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!