New podcast episode For The Defense -- CNN's Kaitlan Collins

FOR THE DEFENSE -- SEASON 6, EPISODE 2 KAITLAN COLLINS Cross examining witnesses is one of the hardest things criminal defense lawyers do.  There's a lot to be learned from journalists who do it live on the air with difficult politicians.  And CNN's Kaitlan Collins is one of the best at doing it.  In this episode, we discuss how she prepares for her interviews, how she deals with difficult interviews, as well as lots of other interesting topics -- from cameras in the courtroom to covering high profile trials and so on.  This podcast episode is a recording from my White Collar Law class at the University of Miami School of Law.  I think you'll agree after listening that Kaitlan is terrific.  Listen on your computer here, or on Apple and Spotify. And I've posted the raw video on YouTube. 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.   Hosted by David Oscar Markus and produced by rakontur

Judge Roy Altman leads by example (with unrelated updated)

Jewish-owned business targeted by hateful vandalism. Miami mayor @FrancisSuarez and federal judge Roy Altman show up to help clean it up. Story on @nbc6 starting at noon. pic.twitter.com/ybgWz1tGJb

— Ari Odzer (@ariodzernbc6) June 17, 2024

In an unrelated update, the Supreme Court granted cert today in another fraud case, Kousisis v. United States: In order to get work, the defendant used as a front a company that qualified as a “disadvantaged business enterprise,” though the company performed no actual work. His claim on appeal is that his actions did not constitute mail or wire fraud because they were not intended to cause economic harm. The 3rd said it was enough for fraud* and the High Court granted cert:

 (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”

 *Note to district courts and appellate courts -- it's okay to dismiss indictments and find that prosecutors overcharge.  The Supreme Court keeps reversing these fraud cases.  You can too!

You be the judge

How much time should Donald Trump receive for his conviction in New York for falsifying business records?

What about Hunter Biden in Delaware for being an addict in possession of a firearm?

Both should get probation.

After all, both are first time, non-violent offenders.   And there were no victims in either case. 

But I suspect both will get some jail time.

I'm setting the over under at 6 months in each case. 

What would you do if you were the judge and what do you predict they will actually receive?

SDFLA closed tomorrow (Thursday)

U.S. District Courts in South Florida will be closed tomorrow, due to the weather and hazardous conditions. The sentencing hearing in the matter of U.S. v. Frenel Cenat, Case No. 24-CR-60016 has been re-scheduled for June 18 at 10:00 a.m. before Senior Judge James I. Cohn in Fort Lauderdale.

Chiquita Hit with $38.3 million Judgment

 By John R. Byrne

There's now a jury verdict in a case that's been hanging around for years. In a trial up in West Palm, a jury found that Chiquita knowingly funded a Colombian paramilitary group called Autodefensas Unitas de Colombia, which has been designated a terrorist organization by the United States. The lawsuit was brought by the families of eight Colombian men killed by the AUC. Chiquita had claimed that the AUC effectively extorted payments from Chiquita to protect Chiquita's workers. CNN covers it here.

Young Thug

 What's going on in Atlanta state court is insane.  Criminal defense lawyer Brian Steel was held in criminal contempt yesterday and ordered to serve 10 weekends in jail because he asked the judge about an ex parte communication he had with a witness and the prosecutor, and then had the audacity to refuse to reveal his source about the meeting.  The judge has totally lost control of the trial and the proceedings. 

Judge Jacqueline Becerra's formal investiture

Congratulations to Judge Becerra.

It was a packed house and a really warm event.  Interestingly, all of the speeches were by women.

 

 

Judge Newsom and AI

 Hooooo boy.  You gotta read this concurrencethis concurrence by Judge Newsom about the use of AI in legal opinions.  It starts this way:

I concur in the Court’s judgment and join its opinion in full.  I write separately (and I’ll confess this is a little unusual1) simply to pull back the curtain on the process by which I thought through one of the issues in this case—and using my own experience here as backdrop, to make a modest proposal regarding courts’ interpretations of the words and phrases used in legal instruments.  Here’s the proposal, which I suspect many will reflexively condemn as heresy, but which I promise to unpack if given the chance:  Those, like me, who believe that “ordinary meaning” is the foundational rule for the evaluation of legal texts should consider—consider—whether and how AI-powered large language models like OpenAI’s ChatGPT, Google’s Gemini, and Anthropic’s Claude might—might—inform the interpretive analysis.  There, having thought the unthinkable, I’ve said the unsayable. Now let me explain myself.

1. Even for me. 

Wowsa. You gotta read the whole opinion.  He goes through the pros and cons of using AI and also shows how he used it in this particular case.  It's a very interesting read.

Meantime, I asked Co-Pilot (Microsoft's AI program) to write a blog post about Judge Newsom's use of AI.  This is what I got back:

Circuit Judge Proposes Using AI-Powered LLMs to Interpret Legal Texts

In a recent concurring opinion during an insurance dispute, U.S. Circuit Judge Kevin Newsom suggested that courts might benefit from using artificial intelligence programs to interpret legal texts. This idea, which he described as “unthinkable,” could revolutionize the way we understand and apply the law1.

The underlying case involved a dispute between a landscaper and his insurance company over whether his installation of an in-ground trampoline fell under the term “landscaping” in his insurance policy. The district court noted that because the term “landscaping” was not defined in the policy, whether or not the landscaper’s activities were covered by the insurance policy hinged on whether the installation of the trampoline fell within the common, everyday meaning of the word “landscaping.”

Judge Newsom took the opportunity to express his thoughts about artificial intelligence’s possible role in future disputes after “hours and hours (and hours) laboring over the question [of the ordinary meaning of ‘landscaping’ in the context].” He recounted that querying ChatGPT (an AI-powered LLM) about the ordinary meaning of “landscaping” resulted in an explanation that “squared with [his] own impression.” ChatGPT’s definition included “the process of altering the visible features of an area of land, typically a yard, garden, or outdoor space, for aesthetic or practical purposes.” It also listed activities such as planting trees and installing paths and water features as part of "landscaping"2.

Judge Newsom evaluated the pros and cons of using LLMs to interpret legal texts. Some of the pros included the fact that LLMs are trained on a vast range of ordinary-language data, from literature to online discussions. However, he also noted that LLMs cannot capture “pure offline” usages—those that do not occur online or are not eventually digitized. Despite this limitation, LLMs can understand context, are accessible, and have advantages over other empirical interpretive methods, like dictionary research2.

In conclusion, Judge Newsom’s proposal opens up exciting possibilities for the legal field. While he never reached a definitive conclusion due to the panel’s “off-ramp” approach, his experimentation with generative AI suggests that LLMs might indeed be useful when interpreting legal texts3. It’s a fascinating development that could shape the future of legal analysis.

Disclaimer: The views expressed in this blog post are based on Judge Newsom’s opinion and do not constitute legal advice. Consult a qualified attorney for specific legal matters.

2: Circuit Judge Proposes Using AI-Powered LLMs to Interpret Legal Texts 1: Federal Judge Proposes AI to Decode Legal Texts: A Revolutionary Approach or Risky Gamble? 3: Eleventh Circuit Judge Experiments With ChatGPT

News & Notes

1. There has been a flood of complaints against Judge Cannon to the 11th Circuit. The problem is that they don't actually complain about anything. So Chief Judge Pryor rightfully dismissed them and said no mas. Here's his order. To the people filing 1000s of complaints, it reminded me of William Shatner's line "Get a Life" on Saturday Night Live.

2. Apparently the viral story (that was also blogged about on this platform) was totally bogus:

It turns out all those stories, however, were based on a falsehood. Harris' license had been reinstated years prior and was only registering as suspended due to a clerical error. As of this writing, there has been no spate of additional articles, corrections, or a reinvigorated news cycle based around this information, because the truth here doesn't lend itself to virality and engagement.

That's a good indication that this never should have been a national story to begin with, which would be true even if Harris had been driving on a suspended license. A man in Michigan driving allegedly when he wasn't supposed to is not newsworthy enough to deserve coverage in the most influential outlets in the U.S. (and beyond). Good for a social media laugh? Sure. Justifying its own news cycle? No.

3. Judge Newsom and Judge Rosenbaum are going at it in this appeal that ends up holding that a grant program for Black women is discriminatory .  The writing from both is great and worth a read.  

Judge Newsom introduces the case in his majority opinion:

In this appeal from the denial of a preliminary injunction, we are asked to decide whether the Fearless Strivers Grant Contest, an entrepreneurship funding competition open only to businesses owned by black women, violates 42 U.S.C. § 1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts.  We must also decide, as a threshold matter, whether the plaintiff, the American Alliance for Equal Rights, has standing to challenge the contest.   After careful review, and with the benefit of oral argument, we hold (1) that the Alliance has standing and (2) that preliminary injunctive relief is appropriate because Fearless’s contest is substantially likely to violate § 1981, is substantially unlikely to enjoy First Amendment protection, and inflicts irreparable injury.  We therefore affirm the district court’s determination that the Alliance has standing to sue but otherwise reverse its decision and remand with instructions to enter a preliminary injunction.  

Judge Rosenbaum's dissent starts this way:

No one doubts the sincerity of an Arsenal (soccer) player’s desire to beat Tottenham.  But he can’t be allowed to try to win by flopping on the field, faking an injury near Tottenham’s goal.  For those not in the know, the object of flopping is to manufacture a foul that the player hasn’t actually experienced to manipulate the referee into inappropriately exercising his power to award a penalty kick in the box, where it’s likely to result in a goal.  Referees’ vigilance prevents players who have a sincere desire to defeat their opponents—but who try to do so through manufactured fouls— from commandeering referees to improperly exercise their adjudicatory authority to award unwarranted penalty kicks. 

Article III’s standing requirement—which comes from the Constitution’s limitation on the Judiciary to hear only “[c]ases” and “[c]ontroversies”—prevents the legal version of flopping.  Among other things, standing seeks to ensure that a party has a genuine and personal stake in the matter—a real alleged injury.  That way, the court’s decision is not an impermissible advisory opinion but instead addresses a “real need to exercise the power of judicial review in order to protect the interests of the complaining party.”  Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974).  As the Supreme Court has explained, “The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of  representative government.”  Id. at 222 (citation and quotation marks omitted). 

Here, no one doubts the sincerity of American Alliance for Equal Rights’s desire to challenge what it views as “distinctions and preferences made on the basis of race and ethnicity.”  Compl. ¶ 6.  American Alliance seeks to do so by challenging the Fearless Foundation’s Striver’s Grant Contest (the “Contest”) designed to help Black women in the business world, where they are grossly underrepresented as business owners.1  But as American Alliance has portrayed its members’ alleged injuries, it has shown nothing more than flopping on the field.2   Although three of American Alliance’s members pay lip service to the idea they are “ready and able” to participate in Fearless’s Contest, their declarations show, in context, that none has a genuine interest in actually entering the Contest.

For the Defense, Season 6: Todd Blanche for Former President Donald Trump

FOR THE DEFENSE -- SEASON 6, EPISODE 1 TODD BLANCHE FOR FORMER PRESIDENT DONALD TRUMP In perhaps the biggest trial in American history, Todd Blanche defended Former President Donald Trump in New York. In this wide-ranging interview, he discusses how he got the case, how decisions were made, how the war room was stocked, whether he got along with prosecutors, why Melania wasn't there, and so on. No matter how you feel about Trump, it's fascinating to hear the ins and outs of the first trial of a former U.S. President. Todd is a good guy and this really comes across in the interview. Watch on Youtube here or listen on your computer here, or on Apple and Spotify.  CNN included a clip from the podcast last night, which was pretty cool. 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.   Hosted by David Oscar Markus and produced by rakontur

 

Is Sen. Rick Scott holding up the blue slip for Detra Shaw-Wilder?

 That's what it looks like, according to this DBR article.  Really weird.  The legal community is coming to her defense.  Here's the intro to the article:

Prominent names in the Florida legal community expressed their disappointment Wednesday with Sen. Rick Scott over his decline so far to return a “blue slip” on the nominee, Detra Shaw-Wilder, to serve as a district court judge in the Southern District of Florida.

“Detra Shaw-Wilder is well qualified and has widespread support from the community,” said Aaron Podhurst, a founder and partner of Podhurst Orseck in Miami. “I am surprised and disappointed that perhaps political issues have slowed down her process, but I am hopeful that they will be resolved soon and Detra will move forward to confirmation.”

Beatriz Azcuy, a co-managing partner with Sidley Austin in Miami, recalled over three decades ago when Azcuy was a moot court partner with Shaw-Wilder, who impressed Azcuy with her “dedication, perseverance, strength, humanity and intelligence.”

“Today, she is a sought-after, skilled commercial litigator and community leader with qualities required of the judiciary and in short supply in today’s world: integrity and impartiality,” said Azcuy, of the Am Law 100 firm. “As a lifelong Republican and Floridian, I cannot imagine a more qualified nominee to the U.S. District Court for the Southern District of Florida.”

Scott has reportedly claimed that the White House failed to follow the usual consultation process and ignored his suggestion for alternative nominees.

In response, the Biden Administration said it had included Scott in discussions over the last two years, and the senator interviewed Shaw-Wilder, general counsel at Kozyak Tropin & Throckmorton, in January 2023.

Scott did not respond to a request for comment.

Cheers to Cathy Wade Babyak

 The Heart and Soul of the SDFLA is retiring.  Congrats to Cathy Wade Babyak on an amazing run in the Clerk's Office. 

Zoom Hearing Gone Wrong?

By John R. Byrne

Another reason to have cameras in the courtroom? Videos like this one. Man with suspended license--who is also facing charges for driving with a suspended license--attends a hearing by Zoom....while driving.... 

Maybe not quite to the level as the cat-lawyer video from a while back but close. 

"Calm Down." (UPDATED)

 That was Judge Cannon to the Special Counsel's office in last week's hearing on Nauta's Motion to Dismiss for Prosecutorial Misconduct in the Trump documents case.  CNN has the coverage here:

Nauta claims that he was criminally charged in the case as retaliation for declining to cooperate with the Justice Department’s investigation into the former president’s retention of classified documents at his estate.



This photo from the US Department of Justice allegedly shows Walt Nauta moving boxes inside former President Donald Trump’s Mar-a-Lago estate in Palm Beach, Florida. From US Department of Justice

“I had been recommended for a judgeship, that’s beyond dispute,” Woodward said Wednesday. “There was a folder about defense counsel on the table” during that meeting, he said, claiming Bratt referenced that judgeship recommendation.

“I think the implication was that I was to travel and convince Mr. Nauta to cooperate with the investigation, and if I didn’t that, there would be consequences,” Woodward said.

Prosecutor David Harbach then rose and accused Woodward of engaging in “procedural gamesmanship” by making a “garbage argument” about the meeting.

“Mr. Woodward’s story of what happened at that meeting is a fantasy,” Harbach shouted, banging his hand on the lectern in front of him. “It did not happen.”

The heated proceedings Wednesday come as the Manhattan hush money case against Trump nears its conclusion and a new phase of pretrial activity gets underway in the federal classified documents prosecution in Florida. 

Wow.  Too bad we don't have cameras in the courtroom to see it. Meantime, Special Counsel filed a motion to modify the conditions of release to partially gag the former President based on his claims that the search team was "locked and loaded" and ready to take him out, via The Hill.   Trump has responded asking for sanctions.  Ah, fun times. (UPDATED -- Judge Cannon denied the Special Counsel's motion for lack of meaningful conferral and also denied Trump's motion for sanctions.)

All of this on the eve of closing arguments in New York.  I was asked on MSNBC last week how I would close for Trump.  Here's my one minute summary.

Jewish American Heritage Month (and more)

 Last week the Southern District of Florida held an amazing event celebrating Jewish American Heritage Month.  Judge Beth Bloom moderated a panel that included: Judge Luck, Judge Scola, and Judge Altman.  The event had almost 400 attendees and the support of the community.  It was lovely to see.  Here's a picture of the committee:

Judge Altman is making other news -- this NY Times article covers his ruling this week "block[ing] part of a Florida law that criminalized transporting into the state anyone who lacked lawful immigration status, raising new legal questions for other states pursuing similar measures."

More:

The Florida law was intended to discourage unauthorized immigrants from living and working in the state, and organizations that work with immigrants say many undocumented workers have left the state in recent months.

The injunction puts on hold a key enforcement component of the legislation while the lawsuit against it proceeds. The law, which into effect last July, was championed by Gov. Ron DeSantis as he ran for the Republican nomination for president.

The Farmworker Association of Florida sued the state in July, claiming that the component of the law related to transportation into the state was unconstitutional and that its 12,000 members would “suffer irreparable harm.”

They could, the group said, be separated from their families, unable to attend lifesaving medical appointments and prevented from driving to immigration agencies overseeing their cases because of the risk of jail time.

Judge Altman on Thursday ordered further briefing on the scope of the injunction. That decision was wrongly reported by the Herald as “revers[ing] his own ruling.”  That’s not right.

NIL Goes to Federal Court

By John R. Byrne

A few years ago, star high school quarterback Jaden Rashada was set to play football for the Miami Hurricanes. Then the Florida Gators opened their wallets, allegedly luring him to de-commit from UM with the promise a $13.85M deal (UM had only come up with an endorsement package worth $9.5M). But the money never materialized, with Rashada ultimately heading to Arizona State with no NIL deal in place. Now he's suing the Gators in federal court, including head coach Billy Napier. Case landed before Judge Casey Rodgers. Have to think there'll be more of these in the coming years. Complaint below.

 Rashada Complaint by John Byrne on Scribd

Clerk of Court Angela Noble breaks up with Brightline

 Her breakup letter to the Palm Beach Post starts this way:

Dear Brightline,

How did we get here? When I moved to Florida, I swore off public transportation forever. For years, I enjoyed a short commute, and life was good. Then you came along. You appealed to my sensibilities, manipulated my emotions, and lured me away with false promises of a “carefree, car free ride.” You were starting a new business and I was considering a new opportunity of my own. You exploited my proclivity for public service and pushed me toward a professional opportunity far from home. Of course, the choice was mine, but you bear some responsibility. I relied on your support.

Blame your wife!

 Oooof, both Justice Alito and Sen. Menendez are blaming their wives.

Alito says his wife is to blame for the upside flag flying outside his house.

And Menendez says his wife is to blame for all of the gifts.

From the NY Times:

It is a tale as old as Adam and Eve: A husband, faced with accusations of misconduct, blames the wife.

It is also a time-honored, bipartisan political strategy. This week, Justice Samuel A. Alito Jr. and Senator Bob Menendez of New Jersey pointed ringed fingers at their wives for episodes that have landed each man in political or legal trouble.

“It was briefly placed by Mrs. Alito,” Justice Alito, one of the Supreme Court’s most conservative members, told The New York Times in explaining an upside-down American flag — a “Stop the Steal” symbol of protest by Donald J. Trump’s supporters — flying on a pole in the family’s front lawn in the days before President Biden’s 2021 inauguration. The justice’s wife, Martha-Ann Alito, was in a feud with neighbors at the time over an anti-Trump sign, The Times reported.

In the case of Mr. Menendez, a Democrat, it was his lawyer who did the finger pointing. On Wednesday, in a federal courtroom in Manhattan, the lawyer, Avi Weitzman, blamed the senator’s wife and her financial troubles for what prosecutors have described as a bribery scheme involving foreign governments and hundreds of thousands of dollars in gifts.

 So what do you think about the blame-the-wife strategy? Will it work?

 

Breaking- we have two new Magistrate Judges

 The judges of the Southern District of Florida met today and voted for our two newest magistrate judges. Congrats to Ellen D'Angelo and Enjolique Lett!! 

Man Detained in Alleged Kidnapping Plot

 By John R. Byrne

This case feels like it's destined for Dateline. The defendant, David Knezevich, is accused of a bizarre international kidnapping plot involving his estranged wife that may have ended up in her murder. Judge Torres ordered him detained pre-trial, though he apparently struggled with that decision, noting the case against Knezevich was based on circumstantial evidence. Expect a lot of media coverage on this one. Herald covers it here.

“Use your voice… unapologetically.”

 Guest Post by Vanessa Johannes

That was the message conveyed by the Honorable Nancy G. Abudu, who was appointed to the Eleventh Circuit Court of Appeals in 2023, at the Wilkie D. Ferguson Gala on May 11, 2024 at the Intercontinental Hotel.  For those who haven’t attended this gala before, it is a MUST DO affair in South Florida!  The who’s who of the community are in attendance, and dressed to the nines with their dancing shoes on (this year, there was a live Calypso band and Bahamian drummers).  Politicians, such as Mayor Suarez, lawyers, and business leaders attend this star-studded affair, which awards several law school students with scholarships and then honors outstanding lawyers and companies who are committed to justice, diversity and leadership in our community.   

This year’s honorees were Congresswoman Frederica Wilson (in her signature large, glittery cowgirl hat), UPPAC, the Lotus House Women’s Shelter, and Judge Abudu, who gave the keynote speech.  Judge Abudu’s speech was a candid one – she spoke about the hardships of being “a first” in a particular space (she is the first Black woman on the Eleventh Circuit).  “How do you conform to an institution not designed for you … an institution that historically has not reflected or served you … how do you maintain your own identity, while balancing assimilation to this role and institution … how do you lead with joy when pain is inevitable for so many who look like you but are not afforded the same opportunities?”   

These were some of the questions posed by a deeply intellectual and reflective judge that has the weight of much on her shoulders.  Ironically, in answering some of these questions for herself, she was inspired by U.S. Supreme Court Justice Clarence Thomas, a jurist who, as Judge Abudu concedes, usually does not share her legal philosophy and positions.  

 Despite their opposite views, though, both have had to navigate being lone standers in their respective spaces and Justice Thomas reminds Judge Abudu of “what it looks like to be unapologetic.” Even when the masses are not with him, “his voice is still his voice.”  He is not afraid to share his philosophical views on interpreting the law and that teaches her to do the same.  Judge Abudu’s words hit home for so many who are navigating truth to power as “firsts” or “outsiders,” balancing inclusion, respect, imposter syndrome, and, candidly, where they fit in.  Importantly, her perspective and alignment with Justice Thomas reminded the room that even during these deeply polarizing times, we must all sometimes take a step back and see things from another’s perspective – even if that person is someone we don’t care to trade shoes with.   

Maybe especially if that is a person we don’t want to trade shoes with.  It was a timely message for a group galvanized to continue moving the arch towards justice and working for a more inclusive and diverse world.

11th Circuit Conference and FACDL-Gala

1. It was my first time attending the 11th Circuit conference, and it did not disappoint.  This year it was in Point Clear, Alabama.  It was nice to see the judges without their robes and courtrooms.  Chief Judge Pryor put on an entertaining set of speakers, including Judge Kevin Newsom interviewing Sarah Isgur.  Justice Thomas headlined the event, and his speech got some news.

The flight back on Friday night was delayed 3 hours, and half of the federal bench and bar was on the flight, and still in good spirits! (That's me at the way back of the picture).

 2. The previous weekend was the big FACDL-Gala.  I'm so proud of my partner Lauren Krasnoff for being sworn in as President of the organization and of Michael Caruso for being honored (that's him with a bunch of former defenders, including Judge Kathy Williams, who introduced Michael).

 

3.  This weekend I posted the candidates for the two open magistrate judge slots.  See the post below.  I didn't want it to get lost as it is important.

Breaking -- 6 Magistrate Judge candidates for two slots

 The judges will vote on this list at the next meeting:

Ellen DeAngelo

Christian Dunham

Yeney Hernandez

Marlene Fernandez-Karavetsos 

Enjolique Lett

Stephanie Turk