Big Tech and Guns

 

By John R. Byrne

A couple of big decisions issued by the Eleventh Circuit yesterday, both authored by Judge Newson.

In Netchoice, LLC et al. v. Attorney General, State of Florida, et al., the Court handed a victory to "Big Tech," holding Twitter, Facebook, and other companies were entitled to a preliminary injunction against a Florida law that would have barred them from, among other things, "deplatforming" political candidates. The Court found it "substantially likely" that social media companies are "private actors" (and, thus, have First Amendment rights) and that many (but not all) of the law's provisions violate those rights. Read it here.

In  United States v. Ignacio Jimenez-Shilon, the Court held that a law making it illegal for illegal aliens to possess firearms does not run afoul of the Second Amendment. Judge Newsom's opinion digs into Justice Scalia's opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) offers a detailed account of the history of gun rights/laws in this country. Weirdly enough, Judge Newsom also wrote a concurrence to his own opinion, laying out what he considers the right analytical framework to apply to challenges to the Second Amendment. Read it here.

Judge Newsom's Jimenez-Shilon opinion is already drawing some fire on Twitter, tying the two opinions together.

Judge Scola to take senior status in October 2023

Judge Scola is the best. I’m truly happy for him but sad for all of us. He was always fair, smart, and thoughtful. The perfect judge. 

At least we keep him till October 2023. Let’s see if the White House can get its act together and get some judges confirmed  

Sentencings

I've often written about how our criminal justice system coerces pleas.  One of the reasons is the trial tax.  If you go to trial and lose, your sentence is likely to be many many times the plea offer -- sometimes more than a decade longer.  It's unjust.

Because there were almost no trials during the pandemic, and many judges were more compassionate during that time (it’s all relative), it was easy to forget about the awful trial tax in our system.

But recent sentences in our District and others are showing that there is absolutely no let up for the trial tax -- even for non-violent offenders. Most judges, who have never represented a criminal defendant, have no sense what a 5 *year* sentence does to a person, a family, a community. It’s completely devastating. 

One possible solution -- at a sentencing post-trial, judges should be told what the plea offer was.  If a plea offer was X, the government shouldn't be asking for 4X. 

Since COVID, prosecutors have also candidly told me that they are now asking for much higher than they believe is appropriate at all sentencings because they believe that most judges will vary down from their recommendation.  The typical scenario is that a prosecutor believes that a sentence of 10 years is warranted.  The defense believes 3 years is right.  The prosecutor knows that if both sides ask for those sentences, a judge is likely to give 5-6 years, so the prosecutor asks for 12 or 15 years in the hopes of getting 10.  Judges then feel like they didn't give the prosecutor everything they asked for, when they actually did just that.  

Anyway, that's my Sunday morning rant.  Sentences are on the uptick again post-COVID.  Incarceration rates are moving higher again.  While COVID remains, the compassion during the pandemic seems to be fleeting.  

"Is the Justice Department Incompetent?"

 That's the title of this extensive article by New York Magazine.  Here's how it starts out:

“I’m here to declare that we are not part of the chickenshit club.”

That announcement came last month courtesy of Jonathan Kanter, the head of the Justice Department’s antitrust division and one of the stewards of the Biden administration’s ambitious, all-purpose antitrust-enforcement agenda. Kanter was speaking at the University of Chicago and was, improbably, in good spirits following a series of high-profile losses for prosecutors in his office. There had been acquittals in separate, closely watched criminal cases in Colorado and Texas, both involving alleged collusion in labor markets, as well as a second mistrial in a much-touted criminal price-fixing case involving executives in, appropriately, the chicken industry. After the department decided to try the chicken case a third time, the presiding judge ordered Kanter, whose job leading the antitrust division’s 700 employees is the first he has ever held at the department, to fly to Denver and explain the decision to him in person.

Kanter’s invocation of “the chickenshit club” was an apparent statement of purpose for a newly emboldened DOJ. The term became popular after the publication of a 2017 book of the same name by Jesse Eisinger, which held, in its simplest form, that government prosecutors failed to pursue big, white-collar criminal cases in the wake of the financial crisis because they were scared of losing.

Kanter argued that the department’s antitrust lawyers would not be deterred by the losses (which he tried, unconvincingly, to portray as partial victories). But a casual follower of the Justice Department’s performance in recent months might have detected a larger trend extending beyond Kanter’s purview overseeing the department’s civil and criminal antitrust cases.

Early this year, an appeals court reversed the convictions of two former Deutsche Bank employees who had allegedly manipulated a financial benchmark rate known as LIBOR. In March, a jury in Texas acquitted the one and only person charged in connection with the department’s investigation of Boeing following two crashes of its 737 Max jets after deliberating for just 90 minutes. A jury in Washington, D.C., acquitted two defendants who had been charged in a campaign straw-donor scheme. (As I have noted before, I used to work in the office that brought the Boeing prosecution and know some of the prosecutors, but I was not involved in the investigation. Before my time at DOJ, I worked on the internal investigation for Deutsche Bank that resulted in the LIBOR prosecution.)

Then last month, prosecutors lost the trial over the alleged plot to kidnap Michigan governor Gretchen Whitmer after a jury acquitted two of the four defendants and hung on the charges against the others. Strictly speaking, this was not a white-collar case (unless you count the fact that so many of the alleged plotters were apparently working for the FBI), but it had some rough similarities — not just a major, highly publicized case that the department tried hard to win but also one in which deterrence was a major objective.

There have been victories, too — most notably the case against Elizabeth Holmes, who was indicted in mid-2018 and convicted following a trial last year after pandemic-related delays. More recent was the conviction in Brooklyn of a former Goldman Sachs employee who participated in a massive bribery and kickback scheme connected to a Malaysian sovereign wealth fund. Outside of the white-collar realm, the department has also been exceedingly busy with the January 6 prosecutions, and whatever concerns some of us may have about the scope and pace of that investigation, prosecutors’ performance in the courtroom has been impressive.

But the slew of recent setbacks has been hard to ignore, particularly in the middle of the department’s effort to tout its white-collar enforcement record and agenda. At this moment, well into the tenure of Merrick Garland, the notion that the department’s major problem is a failure of resolve seems less compelling in recent memory than ever, prompting some legitimate questions. Among them is whether Garland’s vision for the department and his understanding of its difficulties during the Trump years is as comprehensive as it needs to be.

Changes

By Michael Caruso

The federal judiciary has recognized that diversity and inclusion are essential values in our legal system. "Diversity on the bench and among our courtroom and chambers staff is critical to serving a diverse population," said Judge Raymond A. Jackson of the Eastern District of Virginia. "It's important that the court is reflective of the community it serves." This is particularly true of those chosen to clerk on the United States Supreme Court.

Judge (soon to be Justice) Ketanji Brown Jackson has put these words into action. Judge Jackson recently hired Kerrel Murray, an associate professor at Columbia Law School, Natalie Salmanowitz, a law clerk at Hogan Lovells, and Michael Qian, an associate at Morrison & Foerster.

Judge Jackson's other hire is Claire Madill. Ms. Madill practices locally—at the Palm Beach County Public Defender's Office! I don't know the exact number of Supreme Court clerks who have been hired  from a public defender's office, but the number has to be exceedingly small. 

In addition to being a public defender, Ms. Madill also is a co-founder of Law Clerks for Workplace Accountability. This group advocates for stronger anti-harassment measures across the federal judiciary. Ms. Madill's hire and work with this group are timely, given the report this week about a disturbing workplace study conducted for the federal trial and appeals courts in D.C.

As the saying goes, "personnel is policy." Choosing a young public defender—one who has a proven commitment to the public interest—is an excellent policy. Praise to Judge Jackson, and congratulations to Ms. Madill!

 

Congrats to Clerk Noble

 

Great to get together again for the @federalbar PBC Ch Ryskamp Award lunch. Congrats to this year’s honoree, Angela Noble, Clerk of Court for the SD of Fl, who gave a memorable acceptance speech that got a standing ovation.@TheFlaBar @uscourts #barevents#federalpractice pic.twitter.com/Wbjl57bMrZ

— Herman Law, P.A. (@WhiteCollar_Law) May 17, 2022

RIP Jack Blumenfeld (UPDATED)

Papa Jack was a great guy and wonderful lawyer.

Rumpole has a nice post about him here.

UPDATE-- From the Blumenfeld family:

On Sunday, May 15, 2022, Jack R. Blumenfeld, loving husband, brother, father and grandfather, passed away at age 79 surrounded by his loved ones.
His funeral will take place on Wednesday, May 18 at 9:30am at Temple Judea,
5500 Granada Blvd, Coral Gables, FL. The service will be live streamed here
for those who can't make it: https://bit.ly/3lnfi1L
We ask that you give the family time to grieve during this difficult time.
We will be monitoring Jack's Facebook messages if you have any questions.

UPDATE 2-- From the comments by Michael Caruso:

This is very sad news. As David wrote, Jack was a kind and caring man in addition to being an excellent lawyer.

I first met Jack when I was a young-ish lawyer. I received a call from Judge Gold to represent a potential defense witness that Jack wanted to call.

Jack's client—Jose Miguel Battle, Sr., was on trial for being a felon in possession of a firearm. Apparently, Battle caught my client on his property, picking maymey. After a brief dust-up, they became friends. Because they were friends, Battle let my client hunt on his large property. After one such hunting adventure, my client left his shotgun at Battle's house. Of course, this shotgun formed the basis for the indictment. Despite my client's testimony, the jury convicted.

I'm grateful I had this experience. Spending this brief time with Jack and watching him in trial was a highlight of my early career. And I can't remember a subsequent encounter with Jack that didn't leave me with a smile on my face. He'll be missed.

Finally, for those old enough to forget or too young to remember—Battle led quite a notorious life—from the Bay of Pigs to being described as the "Cuban Godfather" here in the U.S. Here are some links to stories about his life. Jack's quoted prominently.

https://www.sun-sentinel.com/news/fl-xpm-2007-08-07-0708060320-story.html

https://www.thedailybeast.com/the-cuban-gangster-who-mysteriously-refused-to-die

https://www.miaminewtimes.com/news/jose-miguel-battle-jr-head-of-cuban-mafia-ring-la-corporacion-released-from-prison-9830697

FACDL Banquet

It was the big FACDL-Miami shindig this weekend. 

It was a lot of fun and a wonderful group of award winners, including Judge Raag Singhal (The Gerald Kogan Award), Michael Caruso (President's Award), Elliot Scherker (Daniel-Pearson-Harry Prebish Award), and Frank Quintero (Against All Odds Award). 

Outgoing President Kevin Hellman gave very uplifting remarks and we welcomed Michael Davis as the new President, who was sworn in by Judge Kevin Emas. Margot Moss presented the Gideon's Hope Scholarship and Judge Milton Hirsch swore in the new officers. 

Brad Horenstein did a wonderful job officiating the entire event. Below are some pictures from the event.

 

New beginnings

 1.    Congrats to fellow blogger John Byrne and his new partner Frank Maderal for their new firm Maderal Byrne.  Two great guys.  The DBR covers it here.

 2.   UM has a new law dean, David Yellen.  From the DBR:

David Yellen, who has served as chief executive officer of the Institute for the Advancement of the American Legal System at the University of Denver since June 2021, is set to become the new dean of the University of Miami School of Law on July 1.

When Yellen departs later this month, Brittany Kauffman will serve as interim CEO of IAALS, where she has served as a director for nine years, according to IAALS’s announcement.

Patricia D. White had served as dean of Miami Law from 1999 to 2008 and again from 2009 to 2019. Succeeding her, Anthony Varona was dean for two years.

Varona, who is slated to become dean of Seattle University School of Law on July 1, was fired by the University of Miami in May 2021, a decision that riled the law school’s faculty and outraged many of Varona’s fellow law deans across the country.

University president Julio Frenk had said in a May 25 message to the law school community that Varona attributed Varona’s ouster to lackluster fundraising. Frenk’s vague explanation and refusal to provide additional clarity on the reasons for Varona’s firing prompted speculation among legal educators across the country and at the law school that other factors may be at play. Varona is the law school’s first Latino and openly gay dean.

Following Varona’s departure, Stephen J. Schnably served as dean for approximately six weeks until Nell J. Newton was appointed as interim dean in August.

 

Congrats to the two new magistrate judges

Ed Sanchez and Penny Augustin-Birch.

One prosecutor and one PD.

Two good people.

Excellent.

President Biden nominations for U.S. Sentencing Commission

 Finally!  See them here. Some great choices, like John Gleeson and Laura Mate.  You all know Gleeson well.  But you may not know Laura Mate.  Here's the summary:

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel. From 2001 to 2010, Ms. Mate served in the Office of the Federal Public Defender for the Western District of Washington in various roles, including as Assistant Federal Public Defender. Ms. Mate was an associate at Perkins Coie LLP from 1998 to 2001.

Ms. Mate received her J.D. from the University of Michigan Law School in 1998 and her B.A. from Kenyon College in 1992.

Leaks

 Politico has another story this morning with more SCOTUS leaks.  This time, Politico reports that the Alito draft opinion in Dobbs is still the only opinion that has circulated.  No dissents yet.  Interesting.

Meantime, in our court, the district judges will have their meeting today to decide who the two new magistrate judges will be.  The two will be chosen from this list:

Augustin-Birch, Panayotta Diane

Brown, Bruce Ontareo

Katz, Randall D.

Marlow, Elena Margarita

Moon, Stefanie Camille

Sanchez, Eduardo Ignacio

St. Peter-Griffith, Ann Marie

Zaron, Erica Sunny Shultz

From what I hear, the district judges fought pretty hard at the last few selection meetings.  Perhaps not like the Dobbs justices, but still... 

I will let you all know as soon as I hear.  Good luck to the candidates.

All That Jazz

By Michael Caruso

As David previously posted, Chief Justice Roberts spoke at the Eleventh Circuit Judicial Conference last week. More precisely, Senior Judge Ed Carnes interviewed Chief Justice Roberts fireside chat style. While Chief Justice Roberts's comments on "leakgate" garnered the media's attention, Judge Carnes's entire interview was quite revealing.

For example, we learned that the Chief Justice is the Chancellor of the Smithsonian Institution. Chief Justice Roberts told a wonderful story about an event at the Smithsonian where he played an integral role. The Smithsonian had arranged for the legendary jazz musician Wynton Marsalis to play. Chief Justice Roberts asked whether the Smithsonian could lend Louis Armstrong's trumpet to Marsalis for the performance. And that's exactly what happened. This event marked the first time a historic instrument from the Smithsonian’s collection had been put back into actual service. Marsalis later said, “It sounded better than I thought it would sound. In terms of music, his horn sounded good because of him. When he’s not playing, you don’t think you’re going to pick up Louis Armstrong’s trumpet and sound like him.” Because jazz is the only true American art form, connecting our past, present, and future through an event like this is special. Here's a video of the performance.

Talking about our future, Justice Thomas—also interviewed at the conference—spoke at length about his concern for our country. In particular, he expressed his worry about the declining respect for governmental institutions and the rule of law.

Chief Justice Roberts speaks at 11th Circuit Conference in Atlanta

 There was a question about whether he would still attend the conference after everything that has happened in the last few days (Alito, for example, cancelled his appearance at another Circuit conference).  To his credit, the Chief showed up.  CNN reported:

Chief Justice John Roberts said Thursday that the leak of a draft opinion that would strike down Roe v. Wade is "absolutely appalling" and stressed that he hopes "one bad apple" would not change "people's perception" of the nation's highest court and workforce.

In his first public appearance since the leak on Monday, Roberts also said that if "the person" or "people" behind the leak think it will affect the work of the Supreme Court, they are "foolish."

Roberts was speaking at a meeting of lawyers and judges at the 11th Circuit Judicial Conference, while the court is on a brief recess. The justices will meet together again during their closed-door conference in Washington on May 12.

 

 Closer to home, there were two acquittals this week in federal court -- one health care fraud case in front of Judge Cooke (Frank Schwartz and Martin Roth were the defense lawyers) and one gun case in front of Judge Seitz (AFPDs Julie Holt and Ashley Kay).

May the 4th be with you

 I think Fane Lozman might be a Jedi Knight.  His Supreme Court victories are legendary.  And now he has entered the trial court arena, fighting the Sith prosecutors who tried to take him down.  Of course, he won.  And with a judgment of acquittal no less.  Here's the coverage:

Fane Lozman has made a name for himself literally fighting city hall. 

He beat Riviera Beach in the U.S. Supreme Court twice. 

Now, Lozman says he is being targeted by State Attorney Dave Aronberg because he has fought corruption in his city and county. 

Tuesday, Lozman went to trial on a criminal charge and again it went his way, as the Singer Island activist turned the tables and tried to put Riviera Beach and Palm Beach County’s state attorney on trial.  

“This is a waste of your time,” Lozman told jurors at the start of his trial on criminal mischief charges for kicking and damaging a gate on a Singer Island dock near his home. “This is about retaliation for fighting corruption in Riviera Beach.” 

Lozman attacked prosecution witnesses, including dock owner Davender Kant, a former Riviera Beach city building official.  

“Have you committed homestead fraud?” Lozman asked Kant. 

Riviera Beach police arrested Lozman last February.  

***

“This case is about destruction,” countered Assistant State Attorney Nicholas Kaleel. “It is not about who owns the dock.”  

However, that argument didn’t wash with Circuit Court Judge Ashley Zukerman, who ordered the charge against Lozman dropped right after prosecutors finished their case. 

Familiar Faces Recognized by Attorney General

By John R. Byrne

Each year the Attorney General hands out prestigious "Attorney General Awards" to DOJ employees who have made extraordinary contributions to law enforcement.  Some familiar faces received awards this year, including Trial AUSAs Chris Clark and Lisa Miller and forfeiture AUSAs Nicole Grosnoff and Peter Laserna.  That team prevailed in a six-week health care fraud trial before Judge Cohn.

Also receiving an award was Betty Alfarez.  If you've worked at the USAO down here, you know how essential Betty is to the work of the office.  Without her, the trains don't run on time.  She's a special woman and well deserving of the award.  Congrats, everybody! 

Who leaked the draft Alito opinion?

SuperSurvey

6th Circuit issues crazy ruling...

 ... saying judges can't reject appellate waivers in plea agreements.  

Appellate courts seem to be okay when trial judges reject deals that see to be too lenient (like the Michael Flynn matter).  It should be the other way around, of course.  Court are there to check the government, not to act as another branch of the U.S. Attorney's office.  

Carissa Byrne Hessick agrees that the 6th Circuit opinion is bonkers:

It is clear that the 6th Circuit—which invoked the separation of powers and stated that trial judges must exercise their power to reject plea bargains “with due regard to prosecutorial prerogatives”—wants to give more power to prosecutors. But giving prosecutors the power to unilaterally demand lopsided plea bargaining terms and curtailing the power of judges to reject those bargains doesn’t “separate” powers; it concentrates power in the hands of prosecutors. Limiting the ability of judges to reject plea bargains—especially plea bargains that are unfavorable to defendants—not only weakens judges’ ability to serve as a check on prosecutorial power, but it also infringes on the constitutional power of judges as the officials tasked with entering judgments.

Our system is more and more geared toward convictions and affirmances.  Sad. 

Big arrest in SDFLA

British Virgin Islands Premier Andrew Alturo Fahie and the Caribbean territory’s port director, Oleanvine Maynard, were arrested on drug trafficking and money laundering charges Thursday after they went to a Miami airport to check on a huge cash payment that was promised them by an undercover operative pretending to be a Mexican cartel member.

That's how the Miami Herald article starts its coverage of a big undercover operation that finally led to some big arrests.  It continues:

The U.S. undercover probe actually began last fall with a series of mysterious meetings between a confidential government informant posing as the Mexican drug smuggler and a group claiming to be Lebanese Hezbollah operatives with connections to the Caribbean territory’s leaders, according to a criminal complaint and affidavit filed in the case. With their help, the U.S. informant eventually met up with BVI’s premier, Fahie, the port director, Maynard, and her son, Kadeem Maynard, to lure them into providing protection for purported Colombian cocaine shipments through the British Virgin Islands to Miami, U.S. authorities say.

Happy Earth Day! (Belated)

By Michael Caruso

 Florida is blessed with abundant natural beauty. But, there are many threats and challenges to our environment. In our backyard, there has been decades-old litigation involving the Everglades. The United States initiated this litigation in 1988 to enjoin discharges of phosphorus-laden water into the area and restore the Park and the Refuge to hydrologic conditions that support a balance of native flora and fauna. The parties entered into a consent decree in 1992—a historic agreement. According to sources, a key point in the settlement talks came with then-Gov. Lawton Chiles showed up at a court hearing in 1991 and said: "We want to surrender. I want to find out who I can give my sword to." The parties, of course, continue to litigate the decree. In 2019, Judge Moreno rejected a motion—without prejudice—by the South Florida Water Management District to end the decree.

Other natural resources in our state are at risk. According to the Florida Department of Environmental Protection, our state is home to more large (first- and second-magnitude) springs than any other state. Springs are the window into the health of our groundwater, which is the source of 90% of drinking water for Floridians. Some springs support entire ecosystems with unique plants and animals. They also flow into rivers dependent on the spring’s clean freshwater. Florida's springs face various complex threats, including decreasing spring flows and excessive nutrients. Spring flows decrease because of declining water levels in the groundwater aquifer that sustains them, and excessive nutrients, mainly nitrate, can lead to algal growth and habit degradation.

Recently, the New York Times published an article describing the "slow-motion environmental tragedy" impacting the springs. Jeb Bush, through legislation, created the Florida Spring Initiative in 2001 to research, monitor, educate and provide landowner assistance to reduce the flow of sewage and fertilizer into springs and address declining spring flows. But, as the article details, while restoration work has reversed some damage, nutrient pollution has continued to increase. The photographs that accompany the article alternate between the beautiful and the depressing.

As Floridians, we can remember the environmental improvements made over the decades and recognize we need to work harder if our children and grandchildren are to enjoy the natural beauty of our state.

Varsity Blues to finally be challenged in the court of appeals

 One of the problem with a system geared to pleading guilty is that prosecutors are emboldened to bring questionable legal and factual cases.  The Varsity Blues cases are a good example.  Numerous folks have criticized the legal theory underlying the prosecution -- that paying someone to get your kid into college is a federal offense.  But almost everyone pleaded guilty in that operation because the risks of trial were simply too great.  

Finally, we have a few defendants who will be challenging the case in the First Circuit.  From the NY Times:

Lawyers for a private equity investor and a former casino executive facing federal prison in the college admissions scandal known as Operation Varsity Blues filed appeals on Monday seeking to have their convictions overturned.

Both men were accused of making payments to have their children admitted to elite universities as athletic recruits, even though prosecutors charged that they lacked qualifications to play Division 1 sports.

The men, John B. Wilson and Gamal Abdelaziz, face the longest sentences yet imposed on parents in the admissions scandal, in which more than 50 parents and college coaches were prosecuted for conspiring with William Singer, a college admissions counselor, to arrange “side door” admissions, primarily by using slots on athletic teams.

Mr. Wilson and Mr. Abdelaziz make similar arguments in their appeals — that donations to universities in an effort to secure admissions are commonplace and do not constitute bribery.

Mr. Wilson, a former business executive, was convicted in October on bribery charges and sentenced to 15 months in prison. He was accused of agreeing to pay more than $1.5 million to have his three children admitted to the University of Southern California, Harvard and Stanford.

Lawyers for Mr. Wilson, 62, of Lynnfield, Mass., say in court papers that the key claim against him — that he paid $220,000 to bribe his son’s way into a spot on U.S.C.’s water polo team in 2014 — is legally flawed.

None of the money was intended to personally enrich anyone at the school, they wrote in court papers.

“Donating to a university is not bribing its employees; the school cannot be both the victim of the scheme and its beneficiary,” said the filing in the U.S. Court of Appeals in Boston by lawyers for Mr. Wilson, including Noel J. Francisco, the former U.S. solicitor general.

Of the total $220,000, Mr. Singer forwarded $100,000 as a donation to U.S.C.’s water polo team, for which Mr. Wilson received a thank-you note. Another $100,000 went to Mr. Singer’s nonprofit foundation, which Mr. Wilson thought would benefit U.S.C., according to the appeal.

 

Short list for Magistrate Judge interviews

The Magistrate Judge selection committee has recommended the following names for two open slots:

Augustin-Birch, Panayotta Diane

Brown, Bruce Ontareo

Katz, Randall D.

Marlow, Elena Margarita

Moon, Stefanie Camille

Sanchez, Eduardo Ignacio

St. Peter-Griffith, Ann Marie

Zaron, Erica Sunny Shultz
 

Congrats to all.  The judges will hold their interviews on May 11 and select two.

Your weekend moment of Zen...

 

Johnny Depp learns hearsay. ☠️🤣 pic.twitter.com/WLEzVX3aYf

— jessica gore 🇺🇦✊ (@HuffleBloom) April 21, 2022

Magistrate Judge committee to interview 15 people for 2 slots

 Here's your list of the interviews, which are happening now:

Arteaga-Gomez, Rossana

Aslan, Erin Elizabeth Victoria

Augustin-Birch, Panayotta Diane

Brown, Bruce Ontareo

Corlew, Reginald Roy

Ferrer, Aimee Allegra

Katz, Randall D.

Marlow, Elena Margarita

Massey, Jessica A.

Moon, Stefanie Camille

Sanchez, Eduardo Ignacio

St. Peter-Griffith, Ann Marie

Thakur, Michael Eric

Weiss, Aaron Stenzler

Zaron, Erica Sunny Shultz
 

Should a juror be allowed to sit in a death penalty case where he said: Non-white races were statistically more violent than the white race.

Apparently yes, in Texas. 

The Supreme Court denied cert yesterday, but Justice Sotomayor dissented (joined by Kagan and Breyer) and said:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.” Buck v. Davis, 580 U. S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted). When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid. The seating of a racially biased juror, therefore, can never be harmless. As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed,“the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U. S. 719, 729 (1992).
In this case, petitioner Kristopher Love, a Black man,claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race. 29 Record 145. The Texas Court of Criminal Appeals never considered Love’s claim on the merits. Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned. That decision was plainly erroneous. An already-expended peremptory strike is no cure for the seating of an allegedly biased juror. The state court thus deprived Love of any meaningful review of his federal constitutional claim. I would summarily vacate the judgment below and remand for proper consideration.

RIP Ben Benjamin

 There's very little that I think of as positive about the FDC-Miami, but one bright spot was Officer Benjamin.  He was always professional and nice.  And he was a really cool dude.  He treated us defense lawyers and our clients with respect and as human beings.

Such sad news that he recently passed away.  

The obit:

“Ben” Benjamin Jr., 56, of Tamarac, FL transitioned to heaven unexpectedly on Wednesday, April 13, 2022. He was born on Tuesday, February 22, 1966 to Buell Sr. and Cassandra. He was employed by The United States Department of Justice, Federal Bureau of Prisons for over 23 years. He loved shooting, cooking, dancing and was known to many as a “Gentle Giant”. He enjoyed traveling to Colombia, spending time with his friends and family, and was an avid New York Yankee fanatic.

He is preceded in passing by his mother, father, and his brother; Andreas. He is survived by his loving wife; Maria del Pilar, brother; Clint, two sisters, his beloved aunt; Vergie Schou and numerous nieces and nephews.

A “Life Retirement Party” will be held on Thursday, April 21, 2022 with a closed casket from 6pm to 8pm. A “Life Retirement Service” will be officiated by Pastor Bernard King at 8pm. The family has requested that guests wear their favorite baseball attire, if they so choose.

Lastly, for those who are unable to attend the Life Retirement Service, please click the “watch video” button located below under Funeral Service at 8pm EST

In lieu of flowers, the family is requesting memorial gifts here.

DOJ's Antitrust division behaving amateurish (UPDATED)

It hasn't been a good couple of weeks for the DOJ's Antitrust Division. 

In Denver, they tried a 10 defendant case twice and both times it hung as to all defendants. Ouch!

Wearing those horse eye-blinders, DOJ announced it would retry the case a third time.  That didn't sit well with the judge, who summoned the head of the Division, Jonathan Kanter, to court to explain how a third trial would be in accordance with DOJ federal prosecution standards.  Bloomberg covered it here:

At the hearing Thursday, the judge repeatedly asked Kanter why he thinks the result of a third trial will be different. He also quizzed Kanter about a Justice Department policy requiring prosecutors to go forward with cases only if they believe the evidence will “probably” result in a conviction. But Brimmer said he doesn’t have the authority to require prosecutors to follow the standard.

The judge concluded the hearing by urging Kanter to “go back to Washington and think about that.”

Well then.  

In addition to those standards, there are, of course, basic standards of fairness and decency.  If you can't convict any of 10 defendants after a length trial, let alone two of them, it's time to call it quits.  Congress needs to fix this.  The government should get one shot to convict.  Then it's tie to move on to the next one.

But that's not the only Antitrust black eye.  It brought its first wage-fixing case in Texas against two defendants. Between the two of them, they were charged in 6 counts. The Division lost 5 of those counts, including the top counts.  It only got a conviction on a lesser false statement count against one of the defendants.  

So what does DOJ do?  It issued a press release with the heading: "Former Health Care Staffing Executive Convicted of Obstructing FTC Investigation into Wage-Fixing Allegations."  Are you kidding me?  The release starts this way:

Today, a Texas man was convicted of obstructing a Federal Trade Commission (FTC) investigation, following an eight-day trial in the Eastern District of Texas.

“Lying to federal agencies is a crime, plain and simple,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “And, as the court’s rulings in this case make clear, so is wage fixing. When obstruction affects the federal government’s investigations into labor market collusion and impedes our ability to protect workers, we will use all the tools available to prosecute all of these crimes to the full extent of the law.”

“Wage fixing causes tremendous harm to countless hardworking Americans,” said Assistant Director Luis Quesada of the FBI’s Criminal Investigative Division. “The FBI will continue to work closely with our law enforcement partners to uncover this type of corruption and bring to justice anyone who is responsible or who obstructs our investigations into this conduct.”

How embarrassing.  But it's also wrong. These guys were exonerated.  And it's not until the 6th paragraph of the release that you see what actually happened at the trial.  Thank goodness there was some honest reporting about it, including from Bloomberg, which had this headline: "DOJ’s First Criminal Wage-Fixing Case Ends Mostly in Defeat."  

Antitrust is now waiting for a verdict in the first "no-poach" criminal trial.  Let's see what happens there and how Antitrust handles it.  In the meantime, they should be rethinking their new "aggressive" tactics in criminal cases.

UPDATED Friday evening 7:40 -- The jury acquitted both defendants in the first no-poach trial -- Kent Thiry and DeVita.  It's going to be hard for the government to spin this one!

Should a lake be able to sue?

That's the question raised in this New Yorker article about a lake in Florida, which is suing to protect itself.

From the intro:

Lake Mary Jane is shallow—twelve feet deep at most—but she’s well connected. She makes her home in central Florida, in an area that was once given over to wetlands. To the north, she is linked to a marsh, and to the west a canal ties her to Lake Hart. To the south, through more canals, Mary Jane feeds into a chain of lakes that run into Lake Kissimmee, which feeds into Lake Okeechobee. Were Lake Okeechobee not encircled by dikes, the water that flows through Mary Jane would keep pouring south until it glided across the Everglades and out to sea.

Mary Jane has an irregular shape that, on a map, looks a bit like a woman’s head in profile. Where the back of the woman’s head would be, there’s a park fitted out with a playground and picnic tables. Where the face would be, there are scattered houses, with long docks that teeter over the water. People who live along Mary Jane like to go boating and swimming and watch the wildlife. Toward the park side of the lake sits an islet, known as Bird Island, that’s favored by nesting egrets and wood storks.

Like most of the rest of central Florida, Mary Jane is under pressure from development. Orange County, which encompasses the lake, the city of Orlando, and much of Disney World, is one of the fastest-growing counties in Florida, and Florida is one of the fastest-growing states in the nation. A development planned for a site just north of Mary Jane would convert nineteen hundred acres of wetlands, pine flatlands, and cypress forest into homes, lawns, and office buildings.

In an effort to protect herself, Mary Jane is suing. The lake has filed a case in Florida state court, together with Lake Hart, the Crosby Island Marsh, and two boggy streams. According to legal papers submitted in February, the development would “adversely impact the lakes and marsh who are parties to this action,” causing injuries that are “concrete, distinct, and palpable.”

A number of animals have preceded Mary Jane to court, including Happy, an elephant who lives at the Bronx Zoo, and Justice, an Appaloosa cross whose owner, in Oregon, neglected him. There have also been several cases brought by entire species; for instance, the palila, a critically endangered bird, successfully sued Hawaii’s Department of Land and Natural Resources for allowing feral goats to graze on its last remaining bit of habitat. (The palila “wings its way into federal court in its own right,” Diarmuid O’Scannlain, a judge on the U.S. Court of Appeals for the Ninth Circuit, wrote in a decision that granted the species relief.)

Still, Mary Jane’s case is a first. Never before has an inanimate slice of nature tried to defend its rights in an American courtroom. Depending on your perspective, the lake’s case is either borderline delusional or way overdue.

“It is long past time to recognize that we are dependent on nature, and the continued destruction of nature needs to stop,” Mari Margil, the executive director of the Center for Democratic and Environmental Rights, said in a statement celebrating the lawsuit.

“Your local lake or river could sue you?” the Florida Chamber of Commerce said. “Not on our watch.”

What A Difference It Makes

By Michael Caruso

When Judge Ketanji Brown Jackson takes the oath as the 116th justice on the Supreme Court, not only will she make history as the first Black woman to serve on the Court, but for the first time in 232 years, the Court will not have a majority of white men.

Notwithstanding, the Washington Post recently highlighted the few notable instances of racial and gender diversity on the Supreme Court that have made tangible changes to American life.  

Here's the list for those who are behind the paywall:

Furman v. Georgia—death penalty

United States v. Virginia—gender discrimination 

Virginia v. Black—cross burning 

Ledbetter v. Goodyear—pay discrimination 

Safford Unified School District v. Redding—strip search

Fisher v. University of Texas—affirmative action 

Walker v. Texas Division, Sons of Confederate Veterans—Confederate flags

Utah v. Strieff—right to search

We'll see what the future holds. 

I'd also like to use this space to congratulate two friends on receiving awards last week from Riverside House. Unfortunately, I couldn't attend because I was held captive in a windowless conference room in our nation's capital.  

Randy Hummel, an AUSA at the U.S. Attorney's Office in Miami, was presented with the Janet Reno Award, and our very own David O. Markus was recognized with the Albert Krieger Award.  I couldn't think of two more deserving recipients of these prestigious awards. Well done.

How would a Republican Senate affect Biden's judicial picks?

 Would they all get blocked?  What would happen to a Supreme Court nominee? After the KBJ hearings, it is going to be interesting to see how it all plays out, especially if the Republicans take the Senate in November.  

The Supreme Court is now a pretty young court:

Thomas -- 73

Alito -- 72

Roberts -- 67

Sotomayor -- 67

Kagan -- 61

Kavanaugh -- 57

Gorusch -- 54

Jackson -- 51

Barrett -- 50

Meantime, we are still waiting on a U.S. Attorney and judges here in SDFLA... what's going on there?!

YES!

 

A new way to get out of jury service.

 Ahhh, you gotta love South Florida.  A juror in the Nikolas Cruz case was let go because she was too busy with her sugar daddy.  I kid you not.  From the New York Post:

A prospective juror for the sentencing of Florida school shooter Nikolas Cruz told the judge she wouldn’t have time for the civic duty — because she’s both married and has a “sugar daddy.”

Parkland gunman Nikolas Cruz pleaded guilty in October to 17 counts of first-degree murder and 17 counts of attempted murder in connection with the massacre.

***During the proceeding, Circuit Judge Elizabeth Scherer asked whether she had missed anyone with concerns or questions, courtroom video shows.

“Did you have a question?” she asks one of the prospective jurors, whom she identified as “Miss Bristol.”

“This is a whole entire month,” the woman replies. “First of all let me clarify myself, July 2nd is my birthday, July 4th is my son, and the 18th is my other son.”

Scherer tells her to slow down.

“Don’t talk too fast, we have to be able to understand … so you said that the July, there’s dates in July that you’re not available? What are those dates?” the judge asks.

“July 7th, July 4th, and July 18th … And again, I need to figure out something. I have my sugar daddy that I see every day,” Bristol answers.

“I’m sorry?” Scherer asks in a deadpan manner as she cocks her head.

“My sugar daddy,” Bristol repeats.

“OK, I’m not exactly sure what you’re talking about but we’ll …,” the judge interjects.

“I’m married, and I have my sugar daddy. I see him every day,” Bristol says.

“OK. All right. Ma’am, we’ll come back to you, OK? Thank you,” Scherer responds.

More than 120 of the first 160 prospective jurors were dismissed — including Bristol, Fox News reported.

 

CODA and SDFL

 

By John R. Byrne

The film CODA—an acronym for Child of Deaf Adults—recently won the Oscar for Best Picture.  Troy Kotsur, the deaf actor who played the deaf father of the main character, also took home an Oscar for Best Supporting Actor.  It’s an incredible movie.  Its success has brought more media attention to a recent order issued by Judge Ruiz.  The Florida Bar Journal covered it yesterday.  The case involved a deaf woman who said she struggled to get proper help at the Cleveland Clinic in Weston.  The parties settled the case but Judge Ruiz found that the hospital failed to honor its agreement to train staff on how to properly interact with the deaf.  He ultimately ordered the hospital to pay the $16,000 fine to the Center for Independent Living of Broward County, an entity that provides deaf interpreters for certain events. 

Troy Kotsur’s Oscar acceptance speech is worth a watch.  May want to have a box of tissues handy….

"Public defenders often have a natural inclination in the direction of the criminal."

That's Senator Ted Cruz ... I was going to write unbelievable, but I guess it's not.

 

Ted Cruz goes on a bizarre, lie-filled rant against public defenders:

"Public defenders often have a natural inclination in the direction of the criminal."

Reminder: every American is constitutionally guaranteed legal representation. pic.twitter.com/wg0hvwwydV

— American Bridge 21st Century (@American_Bridge) April 4, 2022