The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
The Judges of the United States District Court for the Southern District of Florida cordially invite you to their annual Black History Month program on Thursday, February 17, 2022, at 12:00 noon. This will be a virtual event. Please click this link to join the webinar.
Check it out here. There's great stuff about her high school debate career, including this gem of a picture from the yearbook of her and Stephen Rosenthal:
There's also a quote by yours truly about the importance of professional diversity on the Supreme Court:
The 51-year-old appeals court judge spent her formative years in the criminal defense system, notably as an assistant federal public defender in Washington, D.C. She also served as a staff attorney and commissioner on the U.S. Sentencing Commission, which dramatically overhauled draconian incarcerations for drug offenders. Occupants of the Supreme Court’s nine seats have typically been tapped from federal appeals courts, major law firms or academia with little to no background in criminal defense, the arena of law that disproportionately impacts minorities and the poor. The last Supreme Court justice to have any criminal defense experience was Thurgood Marshall, the first Black man to sit on the high court. Miami criminal defense attorney David O. Markus, a former federal public defender who graduated from Harvard Law School in 1997, a year after Brown Jackson, believes she would bring a fresh perspective that could serve the entire court well.
“It’s not just diversity in the traditional sense that is important; professional diversity is also critical,” Markus said. “Appointing a former defender won’t even the scales, but at least someone who has experienced what it’s like to defend a case against the overwhelming might of the federal government will have a place to be heard.” Her own family history during the 1980s in Miami, a period that exposed her to both sides of the law, also strongly influenced the legal path she pursued as a lawyer and judge, Brown Jackson herself has acknowledged in prior Senate confirmation hearings. She was raised in suburban comfort in the Cutler Bay area by two educators, including a mother who served as a high school principal and a father who taught history and later became the chief lawyer for the Miami-Dade County School Board. She also had two uncles and a brother who became police officers.
As public defenders, we usually don't prevail on behalf of our clients. Either because of immovable facts, challenging case law, or self-inflicted wounds, we have an uphill battle. But we persist because of our commitment to our clients and the idea of justice.
While you were sleeping, an Olympic story of persistence played out. At the 2006 Olympics in South Korea, a premature celebration cost Lindsey Jacobellis the gold medal in snowboard cross. She was 20 years old at the time. At the 2010 Games in Vancouver, she swerved off course during the semifinal and missed the final. In Russia, four years later, she was leading in the semifinal, stumbled, and missed the final again. In 2018, she made the final but came in fourth. During this time, Jacobellis became the most dominant athlete in her sport— 30 individual World Cup wins, 10 X Games gold medals, six world championships. But she had never won Olympic gold.
Until yesterday. Now 36, Jacobellis's win made her the oldest snowboarder to medal at the Olympics and the oldest American woman to win gold—in any sport—at the Winter Games.
Jacobellis exemplifies what Maya Angelou said about persistence: "You may encounter many defeats, but you must not be defeated. In fact, it may be necessary to encounter the defeats, so you can know who you are, what you can rise from, how you can come out of it."
Here's to Jacobellis and all those who persist.
It's desperately needed. It's going to cost $190 million. And this is what it will look like when it's done in 2026:
The project, the most significant federal investment in South Florida civic architecture since the completion of Miami’s newest U.S. courthouse in 2006, is slated to start rising in 2023 on a site on the Tarpon River acquired by the government last year for $13.5 million. The design features a spare, square white tower with fluted panels of glass and metal that recall the classically inspired federal buildings of the 1960s. In a nod to tropical Modernist design, the 10-story tower is fronted by a wavy, sheltering arcade for pedestrians that extends to the ends of the 3.5-acre lot. At the back, on the riverbank, the plan calls for a new park and promenade and preservation of existing mangroves.
I mean, how else do you explain Michael Avenatti and Sarah Palin chatting in the SDNY cafeteria during a break in their trials? From someone who saw it and tweeted about it:
An exchange in the SDNY cafeteria...
Michael Avenatti, as Palin walks by:
"Ms Palin, how are you?" Avenatti told her "good luck" several times.
At end of their encounter, he said good luck again, to which she said
"You too, best of everything."
Meantime, the jury had to be Allen charged today in the Avenatti trial. As you can imagine, I’m strongly against Allen charges. If a jury can’t reach a verdict, that should be it. And the government should only get one shot to convict a defendant. None of this retrial madness.
Avenatti started his closing this way:
"When my father was a teenager, he sold hotdogs at a ballpark." The judge sustained an objection but I’m not sure why.
And he ended this way:
"I will leave you with this: I'm Italian. I like Italian food...The case that the government is attempting to feed you has a giant cockroach in the middle of the plate. Would you eat that dish, or would you send it back? I submit that you would send it back."
By John Byrne
Former Miami Dolphins head coach Brian Flores has sued the Dolphins, Giants, Broncos, NFL, and Jon Doe teams 1-29 in federal court in New York. Read the lawsuit here.
It’s a class action asserting, among other claims, race discrimination under Section 1981. Pretty explosive allegations, including that Dolphins owner Stephen Ross offered Flores $100,000 for every game lost during Flores’s first year as head coach (with the goal of securing the #1 pick in the draft, which the Bengals ultimately used to select Super Bowl-bound Joe Burrow) and that, after the 2019 season, Ross pressured Flores to “recruit a prominent quarterback in violation of League tampering rules” (appears to be referring to Tom Brady). Lots of fallout to come from this.
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Michael Avenatti is learning the hard way from his trial last week where he is representing himself and trying to cross his former client, Stormy Daniels. One exchange:
Avenatti: Wasn't it true I was typically nice and respectful to you? Stormy Daniels: No. You lied to me. Avenatti: Didn't you tell the government I was nice and respectful? Stormy Daniels: I was wrong. Avenatti: Move to strike.
Ouch.
Another exchange:
Avenatti: Didn't you tell the New York Times that watching me work was like watching the Sistine Chapel painted? Stormy Daniels: That's that you told me to say.
More from InnerCityPress here.
By Michael Caruso:
Yesterday was International Holocaust Remembrance Day, marking the anniversary of the liberation of the Auschwitz concentration camp. At a time when antisemitism and extremism are both on the rise, remembering the atrocities of the Holocaust is essential. NPR, in this story, has collected the stories of Holocaust survivors themselves. But, as the UN Secretary-General said this week, "As fewer and fewer can bear direct witness, let us together pledge to always remember and make sure others never forget."
You might think I'm talking about Justice Breyer.
You'd be wrong!
I'm talking about the announcement that two magistrate judges will be retiring: Magistrate Judge McAliley on January 20, 2023 and Magistrate Judge Lurana Snow on May 31, 2022.
Chief Judge Altonaga already has formed a Magistrate Judge Selection Panel to make recommendations to fill the slots, which will be chaired by Irene Oria, Esq.
As far as Breyer goes, the smart money is that Ketanji Brown Jackson will be nominated. That would be extremely cool because she grew up in Miami and went to Palmetto High School. She would be the first Floridian on the Supreme Court.
Here's a Herald article about her, with a quote from yours truly. It also has a quote from her high school prom date, former U.S. Attorney Ben Greenberg:
Ben Greenberg, a former U.S. Attorney for the Southern District of Florida who was on the debate team with Jackson at Palmetto High and graduated one year after her, said he and Jackson went to prom together as dates when he was a junior and she was a senior. “On the one hand, it’s incredibly exciting, and on the other hand it’s not at all surprising,” Greenberg, now a partner at Greenberg Traurig law firm in Miami, said of Jackson as a potential Supreme Court nominee. “She was incredibly smart, hard-working, super honest, and one of the nicest people you’d ever want to meet.”
The Vetting Room has an interesting post about her here. The conclusion:
Throughout her career, Abudu has not hesitated in taking strong positions on the law, even where a court has ultimately disagreed. While her advocacy is likely appreciated by her clients, it is also likely to draw strong opposition from those who oppose the positions she has taken. Republicans may particularly highlight Abudu’s presentation of Florida’s felon disenfranchisement policies to the UN Commission on Human Rights, arguing that the move approves international oversight over American policies. Ultimately, while Abudu is unlikely to get much bipartisan support, she also remains a favorite for confirmation.
By John R. Byrne
That was cruise ship passenger Steven Heard Fales referring to the crew of the Crystal Symphony. The cruise ship avoided docking in Miami--its end destination--because of an arrest warrant issued by Judge Gayles. The ship diverted to the Bahamas and passengers boarded another ship that took them to Port Everglades. Apparently, the U.S. Marshals were ready to board the ship and take it into custody. The New York Post covers it here. The federal lawsuit that led to the arrest warrant--brought by Peninsula Petroleum Far East Ptd. Ltd.--alleges that Crystal Cruises' parent company failed to pay $1.2 million in fuel bills. Case Number is 1:22-cv-20230-DPG.
Last week I put up a story by Nina Totenberg about Chief Justice Roberts "asking" the other Justices to wear masks because of Justice Sotomayor's health. Gorsuch supposedly refused and Sotomayor didn't take the bench. That led to Gorsuch and Sotomayor issuing a joint statement saying it wasn't true, followed by a statement by the Chief saying it wasn't true. Woah. But Nina Totenberg is sticking by her reporting, even if NPR has backed off a little bit. From the Washington Post:
Totenberg and NPR offered a rejoinder on Wednesday. “NPR stands by its reporting,” Totenberg wrote in a news story reporting on the reaction to her original news story.
And there it stood — until NPR’s public editor, Kelly McBride, weighed in with an assessment late Thursday. McBride, who functions as NPR’s ombudsman and has no authority over its newsroom, recommended that the organization issue a “clarification” to Totenberg’s story — not quite as serious as a correction but still nothing any reporter wants under her byline.
McBride suggested that despite the definitive language in her article, Totenberg wasn’t sure how Roberts conveyed his concerns to his fellow justices — whether he “asked” them to wear masks or made his thoughts known in a subtler way. She quoted Totenberg as saying, “If I knew exactly how he communicated this I would say it. Instead I said ‘in some form.’ ”
McBride concluded that using the word “asked” was “inaccurate” and “misleading,” and wrote that NPR should clarify the article accordingly.
Totenberg seemed to reject the advice, telling the Daily Beast on Thursday night that McBride “can write any goddamn thing she wants, whether or not I think it’s true. She’s not clarifying anything!”
And indeed, as of Friday afternoon, there is still no clarification or correction on Totenberg’s original article. But both NPR and Totenberg have seemed tacitly to acknowledge the problem elsewhere. In a follow-up report Tuesday afternoon on “All Things Considered,” Totenberg avoided the word “asked” and said Roberts had merely “suggested” masks be worn in the courtroom. Neither she nor NPR indicated that her characterization had changed from her report that morning.
By John R. Byrne
BY MICHAEL CARUSO
For those of us who've been perplexed by workplace behavior—management and employee—in either the government or corporate world, I recently found a manual that demonstrates how timeless these often ridiculous organizational inner workings are. About 80 years ago, this manual set forth the following observed behaviors:
Organizations and Conferences
