Senators Durbin and Grassley introduce bill to prohibit judges from using acquitted conduct at sentencing.

The bill is here. And it has bi-partisan support:

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.

As the senators say, it's un-American.

Let's hope the bill passes.

Ariana Fajardo Orshan resigns, effective March 27, 2021

 Here's her letter:

Debate with Rumpole about using archaic legalese in motions

COMES NOW Defendant Cross-Plaintiff David Markus (hereinafter referred to as “Defendant” or “Cross-Plaintiff” or “Mr. Markus”), by and through undersigned counsel, who hereby files this motion for summary judgment (the “motion” or “MSJ” or “summary judgment” ) pursuant to Federal Rules of Civil Procedure (hereinafter “the Rules”) and states as follows. 

Oy vey.  Did that introduction help in any way to persuade you of anything? Of course not. But Rumpole laps up the legalese in this post over at his blog, which is usually wonderful, but is very wrong on this point.

We no longer write motions on a typewriter with carbon paper.  We don’t rent videos from Blockbuster.  We don’t take film to a camera store to be developed.  We don’t use curled up paper in a fax machine.  Or even a fax machine at all.  

Likewise, we don’t need words like COMES NOW, hereby, herein, aforementioned, inter alia, heretofore, know all men by these premises, and so on. If the goal of legal writing is to persuade, we should do away with archaic legalese.  Plain and easy to understand English is the way to go.  Phrases like COMES NOW do not add anything to a motion.  They are not persuasive.  They are meaningless. 

Bryan Garner, the legal writing authority, says the term COMES NOW should be banned and asks whether lawyers who use such terms “think that the phrase made them sound more thunderous and authoritative?” Justice Scalia started this plain English trend at the Supreme Court.  And it has taken root with the best legal writers across the courts.  From Robin Rosenbaum and William Pryor in the Eleventh Circuit to Alex Kozinski, former Chief Judge of the Ninth Circuit.  

Rumpole wants to stick to tradition, but this is a tradition that needs to be abandoned.  Lawyers also used to wear wigs to court.  Saying things like: I’ve received the your blog argument and “ hereby acknowledge same” doesn’t sound lawyerly.  It sounds like you’re a wanna-be lawyer.

Rumpole, PLEASE GOVERN YOURSELF ACCORDINGLY.  

Okay, don’t use that one either!

BREAKING -- Federal JNC is formed (UPDATED with a correction from Sen. Rubio's office)

The South Florida Federal JNC is:

Vivian de las Cuevas-Diaz

Larry Handfield

Retired Judge Ilona Holmes

Eduardo Lacasa

Victoria Mesa-Estrada

Burnadette Norris-Weeks

Retired Justice Barbara Pariente

I've been told that 5 Dem picks, two Rubio picks (update, this is incorrect; see below), and that Scott refused to participate.  These 7 people will make recommendations for federal judges and U.S. Attorney.  More to follow.

Updated with this statement from a spokesperson for Sen. Rubio to the blog:

“Senator Rubio is not a participant in this JNC.  Due to his longtime working relationship with Congresswoman Wasserman Schultz, at her request he provided the names of Republicans who have served on his JNC in the past. However they are not his appointees. As he has done his entire time in the Senate, he will continue to rely on his own bipartisan commission to assist in fulfilling his role in the Senate’s constitutional duty to provide advice and consent on judicial nominees. And as he has done in the previous two Congresses, he will make decisions on U.S. Attorneys and U.S. Marshals directly.” 

Horrific conditions exist in our prisons.

Read the thread below. How do we allow this?

In Texas prisons, food is so bad the staff are finding mold on it. This photo came w/a leaked email a shocked official sent to every unit.

“If there is mold on the bread don’t make a sandwich w/it,” he wrote.

Here’s a THREAD on more internal emails abt the food situation. pic.twitter.com/JyMmUUb7BF

— Keri Blakinger (@keribla) March 3, 2021

New Podcast episode: Abbe Lowell for John Edwards

Typically a federal trial about election law doesn't involve extramarital affairs, the National Enquirer, and a Presidential candidate.  You'll get all of that in today's episode of For The Defense, in which I discuss the John Edwards trial with the great Abbe Lowell.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

John Edwards and Abbe Lowell
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Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.
• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.  Listen here.

Coming up on For the Defense:

• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

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

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season).

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

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

"What's next for U.S. District Judge Roy Altman?"

 That's the title of this nice piece about Judge Altman in the DBR. Here's a cool shout-out to his grandfather:

And when Altman had one of his last conversations with his grandfather in Caracas, Venezuela, those American historical figures and what they stood for was the basis of a topic of discussion. At the time, his grandfather was dying from cancer. The two men were playing several games of chess on the balcony of his grandfather’s apartment overlooking tens of thousands of protestors.
That afternoon was a few weeks after Hugo Chávez, the president of the island nation in which corruption had become increasingly more widespread, padded the Venezuelan Supreme Court with loyalists in his party so he could seek unlimited terms in office.

Altman expressed to his grandfather his intentions to apply to law school as people took to the streets to protest the “gross violation of their constitutional charter.”
“One of the last things my grandfather said was: ‘This is what happens to a country when good people don’t serve it. When the worst people become public servants. If you’re going to be a lawyer, remember to be the right kind of lawyer that serves its country, so this never happens in America,’ ” Altman recounted. “ I carried those words with me. That story was my essay for my application to Yale Law School.”
And as Altman was nearing graduation from Yale in New Haven, Connecticut, he had no doubt in his mind that he wanted to return to Miami to start his legal career.
“This is the community that brought my family in when we came here from Venezuela,” Altman said. “We built a life here, we built friendships here, and I owed this community, I still do, for taking us in.”

Former U.S. Attorney Willy Ferrer said: “I would not be surprised to seeing Roy sitting on the U.S. Supreme Court,” Ferrer said. “He’s got everything that it takes to be elevated in the U.S. court system.”

Rumpole's Rules of Court (Updated)

 He posts his 10 Rules here, which he says apply via Zoom or in person.  I like them.  Check them out, especially young lawyers.  One quibble with Rule #4 -- are you really standing up during Zoom court?

Updated -- one rule Rumpole should think about adding is that clients shouldn't show up while performing surgery.  This plastic surgeon thought it was a good idea to appear for trial during while his unconscious patient was on the operating table. 

Speaking of Zoom court, I'd like to see the statistics for Zoom sentencings.  Are judges giving more significant downward variances because of the pandemic? Or are sentences higher because it's harder to humanize the client over Zoom?  

My experience has been that most judges recognize the difficulties in presenting arguments during a Zoom sentencing as well as the challenges of custodial sentences.  They have been giving the "Zoom discount." It depends, of course... for some judges, it's business as usual.  But overall, I have seen better (lower) sentences over the past year.  

My hope is that these slightly lower sentences start to become normalized and don't change once the pandemic is over.  If Biden can prioritize judges and appoint some progressives to the bench, we may even start to see real change in sentencing.  Let's see.

What will President Biden do with the Sentencing Commission

 Sentencing Guru Douglas Berman writes about it here.  From his conclusion:

Diverse nominees to the Commission should help ensure this agency pursues an ambitious reform agenda. But President Biden should also expressly request the Commission conduct a comprehensive assessment of the entire federal sentencing system—and perhaps even our whole nation’s many sentencing systems—with a particular focus on modern mass incarceration and mass punishment. The American Law Institute’s recent revision of the Model Penal Code’s sentencing provisions wisely recommends that sentencing commissions regularly “perform an omnibus review of the sentencing system,” which should include “a comparative review of the experiences of other jurisdictions with similar sentencing and corrections systems.” An across-the-board review of the federal sentencing system is long overdue, and the U.S. Sentencing Commission has the staff and resources needed to conduct a systematic, evidence-based nationwide analysis in order to identify those modern sentencing systems and practices that best advance public safety and equitable justice while minimizing the number of persons subject to penal custody and supervision.

Calls for reviving and reorienting the work of the U.S. Sentencing Commission are coming from many quarters: a task force of the Council on Criminal Justice has stressed the need to “reinvigorate the U.S. Sentencing Commission,” for example, and the Biden-Sanders Unity Task Force on Criminal Justice Reform recommended that the Commission be tasked “with conducting a comprehensive review” of federal sentencing law and practices. But even with a chorus of voices and strong political will for significant sentencing reforms, President Biden must prioritize making appointments that can enable the U.S. Sentencing Commission to effectively lead the way.

What will the new SDFLA U.S. Attorney do about prosecutorial misconduct?

 That's a question that should be asked of all potential candidates for U.S. Attorney.  In SDNY, for example, the office has dismissed cases where there is misconduct, even after a conviction (unlike here).  From the WaPo:

Federal prosecutors in New York acknowledged telling a “flat lie” to a criminal defendant’s legal team while trying to downplay their mishandling of evidence in the botched trial of a businessman accused of violating U.S. sanctions on Iran.

The embarrassing revelations about what many consider the U.S.’ top criminal investigating office were contained in a dozens of private text messages, transcripts, and correspondence unsealed Monday, over the objection of prosecutors, at the request of The Associated Press.

The release of the records followed a ruling last week in which U.S. District Judge Alison Nathan urged the Justice Department to open an internal probe into possible misconduct by prosecutors in the terrorism and international narcotics unit in the U.S. Attorney’s Office for the Southern District of New York.

While Judge Nathan found no evidence that prosecutors intentionally withheld evidence from lawyers representing an Iranian banker, Ali Sadr Hashemi Nejad, she said they made a “deliberate attempt to obscure” the truth and attempted to “bury” a key document that might have helped the defense.

The mistakes were serious enough that even after winning a conviction, prosecutors dropped all charges against Sadr.

The whole article is worth a read as it details incredible, but not uncommon, misconduct. The New York judge was upset with the government and urged OPR to investigate.  We know what OPR will do.  But at least SDNY dismissed after the jury verdict of guilt.  That's not true in other officers or especially here, where there is a long line of misconduct cases, which the office tries to defend even after misconduct is exposed.  It will be interesting to see if that changes under the new administration.  

So, hopeful U.S. Attorney candidates -- feel free to email me your plan to address prosecutorial misconduct and I will post your answer in full.

In the meantime, we still need judges to check prosecutors when they cross the line.  

Jayne Weintraub for Yahweh Ben Yahweh

Today's episode of For The Defense is a doozy.  Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended Yahweh Ben Yahweh who some called a cult-leader and others called a savior.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

Yahweh Ben Yahweh, center.

.
Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.

Coming up on For the Defense:

• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

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

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season.).

I would really appreciate it if you could subscribe and comment on the podcast!  If you or a friend would like to receive these updates, please have them sign up here. 

Hosted by David Oscar Markus and produced by rakontur

RIP Bobby Lee Cook

 It's always sad to say goodbye to great trial lawyers.  And Cook was one of the best  From ACJ:

Bobby Lee Cook, one of the premier trial lawyers in America and perhaps Georgia’s most famous attorney, died Friday at his mountain home in Cloudland. He was 94....the stories of Cook’s ingenuity, antics and legal prowess abound. Many have been repeated so many times over the years, lawyers take them as gospel although some are hard to completely verify. Like the time Cook was defending a man accused of murder and the state’s star witness testified he was certain Cook’s client had fired exactly two shots. Expecting this testimony, Cook stationed a friend outside the courthouse and had him fire off six rounds. When asked how many shots had just been fired, the state’s witness couldn’t say for sure. Cook’s client walked. Or the time in a moonshine case where Cook was cross-examining the local sheriff. When Cook accused the sheriff of not arresting another moonshiner because he’d been accepting bribes from him, the sheriff threw a Coke bottle at Cook, narrowly missing him. Cook dragged the sheriff down from the witness stand and began pummeling him. After a few moments, the trial judge told Cook to let the sheriff get up off the floor, saying, 'I think he’s had enough.' The jury acquitted Cook’s client in that case, too.

Rubio backs Markenzie Lapointe for U.S. Attorney

The Herald article is titled: "Rubio backs Haitian-American lawyer for Miami U.S. Attorney.  But candidate field is growing."  The intro:

Although the Republican Party lost the presidency and the power to pick U.S. attorneys, Florida Sen. Marco Rubio still can wield considerable influence over the selection of the next top federal prosecutor in South Florida.

In a key move, sources close to Rubio say, the senator has privately signaled support for a Haitian-American lawyer considered the Biden administration’s front-runner — Markenzy Lapointe, a Black Miami lawyer and Marine veteran who once worked in the U.S. Attorney’s Office.

But Lapointe isn’t the only candidate to emerge. There are at least four others interested in the job — all also qualified and with a history of practicing law in both the public and private sectors. Among them are former South Florida federal prosecutors Jacqueline Arango, Andres Rivero and David Buckner, along with Palm Beach County State Attorney Dave Aronberg. 

 

Readers of the blog knew of this slate when it was posted here on the blog first back on December 11, 2020.

Should courts be having in person hearings?

Forget about trials for a moment, which are postponed until May.  Here's an email from Paul Petruzzi that just went around about a state court probation violation hearing:

So, many of you know I share space with Jerry Cariglio. Our office also has staff and a lawyer with health conditions that place them at greater risk for serious complications were they to contract Covid. As an office, we have all been very careful to avoid exposing ourselves and then the rest of the office. Over Jerry’s objection, Judge Fernandez decided to conduct a PVH in person rather than waiting for things to become more safe. The hearing started yesterday and was to resume today. It won’t resume today because the bailiff tested positive for Covid. In the meantime, Jerry had very close contact with the bailiff for several hours yesterday and now has had contact with half the people in our office suite.
I encourage the judicial powers that be in state court to rethink their current plans.
Paul P.

"Just Let People Have Cellphones in Prison"

 That's the title of this great piece by Hannah Riley at Slate.  And of course we should let folks have their phones, especially during the pandemic lockdown in prisons where they can't leave their rooms for most of the day.  From the conclusion (and I recommend checking out prison TikTok):

It’s not all grim, though. A scroll through prison TikTok will reveal everything from how to MacGyver loose electrical wires to boil water to recipes for “prison pizza”—and then there are, of course, the TikTok dances. People are risking retaliation to show that they too have joy, in the midst of darkness.

The desire to punish is a deeply human one, but we should know by now that policies based on revenge never end well, especially when we know that those policies actually result in more harm. Access to cellphones—that is, access to love, connection, transparency, and a window to the outside world—is one simple but vital step to reduce those harms. Those who believe incarceration should be maximally harsh and devoid of joy or connection must reckon with reality: The more we isolate and torture people in cages, the less safe we all become.

 

Season 2, Episode 4: Rob Cary for Sen. Ted Stevens

It's prosecutorial misconduct on this week's episode of For The Defense.  The podcast features Rob Cary of Williams & Connolly, who represented Sen. Ted Stevens in his federal trial in which there was widespread prosecutorial misconduct.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

From left are Sen. Stevens, his lawyers Rob Cary and Brendan Sullivan, prosecutor Joseph Bottini, Judge Emmet Sullivan and government witness Bill Allen.

Sen. Stevens and Rob Cary

Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.

Coming up on For the Defense:

• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.
• Abbe Lowell (John Edwards): The future was bright for Vice-Presidential nominee and Presidential candidate John Edwards until he was indicted in federal court for a cover up involving an extra-marital affair.  He needed Abbe Lowell’s trial skills to keep him out a prison cell.
• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

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

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

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

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur

Latest trial order from Chief Judge Moore (spoiler... trials continued till May)

The order is below. Although trials are technically continued until May, it's going to be longer than that. There is a pilot civil jury trial scheduled for May now (as reported earlier), but juror summons go out about 8-10 weeks in advance. So assuming that May pilot trial goes well and the Court decides to open things up again, we are looking at July before we get back in earnest.

2021-12 Coronavirus Public Emergency - Eighth Order Concerning Jury Trials and Other Proceedings 02-10-21 by David Oscar Markus on Scribd

Mark Lapointe front runner for U.S. Attorney in SDFLA

 Jay Weaver covers the story here:

With sweeping turnover in the U.S. justice system under way in the new Biden administration, a Black lawyer has emerged as the leading candidate for the high-profile job of U.S. Attorney in Miami.

If President Joe Biden nominates Markenzy Lapointe, 53, for the influential post, it would be an historic choice in one of the most dynamic federal prosecutor’s offices in the nation.

Not only would his nomination be a first in the Southern District of Florida, but it would also signal Biden’s nod to the Black vote that helped him defeat Donald Trump in November’s presidential election. Lapointe is the only candidate to be interviewed by the White House counsel so far for the U.S. Attorney’s job, reflecting the strength of his prospects.

This is so great.

Prof. Ron Sullivan for Aaron Hernandez

Welcome to Episode 3 of For the Defense, Season 2. 

This week, we have Harvard Law Professor Ron Sullivan (pictured below, left) to discuss the Aaron Hernandez trial (available on Apple and all other platforms). Sullivan tried the case with Jose Baez (last week's guest, who discussed the Casey Anthony case -- available on Apple here and other platforms here).  Hernandez already had been convicted of murder, and this was his second murder trial where no one gave him a shot.  Enter Sullivan and Baez...

Here's a short clip (via Twitter) of Prof. Sullivan discussing the prosecutor's attempt to use Hernandez's tattoos in closing argument:

Two TDs for Gronk in the Super Bowl. Brady’s former TE, Aaron Hernandez, had two murder trials. In today’s episode of #ForTheDefense, I speak to Prof. Ron Sullivan about the 2nd trial. In this clip, he discusses Aaron’s tattoos and their use at trial. https://t.co/HaF2A4rnxY pic.twitter.com/xcDY4kj5dy

— David Oscar Markus (@domarkus) February 8, 2021

In other news, we are going to have a new U.S. Attorney very soon.  According to this CNN article, President Biden will be asking all Trump hold-overs to resign, including in the SDFLA. According to the article, there are a few exceptions -- including Michael Sherwin in D.C. who is doing a great job handling the insurrection cases.  

Black Lives & Medicine program at the Court (virtually)

 To attend, all you need to do is send an email by February 19, 2021, to: FLSD_Program@flsd.uscourts.gov.

 

"Restoring the Historical Rule of Lenity as a Canon"

 Shon Hopwood has this new piece about the Rule of Lenity.  It's especially important with all of the white collar cases that charge people who are in a gray area.  From the abstract:

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes. As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts. If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

Pilot civil jury trial set for May in SDFLA

The judges voted yesterday to have a pilot civil jury trial in May.  I'm told it was a spirited debate and it passed 10-8.  If that goes well, other civil and criminal trials could resume as soon as the summer.  

For the pilot trial in May, there are a number of protocols and standards that will have to be met before it can go forward.  It will be interesting to see where we will be with the variants and vaccine roll-out at that time.  

I posted about the issue a few weeks ago here.

Judge Fay funeral arrangements

Funeral mass will be held at 11:00 a.m. on February 9, 2021 at St. John the Evangelist Catholic Community Church, 5655 Stadium Pkwy Viera, Florida 32940 and will also be live streaming at https://youtu.be/UvG1-mbN3GE. In lieu of flowers, donations may be made to Rollins College, St. Thomas University, UF Law's Peter T. Fay Jurist-in-Residence Program, Wounded Warriors, or the Shriners Hospitals for Children.

New guidance for federal prosecutors. Will it matter?

 The Acting AG issued new guidance for federal prosecutors "to ensure that prosecutors are able to exercise discretion in pursuing justice."  The January 29 memo explains that the Trump era policy of charging the most serious offense and seeking the highest sentence is rescinded.  And in its place, the old Obama-era policy on charging and sentencing will take its place.  That means that prosecutors will have the discretion to look at the particular case and person, and then decide what the appropriate charge and sentence should be. This is a significant change.  Let's see if our federal prosecutors will take the letter and spirit of the change to heart.

Jose Baez on this week's episode of For the Defense

 

FOR THE DEFENSE EPISODE 2 JOSE BAEZ FOR CASEY ANTHONY This week, we have Jose Baez on the show to discuss the Casey Anthony case. Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. In this clip (posted on Twitter), Jose discusses the first time he started to suspect George Anthony of abusing his daughter, Casey Anthony.   Last week, Season 2 of For the Defense got off to a great start with Alan Dershowitz, who discussed the O.J. Simpson trial as well as lots of other interesting topics.  (Here's a clip of Dersh answering whether the prosecution lost the trial or whether the defense won it.)  Each episode is currently available on all podcast platforms including Apple, Spotify and Google,  All other platforms can be accessed on our website.  Please send me your feedback -- and of course, subscribe, like and comment!  We would really appreciate positive reviews if you have a minute.  Finally, if you would like to receive these updates via email, please sign up here.  Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

RIP Judge Peter T. Fay

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

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

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

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

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

UPDATE WITH COMMENTS:

Here's Judge Federico Moreno:

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

 

Ursula Ungaro taking senior status

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

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

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

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

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

 

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

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

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

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

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

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

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

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

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

How about a Libertarian AG?

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

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

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

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

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

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

***

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

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

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

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

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

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

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

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

Significant pardons/commutations in SDFLA include Melgan and Lil Wayne

 Here's the link to the full list:

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

 

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

When should we resume federal jury trials?

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

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

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

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

The outbreak occurred after testimony in the trial had begun:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— MSNBC (@MSNBC) January 12, 2021