The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient. So more misconduct and nothing happens. No consequences for the prosecutor. And the conviction remains intact. I understand that people make mistakes and that generally we should give others the benefit of the doubt. But I wonder how a defense attorney would be treated if he or she did the same thing. Or better yet, how do judges treat defendants who ask for second chances? If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on. Otherwise, it will just keep happening over and over again.
On his second day in office, St. Louis County Prosecutor Wesley Bell fired the veteran assistant prosecutor Kathi Alizadeh, who was primarily responsible for presenting evidence to the grand jury that declined to indict a Ferguson police officer in the 2014 shooting death of Michael Brown.
Bell also issued new policies, such as no longer prosecuting marijuana possession and failure to pay child support cases.
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The policy changes issued Wednesday included:
• No longer prosecuting marijuana possession cases of fewer than 100 grams. Prosecution of more than 100 grams will be pursued only if evidence suggests the sale or distribution of marijuana. (St. Louis Circuit Attorney Kim Gardner announced in June that possession of fewer than 100 grams would not be prosecuted unless there are aggravating circumstances.)
• Not prosecuting people who fail to pay child support. Current cases will not be dropped, however; they will be on hold. Not seeking to revoke probation solely on the basis of failure to pay child support.
• Not seeking charges against those who fail to pay restitution without a court order establishing someone’s “willful nonpayment” of child support.
• Not requesting cash bail on misdemeanor cases; issuing summonses instead of warrants on class D and E felony cases.
• Not seeking to “overcharge” defendants “to pressure the accused to admit guilt.” Prosecutors are barred from adding more counts to increase the range of punishment or threatening to route cases back to a grand jury if a defendant has exercised his or her pretrial constitutional rights.
• Evaluating a defendant’s “prior conditions of release when there has been a failure to appear on an open case” and not asking for cash bail if there is no evidence someone has tried to elude police or used an alias “in a police encounter.”
• Requiring prosecutors to share “the entire contents” of a criminal case file to the defense except for work product to fulfill Supreme Court rules for disclosing evidence.
• Barring prosecutors from threatening witnesses “in an effort to force them to participate in prosecutions.”
A district court judge ended a two-year battle over the Steele dossier Wednesday, ruling on the side of press freedom and the online news outlet BuzzFeed.
Published in January 2017, the now well-known dossier was a 35-page collection of memos with “unverified, and potentially unverifiable allegations” about President Trump and Russian interference in the 2016 presidential election, according to court filings.
The dossier claimed at one point that Russian Internet entrepreneur Aleksej Gubarev’s companies, Webzilla and XBT Holding, played a role aiding the Russian government’s effort to hack documents from Democratic Party officials.
Gubarev filed a lawsuit in February 2017 alleging his reputation had been damaged by false statements included in the dossier. In addition to BuzzFeed, Gubarev sued its author, former British spy Christopher Steele, who had turned the reports over to researchers working on behalf of Hillary Clinton’s presidential campaign.
On Wednesday, U.S. District Court Judge Ursula Ungaro for the Southern District of Florida held that the dossier dealt with a matter of public concern and reporting the details of an ongoing government investigation was made in the public interest.
“The press acts as the agent of the public, gathering and compiling diffuse information in the public domain. The press also provides the public with the information it needs to exercise oversight of the government and with information concerning the public welfare,” she wrote in the opinion, noting that the “fair report privilege” exists to protect the press in its watchdog efforts.
This matter came before the Court on a sealed Application by the Department of Justice,
pursuant to 18 U.S.C. §§ 3122 and 3123, for an order directing a cellular telephone company to
install a pen register and a trap and trace device (collectively "pen-trap devices") on the cellular phone of a person suspected of being involved in violations of the federal money laundering laws ("the Application"). The undersigned rejected the Application because it requested "that the Court order the service provider identified above and any other person or entity whose assistance may facilitate execution of this Order to notify the applicant and the law enforcement agency identified above of any changes relating to the cell phone number, including changes to
subscriber information, and to provide prior notice to the applicant and the law enforcement
agencies identified above before terminating or changing service to the cell phone number." I
write to explain the basis for my finding that the relevant statutes do not authorize the Court to
impose this duty on the cellular telephone company.
Many of the changes adopted by the Senate and embraced by Mr. Trump are modeled after successful initiatives at the state level intended to reduce the costs and improve the outcomes of the criminal justice system. Congress’s action would not directly affect state prisons, where the majority of the country’s offenders are incarcerated, but proponents believe they could spur more states to change their laws.
Once signed into law, thousands of inmates will be eligible for immediate sentencing reductions and expanded early-release programs. Going forward, the effect will grow as thousands of new offenders receive reduced sentences and enter a changed prison system.
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Broadly speaking, the First Step Act makes heavy investments in a package of incentives and new programs intended to improve prison conditions and better prepare low-risk prisoners for re-entry into their communities.
By participating in the programs, eligible prisoners can earn time credits to reduce their sentence or enter “prerelease custody,” such as home confinement. In recent weeks, conservative senators and law enforcement groups successfully pushed to limit some violent offenders from eligibility, including fentanyl traffickers.
The legislation would also prohibit the shackling of pregnant inmates and the use of solitary confinement for juveniles in almost all cases. The Bureau of Prisons would be required to place prisoners in facilities close to their homes, if possible.
In all, it includes four changes to federal sentencing laws. One would shorten mandatory minimum sentences for some nonviolent drug offenses, including lowering the mandatory “three strikes” penalty from life in prison to 25 years. Another would provide judges greater liberty to use so-called safety valves to go around mandatory minimums in some cases. The bill would also clarify that the so-called stacking mechanism making it a federal crime to possess a firearm while committing another crime, like a drug offense, should apply only to individuals who have previously been convicted.
Finally, the bill would allow offenders sentenced before a 2010 reduction in the sentencing disparity between crack and powder cocaine to petition for their cases to be re-evaluated. The provision could alter the sentences of several thousand drug offenders serving lengthy sentences for crack-cocaine offenses. That would help many African-American offenders who were disproportionately punished for crack dealing while white drug dealers got off easier for selling powder cocaine.
America is the greatest Country in the world and my job is to fight for ALL citizens, even those who have made mistakes. Congratulations to the Senate on the bi-partisan passing of a historic Criminal Justice Reform Bill....— Donald J. Trump (@realDonaldTrump) December 19, 2018
