News & Notes

1.  It's tourney time.  So lots of "sick" lawyers will be staying home today and tomorrow.

2.  Notorious RBG is 85.  Happy birthday.

3.  RIP Stephen Hawking.  "I have noticed even people who claim everything is predestined, and that we can do nothing to change it, look before they cross the road."

4.  RIP Toys R Us.

I don't wanna grow up, I'm a Toys R Us kid
they got a million toys at Toys R us that I can play with
I don't wanna grow up, I'm a Toys R Us kid
they got the best for so much less, it'll really flip your lid
From bikes to trains to video games
it's the biggest toy store there is (gee whiz!)
I don't wanna grow up, cause maybe if I did
I couldn't be a Toys R Us kid
more games, more toys, oh boy!
I wanna be a Toys R Us kid

Should prosecutors be guided or unguided in their pursuit of a defendant?

Should prosecutors be “guided” or “unguided” in their pursuit of a defendant?

I thought it was interesting that Deputy Attorney General Rod Rosenstein defended Special Counsel Robert Mueller by saying he was a “guided missile.”  One criticism of a “special counsel” is that they are “guided” to investigate a particular person.  That was the criticism of Ken Starr when he was guided into the Clintons.  And that may be the criticism of Mueller, especially now that he is questioning witnesses about Stormy Daniels.

Meantime, here in Florida, what will happen with the Florida Supreme Court if Rick Scott runs against Bill Nelson for that Senate seat.  Here’s the AP:

Here’s the problem: If Scott, a Republican, is elected to replace Democratic U.S. Sen. Bill Nelson, he could be forced to step down nearly a week before his term is scheduled to end. That’s because Congress — at least for now — is scheduled to start its 2019 term on Jan. 3 — before a new governor is sworn into office on Jan. 8.

On paper, and looking back at history, that doesn’t seem like a big deal. Three decades ago, then-Gov. Bob Graham left office early because he was elected to the U.S. Senate.

But an early departure by Scott could complicate a brewing legal fight over the makeup of Florida’s Supreme Court. Scott plans to appoint three new justices on his final day in office. If he leaves early, he could lose his window to do that — although his immediate replacement, Lt. Gov. Carlos Lopez-Cantera, also a Republican, could appoint similar candidates.

John Grisham on wrongful convictions in our criminal justice system

This is a good op-ed by Grisham outlining why we have so many wrongful convictions:

It is too easy to convict an innocent person.

The rate of wrongful convictions in the United States is estimated to be somewhere between 2% to 10%. That may sound low, but when applied to a prison population of 2.3 million, the numbers become staggering. Can there really be 46,000 to 230,000 innocent people locked away? Those of us who are involved in exoneration work firmly believe so.

Millions of defendants are processed through our courts each year. It's nearly impossible to determine how many of them are actually innocent once they've been convicted. There are few resources for examining the cases and backgrounds of those claiming to be wrongfully convicted.

Once an innocent person is convicted, it is next to impossible to get them out of prison. Over the past 25 years, the Innocence Project, where I serve on the board of directors, has secured through DNA testing the release of 349 innocent men and women, 20 of whom had been sent to death row. All told, there have been more than 2,000 exonerations, including 200 from death row, in the U.S. during that same period. But we've only scratched the surface.

In the federal system many innocent people are forced to plead guilty because of the risks of going to trial. Go to trial in the federal system and often times you are looking at more than 10 years in prison, at best. Plead and you get cut that exposure way way down. Other districts are starting to lessen the trial penalty. Martin Shkreli was just sentenced to 7 years even though prosecutors said his guidelines after trial were 15+ years. Many will say that 7 years was too low. Others will say that 7 years is a lot for a first-time non-violent offender. Regardless of what side you come out on, we should all agree that going to trial should not result in a upward risk of 3 or 4 times or more the sentence you'd receive for pleading guilty.

News and notes

1. High school students are making change. They beat the NRA in the Florida Legislature with these gun control measures now on Gov. Scott's desk.  It's really incredible and inspiring to watch these energized kids do their thing.  I'm hoping some of them become criminal defense lawyers.

2.  Justice Kagan discusses her time clerking for Justice Marshall.  Here's one story: Kagan recalled how Marshall judged the fairness of death penalty trials. “I remember once he said to us that when a jury brought back a sentence of life imprisonment, that’s when he absolutely knew that the guy was innocent.”

3. It's a stormy time in the White House.  Stormy will be in the Southern District of Florida this weekend.  Not for her lawsuit.  Just a performance.  And no, she won't be auctioning off the dress...

4. RBG, the movie, is coming out soon.  Here's the trailer:

Good luck to Judge Jerald Bagley

Judge Jerald Bagley was a state circuit judge for many years in Miami and was a finalist to be a federal judge on 3 different occasions.  I wish he would have gotten it.  He's a great person and would have been an excellent federal judge.  He will be a great mediator in his new business.  The DBR covers his new gig here:

His new venture, J. Bagley Mediation Services, launches April 1 in Miami.

***

“I’m trying to go out with very little fanfare,” Bagley said Monday in a telephone interview. “I just tried to do my job — the good work that many of my colleagues do. … Serving the public is good enough for me, and I’m proud to have spent the last 35 years doing so.”

The longtime prosecutor served in the juvenile and felony divisions of the state attorney’s office before rising to the circuit bench in 1995. His ran unopposed in 2014, winning a six-year term that was set to expire in January 2021.

“I am very thankful for the privilege and honor of serving 23 years as a circuit judge, working alongside so many excellent colleagues and support and administrative staff,” he wrote in a Jan. 29 retirement letter to Gov. Rick Scott. “I retire knowing that I have given much but received more from so many opportunities gained from my previous position as an assistant state attorney and currently as a circuit judge.”

Jeffrey Toobin covers Fane Lozman

Fane Lozman, of SDFLA fame, has become the stuff of Supreme Court legend...  Jeffrey Toobin covers him and his cases here:

Lozman had an unusual problem before the Justices: his case was too good. Every Justice who spoke seemed to acknowledge that Lozman’s rights had been violated. As Chief Justice John Roberts put it, “I found the video pretty chilling. I mean, the fellow is up there for about fifteen seconds, and the next thing he knows he’s being led off in handcuffs, speaking in a very calm voice the whole time. Now, the Council may not have liked what he was talking about, but that doesn’t mean they get to cuff him and lead him out.” Still, several Justices worried that the egregious facts of Lozman’s case might lead them to create a standard that would subject many communities to similar lawsuits. They needed to figure out how to create a standard that would not discourage law enforcement from keeping order in public meetings, while preventing the kind of abuse that Lozman suffered. “I’m very concerned about police officers in difficult situations,” Justice Anthony Kennedy told Pamela Karlan, a Stanford Law professor who was representing Lozman. “In this case, there’s a very serious contention that people in elected office deliberately wanted to intimidate this person, and it seems to me that maybe in this case we should cordon off or box off what happened here from the ordinary conduct of police officers."

Here's the video of the arrest:

West Palm Beach State Courthouse dedicated to Judge Daniel T.K. Hurley (Guest Post by Ron Herman)

Judge Hurley Courthouse Dedication, Guest blog by Ron Herman of RHLawFl.com



Congratulations to District Court Judge Daniel T. K. Hurley on having the main Palm Beach County courthouse dedicated in his honor! More details on the event here.

Judge Hurley has just recently retired after a distinguished career, spanning service in state and federal courts. To dedicate the courthouse in his honor, the County had to waive its policy prohibiting naming buildings after people. Well deserved honor to one of the most respected jurists!

Senate confirms Lisa Branch to the 11th Circuit

From the Daily Report:

After five months of waiting, Georgia Court of Appeals Judge Elizabeth “Lisa” Branch will be moving to the U.S. Court of Appeals for the Eleventh Circuit.

The U.S. Senate confirmed Branch’s appointment Tuesday by a vote of 73-23.
***
President Donald Trump nominated Branch to the federal bench in September 2017. When the year closed without a vote, Branch’s nomination was returned to the president at the end of 2017. She was re-nominated in early January. The Senate Judiciary Committee approved her appointment on a bipartisan vote of 19-2 on Jan. 18.

Branch has served as the 77th judge on the Georgia Court of Appeals since Sept. 4, 2012. Previously, she was a partner in the commercial litigation practice group at Smith, Gambrell & Russell in Atlanta, where she began her legal career. Branch served as a senior official in the administration of President George W. Bush as counselor to the administrator of the Office of Information and Regulatory Affairs at the U. S. Office of Management and Budget and as an associate general counsel at the U.S. Department of Homeland Security. Branch graduated from Davidson College and received her law degree from Emory University.

Congratulations to Judge Branch.