Guest Post: Judge Marcia “Great” Cooke

Judge Marcia “Great” Cooke

By Vanessa Singh Johannes

On Saturday, October 21, 2023, the Florida Bar Association’s South Florida Chapter (“FBA”) dedicated their annual gala extravaganza at the Four Seasons Miami to the late Judge Marcia G. Cooke, the first and only African American female to ever serve as a District Court judge in South Florida.  As many of us who practice in Miami know, Judge Cooke spent 18 stellar years on the federal bench, having served as a Magistrate Judge (Michigan), AUSA (SDFL), Chief Inspector General (Florida), and Assistant County Attorney (Miami) beforehand.  Since her untimely passing this past January, tributes have poured in memorializing Judge’s Cooke legacy.  But in a unique manner, the FBA managed to silence a room of 250 lawyers for nearly an hour as they strove to do more than commemorate Judge Cooke’s career.  They wanted us to appreciate, understand, and reflect on who Judge Cooke truly was – a woman who epitomized humility, grace, and kindness – and how we can all honor her legacy in our practice and daily lives.  Through a deliberate program, these goals they attained.

We got to hear from two “insiders” into the Judge’s life – both on and off the bench.  Judge Williams first walked us through a beautiful “story” of two little girls, herself and Judge Cooke, who had dreams that far exceeded the norm for women of that time.  Both of these girls, who grew up quite different, had a defining commonality: they were raised by strong, fierce mothers who taught them to do and be more than the world ever allowed them to do and be.  Judge Cooke defied odds in fulfilling her mother’s dream for her – going from a black girl born into segregated South Carolina, raised in the tough streets of urban Detroit, to one of the highest pinnacles of our profession.  And in doing so, she never forgot where she came from, including the idioms and parables she learned in the South and shared with others (“remember, pigs get fat; hogs get slaughtered”).  Nor did she forget who she served – the voiceless in the community; the people who don’t have it all – or her peers, friends, and family.  Indeed, as Judge Williams told us, it was Judge Cooke that reached out to her when she joined the bench, to serve as a friend, confidant, and mentor.  Just like that, the wishes for the two mothers of those little girls had come full circle and to life.

Judge Williams then presented the FBA’s prestigious Edward B. Davis Award, given to a judge who exemplifies excellence and service to the community, federal bench and bar, to Judge Cooke.  The award was received by Judge’s Cooke’s youngest sister, DeLois Cooke Sprystzak, who, like Judge Cooke and their mother, is a strong, fierce woman and serves as the Assistant Principal of a high school in Birmingham, Alabama.  DeLois explained that her sister’s middle name may have been “Gail,” but the “G” really stood for “Great,” as Judge Cooke was a great leader, sister, and friend.  Donning neon light-up sneakers, she also told the audience that her older sister worked tirelessly in her professional life to serve the public, a trait their parents instilled in them, and understood that being a federal judge was a privilege and gift.  (By the way, in wearing sneakers, DeLois fully understood the gala’s assignment.  The FBA requested that all guests donate a new pair of youth-sized sneakers to give back to kids in our community and to even WEAR their own hottest kicks to the event.  Note: with black-tie attire, this was not an easy feat for women to coordinate… but so well worth it for the cause and on the feet!)  DeLois also told us that her sister took measures to remember where she came from, how different her life could have been, and treat others with grace.  If you ever practiced before Judge Cooke, as I have, you know this to be true.  I’ll never forget when my infant son was sick during a trial she was presiding over.  With trepidation and tire, I asked to commence trial the following day at 11 am to take him to the doctor’s.  Not only did she grant my request, but the first question she asked once taking the bench was, “Ms. Johannes, how is your son today?”  Emphatic. Graceful. Human.    

After these personal anecdotes about Judge Cooke, the FBA announced the creation of the “Judge Marcia G. Cooke Scholarship,” which will award a law student with $5,000 towards their studies.  The recipient will be chosen and announced in 2024.  To end the night, the audience was reminded to live a life of public service and gratitude, but also levity and fun… just the way Judge Cooke would have wanted it.  And with that, Tomahawk steaks were enjoyed and champagne glasses clinked to toast a remarkable life lived. 

Here are some photos from the event:

 

Another Section 1983 Refusal to Identify Case

By John R. Byrne

A few weeks back, we covered an 11th Circuit case involving a passenger in a car who refused to identify himself during a traffic stop and, as a result, was arrested. That case, which arose in the context of a Section 1983 claim, came out in favor of the police, with Judges Tjoflat and Brasher holding that the officer was entitled to qualified immunity (and Tjoflat going further and holding that the officer could ask the passenger to identify himself).

Last Friday, in yet another refusal-to-identify fact pattern, the tables were turned and the police lost a qualified immunity issue before the Court. Police in Alabama encountered two men working on a car in a parking lot (one of the men was Plaintiff, who was a mechanic). An officer asked the men what they were doing, with the Plaintiff responding they were working on a car and suggesting the officer call the customer. Then the officer asked the Plaintiff to give her his "ID or driver's license," which the Plaintiff refused to do, resulting in arrest.

The Eleventh Circuit held that the police did not have "arguable probable cause" to arrest the Plaintiff, pointing to the "broad background rule" that a person can refuse to answer questions from the police and "go on his way." And the Court didn't find an Alabama "stop and identify" statute applied because, while the statute allowed an officer suspecting criminal activity to ask a person provide a name/address/explanation, it did not permit the demanding of IDs/driver's licenses.  

Good recap of the "arguable probable cause" standard, with the Eleventh Circuit going out of its way to clarify what the standard means. Important reading if you do Section 1983 work.

McCabe by John Byrne on Scribd

RIP Peter Raben

 Really sad news. Peter was a good dude and a smart lawyer. Too young. 

Grisham and AI

By John R. Byrne

Famous author John Grisham appeared at the Coral Gables Books & Books yesterday to promote his new book, "The Exchange," which is a sequel to "The Firm." He was very funny and self-deprecating. He got a question from the audience about his concerns about the threat of artificial intelligence to writers. Turns out, he and several other prominent authors recently sued OpenAI (owner of ChatGPT) in federal court in SDNY over copyright infringement.

Grisham also sits on the board of the Innocence Project, so he's still got a foot in the legal world. Nice to see someone leveraging his fame and wealth to give back.

Separation of Powers

 It will be interesting to see how Judge Chutkan deals with Donald Trump when he violates the gag order she imposed yesterday.  Even the judge recognized that putting him in jail during campaign season will be a challenge. From the AP:

“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” Chutkan told Lauro. “We’re not talking about censorship here. We’re talking restrictions to ensure there is a fair administration of justice on this case.”

She also cut off Trump’s lawyer when he suggested the case was politically motivated, telling him: “Obviously, you have an audience other than me in mind.” And she rejected a defense bid to delay the trial, currently scheduled to begin in March, until after the 2024 election, saying “this trial will not yield to the election cycle.”

Lauro said Trump had not violated his pretrial conditions, and those were enough to keep him in check for the future. He told the judge, “What you have put in place is working.” Chutkan burst out laughing.

“I’m going to have to take issue with that,” the judge said.

There's another power struggle going on -- this one in the SDFLA.  I'm sure you remember the commutation Trump granted to Philip Esformes.  That was after the jury convicted him on some counts and hung on others.  Judge Scola sentenced him to 20 years and he had served about 5 when Trump ended his sentence.  The issue -- DOJ now wants to try him on the hung counts.  The Washington Post has an in depth article about the political hot potato that the case has turned into:

But Esformes’s reprieve is now in peril, thrust to the center of an extraordinary legal and political collision between two administrations pushing the bounds of executive authority. The Biden Justice Department is seeking to retry him — a move made possible because the jury that convicted him reached no verdict on six counts, including the most serious charge of conspiracy to commit health-care fraud. Because Trump’s clemency order was silent on those charges, prosecutors say they are able to take him back to court.

At stake is whether the government’s move to reprosecute the architect of one of the largest-ever health-care scams undermines Trump’s decision based on presidential powers laid out in the Constitution and historically considered the last word on a criminal conviction.

The highly unusual decision to retry a clemency recipient on hung charges has emerged as yet another flash point in the broader battle between the far right, which portrays the Justice Department as an arm of an out-of-control “deep state” opposed to anyone associated with Trump, and law-and-order proponents seeking to defend institutions of democracy against incursions by the former president and his allies. Experts say they know of no precedent for this dispute.

In recent months, House Republicans orchestrated a hearing portraying the case against Esformes as a political attack, while an array of Trump acolytes have taken to conservative airwaves and social media to denounce the Justice Department.

“In the annals of American history, no prosecutor has ever tried to reverse a presidential commutation in this manner,” co-wrote Matthew G. Whitaker, who briefly served as acting attorney general under Trump, in a Fox News column. “Does the DOJ have no sense of propriety at all?” tweeted Harmeet Dhillon, a Republican National Committee official from California, whose law firm has represented Trump.

But some former prosecutors say a retrial is a chance to correct a grievous mistake in which Trump bypassed long-standing protocols to grant clemency to a corrupt nursing home executive. If the Justice Department succeeds, Esformes could be sent back to prison, undoing Trump’s executive order that had made him a free man.

“It’s an opportunity for justice,” said Paul Pelletier, a former federal prosecutor for 27 years who led the agency’s fraud section before it criminally charged Esformes. “We use the law to hold people accountable as best as we can.”

A supreme chunk of marble

 Yikes -- a huge piece of marble fell inside the courtyard at the Supreme Court where the Justices and clerks mingle.  From the AP:

 The Supreme Court avoided a catastrophic accident last year when a piece of marble at least 2 feet long crashed to the ground in an interior courtyard used by the justices and their aides, according to several court employees.

The incident, which the court still fails to acknowledge publicly, took place in the tense spring of 2022, as the court already was dealing with death threats and other security concerns and the justices were putting the final touches on their stunning decision overturning Roe v. Wade.

Justice Elena Kagan and her law clerks had been in the courtyard earlier in the day, the employees said. 

***

The employees spoke to The Associated Press on the condition of anonymity because court policy forbids all but a small number of employees from speaking to reporters on the record.

Supreme Court spokeswoman Patricia McCabe would not provide any details about the incident or even confirm that it had taken place. Because of the coronavirus pandemic, the building was closed at the time to the public and members of the news media who regularly cover the court.

Each of the four courtyards has fountains and columns that resemble those on the outside of the building. There are tables and chairs where employees can have lunch or work on nice days.

 

Women in the Courtroom

By John R. Byrne

The Miami-Dade Chapter of Florida Association for Women Lawyers (MDFAWL, for short) recently hosted a lunch panel at Greenberg Traurig  titled, "Supporting Women in the Courtroom." Panelists were Florida Bar president-elect Roland Sanchez-Medina, attorney Rachel Furst, and Judge Rudy Ruiz. Much of the conversation centered on giving women attorneys more opportunities at federal hearings and trials. Judge Ruiz mentioned a rule implemented years ago by now deceased federal judge Jack Weinstein that encouraged more courtroom opportunities for women. He's followed suit by encouraging litigants appearing before him to give argument opportunities to women and diverse lawyers. This Times article on Weinstein and his rule is relatively old but still a good read. 

Strange Statutory Interpretation Bedfellows

By John R. Byrne

Often times, when groups of appellate judges disagree on matters of statutory interpretation,  the disputing parties fall into predicable camps (Republican nominees on one side, Democrat nominees on the other). But they can still surprise us! 

Check out the Eleventh Circuit's recent opinion in US v. Pate. The en banc Court examined a federal statute that criminalizes the filing of retaliatory liens against "any officer or employee of the United States." The question was whether the statute covers former civil servants.  A majority of the Court said "no." But the breakdown was interesting. In the majority were Judges Newsom, Brasher, Luck, William Pryor (all nominated by Republicans) and Judges Wilson, Jordan, Rosenbaum, Jill Pryor, and Abudu (all nominated by Democrats). Both Judge Lagoa and Judge Grant, both appointed by Trump, filed dissenting opinions.

Pretty wild fact pattern involving a criminal defendant who had described himself as "heir to the kingdom of Morocco" and filed liens against property owned by the former Commissioner of the IRS and a former Secretary of the Treasury (he went right to the top). But his conviction (at least as to certain counts) was vacated and he'll now get a resentencing. Opinion below.

Pate Opinion.enb by John Byrne on Scribd

Drama

 The Sam Bankman-Fried trial is on!  Defense lawyers read this NY Times piece about the judge shutting down and abusing the defense, and simple sighed.  We’ve all been there before, watching the prosecutor putting in whatever they want, no matter how tangential and then the defense getting yelled at for having the audacity to challenge that evidence.

Meantime, there was drama in the courtroom yesterday, as SBF’s girlfriend took a full 30 seconds to identify him.  Maybe that new haircut paid off:

When asked by Sassoon to identify the defendant, Ellison stood up and, for almost 30 seconds, looked around the room. She turned her head all the way to the left to the jury box and back to the right again multiple times before finally identifying Bankman-Fried as sitting "over there and wearing a suit." The two hadn't made eye contact when Ellison walked by earlier. Bankman-Fried, who was known for his floppy hair and beach shorts, got a fresh haircut prior to the trial, reportedly from a fellow inmate at the jail in Brooklyn where he has been held since August.

I’ve seen witnesses ID jurors, prosecutors, and even folks in the audience.  Those are always fun.  

Bloggers unite!

 Howard Bashman of the legendary How Appealing blog will get his first SCOTUS argument. Reuters describes it this way:

 Bashman, who writes the popular legal industry website How Appealing, will represent Raiders Retreat Realty in its insurance claim for a yacht that ran aground. Bashman argued the case in the 3rd Circuit and worked with a team at the high court that included Jenner’s Adam Unikowsky. Bashman will face Jeffrey Wallof Sullivan & Cromwell, a former Trump-era acting U.S. solicitor general at the DOJ who has argued 30 cases at the high court. Wall represents Great Lakes Insurance, which has denied coverage.

Speaking of the OG blogs and bloggers, I was sad to see Tom Goldstein’s post about scaling back SCOTUSblog. Tom already retired from Supreme Court practice in his early 50s, so I guess this isn’t a surprise. But still sad. 

Chief Justice Names Conference Committee Chairs

And one of them is our very own Judge Darrin Gayles, who was named chair of the Committee on Federal-State Jurisdiction.  

Represent!

Breaking — Randy Katz is our new Magistrate Judge

 Congratulations to Judge Katz. More to follow. 

South Florida Faces in Trump Fraud Trial

By John R. Byrne

If you haven't been living under a rock, you've probably seen the news about the Trump civil fraud trial in New York. The former president didn't need to personally appear but chose to do so, leading to frenetic press coverage. And, even in New York, South Florida is making its presence known. Trump's got quite a few South Florida lawyers representing him, including Chris Kise, Jesus M. Suarez, and Lazaro Fields (a former Judge Moreno law clerk) of Continental PLLC. I think I also saw Ben Kuehne (I'm going solely off the bow tie here)!

The trial is actually a bench trial and things have been tense at times between the Court and Trump/Trump's legal team. This could be a dry run of sorts for the trials to come. 

***Updated with Better Photograph***

Federal Bar Association celebrates Judge Cecilia Altonaga, our first female Cuban American judge

Check out this cool article here.  

“I was born into a family with two parents who had to leave everything behind and had nothing here, who had to remake their professional and personal lives,” Altonaga said. “My father was a lawyer in Cuba, and for about the first 10 years of my life in the United States, he did not practice law because he couldn’t.” 

I really enjoyed the video, which was very well done:

1-1-1 Opinion on Fourth Amendment Issue

By John R. Byrne 

Pretty rare 1-1-1 opinion yesterday out of the 11th Circuit dealing with an interesting Fourth Amendment legal issue: during a traffic stop, if an officer suspects only the driver of committing a traffic-related offense, can the officer nevertheless ask a passenger to identify himself? In the case before the court, an officer had pulled over a car for having an obscured license plate. When the officer asked the passenger to identify himself--and the passenger refused--the officer arrested the passenger for resisting arrest without violence.

The trial court held that the officer violated the passenger's Fourth Amendment rights AND denied the officer's motion to dismiss on qualified immunity grounds (holding that the passenger's right to not identify himself under such circumstances was clearly established). The Eleventh Circuit reversed. 

The opinion breakdown was interesting. Judge Tjoflat and Judge Branch agreed that the officer was entitled to qualified immunity, with Judge Tjoflat going further and saying that no Fourth Amendment violation had even occurred (Branch not joining that aspect of the opinion). Judge Wilson dissented, arguing that the officer had violated the defendant's Fourth Amendment rights AND that the defendant's right to not identify himself was clearly established at the time of the stop.

Johnson Opinion by John Byrne on Scribd

Judges, please don't do this.

 From the 4th Circuit:

Elizabeth Peiffer, one of two lead attorneys representing David Runyon in this habeas proceeding, filed a motion to withdraw as counsel for Runyon on the ground that her mother was diagnosed with cancer and caring for her would distract from an appropriate representation of Runyon. The district court denied Peiffer’s motion, finding that it was “in the interests of justice for Ms. Peiffer to remain as counsel for” Runyon. Peiffer then filed this appeal. Because we cannot, in the circumstances presented, conclude that the district court abused its discretion, we affirm.

Really?

Meantime, happy first Monday in October. 

"The Psychology of Persuading Jurors in the TikTok Era"

 Here's a little something that my daughter (and I) wrote:

In 1924, two wealthy University of Chicago students, Nathan Leopold and Richard Loeb, thought they were so smart that they could commit the perfect, unsolvable crime. So they lured a 14-year-old boy into their car, killed him, and then sent a $10,000 demand letter to the boy’s family. Before the boy’s family could pay the ransom, police found the body.

Far from committing the perfect crime, Leopold left his glasses at the scene, and police quickly traced the glasses to his optometrist. The prosecutors sought the death penalty for the boys, who hired Clarence Darrow—the greatest criminal lawyer of his day—in a bid for their lives. It was the trial of the century (before Darrow’s next trial, the Scopes Monkey trial).

After three months of trial, the courtroom was sweltering the day that Darrow delivered his closing argument. He spoke for 12 hours. That’s not a typo. Twelve hours.

I have friends that can’t even sit through a two-hour movie.

I’m almost 18 years old, and what that means is that my generation and I soon will be sitting on juries. That may scare many of you trial lawyers, but you are going to have to figure out a way to reach the minds of people who are used to absorbing information from 30-second bites on TikTok.

So here’s some advice:

1. Keep it moving. I understand that you lawyers think that every document is a critical piece of evidence. And that jurors will be able to follow the excruciating detail in every contract.  But trust me, you are much better off just making the point and moving on. Don’t waste time with a long lead up. Make your point and get out of there.
2. Be passionate. There’s nothing worse than watching someone speak who doesn’t feel some passion for what they are saying. I can sit through calculus—yes, calculus—because my teacher makes it fun and interesting. And trust me, I’m not otherwise that into the subject matter. If you don’t believe in what you’re saying, the jury isn’t going to be either.
3. Keep it simple. I didn’t include the last S of K.I.S.S. (look it up) because that’s just rude. But this one’s obvious, right? If you can’t explain it quickly and easily, then you are going to lose the jury. Analogies help. Think about the psychology of the people sitting in your jury box, and try to appeal to them.
4. Don’t read. Bueller, Bueller. If you are just reading, you can expect your audience to disengage and stop listening. This point relates to points 2 and 3 above. If you are passionate and keeping it simple, you won’t need to read. Speak from the heart (and from an outline, if necessary).
5. Use visuals. Us young people need to see, not just hear. So please use visuals. This does not mean putting a bunch of words or your outline on PowerPoint slides. Death by PowerPoint is real. The visuals need to be engaging and have a point. My dad likes starting his opening statements with a picture of his client and the family. He may not even mention the picture while speaking, but it’s up there. And jurors see it and understand that it’s a real person with a real family, not just “the defendant” as the prosecutor just said over and over. Again, play to the psychology of your jurors.
6. Make your argument unique. There is a reason everyone binge watches Legally Blonde.  Keeping the defense witty, sharp, and “fun” to listen to is crucial. “What, like it’s hard?”

Darrow saved the lives of Leopold and Loeb with that long closing argument. I’m sure it was perfect for jurors in the 1920s. In fact, Darrow was credited for winning a case with unwinnable facts. That said, if he went on for that long today, the jurors may have saved his clients, but they would be thinking about sending him to Old Sparky!

David Oscar Markus is a partner at Markus/Moss. Follow him @domarkus. Kate Emily Markus is in her senior year at Palmetto Senior High School. Follow her @kate_markus.

1.  

"That's exactly right, sweetheart..."

 "…uh, excuse me, Your Honor..."

Eek.

Not the best way to end your rebuttal in the 11th Circuit. It's at the 36:25 mark of this oral argument.

I really debated posting this because I actually kinda feel bad for the guy, who sounds old, was obviously embarrassed, and immediately apologized. But people are talking about it and it’s public record, so I put it up. It’s a good reminder that this kind of thing still happens even to the best and most powerful women in our profession. 

Should USAO offices be tweeting?

 

Say what you will about Menendez… but it always bothers me when prosecutors have flashy press conferences. Do they really need to be tweeting? https://t.co/1vgTaeK8d4

— David Oscar Markus (@domarkus) September 23, 2023

I'm sure you're not surprised by my view.  What's yours? 

What happens when judges, appointed for life, are too old?

 Pauline Newman, 96, was suspended for a year.

Colleagues of Pauline Newman, a 96-year-old federal appeals judge, have suspended her from hearing cases as part of a clash over her mental fitness.

The U.S. Court of Appeals for the Federal Circuit’s active judges on Wednesday barred Newman from hearing cases for one year unless she complies with their demand to submit to medical testing.

“We are acutely aware that this is not a fitting capstone to Judge Newman’s exemplary and storied career,” according to the order.

“We all would prefer a different outcome for our friend and colleague,” it continued. “However, we have a solemn obligation under the Act and an obligation to the litigants before our Court and court staff to take action—and not to simply look the other way—when it appears that a judge of this Court is no longer capable of performing the duties of her judicial office.”

The ruling is the latest development in a bitter battle over Newman’s fitness to continue serving on the Federal Circuit, an appeals court that hears patent cases and other specialized disputes.

We've had some wonderful judges who had to confront the issue in our district over the years, including one during a high profile case dealing with the Everglades cleanup.

Congratulations to Florida's new lawyers

Congratulations to everyone who passed the Florida Bar. 

Here’s how lawyers were notified back before there was the Internet. This is my Dad’s notification back in 1958. 

A telegram!

 

Opponents of Florida Sports Betting To Seek SCOTUS Review

By John R. Byrne

If you're wondering when you're going to be able to lock in your parlay bet on Dolphins winning the Super Bowl and Tua the MVP award, the answer is not anytime soon. We blogged a while back about the Seminole Hard Rock's big win in the U.S. Circuit Court of Appeals for the District of Columbia. The three-judge panel held that the Secretary of the Interior did not violate the Administrative Procedures Act when she allowed the gaming compact between the Seminole Tribe and Florida to go into effect.

Though the DC Court of Appeals denied en banc review, opponents of the compact say they plan to pursue SCOTUS review. From their lawyers:

“[The Court] held that a tribe and state may use the process set forth in IGRA (the Indian Gaming Regulatory Act) to grant exclusive statewide internet gaming franchises to Indian tribes. This understanding contradicted Congress’ clear intent in enacting IGRA which was to provide for gaming ‘on Indian lands,’ not to provide a means to introduce internet gaming statewide."

So, the case is "under further review." You can read the Tampa Bay Times's coverage here.