When should we resume federal jury trials?

There's a pretty big internal debate going on with the SDFLA judges about whether to restart jury trials in April (as currently scheduled) or whether to postpone them again, either until the summer or fall.  

With virus numbers at all-time highs and with the new variant, it doesn't seem likely that we will be ready to restart jury trials in April.  For in-custody defendants, that would mean transportation of the defendant to and from FDC, use of the marshals, interpreters, court security officers, staff, prosecutors, defense lawyers, family members, jurors, and so on.  In other words, lots of risk...

Other districts that have tried to conduct trials have failed to keep the participants safe, pretty miserably.  For example, in in November, the EDTX tried to conduct a civil trial.  At least 13 people came down with COVID:

David O’Toole, clerk for the Eastern District of Texas, told Law360 on Tuesday that the number of trial participants who tested positive for coronavirus had increased from at least seven on Friday to 13 confirmed positives Tuesday. The positive cases include two jurors, at least three members of the defense team, a “handful of folks” on the plaintiff’s team, and three or four court staffers.

The outbreak occurred after testimony in the trial had begun:

Jury selection was held on Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Nov. 9, according to court records.

After lunch on Nov. 9, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.

The judge then suspended the trial and asked participants to get tested and provide the court with results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.

That case didn't have the added problem of in-custody defendants who are at much higher risk for contracting and spreading the virus.  

If we restart in April, would everyone be wearing masks?  Is that fair to the defendant? Or the prosecution?  How could jurors evaluate a witness wearing a mask?  How could lawyers communicate effectively with jurors if they were wearing masks?  Wouldn't the jurors be concerned the entire time about getting sick?  Would you be able to get a fair cross-section of jurors if many of them would be seeking to be excused (justifiably)?

On that last question, here's an article from the Texas Tribune that explains some of the issues:

For example, disproportionately white juries were already a problem before the pandemic. With the coronavirus disproportionally harming Black and Hispanic communities, many defense attorneys fear fewer people of color will show up to a jury summons, as at least one Texas study has already predicted. And masked jurors and attorneys shield one another not only from germs but also from facial expressions, often crucial in trials.
Even more concerning, attorneys say, is that fewer people are showing up. The state report on trials through September said most courts saw about a 5% to 10% drop in people reporting for jury duty during the pandemic. A June survey by the Tillotson Law Firm of 650 potential jurors in Dallas and Houston showed a majority said they wouldn’t go to court if summoned without being ensured of adequate safety precautions. The number was higher for Black and Hispanic respondents.
“We know that African Americans, Latinos and other people of color have been disproportionately affected by COVID-19,” Scheiner said. “If they don’t show up for jury service in as great a percentage as they have in previous years, it may be impossible for minority defendants to have anything close to a jury of their peers.”

It's hard enough to get a fair jury during normal times.  But during a pandemic...   Here's an AP article explaining that people, understandably, just aren't showing up for jury duty.

There's also the problem of how to prepare for trial with an in-custody defendant.  It's difficult (and dangerous) to get into the jail right now to see clients. In fact, FDC is closed again this week to all visits.  

I've spoken to a lot of criminal defense lawyers on this subject and the vast majority have said that we should not be trying cases in April, unless -- and this is the big caveat -- the defendant insists on a speedy trial.  In that case, of course, the Constitution trumps and we'd have to figure out a way to conduct a trial. 

It will be interesting to see how our Court, with extremely thoughtful judges on both sides of the debate, addresses this important issue.

Michael Sherwin, Acting U.S. Attorney in DC, representing!

 Former SDFLA AUSA (and current acting U.S. Attorney in DC) Michael Sherwin is doing a wonderful job in DC with all of the craziness:

BREAKING: DOJ says "we're looking at significant felony cases tied to sedition and conspiracy," charges that have prison terms of up to 20 years.

“You will be charged and you will be found," acting US attorney in DC Michael Sherwin says. pic.twitter.com/sFe4BmkBDN

— MSNBC (@MSNBC) January 12, 2021

News & Notes

1. Three Justices discussed Taylor Swift during OA today. From the NY Times:

About 70 minutes into what had been a meandering and technical Supreme Court argument on Tuesday about whether two Georgia students could sue their college for nominal damages, a series of questions about Taylor Swift brought the issue into focus.
Justice Elena Kagan asked about “the most famous nominal damages case I know of in recent times, which is the Taylor Swift sexual assault case.”
Ms. Swift, the pop superstar, sued a Denver radio host she said had groped her. She sought $1 in nominal damages.
“I’m not really interested in your money,” Justice Kagan said, describing Ms. Swift’s thinking. “I just want a dollar, and that dollar is going to represent something both to me and to the world of women who have experienced what I’ve experienced.”
The jury sided with Ms. Swift and awarded her the dollar she had asked for. “It was unquestionable physical harm, but she just asked for this one dollar to say that she had been harmed,” Justice Kagan told Andrew A. Pinson, Georgia’s solicitor general. “Why not?”
Mr. Pinson admitted that he was only vaguely familiar with the case. But he said that proving a point, as opposed to obtaining compensation, “is not something that federal courts exist to do.”
Justice Amy Coney Barrett followed up with her own thoughts about Ms. Swift’s case. “What Taylor Swift wanted was, you know, vindication of the moral right, the legal right, that sexual assault is reprehensible and wrong,” Justice Barrett said.
And Justice Neil M. Gorsuch said the court should be wary of penalizing plaintiffs who act on principle, including “those like Ms. Swift who have some scruple or reason not to seek more, who could.”
By the end of the argument, it seemed that the singer’s stance would help that of the students in the case before the justices, Uzuegbunam v. Preczewski, No. 19-968.

2. Here's an article about another white collar conviction that was reversed, this time by the 3rd Circuit, where prosecutors stretched the criminal code. It is very strange to me that more district judges don't grant defense motions to dismiss instead of forcing defendants to go to trial (and risk huge sentences) to develop the law. Where motions to dismiss are granted, prosecutors can appeal, and if the defense/trial judge is wrong, the appellate court can say so and the case will proceed.  But if the defense is right, then the defendant won't have suffered through the unbelievable burden (emotional, financial, and so on) of proceeding to a trial.  

3. Speaking of those rare, great district judges -- a big shout-out to Judge Middlebrooks for this order, dismissing a case with prejudice.* 

Here's the beautifully written conclusion, defending the Constitution and the rule of law:

I appreciate that the historical moment we are living through, which gave rise to the temporary suspension of grand juries, prevented the Government from obtaining indictments in this District from approximately March 26, 2020 to November 17, 2020. But our legal system has experienced public emergencies before, and it will experience them again. Allowing the applicability of our constitutional norms to ebb and flow with the times is not becoming of a democracy under the rule of law. Indeed, if our laws are to carry any force, they must stand despite the trials and tribulations of society. Congress may certainly make exceptions; however, it has not done so here. In fact, in March of 2020 when the Department of Justice asked it to suspend criminal statutes of limitations during the coronavirus pandemic and for one year thereafter, Congress declined to make such a special dispensation.

*Full disclosure: I'm the defendant's lawyer in the case.  As you know, I rarely post my case-related stuff on the blog, but this is an important order on an issue that is recurring in this district and around the country so I thought it was important to get it out.

Cert grant for FPD's office out of SDFLA

Congrats to Michael Caruso, Andy Adler , and D'Arsey Houlihan for the cert grant in Terry v. United States. The QP is: Whether pre-August 3, 2010, crack offenders sentenced under 21 U.S.C. § 841(b)(1)(C) have a “covered offense” under Section 404 of the First Step Act.

Here's the 11th Circuit opinion, and this is how SCOTUSBlog described the issue:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive. The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

Insanity

I'm really at a loss on how to blog about yesterday.  It's just insane.  The WSJ has an article about violence over the years at the Capitol, but nothing like this:

Over its two centuries as the seat of government, the U.S. Capitol has seen countless protests, along with occasional bombings, shootings, fights between lawmakers and, in 1814, conflagration at the hands of British troops. Until Wednesday, however, it had never been occupied by a mob determined to obstruct the constitutional process.
“The Capitol was a symbol of protest during the Vietnam War,” said Donald Ritchie, historian emeritus of the U.S. Senate. “We had farmers who protested and set their sheep loose on the Capitol grounds,” pro- and anti-Shah demonstrators during the Iranian revolution of the 1970s and, in 1932, the Bonus Army of World War I veterans who occupied the Capitol steps to demand their pensions, Mr. Ritchie said.
“When Congress voted down the pensions and then immediately adjourned, the marchers stayed outside and sang ‘America.’ That’s a lot different than what’s going on now,” Mr. Ritchie said.
“I’ve never encountered a protest where people broke into the building and tried to stop the proceedings,” he said. “That’s totally out of character for American protests.”
Despite its place at the heart of government and its symbolic power as an emblem of American democracy, for most of its history the Capitol has been lightly guarded. Members of Congress have been reticent to put up barriers to the public they represent, and Americans have expected access to a pre-eminent public space.

Trump has been booted from Twitter for 12 hours.  Will he be booted from the White House before Jan. 20?

Biden plans to nominate Merrick Garland to be AG.  He will, I'm sure, prosecute the terrorists to the full extent of the law.

In other news, there is a push for Justice Breyer to retire.

News and notes

Two big ones:

1.    Law360 has listed District Judge Darrin Gayles on the list of judges who may be nominated to the 11th Circuit under a Biden administration:

ELEVENTH CIRCUIT

Leslie Abrams Gardner, an Obama appointee in the Middle District of Georgia, was previously a federal prosecutor and Skadden Arps Slate Meagher & Flom LLP associate. She clerked for Maryland U.S. District Judge Marvin J. Garbis after earning degrees from Yale Law School and Brown University.

Darrin P. Gayles joined the Southern District of Florida on Obama's appointment. The former state judge and federal prosecutor earned degrees from the George Washington University Law School and Howard University.

Abdul K. Kallon sits in the Northern District of Alabama, where Obama appointed him before nominating him to the Eleventh Circuit in February 2016. The GOP-led Senate did not act on his nomination. The former Bradley Arant Boult Cummings LLP partner clerked for Alabama U.S. District Judge U.W. Clemon after earning degrees from the University of Pennsylvania Law School and Dartmouth College.

Leigh Martin May is another Obama pick in the Northern District of Georgia. The former Butler Wooten & Fryhofer LLP partner clerked for Georgia U.S. District Judge Dudley H. Bowen Jr. after earning degrees from the University of Georgia School of Law and Georgia Tech.

Merritt E. McAlister is a University of Florida law professor focused on court design, nonprecedential decisionmaking and LGBTQ issues. The former King & Spalding LLP partner clerked for Justice John Paul Stevens and Eleventh Circuit Judge R. Lanier Anderson after earning degrees from the University of Georgia School of Law and Rice University. The 2002 college graduate is about 40, making her one the youngest people on this list.

Mark E. Walker is an Obama appointee in the Northern District of Florida. The former state judge spent time as a state public defender and in private practice with small firms. He clerked for Eleventh Circuit Judge Emmett Ripley Cox and at the Florida Supreme Court after earning both law and bachelor's degrees from the University of Florida.

2.    The Government has bought the site for the new Ft. Lauderdale courthouse (see Law.com article here): The 3.3-acre site is comprised of seven lots just south of the Tarpon River and east of Southeast Third Avenue and cost 13.6 million.

Phone arguments in the Supreme Court

The WSJ Journal covers the 2020 phenomenon here, and SCOTUSBlog has a bunch of the Art Lien sketches here. From the WSJ:

Neal Katyal has argued 43 cases before the Supreme Court. Until the coronavirus pandemic hit, he hadn’t once enlisted his son as an assistant.

Now, Mr. Katyal and other lawyers appearing in the nation’s highest court have to argue their cases remotely, which often means from home. In November, as Mr. Katyal prepared in his home office to represent the city of Philadelphia in a case about religious objections to same-sex parents, he worried about the street noise.

So he gave his 19-year-old son $100 and instructed him to go outside and dole out cash to quiet down any noisemakers. Sure enough, minutes before the hearing began, a truck rolled up, idling loudly.

“Oh my God, the justices are going to be so mad at me,” Mr. Katyal, who served as acting solicitor general in the Obama administration, recalled thinking. Fortunately, the truck drove away without his son having to intercede.

For the nation’s Supreme Court lawyers, being freed from the decorous norms of appearing in person before the high court has brought a new set of questions. Where to work? What to wear? What kind of phone to use? And how to stay in order in a telephone courtroom?

Some advocates have tried to replicate the high court’s pomp, dressing in business attire and setting up mock courtrooms to evoke the real-life setting. Others have donned sweatshirts and planted themselves behind messy desks.

Although I didn't get a chance to call in to SCOTUS, I did have a telephone argument, as well as a Zoom argument, in the 11th Circuit this year.  Zoom was definitely preferable as you actually get to see the judges instead of just listening.  I have another one coming up in February, so it looks like Zoom for the foreseeable future.  

I like these two sketches from Lien on both ends of the formality spectrum:

As for me in the 11th, I wore a jacket, but no tie, for the phone argument and a regular old suit and tie for the Zoom argument.

 

Happy new year!

 Chief Justice Roberts has welcomed in the new year with the 2020 year-end report here.  It ends this way:

In focusing on the dedicated work in courts, I do not want to minimize the hardships and suffering caused by the pandemic. Like others throughout the country, judiciary employees have contended with illness and loss. My thoughts are with them. This year, more than ever, I am privileged and honored to thank all of the judges, court staff, and other judicial branch personnel throughout the Nation for their outstanding service. Best wishes—and good health—to all in the New Year. 

John G. Roberts, Jr.,  Chief Justice of the United States