FOR THE DEFENSE, EPISODE 2 ROY BLACK DISCUSSES HIS DEFENSE OF LUIS ALVAREZ

Happy Election Day!  One of the big issues in this election is criminal justice and especially racial justice.  George Floyd, Breonna Taylor, Ahmaud Arbery, Tamir Rice, and so on.  Back in the early 80s, Miami was going through a similar time of racial tension. 

This episode of the podcast will take us back to that time and examine a case where Roy Black represented a Hispanic police officer, Luis Alvarez, who was charged with the killing of a young Black man, Nevell Johnson.  

This episode is available now on all podcast platforms including Apple, Spotify and Google.

I think you'll enjoy hearing from famed criminal defense lawyer Roy Black (who has represented William Kennedy Smith, Rush Limbaugh, Helio Castroneves, and Marv Albert just to name a few).  This was the case that thrust Roy into the national spotlight, and he didn't disappoint.  Check it out!

And a big thanks to those of you who listened to the premiere episode last week with Donna Rotunno, the lawyer that represented Harvey Weinstein (which is still available on Apple, Spotify, and Google). 

As the kids say, please like and subscribe to the podcast! It would really help me to get the word out!  THANK YOU!

Of course there's already a problem in Miami with the election

 The Feds are investigating what's going on with piles of ballots sitting at post offices in Miami.  The Herald is covering it here:

Two days after inspectors found dozens of undelivered ballots sitting in a post office in South Miami-Dade County, the U.S. Postal Service Office of Inspector General is preparing to sweep other mail facilities in Miami-Dade for ballots that haven’t reached their destination ahead of the Nov. 3 election.

Scott Pierce, the special agent in charge for the USPS Inspector General’s Southern Area Field Office, confirmed to the Miami Herald on Sunday afternoon that special agents “will be busy over the next couple of days conducting several station visits” at mail distribution centers in Miami-Dade.

Pierce wouldn’t disclose which locations or how many would be searched.

“Our investigation continues and, at this time, we aren’t releasing any additional statements,” he said.

On Friday night, agents discovered 48 ballots in the Princeton post office near Homestead after State Rep. Kionne McGhee tweeted a video that showed a backlog of undelivered mail piling up at the facility. McGhee said the video was shared with him anonymously by a concerned USPS employee.

Ugh, this is crazy to me.  All of us really need this election to be over already.  And with stuff like this going on, I'm concerned that we won't have an answer Tuesday night.  Fingers crossed. 

A day off to vote

What a cool concept from Adam Rabin.  He explains it on his FB page:

A Day Off to Vote is set up to encourage law firms, professional practices, and businesses of all types to support their employees with time off to vote on or before Election Day.

Some firms and businesses are accommodating their employees by giving them the whole day off on Election Day so their employees can volunteer as poll workers or in other ways. Others are giving their employees an extra hour or two to cast their ballots in person or drop off their mail ballots to an approved drop box.

As of this week, we have 58 firms and businesses participating. We also had our first commercial real estate brokerage and management firm, our first statewide law firm, and our first law firms in Miami-Dade and Broward counties join the cause.

The Daily Business Review covers it here.

Zoom hearings... so much fun.

NEW PODCAST SERIES “FOR THE DEFENSE,” CHRONICLING FAMOUS DEFENSE ATTORNEYS AND THEIR MOST FASCINATING TRIALS, DEBUTS TODAY

 I am very excited to announce my new podcast, For the Defense, which is being produced by rakontur.  Here's the release.  Please let me know what you think:

NEW PODCAST SERIES “FOR THE DEFENSE,” 
CHRONICLING FAMOUS DEFENSE ATTORNEYS 
AND THEIR MOST FASCINATING TRIALS, DEBUTS TODAY


Hosted by David Oscar Markus and produced by rakontur

OCTOBER 27, 2020 -- David Oscar Markus, a Miami trial attorney who has been called “a reincarnation of the old school criminal defense lawyer” and has represented clients from the head of the Cali Cartel to Fortune 500 companies and their CEOs, has partnered with rakontur, the lauded storytellers behind Cocaine Cowboys, The U and 537 Votes, to launch a new podcast series called For the Defense. 

The podcast focuses on the work of the least-respected but perhaps the most important profession in America: the criminal defense attorney.  In each episode, Markus will interview a top criminal defense lawyer about one of their most gripping trials.

Sadly, the criminal defense trial lawyer is a dying breed. The Feds have manipulated the system -- which was founded on the idea of trial by jury -- to force almost everyone (occasionally including the innocent) into pleading guilty to avoid trial. If you dare to go to trial, you risk going to prison for decades longer than had you surrendered and pleaded guilty. The system has shifted from valuing and encouraging trials to punishing those who dare exercise their constitutional right to have a jury decide their guilt.  In the 1980s, over 20% of cases went to trial -- now less than 3% do so.

Having tried cases all over the United States, Markus is well-positioned to speak to other leading criminal defense lawyers in the country and explore with them the decision they made in a high-profile case to proceed to trial, including their trial strategy, the risks involved, and the clients themselves.  

In the premiere episode, available now on all podcast platforms including Apple, Spotify and Google, Markus discusses the Harvey Weinstein case with his lawyer Donna Rotunno and what it was like for her to represent the most hated man in America against an entire movement.

New episodes will be available on Tuesdays. Among the highlights of Season One:

• How did Roy Black flip the prosecution witnesses in his favor during the trial of a police officer charged with killing a black man during an altercation in an arcade?
   
• Why did Tom Messereau initially want to call Michael Jackson to the stand but ultimately decide against it? 
   
• What was going through Marty Weinberg’s head when his client, a lawyer, decided he wanted to give part of the closing argument? 
   
• How did H.T. Smith deal with a judge who was wearing handcuffs as his tie-tack?
   
• How did F. Lee Bailey, just a year out of law school, land the most followed trial of the day, Sam Sheppard (the defendant who ended up being the inspiration for The Fugitive)?  

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

RIP Alvin Entin

 Heard some really sad news this morning... Alvin Entin passed away yesterday.  He was recovering from COVID-19 and had a stroke.  He was such a good guy.  I had the good fortune of having tried a couple of cases with him.  I'll never forget one closing he did -- he started out by saying: I'm so sorry ladies and gentlemen... that closing by the prosecution was such a snoozer!  It nearly put me to sleep. Well, I'm here to wake you up with the truth -- Mr. X is not guilty!

The jury loved it and loved him.

He was also a theater guy, performing in lots of shows and on the board of a theater company in Broward.  Folks on his FB page on talking more about his theater career and his love of theater than the law, which is how we all know him.

Alvin's brother passed away a few weeks ago... what an awful time for their family.  He was married to Lois for almost 50 years.  They have 6 children.  RIP Alvin.

ACB to be confirmed Monday

 The WaPo has the story here:

Judge Amy Coney Barrett’s nomination broke through one more hurdle ahead of her all-but-assured installation to the Supreme Court as the coronavirus pandemic — which has inextricably been intertwined with the story of her nomination — once again intersected with her confirmation fight.

Senators voted around 1:30 p.m. in a rare Sunday session, 51 to 48, to advance her nomination to replace the late Justice Ruth Bader Ginsburg. The final confirmation vote for Barrett is expected Monday night, putting her in position for a first full day as a justice as early as Tuesday and as the court continues to hear election-related legal challenges ahead of Nov. 3.

“We made an important contribution to the future of this country,” Senate Majority Leader Mitch McConnell (R-Ky.) said Sunday, praising Barrett as a “stellar nominee” in every respect. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

That last quote is interesting...

Meantime, ACB was asked about the Supreme Court's "shadow docket." If you are interested, you should read this entire post from SCOTUSblog.  Here's the intro:

Near the end of two meandering days of questions at last week’s Senate hearings for Amy Coney Barrett, Sen. Richard Blumenthal (D-Conn.) asked a question that probably has never been asked at any other Supreme Court nomination hearing.

“Are you aware of the Supreme Court’s – as it’s called – shadow docket?” he asked.

Barrett, who clerked for Justice Antonin Scalia, said she was. “The shadow docket has become a hot topic in the last couple of years,” she added.

Barrett is right. In fact, in just the last few months, the court has issued emergency rulings on coronavirus policies, immigration restrictions, capital punishment, access to abortion, the U.S. census and procedures for the upcoming election. All of those rulings have been part of the court’s shadow docket.

The court itself would never use that term. Law professor William Baude coined it in 2015 to refer unofficially to the body of orders issued by the Supreme Court outside the formal opinions in the 70 or so cases in which it hears oral argument each term. Some of those orders are peripheral and procedural. But others resolve, at least temporarily, contentious policy disputes or matters of life and death. And this year, the shadow docket is taking on more significance – and getting more attention – than it ever has before.

Concerns about the shadow docket relate primarily to a special system that allows litigants to seek emergency relief from the Supreme Court in the middle of ongoing litigation. Under normal procedures, a case reaches the justices only after full consideration and final decisions by a trial court and an appeals court – a process that usually takes months, if not years. But the shadow docket gives litigants a potential shortcut: When a lower court issues a ruling (even a preliminary ruling that does not decide the full case), the losing side can ask the Supreme Court to order an emergency “stay” of that ruling. A stay, if the justices issue one, freezes the lower court’s ruling, stripping it of force while the litigation proceeds. By preserving the status quo as it existed before the lower court’s ruling, emergency stays can favor litigants who hope to run out the clock.

Traditionally, litigants must satisfy a high legal standard to earn an emergency stay. Among other things, they must show that they would suffer “irreparable harm” if the lower court’s ruling were left in place. That onerous standard is meant to reserve this form of relief for circumstances in which the court’s immediate intervention is needed to prevent extraordinary consequences. Emergency stays, everyone agrees, should not be a way to short-circuit the normal appeals process. But as the number of these requests has grown in recent years (including a flurry of such requests from the Trump administration), Justice Sonia Sotomayor has argued that the court itself has tacitly lowered the bar for litigants to receive emergency stays on the shadow docket.

News & Notes

1.    Another debate tonight.  This time with a mute button.  Fun times.

2.     Obama goes after Trump.

3.    ACB takes next step to confirmation.

4.    Wear a mask, even Chris Christie says so.

5.    Jury trials are off till April, but we're making grand juries come in starting in mid-November. Instead of 11 GJs, there will be 2.  And they will meet two days a week.  

 6.    Transitions is holding its annual fundraiser today, virtually.  They are a good group who needs your help.

 

Attorney Aaron Honaker arrested for bank robbery

Another Miami story.

Here's the Herald:

A Coral Gables attorney was called a “serial bank robber” by the FBI, which believes he robbed five banks since Sept. 30 before his Tuesday night arrest.

The agency said Miami resident Aaron Honaker, 41, was headed into a bank when Coral Gables police arrested him. Honaker’s first appearance in Miami federal court is set for Wednesday afternoon.

***

Honaker’s Florida Bar entry says he’s with the firm of Martinez Morales and has no Bar discipline cases in the last 10 years. Court documents say he previously worked at Greenberg Traurig. He joined the Bar in 2008, two years after graduating from Duke University School of Law.

Court packing

 There's been a lot of debate about packing the Supreme Court.  Most Americans are against it, and according to a recent poll, 51% of Americans want ACB confirmed. That said, here's an interesting essay from Charles Fried about why Biden should do it if SCOTUS goes too far.  It ends this way:

But before going forth on any enlargement plan, a Biden administration would do well to see if the Supreme Court might not heed the lesson of history. Consider the well-known episode indelibly judged as President Franklin Roosevelt’s “failed” court packing plan. Mr. Roosevelt waited to propose his “Judicial Procedures Reform” legislation until 1937, after his first four years in office during which the reactionary Supreme Court majority relentlessly obstructed desperately needed experiments to combat the Great Depression.

President Roosevelt’s move is viewed as a rare failure by a master politician. But was it? Immediately after his proposal was unveiled, the court ruled 5 to 4 that the Wagner Act, restructuring American labor law and relations, was constitutional, and a spate of pro-New Deal decisions followed. The very threat of court packing and the passage of time made this “nuclear option” unnecessary.

Let’s see whether the current Supreme Court majority overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.

In local news, if you are looking for Chief Judge Moore's Order postponing jury trials until April 2021, here ya go.

Who is left on SCOTUS from Bush v. Gore?

Billy Corben's and Alfred Spellman's new documentary 537 Votes has me thinking Bush v. Gore...

Only Justices Thomas and Breyer remain on the Court from that time.  But two current Justices (Roberts and Kavanaugh) and one soon to be Justice (Barrett) all worked for the Bush team.  From CNN on ACB:

Barrett wrote on the questionnaire she submitted to the Senate for her Supreme Court confirmation review, "One significant case on which I provided research and briefing assistance was Bush v. Gore." She said the law firm where she was working at the time represented Bush and that she had gone down to Florida "for about a week at the outset of the litigation" when the dispute was in the Florida courts. She said she had not continued on the case after she returned to Washington.

During her hearings this week, she told senators she could not recall specifics of her involvement.

"I did work on Bush v. Gore," she said on Wednesday. "I did work on behalf of the Republican side. To be totally honest, I can't remember exactly what piece of the case it was. There were a number of challenges."

SDFLA trials suspended until April 2021

 But grand juries are coming back in November instead of January as originally planned. That’s the word out of the judges’ meeting today but no official order yet. 

District Judge in L.A. dismisses case with prejudice for speedy trial violation

 Oh wow, this Order is worth a read.

I consider the trial by jury as the only anchor, ever yet imagined by man, by which a
government can be held to the principles of its constitution.
–Thomas Jefferson1

The United States Constitution protects our fundamental freedoms and liberties. One of the most important rights guaranteed by the Constitution is the Sixth Amendment right of the accused to a public and speedy trial. It protects against undue and oppressive incarceration prior to trial and it allows the accused the ability to defend himself against the criminal charges before evidence becomes lost or destroyed and witnesses’ memories fade. But the Sixth Amendment protects much more than just the rights of the accused. It also protects the rights of all of us. It gives each of us called for jury service a voice in our justice system. And it holds the government  accountable to the principles of the Constitution. Thomas Jefferson and the other Framers of the Constitution wisely recognized that without jury trials, power is abused and liberty gives way to tyranny. Given the constitutional importance of a jury trial to our democracy, a court cannot deny an accused his right to a jury trial unless conducting one would be impossible. This is true whether the United States is suffering through a national disaster, a terrorist attack, civil unrest, or the coronavirus pandemic that the country and the world are currently facing. Nowhere in the Constitution is there an exception for times of emergency or crisis. There are no ifs or buts about it. Sadly, the United States District Court for the Central District of California has denied Defendant Jeffery Olsen his Sixth Amendment right to a public and speedy trial on the criminal charges that were filed against him in this case. Specifically, the Chief Judge for the Central District refused to summon the jurors necessary to conduct Mr. Olsen’s trial that was scheduled for October 13th of this year, believing it was too unsafe to conduct the trial during the coronavirus pandemic even if significant safety precautions were in place. Most troubling, the Chief Judge refused to summon jurors for Mr. Olsen’s trial even though grand juries have been convening for months in the same federal courthouse in Orange County where his trial would take place and state courts just across the street from that federal courthouse are conducting criminal jury trials. Clearly, conducting a jury trial during this coronavirus pandemic is possible. Yet the Central District prevented the Court from even trying to do so for Mr. Olsen. Because the Central District denied Mr. Olsen a public and speedy trial under the Sixth Amendment, this Court now must dismiss the indictment against him.

 

 The L.A. Times covers it here:

A federal judge in Santa Ana on Wednesday dismissed an indictment against a Newport Beach physician accused in a drug distribution case, ruling that his constitutional rights to a jury trial were denied due to an order barring trials in the federal courthouse in the Central District of California during the COVID-19 pandemic. U.S. District Judge Cormac Carney dismissed the indictment against Jeffrey Dove Olsen with prejudice, so prosecutors could not just file another case against him or seek another indictment from a grand jury. Prosecutors could appeal the ruling with the U.S. 9th Circuit Court of Appeals. Olsen was indicted in July 2017 on 35 counts that alleged he prescribed and distributed “large amounts of oxycodone, amphetamine salts, alprazolam and hydrocodone to confidential sources, an undercover agent and numerous addicts without a legitimate medical purpose over the course of three years,” according to federal prosecutors who said two of the doctor’s patients died from overdoses of pain medication.

The issue came to a head this week when Olsen refused to waive any more time for his trial, but U.S. District Judge Philip S. Gutierrez, the chief judge of the Central District, refused to budge on the prohibition of jury trials at this time.

“Quite frankly, the court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse,” Carney wrote in his ruling as he noted various other federal agencies have offices that are open and that first responders still report to work, as well as employees in essential businesses.

“Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining,” Carney added. “Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors and pet groomers in Orange County are open, even indoors, with protective modifications.”

 

Judge like a champion today

Apparently, Judge Amy Coney Barrett was given a sign for her chambers from judge Don Willett that says, Judge Like A Champion Today (which is a play on the sign that Notre Dame players hit on the way onto the football field).  There's another judge that has that same sign -- Judge Like A Champion Today -- in his chambers and has had it since his law clerks got it for him in 1998: Judge Moreno.

 

7/ Judge Don Willett (5th Cir., fka @JusticeWillett) sent #AmyConeyBarrett a memorable gift for chambers: pic.twitter.com/l0BqemSGY1

— David Lat (@DavidLat) October 12, 2020

Amy Coney Barrett's opening remarks

The confirmation hearings start today. You can read Barrett's opening statement here.

Here are some articles about the hearings:

1. Barrett Supreme Court hearing expected to focus on health care, with the pandemic looming over the proceeding The Washington Post
2. Many Firsts At Confirmation Hearings For Judge Amy Coney Barrett NPR
3. Amid pandemic and presidential race, Supreme Court confirmation hearing will be unprecedented USA Today

Meantime, congrats to the HEAT on an incredible season and playoff run. It was so much fun and so enjoyable. What a great team.

View this post on Instagram

THANK YOU Miami, the entire @MiamiHeat organization, Coach Spo, our coaches, and my teammates for a great first season. appreciate all the love and support from Heat Nation and our fans. Best believe we will be back. #Culture

A post shared by Jimmy Butler (@jimmybutler) on Oct 11, 2020 at 9:01pm PDT

SDFLA Grand Juries to return sooner than planned

 Chief Judge Moore previously ordered the suspension of grand juries until January 4.  But there has been an effort to get a grand jury up and running before then, and now multiple sources have confirmed that the goal is to have one by mid-November.  We have schools, restaurants, and even open stadiums, so it's no wonder that we will have grand juries soon enough.  Let's see if they actually show up!

Rakontur's new doc coming out soon.

 And it's going to be a doozy.  It's called 537 Votes and is about the 2000 presidential recount in Florida or what Billy Corben and Alfred Spellman call a heist.  It's premiering on HBO Max on October 21.

Here's the trailer:

 

Here's a more detailed description from rakontur's website:

In early 2000, the international custody battle over a six-year-old Cuban boy, Elian Gonzalez, triggered a political earthquake in the swing state of Florida, ultimately swaying the outcome of the presidential election. With Miami’s largely conservative Cuban American population outraged at the Clinton administration’s handling of the repatriation of Gonzalez, many called for “el voto castigo:” the punishment vote, to harm Vice President Al Gore’s chances at the ballot box. Miami-Dade County mayor, Democrat Alex Penelas, dubbed People magazine’s “Sexiest Politician,” is surprisingly absent from Gore’s side as election fever mounts. After election day, with the margin of victory hinged on Florida, weeks of chaotic ballot recounts, lawsuits, counter lawsuits and public protests ultimately ended with George W. Bush winning the presidency by a mere 537 votes. 

With humor, verve and new insights, 537 VOTES exposes the key players who contributed to the chaos in the contested Florida county, featuring interviews and archival footage of insiders and political operatives at the time, including Roger Stone; Joe Geller, Chairman of the Miami-Dade County Democratic Party; Al Cardenas, Chairman of the Florida Republican Party; Cuban American anchorman Rick Sanchez; political consultant Armando Gutierrez; Bush campaign operative Brad Blakeman; Democratic Mayor Alex Penelas; author of Cuba Confidential, Ann Louise Bardach; Democratic political operative Jeff Garcia; Miami political reporter Michael Putney; Gore attorney Mitchell Berger; and Democratic pollster Fernand Amandi.

On election day, November 7, 2000, in one of the narrowest election margins in history, it all came down to Florida, where the state’s 25 electoral votes would decide the next president of the United States. The press called Florida for Gore and then retracted it, and Fox News called it for Bush. Gore called Bush to concede, and then all networks deemed Florida “too close to call.” Gore then retracted his concession and the recount began.

Both parties braced for a bitter and lengthy legal battle. Bush’s campaign mobilized its troops, rallying local Cuban Americans and national GOP figures such as former Secretary of State, James Baker. In turn, Gore’s side hired former Secretary of State Warren Christopher and called for a manual recount in four Florida counties, including Miami-Dade. Under heavy scrutiny were 10,750 “no vote” ballots, where “dimpled,” “pregnant” or “hanging” chads were not counted by the tabulating machines. After 36 days of legal maneuvering and appeals on both sides, the U.S. Supreme Court, with a conservative majority, ruled to stop the manual recounts, thereby granting the presidency to George W. Bush on December 12, 2000.

The best documentarians have another classic on their hands.  And another only-in-Miami story.

First Monday in October

 It's been an insane 2020.  The Supreme Court is no different, and we open the Term with 8 Justices.  A ninth may be on the way. And it looks like there will be election litigation that will make Bush v. Gore look like playtime in comparison. Fun times. The WaPo covers the beginning of the Term:

The Supreme Court opens its new term Monday at the forefront of the national political conversation, but with its future uncertain and the unwelcome prospect of deciding a divisive presidential election on the horizon.
With Justice Ruth Bader Ginsburg’s seat on the bench still draped in black crepe, the eight remaining justices will gather via teleconference to tackle a docket that, for now, is not nearly as controversial as the last.
That term saw the court strike a restrictive state abortion law, decide LGBTQ workers are protected by federal anti-discrimination laws, grant temporary relief to undocumented immigrants brought to the United States as children and reject President Trump’s insistence he was above investigation from Congress and local prosecutors while in office.
“The court in this term may be looking for ways to avoid partisan controversy, to delay deciding cases that are of deep ideological division as much as it can,” David Cole, the national legal director for the American Civil Liberties Union, said last week in a briefing for reporters.
There is a foreboding, but “the biggest possible partisan controversy that it might face is a dispute about the election,” Cole continued. “I’m sure that all of the justices are saying the election officials’ Election Day prayer, which is: ‘Dear Lord, let this election not be close.’ ”
The court already is inundated with emergency lawsuits regarding the voting process, such as what accommodations must be made for voters during the coronavirus pandemic and whether the time frames for receiving mail-in ballots should be extended.
But President Trump has made it clear he believes there will likely be litigation over the results.
“I think I’m counting on them to look at the ballots, definitely,” Trump said during Tuesday’s debate with former vice president Joe Biden. “I don’t think — I hope we don’t need them, in terms of the election itself, but for the ballots, I think so.”

CA11 affirms Judge Moreno's decision to terminate protections for homeless in Miami

 Decision by Judge William Pryor here.  It starts like this:

This appeal requires us to decide whether the district court abused its discretion when it terminated a consent decree that regulated how the City of Miami treats its homeless residents. Twenty years after the consent decree’s adoption, the City moved to terminate it based on changed circumstances, fulfillment of its purpose, and substantial compliance with its requirements. The homeless argued the City was still systematically violating the consent decree and moved the district court to hold the City in contempt and sanctioned for committing the violations. The district court ruled the City had not violated the consent decree, granted its motion for termination, and denied the opposing motion for contempt. Because the district court correctly interpreted the decree and did not abuse its discretion by terminating the decree, we affirm.

Some coverage:

An 11th Circuit panel on Thursday upheld the termination of long-standing judicial protections for Miami’s homeless population, finding that the city had overhauled its homeless policing to the point where court oversight is no longer warranted.

The homeless protections were in place for two decades as part of the landmark settlement in Pottinger v. City of Miami, a class action that accused the city of unconstitutional mistreatment of its homeless population in the 1980s.

After the city secured a termination of the settlement in Miami district court in 2019, David Peery — on behalf of homeless Miamians — turned to a three-judge appeals panel in the 11th Circuit. Among other protections, Peery fought to reinstate a requirement that police officers offer homeless people a bed in a shelter as an alternative to arrest for certain misdemeanors, such as sleeping on a park bench.

The three-judge panel on Thursday rejected Peery’s appeal.

According to the panel’s opinion, the city showed “substantial compliance” with the Pottinger settlement by retraining its police on how to deal with the homeless people.

“All police officers receive training on Pottinger’s requirements, and the City has put in place body-camera-usage, records-keeping, and disciplinary procedures to monitor and regulate interactions between the police and the homeless, ” Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote in a 26-page ruling. 

During the appeal proceedings, Peery and his counsel had pointed to a 2018 mass removal of homeless people from the downtown Miami area as key evidence that the city was violating the settlement and couldn’t be trusted to regulate itself regarding its handling of the homeless population.

 

Abuse of discretion to deny continuance motion leads to reversal

In U.S. v. Schwarz, the 11th Circuit reversed a large white collar SDFLA case, where the defendant was not given sufficient time to prepare for trial.  The defendant was sentenced to 480 months in prison even though he was acquitted of half the counts and even though he only had a few months to prepare for trial.  The appellate court called out the trial court's "history of denying continuances in criminal cases":

There are seven cases from 2006 through 2017 in which the issue in this particular trial court was raised and argued on appeal, and, in all but one, there are substantive rulings by this Court. See Jeri, 869 F.3d at 1257–59; United States v. Ubieta, 630 F. App’x 964, 970–72 (11th Cir. 2015); United States v. Bates, 590 F. App’x 882, 890–91 (11th Cir. 2014); United States v. Anderson, 329 F. App’x 878, 882–84 (11th Cir. 2009); United States v. King, 306 F. App’x 501, 513–18 (11th Cir. 2009); Valladares, 544 F.3d at 1264–65; United States v. Perez, 473 F.3d 1147, 1150–51 (11th Cir. 2006). We by no means challenge the conclusions of prior panels. The rules of the Circuit are clear, and the bar is high for reversal when continuances are denied. None of the listed cases resulted in reversal, but three contained warnings to the trial court, and the most recent, United States v. Jeri, found error by the trial court, but insufficient evidence of prejudice to defendant under our precedent.

United States v. King was a 2009 complicated tax fraud case involving four years of personal and corporate tax returns of two corporations owned by defendant which had been investigated by the Internal Revenue Service for over three years and involved 80,000 documents in discovery. 306 F. App’x at 506. Trial was set to begin forty days after arraignment and fifty-three days after indictment. Discovery was turned over by the government during the 40 days. Id. at 504. This Court noted: “The difficulty in trial preparation was exacerbated by the fact that, little more than a month before trial, the government left 39 boxes containing 80,000 discovery documents at Xpedia, a copy center.” Id. at 515–16. The trial court denied several motions by defendant for a continuance, including an unopposed motion for at least a seven-month continuance. Id. at 506. The trial court eventually granted an eight-day continuance, after which the government added twenty-five exhibits and substituted ten more, one day before the new trial date. Id. at 515–16. On the day of trial, defendant renewed orally his motion for a continuance, to no avail. Id. at 515.
Implying error, this Court made the following observations for the benefit of the trial court:

[T]his is a complicated tax fraud case involving voluminous records. King’s requests for more time to prepare was reasonable. While we understand the need to move cases expeditiously, this case was not a simple one. A 30– or 60–day continuance . . . would not have unduly delayed the court’s docket under these facts.

Id. at 516. Nevertheless, “[t]he problem for King . . . is that he has not shown that the district court’s denials resulted in ‘specific, substantial prejudice’ to his defense.” Id. There was also overwhelming evidence of guilt. Id. at 518.
We issued another warning in our 2014 opinion in United States v. Bates, which dealt with a child pornography prosecution. See generally Bates, 590 F. App’x at 882. The denial of repeated requests for continuance was argued on appeal but not decided by the panel. Id. at 890. Nevertheless, this Court instructed on remand that “the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense.” Id. Noting a short period for the expert to complete a computer forensics examination, and a superseding indictment just two weeks before trial, this Court warned: “If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for . . . adequate time to prepare for trial.” Id. at 891.
As stated above, in United States v. Jeri, our Court found error on the part of this trial court in denying a motion for continuance when a television video of the fruits of a search in a drug case was located by the government on the day before trial, and turned over to defendant on the morning of trial.

The facts of this case suggest to us that the trial court would have been wiser to grant a continuance or at least a short recess. After all, the video was not made available to Jeri until the morning of trial and he did not get to watch the video until after the first day of the day-and-a-half-long trial, by which time five Government witnesses had already testified.

Jeri, 869 F.3d at 1258. Again, however, despite “this error,” defendant could not show specific, substantial prejudice, and there was no reversal. But our panel did not leave it there:

[I]t is worth reiterating “that a scheduled trial date should never become such an overarching end that it results in the erosion of the defendant’s right to a fair trial.” Id. at 1291 [citing United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976)]. The costs attendant to a continuance were low, but the potential risk to the defendant was real. While we are acutely aware of the district courts’ heavy caseloads and fully appreciate the important public interest in their expeditious resolution, it is often wise to counsel patience in finding the “delicate balance between the defendant’s right to adequate representation by counsel of his choice and the general interest in the prompt and efficient administration of justice.”

Id. at 1258–59 (full citation added).

We are troubled, after three warnings by prior panels and in view of the particular facts of this case, that this trial court has not heeded prior panel warnings, resulting in an abuse of discretion in this case. The risk of error is exacerbated by the setting of short trial dates. We have considered, but rejected this time, the sanction of reassignment of this case to another court. To avoid future sanctions, the trial court must be carefully mindful of the occasional needed continuance for a defendant and, in some cases, both sides, especially in a case as complicated as this one.
Because we conclude that the district court abused its discretion in denying Schwarz’s several motions for continuance and caused him to suffer substantial prejudice in presenting his defense, we VACATE appellant SCHWARZ’s convictions and REMAND for a new trial.

Wow! 

It's debate night

How about a debate night drinking game.  Take a drink every time the following term is mentioned.  

For Joe Biden:

• $750
• Starts a sentence with "look"
• Obama
  
• "Trump is going to take away health care" 
• "You're fired."
• anything in Spanish
• "Come on man" or "Here's the deal"
  
• RBG
  

Trump:

• Drug test
• Sleep Joe
• "mail in ballots" or "voter fraud"
  
• Closing the borders to China
• Joe will "defund the police"
• "Law and Order"
• "Fill the Seat"
• China
• Rigged
  

It's Amy Coney Barrett

 Many of us here in South Florida were rooting for Barbara Lagoa.  Even though she didn't ultimately get the nomination, what an honor and an experience to have made the 2 person short-list. 

In the meantime, the left will have to decide how they want to play the Barrett nomination especially since it's pretty clear that she will be quickly confirmed.  

Some liberal commentators are already coming to Barrett's defense.  Here's Noah Feldman, who wrote a piece titled: "Amy Coney Barrett Deserves to be on the Supreme Court."

Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term. And I’m revolted by the hypocrisy of Senate Majority Leader Mitch McConnell’s willingness to confirm Trump’s nominee after refusing to even allow a vote on Judge Merrick Garland.

Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.

I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.

When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.

Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.

Martinez had the special skill of connecting the tangle of complex strands to a sensible statutory purpose. She clerked for Justice Stephen Breyer, who also believes in pragmatically engaging the question of what a statute is actually trying to do in order to interpret it.

In a world where merit counts, Barrett and Martinez would both be recognized as worthy of serving on the Supreme Court. If a Democratic president with the support of a Democratic Senate asked me to recommend a current law professor for the bench, Martinez would be on my short list.

There is no question that Barrett will move the Court far to the right, which is pretty depressing.  But at least she is extremely smart, qualified, and a nice person as described by all who know her.  Barrett gave a really nice acceptance speech and said all of the right things:

Corrine Brown's case goes en banc before the 11th Circuit

 I previously blogged about the fascinating panel decision here.

In the Brown case, the district court excused a juror who said that he was deliberating based on what "[t]he Holy Spirit told [him]," which was that Brown was not guilty on all counts.  Judge Rosenbaum said it was appropriate to excuse the juror because the juror was not praying for guidance but was basing his decision on what was "told" to him by the Holy Spirit.  Visiting Judge Conway joined Judge Rosenbaum.

Judge William Pryor wrote a lengthy dissent, arguing that jurors should be able to rely on their religious beliefs.

Now the case goes en banc.  Here's what I said about the panel opinion at the time:

For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.

What about Amy Coney Barrett?

 The blog obviously has a local interest in the consideration of Barbara Lagoa as a SCOTUS short-lister.  But the other woman on the short list is Amy Coney Barrett, a judge on the 7th Circuit.  Here's what she said about replacing her former boss, Justice Scalia during an election year:

 

 

Trump #SCOTUS front-runner Amy Coney Barrett, when asked whether Obama should be able to appoint a Supreme Court justice in an election year, said it's inappropriate when it would “dramatically flip the balance of power." pic.twitter.com/loLMaLrsUm

— Mark Elliott (@markmobility) September 23, 2020

And here's a Reason article about her criminal justice record:

Appeals court judge Amy Coney Barrett, a leading contender to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, is a popular choice among conservatives. That fact does not, by itself, tell us much about Barrett's treatment of criminal defendants' constitutional and statutory claims.

When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes. Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases. Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas. By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture. While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.

It is clear from Barrett's record that she does not reflexively side with the government in criminal cases. In a 2019 opinion, for example, she concluded that Drug Enforcement Administration agents violated the Fourth Amendment when they searched a suspect's apartment based on the consent of a woman who answered the door but did not live there.

"Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence?" Barrett asked. "We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property."

In another Fourth Amendment case, decided in 2018, Barrett concluded that an anonymous tip did not provide reasonable suspicion for police to stop a car in which they found a man with a felony record who illegally possessed a gun. "The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable," she wrote for a unanimous three-judge panel. "The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful."

In a 2018 case, by contrast, Barrett joined the two other judges on a 7th Circuit panel in rejecting the Fourth Amendment claims of three men who had been convicted of viewing and possessing child pornography after they were identified as users of the dark website Playpen. The FBI, which ran Playpen for about two weeks in 2015 as part of its investigation, identified people who visited the site via tracing software it installed under a warrant issued by a federal magistrate judge in Virginia. The defendants argued that the warrant was invalid because it purportedly covered searches outside the magistrate judge's district.

Writing for the unanimous panel, Barrett said "we need not decide…whether the searches violated the Fourth Amendment." Even if they did, she said, "the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies." Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that.

 

More on Barbara Lagoa

 This time, a deep dive, by the New York Times. It starts this way:

As a young associate in a prestigious Miami law firm, Barbara Lagoa took on an unusual pro bono case, one without a supervising partner and against a formidable adversary: the Clinton administration.

Ms. Lagoa represented a relative of a 5-year-old boy found off the Florida coast after his mother had drowned trying to cross over from Cuba. His name was Elián González.

Federal agents would eventually seize Elián and return him to his father in Cuba, setting off political shock waves that arguably cost former Vice President Al Gore the 2000 presidential election when he lost Florida.

“After six months, countless briefs, a few all-nighters, two oral arguments and one midnight raid by armed commandos, we learned what it was like to lose,” Eliot Pedrosa, another lawyer on the team, said at a ceremony last year when Judge Lagoa joined the Florida Supreme Court. The experience of “watching armed federal agents use force to pre-empt process,” he said, was “seared into her soul.”

That formative episode helped shape Judge Lagoa’s career as a federal prosecutor and appellate judge and thrust her into South Florida’s political culture, dominated by Cuban-American Republicans.

It is an electoral dynamic that remains powerful two decades later and has helped Judge Lagoa, who now sits on the United States Court of Appeals for the 11th Circuit, emerge as an attractive choice for President Trump as he considers whom he will name to replace Justice Ruth Bader Ginsburg on the Supreme Court.

Trump says he may be meeting with her this week in Miami.  The article ends this way:

For the people trying to promote her nomination in South Florida, though, Judge Lagoa’s life story as the daughter of immigrants matters just as much as her record.

Her friends mention her modest upbringing in the blue-collar city of Hialeah. She rode her bike and roller skated around the neighborhood. Her parents saved up to send her to Catholic school. It was a big deal when she went away to New York for law school.

“In the country my parents fled, the whim of a single individual could mean the difference between food or hunger, liberty or prison, life or death,” Judge Lagoa said last year, when she was nominated to the Florida Supreme Court. “Unlike the country my parents fled, we are a nation of laws — not of men.”

Barbara Lagoa is at the top of Trump’s short list for RBG’s Supreme Court seat

Judge Lagoa, 52, is a Miamian, who currently sits on the 11th Circuit. She previously sat on the Florida Supreme Court and 3rd DCA. And before becoming a judge, she was an AUSA in the SDFLA. She's married to Paul Huck Jr. (son of District Judge Paul Huck Sr.) and they have three daughters. Here's a picture of Gov. DeSantis announcing her to the Florida Supreme Court with her and her family in the background:

We've never had a Floridian on the Supreme Court, which is something I've been pushing for since the start of this blog back in July 2005. 

More on the politics of this choice from Politico: Lagoa is on a list of names that Trump released earlier this month as possible replacements. But unlike Barrett, people close to the process say Lagoa has demographic and geographic advantages in her favor when it comes to the politics of Senate confirmation and the presidential election: Lagoa hails from Trump’s must-win state of Florida and she’s Cuban American. “Justice Lagoa is perfect,” said one source, who has discussed the matter with White House officials but was not authorized to speak on record. “The president wants a conservative jurist and he wants to win the biggest battleground. How do Democrats in the Senate vote against a Latina?” A second Republican who has close ties to Florida said that “Lagoa is at the top of the list. She checks a lot of boxes.” But some conservative groups could object based on what they see as Lagoa’s insufficient record on abortion, the ultimate litmus test on the right. One prominent GOP senator, Josh Hawley of Missouri, has already said he would only vote for a nominee who has affirmed that Roe v. Wade was “wrongly decided.”

RIP Ruth Bader Ginsburg

Everyone will be talking about whether Trump has enough time and the votes to get someone confirmed in the next couple of months.  But before we turn to politics, let's take a moment and remember the incredible woman, an inspiration to so many.  What a truly amazing person.  RIP.

From NPR:

Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas.

The court, in a statement, said Ginsburg died at her home in Washington surrounded by family. She was 87.

"Our nation has lost a justice of historic stature," Chief Justice John Roberts said. "We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tired and resolute champion of justice."

Architect of the legal fight for women's rights in the 1970s, Ginsburg subsequently served 27 years on the nation's highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed."

pic.twitter.com/dKaprfvfN7

— David Oscar Markus (@domarkus) September 19, 2020

🔥🔥🔥 (UPDATED WITH NEW ADMINISTRATIVE ORDER CONCERNING COVID-19)

UPDATE -- Chief Judge Moore just issued this new order concerning COVID-19, which seems to suggest that judges are not permitted to hold in person plea or sentencing hearings.  Yet there are rumors that the U.S. Attorney's Office will be convening a grand jury in November to start indicting cases that have been backlogged.

 ORIGINAL POST:

2-0

10-1

Let’s go Heat!

Have a great weekend. 

 Here are two great articles about the Heat's incredible run:

    1)    This one is about Udonis.

    2)    This one is about what it took to put together this team.

Must read opinion out of the SDNY regarding prosecutorial misconduct

 From Politico:

A federal judge has ordered all federal prosecutors in the Southern District of New York to read a ruling she issued Wednesday that blasts prosecutors for their handling of evidence in a criminal case involving alleged violations of sanctions against Iran.

U.S. District Court Judge Allison Nathan also said she was unsatisfied with the completeness of the government’s account of why prosecutors failed to turn over one key piece of evidence to the defense until the middle of trial, with one government attorney discussing with colleagues a plan to “ bury” the previously undisclosed letter among other documents being emailed to defense lawyers. “No responsible Government lawyer should strategize how to ‘bury’ a document that was not, but should have been, previously disclosed to the defense. A responsible Government lawyer should—at a minimum—forthrightly and truthfully reveal late disclosures to the defense,” Nathan wrote, emphatically disagreeing with the conclusion from U.S. Attorney’s Office leaders that there was nothing to “condemn” in the prosecutors’ actions.

“This Court disagrees and hereby strongly condemns this conduct,” Nathan wrote in her 34-page opinion. Nathan called some of the omissions by prosecutors “shocking.” And she expressed the greatest concern over the explanation prosecutors gave her after the defense for Iranian banker Ali Sadr questioned the late disclosure of the letter prosecutors discussed burying.

“The Court finds that the Government’s representation was misleading, as it implied that it had explicitly informed the defense that [the exhibit] was being disclosed for the first time. Indeed, the Court was misled,” the judge wrote. A jury convicted Sadr in March of five felony counts related to the alleged sanctions violations. However, in June, prosecutors abruptly sought to abandon the case due to the evidence issues that emerged.

You can read the whole opinion here.  Good for Judge Nathan.  Makes me remember how great Judge Gold was as a judge here in this District.  Here's how the opinion starts:

Federal prosecutors have constitutional and statutory duties to disclose many types of evidence to defendants. This principle of disclosure is central to our criminal-justice system. “A prosecutor that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant . . . That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.” Brady v. Maryland, 373 U.S. 83, 87–88 (1963). And federal prosecutors, like all parties that appear before the Court, have ethical duties of candor. United States v. Universita, 298 F.2d 365, 367 (2d Cir. 1962) (“The prosecution has a special duty not to mislead; the government should, of course, never make affirmative statements contrary to what it knows to be the truth.”). In the near decade the Undersigned has sat on the bench in the Southern District of New York, the vast majority of Assistant United States Attorneys before the Court have embraced their disclosure obligations, worked diligently to meet them, and forthrightly admitted when they did not. 

But not all. In this case, federal prosecutors have by their own admission repeatedly violated their disclosure obligations and, at best, toed the line with respect to their duty of candor. Over the course of years in this prosecution—before, during, and after trial—the Government has made countless belated disclosures of arguably (and, in one instance, admittedly) exculpatory evidence. For some pieces of evidence, the Government provides plausible explanations for its late disclosure. For others, it provides no explanation at all. And when the Court pressed for more information about one of these failures, the Government made a misrepresentation to the Court. This serious dereliction requires a serious response. 

And the conclusion:

Almost a century ago, the Supreme Court defined the singular role federal prosecutors play in our system of justice:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . . . He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935).

The Government in this case has failed to live up to these ideals. The Court has recounted these breaches of trust, proposed some systemic solutions, urged referral to the Office of Professional Responsibility for admitted prosecutorial failures apparent in the existing record, and ordered further fact-finding. The cost of such Government misconduct is high. With each misstep, the public faith in the criminal-justice system further erodes. With each document wrongfully withheld, an innocent person faces the chance of wrongful conviction. And with each unforced Government error, the likelihood grows that a reviewing court will be forced to reverse a conviction or even dismiss an indictment, resulting in wasted resources, delayed justice, and individuals guilty of crimes potentially going unpunished. The Court thus issues this Opinion with hopes that in future prosecutions, the United States Attorney for the Southern District of New York will use only “legitimate means to bring about a just” result. Id. Nothing less is expected of the revered Office of the United States Attorney for the Southern District of New York. That Office has a well- and hard-earned reputation for outstanding lawyers, fierce independence, and the highest of ethical standards. The daily work of the prosecutors in that Office is critically important to the safety of our community and the rule of law. Those who stand up in court every day on behalf of that Office get the benefit of that reputation—but they also have the responsibility to maintain it. The Court hereby ORDERS that the Acting United States Attorney ensure that all current AUSAs and SAUSAs read this Opinion. Within one week of the date of this Opinion, the Acting United States Attorney shall file a declaration affirming that this has occurred. The Court FURTHER ORDERS that each of the trial team AUSAs, supervising Unit Chiefs, and the SAUSA submit the declarations described in Section III no later than October 16, 2020. By October 30, 2020, the executive leadership for the USAO may submit a brief as to why no further proceeding for additional fact-finding or credibility determinations is necessary. Counsel for Mr. Sadr may, if they wish, submit a responsive filing by November 13, 2020, and the Government a reply by November 20, 2020.  

The only thing that can be said for the SDNY is that they eventually did the right thing and dismissed the case.  There have a bunch of cases in this District and others where serious misconduct has been uncovered, but admissions of wrongdoing and dismissals were not forthcoming. Sadly in those cases, the government has dug its heels in.  If prosecutors won't dismiss where misconduct is uncovered, then judges should.

If you are looking for some free CLE credits regarding e-discovery....

I'm told that there is a criminal component involving the seizure of a cell phone pursuant to a search warrant, the government’s lengthy efforts to unlock the seized phone, self-incrimination issues re: an i-Phone password, and a Rule 41 return of property issue.

The Palm Beach County Chapter of the Federal Bar Association

proudly presents:

Towards A New E-Discovery Paradigm

A Zoom Webinar featuring:

THE HONORABLE WILLIAM MATTHEWMAN

U.S. MAGISTRATE JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

Presentation to be preceded by the swearing-in of the Palm Beach Chapter Officers

for the 2020-2021 year by:

THE HONORABLE KENNETH MARRA

SENIOR U.S. DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

September 18, 2020, AT NOON

FROM YOUR COMPUTER – BY ZOOM

This event is FREE for all attendees.

0.5 CLE credit requested

 RSVP by September 17, 2020 at noon to Traci Willard (twillard@mrachek-law.com) 

 The Zoom Meeting ID and Password will be sent by 3 p.m. on September 17^th. If you do not receive the invitation by 5 p.m., please send an email to both twillard@mrachek-law.com and adrumm@carltonfields.com

Did the Dems win the fight against DeSantis regarding the Florida Supreme Court?

 Well, the challenge was successful and Renatha Francis is out.  The Governor appointed Jamie Grosshans, 41, in her place.  Grosshams was appointed to the county bench when she was 38.  Of the choices DeSantis had from the JNC list, many said that Grosshans was the most right wing and her reputation is certainly more conservative than Francis.  Does anyone have any experience before her either in county, circuit, or the 5th?

Meantime, DeSantis said that Francis should now be considered for a federal seat in the Southern District of Florida.  Currently David Leibowitz is still up for Judge Moreno's seat, but there has been no movement there in a while.  Leibowitz is a great guy; smart and personable.  It will be interesting to see how this plays out.  If Biden is elected in November, will there be enough time for Trump to fill Moreno's seat?