Magistrate Judge Melissa Damian sworn in (UPDATED WITH NOTE FROM WILLIAM ROMANISHIN)

 As fellow blogger John Byrne reported last week, our newest magistrate judge was sworn in on Friday.  Here's a picture, courtesy of Daniel Portnoy Photography:

 Congratulations to Judge Damian!

Update -- I loved this comment from longtime court reporter Bill Romanishin:

"Melissa" was one of many excellent law clerks I had the privilege of meeting and working with during my 28-year stint as Judge Ungaro's court reporter. I had intended to attend her investiture but was unable to. So I'm sharing a poem I wrote in Her Honor.

TRIBUTE TO MAGISTRATE JUDGE DAMIAN

My Dear Magistrate Judge "Melissa"
I have to say we sure did miss ya
When you left our chambers so long ago
After two years of clerking with Judge Ungaro

On you went to bigger and better things
The practice of law and all that that brings
Working diligently to file that legitimate motion
With confidence, intelligence, and great devotion

To the client who chose you for legal representation
To win their lawsuit and put an end to the litigation
Knowing you gave it your best with vigor and vim
Your reward being a judge's order that says you win

But who can forget your brownies that were so delish
And that secret recipe that you surely did relish
Myself perhaps the greatest fan of that sweet treat
Some might think that all we did in chambers is eat

But they will surely now soon discover
Their R&R has your name on the cover
Its content reflecting your expertise and precision
A judge seeing your name with deference to your decision

Knowing you rendered it with analysis and great thought
After listening to both sides in the courtroom where they fought
You exude great knowledge, forethought, and nothing less
So in this new position I know you'll give it your best!

Congratulations to Judge Melissa Damian

By John R. Byrne

Beautiful ceremony this Friday afternoon celebrating Judge Damian’s investiture.  Judge Ungaro gave a heartfelt speech about her former law clerk followed by funny and poignant speeches from Melanie Damian and the judge herself.  

Blogger David Markus was in absentia but received a shout out!

House Republicans block naming of federal courthouse in honor of Joseph Hatchett

In the last post, I said how rare it was for a bill to get bipartisan support.  This is a good example.  Even though Florida Senators Rubio and Scott pushed naming the federal courthouse in Tallahassee after Judge Hatchett, House Republicans shot it down.  Hatchett was an unbelievable trailblazer: veteran, first black federal appellate judge in the South, 5th Circuit judge, 11th Circuit judge, Florida Supreme Court Justice, etc.  I don't get it. 

238-187-1: House defeated bill naming US Courthouse & Federal Bldg in Tallahassee, FL for Joseph Hatchett, 1st Black FL Supreme Ct justice & 1st Black man to serve on federal appeals ct in Deep South, appointed to 5th Circuit Ct of Appeals. Bill failed to get 2/3rds vote to pass. pic.twitter.com/0mRUBfKaN7

— Craig Caplan (@CraigCaplan) March 30, 2022

From Politico:

The U.S. House on Wednesday blocked consideration of a bill pushed by Sen. Marco Rubio that would rename the federal courthouse and federal building located in downtown Tallahassee after Judge Joseph Woodrow Hatchett. Hatchett, who died in 2021, was the first Black person appointed to the Florida Supreme Court and eventually became a federal appeals court judge.

Both Rubio and Florida Sen. Rick Scott backed the effort to rename the courthouse after Hatchett with Rubio saying back in December that “his story is worthy of commemoration.” But it took a two-thirds vote — a process setup for legislation considered uncontroversial — for the House to take up the Senate bill and the effort failed largely due to opposition from House Republicans.

Ten of the 16 Republicans from Florida voted against Rubio’s bill: Reps.. Dunn, who is from Panama City, Gus Bilirakis, Vern Buchanan, Kat Cammack, Byron Donalds, Neil Dunn, Scott Franklin, Matt Gaetz, Brian Mast, John Rutherford and Greg Steube, who represents part of Tallahassee and in the most recent map vetoed by Gov. Ron DeSantis would have represented the entire city. Axios reported that Rep. Andrew Clyde (R-Ga.) was “behind the defeat of the bill because Clyde said he ‘let it be known’ to colleagues that Hatchett authored a 1999 opinion banning prayer at public school graduations."

"Prohibiting Punishment of Acquitted Conduct Act of 2021"

That's the name of the bill that passed in the House by a vote of 405-12.  Here's hoping for the Senate to pass it as well.  

Nothing passes with such bipartisan support anymore, so this is pretty big.  

From the House press release:

Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.

Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.

In his speech on the House floor today, Congressman Cohen said, in part:

“I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”

See those remarks, including part of the debate, here.

When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement:

“The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

For the Defense Season Finale: Ed Shohat for Carlos Lehder

FOR THE DEFENSE SEASON 4 FINALE, EPISODE 8

EDWARD SHOHAT FOR CARLOS LEHDER

It's the Season 4 Finale of For the Defense this morning with the wonderful Ed Shohat for Carlos Lehder -- one of the biggest (and longest -- 7 months!) drug trials in U.S. history.  You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) 

 

It's been a really great and fun season, which included:

• Bruce Rogow for 2 Live Crew and Luther Campbell 
• Mark Geragos for Susan McDougal
• Juanita Brooks for John DeLorean
• Gerry Goldstein for Richard Dexter (Deep Throat)
• Geoffrey Fieger for Dr. Jack Kevorikian
• Brian Heberlig for Ali Sadr and
• John Gleeson for The Holloway Project. 

 

Thank you to all of these great lawyers for sitting down with me this season. Also thank you to Alfred Spellman and to Cliff Bumgardner for all of their support in producing this labor of love.

CLE CREDIT FOR FLORIDA LAWYERS:  If you are a Florida lawyer and have listened to the whole season, you qualify for 8 CLE credits, including 1 technology credit and 1 ethics credit.  Please use course number 2110734N and course title: "For the Defense", with David O. Markus-Season 4.  This is free CLE credit -- woohoo! All that I ask in return is that you spread the word and leave a review.

Thanks again for all of your feedback and suggestions throughout the course of the season. 
 

--David
 

Hosted by David Oscar Markus and produced by rakontur
 

If you have a friend that would like to receive these updates, please have them sign up here. 

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

Happy birthday to Sandra Day O'Connor

She is 92, and sadly mostly withdrawn from public life because of the onset of dementia.

I wonder what she would think of the confirmation hearings and how Republicans acted and how they treated KBJ.

I wonder what she would think of the current Court and how they may undue Roe v. Wade.

I wonder what she would think about Ginni Thomas and January 6.

Trump Sues Clinton

By John R. Byrne

It's a long complaint and you can read it here.   In short, he alleges that, in the lead up to the 2016 election, Hillary Clinton, the DNC, and Congresswoman Debbie Wasserman Schultz, among others, conspired to craft the false narrative that he was colluding with Russia.  It's a nine count complaint that includes counts for RICO, RICO conspiracy, malicious prosecution, and theft of trade secrets.  Judge Middlebrooks drew the case.  Peter Ticktin of the Ticktin Law Group signed the complaint.  

Miami attorney Richard Rosenthal testifies for KBJ

Well done, Richard!

 

What is the GOP doing at the KBJ hearings? (UPDATED)

SAD!

Political theatre at its worst.... and nothing to do with judging or being a Justice.

These two -- Cruz and Jackson -- were on law review together at HLS.  One is blowing up pictures of books that KBJ has never discussed or written about.... literally nothing to do with her. But he wants to run for president. 

The other is trying to stay poker-faced and answer questions about her record.  She's doing a wonderful job and will be confirmed.  

UPDATE -- if the first day of questioning was disappointing for those of us who want a fair and objective Senate, the second day was a total embarrassment.  Cruz, Hawley, Cotton... wow. 

Judge Bloom Rules Against Cruise Lines Over Cuban Travel

 

By John R. Byrne

It looks like four major cruise lines will be paying for ferrying passengers to Cuba.  In a 169 page order, Judge Bloom ruled that the cruise lines--Carnival, Norwegian, Royal Caribbean, and MSC Cruises--engaged in "prohibited tourism" and "trafficking activities" in Cuba during the time cruising there was briefly sanctioned by the federal government.  The lawsuit was brought under the Helms-Burton Act.  The Herald covers the case here. 

SCOTUS Updates and RIP Louis Casuso

 1. KBJ starts her confirmation hearings this morning.  Right-wing attacks seem desperate and unhinged.  Here's Erwin Chemerinsky responding to some of the worst ones:

Lacking any grounds for opposition, Republicans are resorting to slime. Some are criticizing her because she worked as a public defender, including representing a Guantanamo detainee. But in our constitutional system, every criminal defendant is entitled to an attorney, and lawyers who perform this role are fulfilling the most noble goals of the legal profession. That Jackson will be the first public defender to be a Supreme Court justice should be celebrated, not attacked.

Missouri Sen. Josh Hawley is stooping even lower. He criticizes an article she wrote as a law student and has said that when she was a federal judge there were seven child pornography cases where she gave a sentence less than the Department of Justice recommended. But as the White House has pointed out, in five of those cases, Judge Jackson imposed the sentences that were the same as or greater than what the United States probation office recommended.

Hawley criticizes statements she made when she was a member of the United States Sentencing Commission but omits that the commission was bipartisan and voted unanimously to modify the recommended sentences for possession of child pornography, where there was no proof that the person was involved in producing or trafficking child pornography.

Kyle Martinsen, of the Republican National Committee, emailed reporters that Jackson has a “pattern of advocating for terrorists AND child predators. What other criminals is Ketanji Brown Jackson an advocate for?” Senate Minority Leader Mitch McConnell said, “Her supporters look at her résumé and deduce a special empathy for criminals.”

Have they no shame? Representing criminal defendants or Guantanamo detainees reflects a desire to uphold the Constitution, not “special empathy for criminals.” One cannot help but wonder whether Jackson being a Black woman is fueling this “soft on crime” attack.

2. Justice Thomas is sick in the hospital, but should be released soon.  From CNN:

 Supreme Court Justice Clarence Thomas was admitted to Sibley Memorial Hospital in Washington, DC, on Friday evening "after experiencing flu-like symptoms," the court's public information office said Sunday evening, but he does not have Covid-19.

"It is not COVID related. The Justice does not have COVID," a spokesperson for the Supreme Court said.

"He underwent tests, was diagnosed with an infection, and is being treated with intravenous antibiotics," the court's press release said.

"His symptoms are abating, he is resting comfortably, and he expects to be released from the hospital in a day or two. Justice Thomas will participate in the consideration and discussion of any cases for which he is not present on the basis of the briefs, transcripts, and audio of the oral arguments," it added.

 3. In non-SCOTUS news, RIP Louis Casuso -- a good guy, who always had a good story.  Rumpole and David Ovalle had nice obits about him.

St. Patrick's Day--a trial story

Sixteen years ago I was in a 10 defendant trial in Savannah.  Ten defendants in one courtroom with out of town lawyers... you can imagine the atmosphere.

The trial started on a Monday, and my daughter was born on a Friday.  Because the judge held court on most Saturdays, I only saw her once during the six week trial (and 9 days of deliberations).  But that's a story for a different day.  This one is about St. Patrick's Day, which was in the middle of trial and which is a BIG deal in Savannah.  Like the biggest holiday of the year there.  The whole city shuts down. There are parades and drinking and beads. Businesses are closed.  Banks and schools are closed.  It's a big party.

And it was a Friday that year, so all of Savannah was looking forward to having a little fun.

Except in our courtroom.  Our judge -- B. Avant Edenfield -- said business as usual.

Now for us, mostly lawyers from out of town, it was no big deal.  We wanted to get the trial over with.

But for the jurors and staff... well, they were PISSED to say the least.

To show solidarity with them, the men all bought green ties and wore them to court.  The women also had green scarves and such.

Court started at 8:30am every morning.  But on St. Patrick's Day, all of the streets were closed off.  So one juror was late.  He showed up sometime after 9:30.  The judge had us all in the courtroom waiting, including the other jurors.  That hour, sitting in silence, seemed like a century.

And when that one juror showed up, the judge brought him back into chambers and reamed him out for being late. He was screaming so loud that we all heard him in the courtroom.  We gave the jury empathetic looks.  And when the juror came back out, we all made eye contact with him as if to apologize for the jerk judge.

That juror ended up being our foreperson.  He acquitted a number of the defendants and hugged us after the trial.  I can't help but think that a small part of why he liked us was because he really didn't like the judge, who never ruled for the defense and always sided with the government.  

So, every St. Patrick's Day, I think of that trial in Savannah, and our crazy judge and the late juror -- and of course, my daughter who is wearing green today.

Magistrate Judge Lauren Louis detains Proud Boys Leader

 The Miami Herald covers it here:

Enrique Tarrio, the high-profile leader of the Proud Boys extremist group, appeared subdued in Miami federal court Tuesday as a magistrate judge ordered that he remains behind bars for release before his trial on charges of plotting the Jan. 6, 2021 attack on the U.S. Capitol building to stop Congress’ certification of the presidential election. Magistrate Judge Lauren Louis said evidence “that he’s a danger to the community is unrebutted,” rejecting a request by Tarrio’s defense attorney to release him on a $1.25 million bond secured by his family members in Miami. She did not rule on the Justice Department’s other basis for his detention, that Tarrio, a lifelong Miami resident, is a risk of flight. Tarrio, 38, who after his arrest last week remains in custody at the Miami Federal Detention Center, will now be transferred to Washington, D.C., to face an indictment accusing him and five other Proud Boy members of conspiring to obstruct an official proceeding and related charges including destroying government property.

JOHN GLEESON FOR THE HOLLOWAY PROJECT

 FOR THE DEFENSE SEASON 4, EPISODE 7
JOHN GLEESON FOR THE HOLLOWAY PROJECT

 

Season 4 of For the Defense continues today with former federal judge and former federal prosecutor John Gleeson (top picture), who is now a criminal defense lawyer.  Gleeson started the Holloway Project -- to help vacate unjust sentences imposed under the old mandatory-minimum regime. You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) 

Francois Holloway family after hearing the news about his release.

We launched a few weeks ago with Bruce Rogow for 2 Live Crew and Luther Campbell and followed up with Mark Geragos for Susan McDougal, Juanita Brooks for John DeLorean, Gerry Goldstein for Richard Dexter (Deep Throat), Geoffrey Fieger for Dr. Jack Kevorikian and last week with Brian Heberlig for Ali Sadr. 

At the end of the season, I will post the Florida CLE code.   

Our last episode of the season will be Ed Shohat (Carlos Lehder), which will air in two weeks.
 

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
 

Best trial movie of all time

Last week, Rumpole had a post about the best law movies... He's right -- I'm partial to A Few Good Men, but he doesn't give enough play to My Cousin Vinny.  The best.  Here's a recent NY Times piece covering the 30 year old classic:

When the culture-clash courtroom comedy “My Cousin Vinny” landed in theaters on March 13, 1992, the critical response was mostly positive. The Times’s Vincent Canby found it “inventive and enjoyable,” The Los Angeles Times’s Peter Rainer called it “often funny” and The Hollywood Reporter deemed it “a terrific variation on the fish-out-of-water/man-from-Mars story formula.”

One phrase you won’t find in any of those reviews is “Oscar worthy.” Yet “Vinny” proved just that, landing an Academy Award for best supporting actress a full year after its original theatrical release — one of the biggest upsets in Oscar history, and a trophy that would prove both a blessing and a curse for its recipient, Marisa Tomei.

Her performance as Mona Lisa Vito, the long-suffering fiancée and legal secret weapon of Joe Pesci’s title character, was a breakthrough for the Brooklyn-born actress, who had done her time Off Broadway and in the world of soaps and sitcoms. “I was fresh to the business and didn’t know how movies worked,” Tomei explained in 2017, “but Joe chose me for the part, then took me by the hand and guided me immensely, so I got very lucky.”

Here are the opening statements:

The Second Annual Riverside House Awards

By John R. Byrne

Prosecutors and defense lawyers may disagree on a lot of things, but most agree on the mission of rehabilitating convicted defendants.  Riverside House, a local halfway house for federal defendants here in Miami, is dedicated to that mission.  On Friday, April 8, 2022, Riverside House will host its Second Annual Luncheon recognizing those in our community who have supported this mission.  The award recipients this year include former federal district Judge Ursula Ungaro, Assistant U.S. Attorney Randy Hummel, and our blog’s own David Markus.  To hear about what these folks have done for ex-offenders and criminal defendants, please join us.  You can purchase tickets through the link below.

https://conta.cc/3HEnWlr

Bake On

By Michael Caruso

The pandemic reintroduced many of us to our kitchens.  In the very early days, after common household goods disappeared from stores, dried pasta and canned food were snatched up, leaving shelves bare. Next to go missing was flour and yeast, as millions made their own bread—particularly sourdough.  

And when we couldn't find anything worth streaming, many of us turned to The Great British Baking Show. What was more calming during a plague than watching the contestants bake a Battenberg Cake or make a Sussex Pond Pudding?

This past week two stories were in the news that concerned baking—one nostalgic and the other affirming. 

Growing up in New York, a reliable staple of our kitchen table was the see-through Entenmann's Bakery box, usually the classic crumb cake. Charles Entenmann—who took his family's Long Island bakery business national—passed away recently here in Miami. Although not as fancy as a madeleine, the Entenmann's crumb cake is a reliable memory trigger for many of us who grew up in that part of the country. 

The other baking news is the global effort on behalf of Ukrainian refugees—known as "Bake for Ukraine." And there is a particularly apt effort called Hamantashen for Ukraine. Hamantashen are a symbolic cookie for next week's Purim holiday—a celebration of the triumph of good over evil. If you follow the link, you'll find both national and local bakeries where you can get delicious treats and help those in need.

Bake on.

Rule of Lenity

 Today, the Supreme Court had another ACCA case that it unpacked, Wooden v. United States.  The Court held: “Wooden’s ten burglary offenses arising from a single criminal episode did not occur on different ‘occasions’ and thus count as only one prior conviction for purposes of ACCA.”

Okay, fine.  But the really interesting stuff was happening in the concurrences, where Justice Gorsuch (joined mostly by Justice Sotomayor) laid out the case for a more fulsome application of the Rule of Lenity:

Of course, most ordinary people today don’t spend their leisure time reading statutes—and they probably didn’t in Justice Marshall’s and Justice Story’s time either. But len- ity’s emphasis on fair notice isn’t about indulging a fantasy. It is about protecting an indispensable part of the rule of law—the promise that, whether or not individuals happen to read the law, they can suffer penalties only for violating standing rules announced in advance. As the framers un- derstood, “subjecting . . . men to punishment for things which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” The Federalist No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also McBoyle v. United States, 283 U. S. 25, 27 (1931) (“Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand”).

I particularly like this thought from the concluding paragraph:

The statute contains little guidance, and reasonable doubts about its application will arise often. When they do, they should be resolved in favor of liberty. Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.

Full Disclosure -- I signed onto the NACDL amicus brief filed in Wooden, which raised the following issue and which was cited by the Court in fn3:

 Two amici curiae have briefed another question arising from ACCA’s occasions clause: whether the Sixth Amendment requires that a jury, rather than a judge, resolve whether prior crimes occurred on a single occasion. See Brief for National Association of Criminal Defense Lawyers 13–19; Brief for National Association of Federal Defenders 21–32. We do not address that issue because Wooden did not raise it.

Here's what Gorsuch says about it in a footnote of his own:

A constitutional question simmers beneath the surface of today’s case. The Fifth and Sixth Amendments generally require the government in criminal cases to prove every fact essential to an individual’s punishment to a jury beyond a reasonable doubt. See United States v. Haymond, 588 U. S. ___, ___–___ (2019) (plurality opinion) (slip op., at 5–6). In this case, however, only judges found the facts relevant to Mr. Wooden’s punishment under the Occasions Clause, and they did so under only a preponderance of the evidence standard. Because Mr. Wooden did not raise a constitutional challenge to his sentence, the Court does not consider the propriety of this practice. But there is little doubt we will have to do so soon. See United States v. Dudley, 5 F. 4th 1249, 1273– 1278 (CA11 2021) (Newsom, J., concurring in part and dissenting in part) (questioning whether the Occasions Clause inquiry can be squared with the Constitution); United States v. Perry, 908 F. 3d 1126, 1134–1136 (CA8 2018) (Stras, J., concurring) (same); United States v. Thompson, 421 F. 3d 278, 287–295 (CA4 2005) (Wilkins, C. J., dissenting) (same). And it is hard not to wonder: If a jury must find the facts supporting a punishment under the Occasions Clause beyond a reasonable doubt, how may judges impose a punishment without equal certainty about the law’s application to those facts? 

11th Circuit year in review

 I usually don't post events on the blog, but this looks like a cool one by ACS on March 10:

Event Details

A discussion about the Eleventh Circuit's jurisprudence in criminal cases over the last year, featuring:

Panel:
Andrew Adler, Appellate Attorney, Federal Public Defender's Office, Southern District of Florida
Tamara F. Lawson, Dean and Professor of Law, St. Thomas University College of Law, Miami
Hon. Kathleen Williams, U.S. District Judge, Southern District of Florida
Emily Smachetti, Executive Assistant United States Attorney and Co-Chief, Appellate Division, U.S. Attorney's Office, Southern District of Florida

Moderated by:
Michael Caruso, Federal Public Defender, Southern District of Florida

"Senators, it’s time to add some 305 to the U.S. Supreme Court"

 That's the title of my op-ed in the Miami Herald, urging Sens. Rubio and Scott to confirm Judge Ketanji Brown Jackson.  Here's the intro:

No Floridian has ever been appointed to the Supreme Court. Even though Florida has the third most electoral votes in the country, we have been shut out on the highest court in the land. It’s time to change that. This is a wonderful opportunity for Florida’s two senators to get behind the first Florida-reared nominee, Ketanji Brown Jackson. Miami is absolutely bursting with pride, and U.S. Sens. Marco Rubio and Rick Scott should embrace this nominee.

Jackson went to Miami Palmetto High School, where she was a rock-star national debate champion. Her parents started their careers as public school teachers. While Jackson was in preschool, her father went to law school. She spoke glowingly about sitting next to him reading law-school text books while she was doing her preschool homework.

Ryon McCabe sworn in as your newest Magistrate Judge

 Congrats to Magistrate Judge McCabe, who was sworn in yesterday by Judge Marra.  

BRIAN HEBERLIG FOR ALI SADR

FOR THE DEFENSE SEASON 4, EPISODE 6

BRIAN HEBERLIG FOR ALI SADR

 

Season 5 of For the Defense continues today with Brian Heberlig for Ali Sadr, the big prosecutorial misconduct case in New York. You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) 

We launched a few weeks ago with Bruce Rogow for 2 Live Crew and Luther Campbell and followed up with Mark Geragos for Susan McDougal, Juanita Brooks for John DeLorean, Gerry Goldstein for Richard Dexter (Deep Throat), and last week with Geoffrey Fieger for Dr. Jack Kevorikian.  

At the end of the season, I will post the Florida CLE code.   

We will have new episodes every other Tuesday.  Upcoming episodes include:

• John Gleeson (Holloway Project)
• Ed Shohat (Carlos Lehder)

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

NYT covers Palmetto Debate and KBJ

 Patty Mazzei has the wonderful lookback at Palmetto* debate here:

Let Miami Palmetto Senior High School brag for a moment: It has a swoon-worthy alumni roster. The Amazon founder Jeff Bezos, class of ’82. Dr. Vivek H. Murthy, the United States surgeon general, class of ’94. And Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme Court, class of ’88.

Decades have passed since Judge Jackson, 51, was a stellar student at Palmetto, a large public school nestled among the palm trees of the South Florida suburbs. But the school held outsize importance in her life, thanks to a competitive speech and debate team led by a famed coach who molded her protégés into sharp-tongued speakers and quick critical thinkers.

“That was an experience that I can say without hesitation was the one activity that best prepared me for future success in law and in life,” Judge Jackson said at a lecture in 2017.

From the tightknit and wonky debate team emerged accomplished professionals who remain unusually close 30 years later. (Judge Jackson’s prom date? A guy who would become a United States attorney, the chief federal prosecutor in Miami.) Now the team offers a glimpse into how Judge Jackson’s early life led to a Supreme Court nomination — and how her success is inspiring a new generation of debaters to dream big.

***

The debaters’ résumés are impressive. Nathaniel Persily, a constitutional law professor at Stanford. Judge Laura Anne Stuzin of Florida’s 11th Judicial Circuit. Benjamin G. Greenberg, the prom date turned United States attorney, now in private practice.

“It’s like doctor, doctor, professor, professor, lawyer, lawyer, professor, judge, judge, doctor,” said Stephen F. Rosenthal, a Miami lawyer who has known Judge Jackson since junior high and counts her as one of his best friends. He met his future wife, Mindy Zane Rosenthal, a debater at Miami Beach Senior High, in a competition. (Then he went to Harvard.)

Last month, when Judge Jackson’s name floated to the top of most lists of candidates to replace the retiring Justice Stephen G. Breyer, even Palmetto debaters who were no longer in frequent touch began texting each other to gawk. Someone sent around a photo of the debate team from back in the day, and also a photo of Judge Jackson and Mr. Rosenthal from their senior yearbook.

*I went to Killian high school and we often traveled with the Palmetto team as we were a much smaller team. Killian debaters have turned out pretty good too! -- Just to name a few off the top of my head: Aya Gruber (HLS, law professor at U of Colorado); Jodi Mazer (Wash U; Special AUSA for EPA); David Gevertz (HLS; Partner at Baker Donelson).  Some other debaters from that era from other South Florida schools that jump to mind: Magistrate Judge Jackie Becerra, Brad Meltzer, Mindy Zane Rosenthal, Esther Feuer...  who am I forgetting?

Ketanji Brown Jackson to be SCOTUS nominee

Woohooo!

This is great news.

Miami Debate.

Palmetto High School.

First African American woman.

First former public defender.

And first Floridian!

This blog started back on July 2, 2005, arguing that it was time for President Bush to appoint a Floridian to the Court:

There has been a great deal of discussion about whom Bush should appoint. But perhaps an equally important question is where this jurist should come from. Florida is the best choice.
No Floridian has ever been appointed to the Supreme Court. True, 18 other states are also unrepresented, but Florida's population is more than three times the size of the next largest of the 18, Wisconsin. 

The current court is made up of justices from Arizona (Rehnquist and O'Connor), Illinois (Stevens), New York (Ginsburg), Massachusetts (Stephen Breyer), California (Anthony Kennedy), Georgia (Clarence Thomas), Virginia (Antonin Scalia) and New Hampshire (David Souter). Certainly there is a place for a Floridian. Consider the fact that we have produced some of the major cases to go before the court (Bush vs. Gore) and that we have more than 75,000 lawyers and judges to choose from. Only California (55), New York (31) and Texas (34) have more electoral votes than Florida (27).

17 years later, it's going to happen! The only member of the Court that's the same as the blog start is Thomas.  Crazy. 

Congrats to a wonderful person, Ketanji Brown Jackson.  She will make an excellent Supreme Court Justice.

Nuclear Regulatory Commission Reverses Course on Turkey Point

 

By John R. Byrne

Looking for some light reading on a Friday?  Check out the Nuclear Regulatory Commission's fifteen page order reversing its earlier decision allowing FPL to operate the nuclear reactors at Turkey Point until 2052 and 2053 respectively.  There's even a dissent!  In short, the Commission said that the Commission's staff didn't conduct a sufficient environmental analysis before extending the licenses.   The Herald covers the "unusual move" here.  The Commission said appeals from advocacy groups, including the Miami Waterkeeper, prompted its order.  So, at least for now, Turkey Point's "lease" expires in 2032/2033.

Caroline Heck Miller retires

 Jay Weaver has the details here:

A couple of years before The Washington Post exposed the Watergate scandal, University of Chicago intern Caroline Heck worked for a summer in the newspaper’s style section. After earning a bachelor’s degree in English, the aspiring journalist headed for Florida to start a job covering courts for the St. Petersburg Times.

“Every day was a theatrical production,” she recalled. But the legal stagecraft often fell short. “I found myself watching a trial, and I would watch the closing arguments and say to myself, ‘Sit down. I could do this better.’ ‘’

So Heck Miller left the newspaper business for Harvard Law School, then wound up at the U.S. Attorney’s Office in Miami. Until retiring earlier this year, she worked for more than 40 years in a legal career highlighted by her role as the lead prosecutor in the Cuban Five spy case in 2001 — an internationally watched, politically charged throwback to the Cold War era

 Heck Miller came to be known as a trailblazer among prosecutors in the federal courthouse. She also was a “resident rabbi” offering sage advice on the law, ethics and trials to young prosecutors, and a polished writer who did all of her own pleadings and appeals. “She was a role model for everybody” in the U.S. Attorney’s Office, said retired Magistrate Judge William Turnoff, who in the 1980s was chief of the major crimes section while Heck Miller served as his deputy. “She and Pat Sullivan tried more huge, important federal cases than probably anyone in the history of the Department of Justice,” comparing her to a retired colleague known for taking on Miami’s most infamous criminals.

In other news, the feds tried to subpoena a sitting state judge to testify.  Judge Gayles said nope:

But after first expressing a “willingness” to testify, Pooler consulted with the Florida Attorney General Office, which advised her not to be a witness in the federal case, saying in a motion to quash the subpoena that she “no longer agrees to testify as to any aspect of this matter.” On Tuesday, U.S. District Judge Darrin Gayles granted the motion to quash the subpoena, saying Pooler was “excused from the subpoena” and that prosecutors can call other witnesses in her place. Afterwards, they decided to call the former assistant state attorney, Robert Guinn, who handled Hollie’s plea colloquy before Pooler in 2014. But Hollie’s assistant federal public defender objected to Guinn as a substitute witness, according to court papers. Gayles must still decide on whether to let Guinn testify. Prosecutors also tried to persuade Gayles to admit a letter that Hollie had written to the clerk of the Miami-Dade Circuit Court after he violated his five-year probation when he was arrested on the two false-statement gun-buying charges in 2019. Hollie asked the clerk to send him the special conditions of his probationary release for his “cases that I got a conviction four.” [sic] Gayles also rejected that request.

Daubert and Marshmallows

By Michael Caruso

As federal—and now Florida state—practitioners know, courts use the Daubert standard to assess whether an expert witness's scientific testimony is based on valid reasoning that a jury can properly apply to the facts at issue. Under Daubert, courts are to consider the "validity" or "reliability" of the evidence in question, its degree of "fit" with the facts and issues in the case, and the risks or dangers that the evidence will confuse the issues or mislead the jury.

 

In assessing reliability, the prevalence and significance of peer review can affect a court's decision when determining whether the scientific community has generally accepted an opinion. The weight given to peer-reviewed opinions, however, is not a bright-line rule. Depending upon the evidentiary standard and the offered expert opinion, the importance of peer review varies when assessing admissibility. Over the years, many "settled" scientific theories have been discredited by belated peer review —fiber analysis, hair analysis, ballistics, bite marks, and tool marks. 

 

Last week, another settled theory—"The Marshmallow Test"—took a hit. The marshmallow test is an experimental design that measures a child's ability to delay gratification. For this test, the researcher gives a child the option of waiting a bit to get their favorite treat or, if not waiting for it, receiving a less-desired treat. The minutes or seconds a child waits measures their ability to delay gratification. According to the study, the kids who couldn't hold out long generally grew through their teens, 20s, and 30s quicker to frustrate, weaker in academic and social skills, and with more drug use, mental health, and weight issues.

 

But the latest follow-up study casts doubt that a preschooler's response to a marshmallow test can predict anything at all about her future. Following the subject children into their 40s, the new study finds that kids who quickly gave in to the marshmallow temptation are generally no more or less financially secure, educated, or physically healthy than their more patient peers. The amount of time the child waited to eat the treat failed to forecast roughly a dozen adult outcomes the researchers tested, including net worth, social standing, high interest-rate debt, diet and exercise habits, smoking, procrastination tendencies, and preventative dental care, according to the study published in the Journal of Economic Behavior and Organization.

As Daubert acknowledges, peer review has its limitations: "in some instances well-grounbded ut innovative theories will not have been published . . . Some propositions, moreover are too particular, too new, or of too limited interest to be published." But, as we see here with marshmallows (and with fiber analysis, hair analysis, ballistics, bite marks, and tool marks), continued research and testing may be enlightening.

Should a criminal defense lawyer be sanctioned for altering a lineup during a state deposition?

 According to the Florida Supreme Court, the answer is yes, for 3 years! Three years even though the lawyer was simply trying to test the witness’ ability to pick out the witness. The court explained that the lawyer’s subjective intent was irrelevant. Rumpole covers it here. And here is the order. 

I can’t help to wonder what would have happened to a prosecutor who puts up false testimony at a hearing or trial. 

Judge Ruiz holds Covid-19 Pandemic "Immunity Statute" Unconstitutional

By John R. Byrne

If you practice civil law in this district, you're probably aware of the wave of Covid 19-related litigation out there, with parties using the pandemic as both a sword and a shield.  One active area has been lawsuits against universities.  So active that the Florida legislature passed--and Governor DeSantis signed--the Florida Immunity Statute for Educational Institutions for Actions Related to the Covid-19 Pandemic.  The statute does what it sounds like it does, giving universities a legal pass for doing things like shifting in-person instruction online during the pandemic.  

But Judge Ruiz dealt a likely fatal blow to the statute yesterday.  In Ferretti v. Nova Southeastern University, Inc., Case No. 20-61431-CV-RAR, he held that the statute was unconstitutional.  Citing Supreme Court precedent, he noted that a cause of action is effectively a piece of property. By retroactively abolishing an accrued cause of action, the reasoning goes, the statute violated the Due Process Clause of the Fourteenth Amendment.  The order is an interesting (and quick) read.

News & Notes

In addition to the appointment of Tony Gonzalez (see post below), a few other items have come in today:

1. Congrats to Katie Phang, a wonderful lawyer in Miami, who now has her own show on MSNBC.

2. Jurors say that the push notifications they saw on their phones during deliberations about Judge Rakoff dismissing the Sarah Palin case did not affect their deliberations.  This is where I would put the wide eye emoji if blogger let me do so.

3. The 11th Circuit en banc acted as a backup for prosecutors again in this 7-5 decision, saying that even if the government made a decision not to raise the good faith exception on appeal in a 4th amendment case, the court could still affirm on those grounds.  Judges Newsom and Jordan pen a terrific dissent explaining that we have an adversarial system and that the court is supposed to adjudicate actual disputes.  That's, of course, the normal rule... except when it involves the government as a litigant.  Then the 11th Circuit must revert back to its two most important rules: Rule #1 -- never rule against the government.  Rule #2 -- when in doubt, see Rule #1.

Still no U.S. Attorney nomination in SDFLA

 Because President Biden hasn't nominated a U.S. Attorney for our District, the Chief Judge had to appoint Tony Gonzalez to the post in this order.

Juan A. Gonzalez was appointed by the Attorney General of the United States as the interim United States Attorney for the Southern District of Florida. His appointment expires on February 20, 2022.
Upon polling the District Judges, the Court agreed to appoint Juan A. Gonzalez as the United States Attorney for the Southern District of Florida. Therefore, it is
ORDERED that pursuant to 28 U.S.C. section 546(d), Juan A. Gonzalez is appointed as the United States Attorney for the Southern District of Florida, effective February 21, 2022, until the vacancy is filled.

New Episode of For the Defense: GEOFFREY FIEGER FOR JACK KEVORKIAN

 

FOR THE DEFENSE SEASON 4, EPISODE 5
GEOFFREY FIEGER FOR JACK KEVORKIAN
 

Season 5 of For the Defense continues today with Geoffrey Fieger for Dr. Jack Kevorkian for the string of assisted suicide cases (and acquittals!) in the 90s. You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) 

We launched a few weeks ago with Bruce Rogow for 2 Live Crew and Luther Campbell and followed up with Mark Geragos for Susan McDougal, Juanita Brooks for John DeLorean, and  Gerry Goldstein for Richard Dexter (Deep Throat),  

At the end of the season, I will post the Florida CLE code.   

We will have new episodes every other Tuesday.  Upcoming episodes include:

• Brian Heberlig (Ali Sadr)
• Ed Shohat (Carlos Lehder)
• John Gleeson (Holloway Project)

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

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur
 

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