Guest post by Roy Black about F. Lee Bailey

 BY ROY BLACK: David invited me to write a few words about my old friend Lee Bailey and at first I hesitated but decided I owed it to Lee to tell his story. Francis Lee Bailey Jr., who for some reason preferred F. Lee Bailey, captured the imagination of all the young criminal defense lawyers back in the 60's and 70's. Some even adopted the affection of initializing their first name in homage to Bailey. Bailey did things differently right from the start. He didn’t undergo some type of apprenticeship, but instead started with a bang – an unbelievable string of major trial successes. Just one year out of law school he took on the case of Dr. Sam Sheppard who had just been convicted of killing his wife in a trial surrounded by outrageous poisonous publicity. Bailey took it all the way to the Supreme Court and Sheppard v. Maxwell, 384 U.S. 333 (1966), became a landmark ruling reversing Sheppard's conviction in an 8-1 decision because of the "carnival atmosphere" of the trial. Tell me another lawyer who beats that career start.

And it got better. Sheppard became the inspiration behind "The Fugitive" hit television series and later into The Fugitive film starring Harrison Ford. I don’t have the space to go into all his trial best hits but I suggest you read about the trials of another doctor, Carl A. Coppolino. It became the best book on trials I have ever read, No Deadly Drug by John D. MacDonald. Most of Bailey's examinations and arguments are completely reproduced and are a golden resource for young criminal lawyers. A must read.

One side effect of following Bailey's career was the number of great books it spawned. This is long before youtube videos and trial lawyer dvds full of practice tips. When I was a PD I learned trial advocacy by reading about trials in books. Of course I read all of Bailey’s practice manuals. His best were the early ones co-authored with Henry Rothblatt: Investigation and Preparation of Criminal Cases (1970); and Successful Techniques for Criminal Trials (1971) but there were plenty of others. I read them so often the pages began to fall apart. I wanted to be like Bailey. All the books and articles he and others wrote on his trials was just one way his career had a significant impact on young aspiring criminal lawyers. They were far better than the measly one criminal law course available then in law school. I spent many hours dissecting his cross examinations and trial strategy writing my conclusions as marginalia in the books. 

Then the OJ Simpson case hit the national consciousness. Lee was brought in by his old friend and colleague Bob Shapiro. For some reason the case caused them to hate each other. Bob became the major adverse witness against Lee in the federal contempt case and the Florida Bar disbarment action. The intense publicity, televised mayhem and brutal backlash of the OJ trial, like the curse from King Tut's tomb, cratered legal careers.

Bailey was given the toughest assignment of the OJ trial, the cross-examination of LAPD detective Mark Fuhrman. Bailey intensely questioned Fuhrman and at the time I thought he hadn't really damaged him. Little did I know. By the end of the trial the defense unearthed further evidence corroborating Lee’s cross and caused the utter destruction of Fuhrman's credibility. Fuhrman and Lee’s cross became the focal point of Johnnie Cochran's fabulous final argument, especially the controversial Hitler comparison. It was Bailey's work that made this possible. The OJ trial crosses we still remember are Fuhrman by Bailey and Wong by Barry Sheck.

But this fabulous career came to a crashing end.

No matter what the obits say Lee Bailey died the day he was disbarred by the florida bar.  Once florida disbarred him Lee lost his reason for being. He was a trial lawyer and lived for the battle. He couldn’t survive as a non-combatant. During his last ditch effort to get re-admitted in Maine he told me he was gearing up to defend a criminal case for a police officer and he felt like a young lawyer again. Yet Maine decided it was bound to follow florida's lead and ended the dream of a comeback. The great career was finished.

Lee spent thousands of hours teaching at bar CLE courses throughout the country. He never turned them down. Even during the Patty Hearst trial he took a weekend off to teach a course. But when he needed help with the bar all he got was a knife in the back. None of the great names showed up for him. We criminal lawyers are treated with disdain all the way to the bitter end.

Roy Black, Esq.

RIP F. Lee Bailey

 So sad to hear this news.  He was one of the absolute best.  He just finished a book about the O.J. trial and was so proud of it.  I'm sad that he won't be able to see it out there.  Here are some great pictures of him from two of the biggest trials in history (both wins):

 

I'm glad that I had the opportunity to recently interview him.  What a character.  What a lawyer.  

This exchange shows the fire he still had at 88 years old, and I hope he had the chance to pee on this guy's grave!

Here is the gunslinger Bailey explaining what he told the newspaper editor who had it out for Sheppard, including the threat to pee on his grave: pic.twitter.com/cVefhkI1Wg

— David Oscar Markus (@domarkus) December 1, 2020

SCOTUS reverses 11th Circuit in Van Buren

This is a biggie... and it's an interesting 6-3 split reversing the 11th Circuit, with Justice Barrett writing the majority.  Here's the opinion and the split:  

BARRETT, J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.

From the intro:

Nathan Van Buren, a former police sergeant, ran a license-plate search in a law enforcement computer data-base in exchange for money. Van Buren’s conduct plainly flouted his department’s policy, which authorized him to obtain database information only for law enforcement purposes. We must decide whether Van Buren also violated the Computer Fraud and Abuse Act of 1986 (CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” He did not. This provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.

 And the conclusion:

In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him. The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could. Van Buren accordingly did not “excee[d] authorized access” to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose. We therefore reverse the contrary judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion.

All SDFLA jury trials continued until July 19

 This is expected to be the last order of its kind.  I'll post the administrative order as soon as it goes up on the court website.

UPDATED -- here's the order.

June in SCOTUS

It's June. The country is re-opening.  Everyone is getting back to work, vacations, travel, in person court hearings, and jury trials.  It's cool to see.  Two things are closing for the summer -- school and the Supreme Court.  All outstanding opinions will be issued this month.  Here are some things to watch at the end of the Term, according to USA Today:

After mostly avoiding controversy for the past eight months, the Supreme Court is heading into the final, frenzied few weeks of its 2020-21 term with a docket full of outstanding cases and rampant speculation about one its most senior justices.

From health care to voting to a dispute pitting LGBTQ rights against religious freedom, the nation's highest court will soon start churning through blockbuster cases, dropping decisions that will reshape the law – and the political landscape.

Twenty-six cases – all of which were argued virtually because of the COVID-19 pandemic – remain on the docket. 

 "This term is a lot like the first few episodes of a new TV show," said David Lat, a court observer who founded a legal newsletter and website called Original Jurisdiction. "It's really just setting the stage. Sometimes you wish you could just fast forward through it, but it's still important because we're getting to know the characters...and we're getting to know the issues."

After the flurry of opinions, attention is sure to shift to Associate Justice Stephen Breyer, who at 82 is under pressure from progressives to retire so that President Joe Biden can name his replacement while Democrats hold their tenuous majority in the Senate. When justices step down, they often do so at the very end of the term.

Judge Ungaro says farewell to the bench

It was a really nice event (moderated by former clerk and soon-to-be magistrate judge Melissa Visconti). It's good to start seeing folks again! Chief Judge Moore and incoming Chief Judge Altonaga spoke.  Two of her law clerks, Rachel Furst and Frank Maderal, gave nice speeches.  And Judge Ungaro spoke beautifully about her time on the bench, including her close relationship with Kathryn (her courtroom deputy) and Bill (her court reporter).  Bill even delivered a wonderful poem.  I didn't know about the daily lunch scrabble games with staff and the clerks.  I wonder whether law clerks when they first start feel any pressure to let Judge U win.  

Breaking— Congressional JNC recommends 6 names for two open judicial seats (UPDATED WITH U.S. ATTORNEY FINALISTS AND MARSHAL)

 I’m being told from multiple sources that the finalists for the two open district judge seats are:

Michael Caruso

Miguel de la O

Samantha Feuer

Ayana Harris

Shaniek Maynard

Detra Shaw Wilder

*These have been confirmed.  Congrats to the finalists.

UPDATED -- The finalists for Marshal are:

Amos Rojas and Gadyaces Serralta

The finalists for U.S. Attorney are:

Jackie Arango

Michael Hantman

Markenzy Lapointe

Judge Singhal denies CNN's motion to dismiss Dersh's defamation lawsuit

Law & Crime covers the interesting case here:

Harvard Law professor emeritus Alan Dershowitz on Tuesday secured a significant procedural victory in federal court against CNN as part of his ongoing defamation lawsuit against the network.
CNN’s attorneys filed a motion to dismiss the $300 million lawsuit for failure to state a claim last November. The U.S. District Court for the Southern District of Florida was not convinced, and the parties will now move on to the discovery phase of proceedings.
“Looking forward to deposing the commentators and heads of CNN and of the truth coming out,” Dershowitz told Law&Crime in an email.
The famed celebrity attorney sued the liberal media outlet last September after CNN aired an edited clip of his defense argument in favor of then-president Donald Trump during the latter’s 2020 Senate impeachment trial over the Ukraine phone call affair.

Here is the well-reasoned order by Judge Singhal.