed at reducing crime, legalizing marijuana, making changes to the criminal justice system's "sentencing schemes, stopping private prison use and encouraging prisoners' rehabilitation, the last of which was a callback to her earlier "Back on Track" program.

There will be no trials in the SDFLA for the rest of the year

 It’s a pretty striking announcement. (The official order isn’t up yet, but it’s been leaked.) 

And there’s no telling when we will have grand juries back.

Schools are reopening in October, but not the courthouses.  I’m not saying which is right (I have no idea) but lots of criminal defense lawyers in town are frustrated.  

And... if it’s not safe enough to conduct trials, how is it safe — or fair — to keep folks locked up at FDC and FCI (where another person just died).  Both FDC and FCI are complete disasters right now.  Families were protesting outside of FCI this weekend because of the conditions there.

It’s hard to see when the criminal justice system in South Florida will return to normal.  

RIP Ron Lowy

 Just heard this sad news.  Ron was a super nice guy that you always saw around the courthouses and jails.  Here’s a nice article about him when he won an award from the Biscayne Bay Kiwanis Club.  He recently represented Cesar Sayoc, which was a highly publicized case.  Sad.  

Nice job by local FBA chapter

 Check out this awesome program to teach high school students advocacy and other legal and life skills.  Judges Beth Bloom and Robin Rosenberg are helping to run the program, which looks like a lot of fun:

In the flagship program, Civil Discourse and Difficult Decisions, realistic scenarios bring forward issues related to the coronavirus, including social media memes used to start ambiguous rumors, and a car parade of 16-year-olds protesting for the right to vote.

The program, which is facilitated by judges and members of local Federal Bar Association (FBA) chapters, has reached students in federal courtrooms across the country. As it enters its fourth year, the live program with judges and lawyers is available online to high school and college teachers who want to offer it to their students. 

“The need for civil discourse skills doesn’t diminish when day-to-day life is disrupted,” said U.S. District Judge Beth Bloom, of Miami, who launched the fall series with a virtual program from her closed courtroom on July 31. “In fact, now more than ever, students need exposure to the ways that civil discourse is the foundation for effectively resolving disputes in the legal system and in their lives.” Bloom and U.S. District Judge Robin Rosenberg, of West Palm Beach, with the assistance of FBA chapters in the Southern District of Florida, pioneered the courtroom program in 2017.

For the coming academic year, they have modified it as a 90-minute distance-learning module. South Florida teachers can request a judge and attorney team(link sends e-mail) for a class in the 2020-2021 term. Interested teachers in other parts of the country should make requests at aogrp_outreach@ao.uscourts.gov(link sends e-mail). 

“Over the past three years, working with federal judges on this initiative has been a rewarding experience in our chapter and in our school communities,” said Stephanie Turk, the South Florida Chapter’s civics liaison and an associate at Stearns Weaver Miller Weissler Alhadeff & Sitterson. In the July distance-learning pilot, coordinated by Bloom and South Florida Chapter President Alaina Fotiu-Wojtowicz, a partner at Brodsky Fotiu-Wojtowicz, students learned and practiced several life-impacting skills.

Heartbreaking stories from our prisons

The first is from Coleman (via the Miami Herald):

Tressa Clements pressed her hand to the ICU window and spoke through her tears. “Baby girl, I pray to God you would wake up,” she said to her child, lashed to a ventilator. “I want you to wake up.” That was Sunday evening — the penultimate day of Saferia Johnson life. Johnson, an inmate at the women’s work camp at Coleman Federal Correctional Complex in Sumter County, died the next morning, just after 10. The cause: COVID-19. She was 36. Johnson, a non-violent inmate with two young sons, had petitioned the prison for compassionate release. The warden had rejected the request.

The next is from Florida Women's Reception Center:

Just days after the first corrections officer in Florida prisons died of COVID-19, a second officer died of the highly infectious disease, which has infected 9,180 inmates and 1,810 officers across the state prison system. Fifty-four inmates have died. Joseph “Joe” Foster, was remembered by family and friends as a devoted husband, father and proud U.S. Army veteran. He was hired by the state Department of Corrections in December 2009. “We called him ‘the enforcer’ because he always took care of everybody,” said Cory Surles, a friend of Foster’s who served alongside him in Germany from 1997 to 1998. Surles confirmed that Foster died Monday night. Surles said Foster, who had a wife of 15 years, two sons and a daughter, was a “family guy” who had a “heart of gold.” His last Facebook posts were about school reopenings, and how he feared the state would be putting children in danger if they sent them back to in-person instruction.

Earlier in the week I highlighted some of the good work being done by our judges in the District on compassionate release (which does not just help inmates but helps prison staff as well). But there are a handful of judges who are refusing to grant any of these motions.  One judge recently said that it would not be fair to the defendants who have served their entire sentences.  (!!!)

Read the above stories... is it fair for someone to be sentenced to death?  To the judges who have not granted these motions, please reconsider your position. Be compassionate. Our criminal justice system hasn't crumbled because Congress passed the First Step Act or because judges are actually granting compassionate release motions.  Judges who are not granting any of the motions filed are being true activist judges -- not following the will of Congress or the people.  Worse, they are allowing defendants and prison staff to die.  Stand up!

Lawyering (and judging) during a pandemic

Here's Judge Bob Scola, with defense lawyer Carl Kafka and Assistant State Attorney Carl Kafka Jr.,  Photo cred to Dorothy Kafka.

Is it a good thing for the Supreme Court to be leaking?

William Baude says yes in this Washington Post article and Josh Blackman argues no in this Newsweek piece.  

Baude's intro:  

Some people close to — perhaps even on — the Supreme Court have suddenly lost their aversion to talking to the press. Once described as the “last leakproof institution,” the court had its internal deliberations laid bare last week in a series of remarkable articles by CNN’s Joan Biskupic. Relying on unnamed “sources familiar with the inner workings of the court,” Biskupic provided a play-by-play account of how the justices decided the term’s highest-profile cases; she had some similar scoops last year. This week’s revelations include that the justices originally considered granting only gay, but not transgender, employees civil rights protection in Bostock v. Clayton County, before embracing the broader view; that the newest justice, Brett M. Kavanaugh, urged the court to duck controversial rulings on abortion and presidential tax returns; and that Chief Justice John G. Roberts Jr. persuaded enough of his colleagues in a copyright case that his initial dissent became the majority opinion. The articles by Biskupic, a former Washington Post reporter, have prompted speculation about whether her sources include justices themselves and have generated consternation among court-watchers concerned about the flouting of long-standing confidentiality norms. “We all find these leaks scintillating,” wrote Josh Blackman of the South Texas College of Law. “But they need to stop. These internal deliberations should remain private.”

And Blackman:

The Supreme Court has turned into a sieve. Last week, CNN reporter Joan Biskupic published a four-part series that revealed the high court's private deliberations. Even worse, the leaks were designed to advance specific narratives about which justices are strong and which are weak. Chief Justice John G. Roberts is all-powerful. Justice Neil Gorsuch appears decisive. Justice Brett Kavanaugh looks weak and ineffective. And Justice Elena Kagan lurks in the background, eager to lend a helping hand to form a moderate coalition. We do not know who leaked the information to the press. It could have been the justices, their law clerks or even allies outside the Court. Frankly, it doesn't matter. These leaks have no doubt destroyed trust and camaraderie on the Court. Relationships will become distant, and the workplace will become even more toxic. There is only one person who can restore order to the Court: Chief Justice Roberts. Alas, I doubt the George W. Bush appointee is up to the task. Roberts fancies himself the second coming of the great Chief Justice John Marshall. Not even close. Instead, now he more closely resembles one of his lesser-known predecessors, Chief Justice Warren Burger. In 1979, Bob Woodward and Scott Armstrong published the groundbreaking book, The Brethren. The reporters interviewed several of the justices and hundreds of Court staff to peel back the curtain. They revealed internal Court squabbles, painted some of the justices as partisans and highlighted Burger's inept leadership. This book tore the justices apart and created distrust for decades. Burger, an ill-suited chief justice, could do nothing to heal those wounds. Roberts now faces an even greater crisis of confidence. Unless he can rise to the occasion, and plug these leaks, the Roberts Court will tear itself apart. A Supreme Court divided cannot stand. If Roberts cannot unite the Court, he must leave it.

If you missed the Cato panel on the vanishing trial, check it out here.  It was a lot of fun for me to be with such a great panel.   

Vanishing Trial panel

I'm excited to be joining Rachel E. Barkow (@rachelbarkow), Kevin Ring (@KevinARing), and Clark Neily (@ConLawWarrior) for this interesting panel about the Vanishing Trial in America. It's Monday at noon. Here's the link.

In other news, kudos to Judges Middlebrooks and Scola for really taking the lead in this District regarding compassionate release cases. Here's the most recent Middlebrooks order and Scola order. 

Judge Middlebrooks has, by far and away, issued the most grants and is taking the pandemic crisis in our prisons very seriously.

In the Scola case, Sandra Huarte was originally sentenced to 262 months, but is now free after serving "nine long years." 

Judge Ungaro also issued a grant this week, here.  And it's nice to see that Judge Lenard also got in the game with this order.   

En banc 11th Circuit rules in gender discrimination case

Knowing the makeup of the court, you know how this one came out already.  Summary judgment for the company, Kia Motors, affirmed.  Judge Branch writes the majority opinion.  There are six separate opinions in all:

BRANCH, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, GRANT, TJOFLAT, ED CARNES, MARCUS, and JULIE CARNES, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion.

JORDAN, Circuit Judge, filed an opinion concurring in the judgment.

WILSON, Circuit Judge, filed an opinion concurring in part and dissenting in part.

MARTIN, Circuit Judge, filed a dissenting opinion, in which ROSENBAUM and JILL PRYOR, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Interestingly, 4 senior judges elected to participate in the case, and all of them voted with the majority.  Had they not participated, it looks like there would have been a 3 judge plurality.

Aileen Cannon nomination hearing is tomorrow (UPDATED)

You can watch, Wednesday at 10am, at this link.

She's up for the Fort Pierce seat.

Good luck!

UPDATE -- in other news, Judges Luck and Lagoa denied a motion to recuse in the felon voting rights case.  Here is an article covering the motion and order.

Two of President Donald Trump’s appointees to a federal appeals court have refused calls to recuse from a case that advocates say would affect the right of approximately 750,000 Florida residents with previous felony convictions to vote.

Voting rights advocates are challenging a Florida law that requires former felons to pay any outstanding legal financial obligations before they can vote, even if they can’t afford it. These obligations include the several hundred dollars in court fees and costs that are imposed in felony cases, as well as fines and restitution orders that can run in the thousands or even millions of dollars. Challengers argue a “pay-to-vote” policy is unconstitutional and the same as a prohibited poll tax.

The challengers argued Judges Barbara Lagoa and Robert Luck of the US Court of Appeals for the 11th Circuit should disqualify because they were involved in a related legal fight as state supreme court justices. In an opinion released Monday morning, Lagoa and Luck disagreed and said they would stay on.

The Florida case is one of the biggest voting rights fights pending in federal court with less than 100 days until the November presidential election. A federal district judge in Tallahassee ruled in May that the state could not condition voting rights on fines and fees that people with past convictions could not pay. The full bench of the 11th Circuit is scheduled to hear arguments on Aug. 18, the same day as Florida’s primary election.

Federal judge rightly upset over wrongful jailing of Michael Cohen

That's the title of my latest piece in the Hill.  Please click on the link for the whole article and let me know your thoughts.  Here's the intro:

Federal district judge Alvin Hellerstein was rightly outraged that a probation officer acting on behalf of the Bureau of Prisons had Michael Cohen arrested because he was writing a book about President Donald Trump and because Cohen would not agree to give up his First Amendment rights as part of his supervised release. The judge found that “the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others."
It is almost unheard of to see a federal judge get upset with a probation officer or the Bureau of Prisons. That’s because there is a fiction in the criminal justice system that a probation officer is an “arm of the court.” Criminal law practitioners, however, know the truth about probation officers — they often are advocates for the executive branch (prosecutors) and can push harder than even prosecutors do for draconian prison sentences.
Look at what happened with Cohen — he was arrested without approval from a judge and without his lawyers having the ability to argue his position with a judge before the arrest. And what was the supposed justification by the arresting officer? Cohen was “antagonistic” and did not want to sign a document outlining conditions of his ongoing release.
DOJ tried to come to the defense of the prison system and probation, arguing that Cohen’s lawyer was trying to “haggle” with the probation officer about wearing an ankle monitor. The judge made quick work of that argument: “What’s an attorney for if he is not going to negotiate an agreement with his client?”
You might be thinking that it is outrageous for a probation or prison officer to have this much power. If so, it’s even worse than you think. Although prosecutors and defense lawyers are not permitted to speak to the judge without the other side present, probation officers typically meet with judges alone, making their recommendations in secret without the parties getting a chance to be heard. And judges often defer to prison officials.

Judge finds Michael Cohen’s detention was wrong and orders him released

Good for Judge Alvin Hellerstein. The probation officer had Cohen detained when he wouldn’t agree to a gag order (because he was writing a book about President Trump). Cohen sued and said the arrest was retaliatory and violated the First Amendment. The judge agreed. From the Washington Post:

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” Hellerstein said in a scathing ruling issued Thursday morning. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release, I have never seen such a clause.”

 The judge also made quick work of Cohen’s lawyer fighting for various conditions:

Assistant U.S. Attorney Allison Rovner argued that Cohen’s lawyer Jeffrey Levine tried to haggle with the probation officer on his requirement that Cohen wear an ankle monitor, saying it was a condition reserved for “violent” convicts. There was nothing wrong with Levine trying to negotiate for his client, the judge said, and the attempt to debate the terms should not have been cause to imprison him.
“What’s an attorney for if he is not going to negotiate an agreement with his client?” the judge said.
A spokesman for the U.S. attorney’s office declined to comment on whether prosecutors intend to appeal.
Danya Perry, one of Cohen’s attorneys, called the ruling a victory for the First Amendment. “This principle transcends politics and we are gratified that the rule of law prevails,” Perry said.
Cohen’s legal team also includes lawyers from the American Civil Liberties Union.

"Alabama’s history of enacting laws designed to suppress people of color is well-documented."

That's Judge Gayles, sitting by designation in the 11th Circuit, in dissent in this voting rights case:

Alabama’s history of enacting laws designed to suppress people of color is well-documented. See Lynch v. Alabama, No. 08-S-450-NE, 2011 WL 13186739, at *12–18 (N.D. Ala. Nov. 7, 2011) (detailing Alabama’s extensive history of legislation designed to disenfranchise and limit the power and influence of its Black citizens), aff’d in part, vacated in part, remanded sub nom., I.L., 739 F.3d 1273. The majority opinion essentially argues that we should not penalize Alabama’s legislators for Alabama’s past; rather, we should start with a clean slate when reviewing the Photo ID Law. But this is not what the law commands us to do. Alabama’s history of voter suppression is relevant here and provides a wealth of direct and circumstantial evidence that should be considered at trial.14
For these reasons, I respectfully dissent. 

Judge Branch wrote the majority opinion, joined by Judge Carnes:

At the end of 2015, advocacy groups and individual Plaintiffs filed this lawsuit against Alabama’s Secretary of State, John Merrill, challenging Alabama’s 2011 Photo Voter Identification Law (hereinafter, the “voter ID law”), passed by the Alabama legislature as House Bill 19 and codified at Ala. Code § 17-9-30. The voter ID law took effect in June 2014 and requires all Alabama voters to present a photo ID when casting in-person or absentee votes. Plaintiffs allege the law has a racially discriminatory purpose and effect that violates the United States Constitution and the Voting Rights Act (the “VRA”). Specifically, Plaintiffs claim the law violates the Fourteenth and Fifteenth Amendments of the Constitution; Section 2 of the VRA, 52 U.S.C. § 10301; and Section 201 of the VRA, 52 U.S.C. § 10501. Based on these allegations, Plaintiffs seek declaratory and injunctive relief to prevent the enforcement of Alabama’s voter ID Law. Secretary Merrill denies that the law is discriminatory, arguing that Alabama accepts so many types of acceptable IDs that most Alabamians already possess photo ID and voters who do not have one can obtain one easily.
Secretary Merrill filed a motion for summary judgment on all counts, while Plaintiffs moved for partial summary judgment on one claim and one issue.1 The district court granted Secretary Merrill’s motion and Plaintiffs-Appellants timely appealed.
Because Plaintiffs have failed to identify any genuine disputes of material facts and because no reasonable factfinder could find, based on the evidence presented, that Alabama’s voter ID law is discriminatory, we affirm the district court’s order granting summary judgment in favor of the Secretary of State for the State of Alabama.

Judge Federico Moreno is now senior status

As of July 17, Judge Moreno took senior status.  He served the District for 30 years.  A big thank you and congratulations to one of the longest (THE longest?) active serving judges in our District.  In addition to his service, he will also be remembered for his legacy of championing his clerks and having them appointed as judges and other important positions.  His judging tree (like Belichick's coaching tree) is extremely impressive. 

Although we do not yet have an official nominee for Judge Moreno's seat, it is widely known that David Leibowitz is being vetted for that slot.  Leibowitz is a great and very smart guy, so hopefully that process can move forward. 

Will Florida felons be permitted to vote?

It's a huge fight.

Even though Florida voters passed a Constitutional Amendment saying felons get to vote, there has been a lot of wrangling to stop this from happening.  A district judge said that the State was putting up too many hurdles for voting.  So all looked okay... but then the 11th Circuit stayed that order. Up to the Supreme Court it went.  And, shocker, Justice Thomas, denied the motion to vacate the stay.

There were three dissenters (Sotomayor, Ginsburg, and Kagan; we need more women on the Court).

So the likelihood is that the 11th Circuit won't get to this one before the November election and 1.4 million people won't be allowed to vote, which is a tragedy.  But there is still hope for the next election.

And there is still quite a bit of litigation to follow.  The latest is this motion to recuse Judges Luck, Lagoa, and Brasher. 

Reminds me of Omar Little:

Miami is new epicenter of corona

That’s the headline everywhere this morning.
Getting much less attention is how that affects the jails and prisons in South Florida.
Criminal defense lawyers know that the local facilities are a true disaster right now.
Clients are on 24-hour lockdown, unable to see family or counsel.
They are locked in their small cells with two other inmates and not permitted to leave.
There is extremely limited testing.
There are no masks.
It’s like being in a Super-Max while the virus creeps around the building.
Here’s one article that at least is covering the issue:

"The virus has already spread inside," Troitino said. "I am highly concerned for public safety. Our facility is in the middle of a community, a very vibrant community."

Internal documents NBC 6 obtained showed that on Tuesday, 11 inmates had the virus. Troitino says there was a big jump, indicating trouble.

"Yesterday alone we discovered in one area that held 60 inmates over 22 tested positive and that’s only after testing 28," he said. "We don’t know where this is going to lead but it looks catastrophic at the moment."

Troitino said officers were given inferior PPE gear. Warden Sylvester Jenkins denied that claim in an email.

Our judges have let a few folks out for compassionate release, but a lot more needs to be done. And Judges Williams and Cooke tried to deal with state and immigration facilities. But how about granting bail? Or contested CR motions? Waiving the 30-day administrative waiting requirement? And so on.

This was not a liberal Supreme Court Term

There's been a lot of commentary that the Supreme Court has shifted to the left with some decisions by Justices Roberts and Gorsuch.  But as Leah Litman points out in this Washington Post commentary, that is wrong.  Here's a portion of her piece:

The conservative legal movement obtained equally significant wins in a series of decisions involving religious freedom, simultaneously requiring that government treat religious institutions equally with nonsectarian ones and exempting religious entities or those with religious concerns from otherwise applicable rules, such as anti-discrimination laws.In one case, Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled that anti-discrimination statutes such as Title VII and the Americans With Disabilities Act do not apply to religious teachers at religiously affiliated schools — dramatically broadening an exemption that had previously applied to those in the role of “ministers.” In another case involving access to contraceptive coverage, Little Sisters of the Poor v. Pennsylvania, the court held that the Trump administration could exempt employers with religious or even moral objections from the minor requirement that they notify their insurance providers about their objections to providing coverage.The court’s approach augured future wins to conservatives that will limit the scope of civil rights protections. For example, the court this year held that Title VII’s prohibition on job discrimination because of sex extends to gay and transgender workers. But the other rulings strongly indicate that the court will be wary about extending that protection in situations where employers claim religious objections.Even as the court expanded religious entities’ ability to opt out of anti-discrimination legislation, it widened the government’s obligation to provide public support for religious entities. In Espinoza v. Montana Department of Revenue, the court, again in an opinion by Roberts, ruled that a program that provided scholarships for private schools had to make those scholarships equally available to religious schools.Previously, the court had held that a government program that provided help to private schools for playground resurfacing had to be made available to religious schools as well. The Montana case represented a dramatic expansion of requirements for direct funding of religious education, which the court said was mandated by the constitutional protection for free exercise of religion. The combined effect of the religion decisions is to require government support for institutions that are not required to comply with legal prohibitions on discrimination.Even in cases where the conservative argument lost, Republican politicians won. The court’s seemingly progressive decisions on social issues were electoral gifts to Republican politicians up for reelection. The public largely supports women’s ability to have an abortion, protection against deportation for the young immigrants known as “dreamers” and anti-discrimination rights for LGBTQ employees. The Supreme Court’s decisions on these issues prevent Republican politicians from having to defend unpopular rulings by Republican-appointed justices in the lead-up to the election.

Big day at SCOTUS

And I'm not talking about the tax return cases.  It's the "Indian country" case where Justice Gorsuch wrote in a 5-4 opinion that most of Oklahoma is mostly "Indian country," meaning that Oklahoma could not prosecute Jimcy McGirt for raping a child. 

Justice Gorsuch's conclusion:

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes towithdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.The judgment of the Court of Criminal Appeals of Oklahoma is
Reversed.

 And Chief Justice Roberts' dissent intro:

In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison.  Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt — on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt.  Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma.  The rediscovered reservations encompass the entire eastern half of the State — 19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.
Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.  On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.  The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.
None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the “well settled” approach required by our precedents. Nebraska v. Parker, 577 U. S. 481, ___ (2016) (slip op., at 5).

Chief Justice Roberts got a few stitches last month...

... and people are freaking out even though he is fine. From the WP:

Chief Justice John G. Roberts Jr. suffered a fall at a Maryland country club last month that required an overnight stay in the hospital, a Supreme Court spokeswoman confirmed Tuesday night.

The 65-year-old chief justice was taken by ambulance to a hospital after the June 21 incident at the Chevy Chase Club, which was serious enough to require sutures. He stayed at the hospital overnight for observation and was released the next morning.

Roberts has twice experienced seizures, in 1993 and in 2007, but Supreme Court spokeswoman Kathleen Arberg said doctors ruled out that possibility in the latest incident. Doctors believe he was dehydrated, she said.

Roberts did not publicly disclose the matter, and the court’s confirmation came in response to an inquiry from The Washington Post, which received a tip.

I'm sure the conspiracy theorists who are disappointed in his recent rulings will blame the fall for his joining the moderate justices in June Medical and others.

Meantime, in the 11th Circuit, new Chief Judge William Pryor issued this order concerning oral arguments, which includes the possibility of video oral arguments being streamed. Good stuff!

Burying documents

Prosecutors are in trouble again, this time in SDNY.  But this time, at least they dismissed the case -- even after trial (something most prosecutors, including in this District, refuse to do after misconduct has been proven).  Even though they have agreed to dismiss, the judge wants answers and strangely, the prosecutors are saying that their actions weren't all that bad.  From NPR:

Federal prosecutors under scrutiny for failing to turn over favorable evidence to a defendant told a judge they didn't act in bad faith, even as they disclosed internal emails in which they discussed whether they might try to "bury" a document they were giving to defense lawyers in a stack of other papers.

Prosecutors in the Manhattan U.S. Attorney's Office made the disclosure in a letter to Judge Alison Nathan, who had demanded answers about the prosecution's failings and whether she had the power to impose sanctions against them.

The newly revealed email message described how one of the prosecutors found out that an important document hadn't been turned over to the defense, suggesting: "I'm wondering if we should wait until tomorrow and bury it in some other documents."

Prosecutors now say the document was not, in fact, "buried" because they turned it over less than 24 hours after the email discussion.

Their July 2 letter said the prosecutor who wrote the email was "endlessly chagrined about this chat" and added that "we believe it would go too far to condemn her for a Friday night lapse in thinking regarding a document that was in fact disclosed Saturday afternoon."

Defense lawyers for Ali Sadr Hashemi Nejad, who was charged with violating American sanctions laws against Iran, told the court they are "surprised and disappointed."

Attorney Brian Heberlig accused the prosecutors, and an official in the U.S. attorney's office who's tasked with promoting professional responsibility, of trying "to minimize, deflect, and deny, avoiding any acknowledgment or acceptance of responsibility for the government's obvious, repeated failures and its notable lack of candor," in his own letter to the court.

Squabbles over turning over documents, known as discovery, are common in federal criminal cases. But it's rare for a judge to demand that the government identify lawyers and supervisors involved in evidence-sharing lapses.

And it's even more rare for prosecutors to acknowledge such serious faults that they moved to dismiss a case they had already won.

"Any new trial would necessarily require a new team of (assistant U.S. attorneys) who would have to become familiar with every aspect of the investigation — not an easy task, particularly in a case that has already suffered from multiple breakdowns in communication that contributed to significant disclosure failures," prosecutors wrote to explain their rationale for abandoning the conviction.

Aside from the discussion of whether to "bury" a government exhibit, Sadr's lawyers said the prosecution team had engaged in even more "egregious wrongdoing" by misrepresenting a search of emails before the March 2020 trial began.

If a defendant had engaged in this behavior, a prosecutor would have no qualms charging him and seeking an enhancement for obstruction, and a judge would give it in a heartbeat.

Happy 4th! (UPDATED -- and happy birthday to the blog!)

UPDATE -- I almost forgot! The blog turns 15 this weekend. The first post of the longest running Florida legal blog was way back on July 4th weekend, 2005 (calling for a Floridian to be appointed to the Supreme Court, which still hasn't happened!). HowAppealing and SCOTUSblog started things off and are still kicking, but most legal blogs have folded in favor of Twitter and other social media.  The blog has had over 3800 posts and over 4.6 million page views. I'm not sure how much longer I'll do this, but it's been a fun ride! Thanks to all the tipsters and readers over the years.  I really appreciate it.

ORIGINAL POST: For your reading pleasure, here's an article about judges behaving badly.  None of our judges made the list.  Here's my favorite one:

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

Some sad stats:

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Is Justice Alito going to retire?

The rumor mill is in high gear right now.  Check out this article suggesting that the retirement is coming.

And it's July 1, and we don't have all of the Court's opinions yet.  The poor dears can't start their summer vacay yet because there is still work to do.  More opinions on Monday, but in the meantime, the Court granted cert today on whether the Mueller report would be released in total... after the election.  Via Scotusblog:

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices added another high-profile case to their docket for the fall, involving a dispute over efforts by members of Congress to obtain secret materials from the investigation by Special Counsel Robert Mueller. Mueller submitted a report last year to Attorney General William Barr on possible Russian interference in the 2016 election, and Barr released a redacted version of that report in April 2019. In July 2019, the House Judiciary Committee went to federal court in Washington, D.C., seeking an order that would require the disclosure of the redacted portions of the Mueller report, as well as grand jury transcripts and materials that had been kept secret, for use in its impeachment investigation. The committee relied on a provision in a federal rule of criminal procedure that allows a court to authorize the disclosure of grand jury materials that would otherwise be kept secret “in connection with a judicial proceeding.”

The 11th Circuit, though, is working hard — cranking out opinions every day.  And it just granted en banc review in the very big felon voting rights case.

Sam Rabin is a legend. (UPDATED)

Corrected: This is what Sam Rabin wore to court today:

The original post said Sam was ordered to appear, but that was not accurate. He could have Zoomed into the sentencing hearing (as the prosecutor did), but he wanted to be sitting next to his client during the hearing.

UPDATE -- for those of you who think this was over the top, here's the latest from FDC-Miami:

Ivan Gonzalez Ramirez, 68, was awaiting trial for a drug offense at a federal prison in Miami. He had long-term, pre-existing medical conditions. The BOP just announced that he died on Sunday from COVID-19.

Read that again: Awaiting trial for a drug offense. Now he’s dead. pic.twitter.com/O1oAA0wHn5

— Vanita Gupta (@vanitaguptaCR) June 30, 2020

“Fortunately for me, we have just a fabulous clerk of the court in Kiry Gray. She’s so street-smart and really knows her job."

That was then-Chief Judge of the Central District of California, Cormac J. Carney, about the clerk of court, Kiry K. Gray. He has since stepped down as Chief of that District.  From the LA Times:

The chief judge for the Central District of California, the nation’s largest federal court jurisdiction, which includes Los Angeles and its neighboring counties, has stepped down from that post, citing his racially insensitive comments regarding the court’s top administrative official, a Black woman.

U.S. District Judge Cormac J. Carney, who began a four-year term as chief district judge June 1, announced his decision to step down from the top post but remain a judge in an email Friday to court staff and fellow judges, and offered a public apology to Kiry K. Gray.

A federal court employee for 35 years, Gray in 2015 became the first Black woman appointed to be the Central District’s executive and clerk of court, a job that entails working closely with the chief judge to oversee court operations.

“I have apologized to Ms. Gray, but I have concluded that a simple apology will not put this matter to rest. There will be division in the Court, unnecessary, negative and hurtful publicity, and a diversion from the Court’s essential mission of administering justice if I were to continue serving as the Chief District Judge,” Carney wrote in the email, which The Times reviewed. “I cannot allow the Court to become politicized and embroiled in controversy.”

All jury trials and grand juries in the SDFLA are continued until October 13, 2020

That's the latest administrative order from Chief Judge Moore.

Thanks for all the tipsters who have emailed the Order to me.  I will post it as soon as it is on the Court's website.