Judge Rudy Ruiz investiture

It was a really nice event to a packed house (including two overflow rooms) with heartfelt speeches from Justice Robert Luck, Judge Federico Moreno, and from Judge Ruiz himself.

Meantime, in the 11th Circuit, Judge Newsom wrote an opinion with a shoutout to teenage readers:

The puffery “doctrine” presumes a relatively (but realistically) savvy consumer—the general idea being that some statements are just too boosterish to justify reasonable reliance. In general parlance, “puffing” is “seller’s or dealer’s talk in praise of the virtues of something offered for sale.” Webster’s Third New International 1838 (2002). Perhaps closer to home for our purposes, it refers to an “expression of an exaggerated opinion—as opposed to a factual misrepresentation—with the intent to sell a good or service.” Black’s Law Dictionary 1428 (10th ed. 2014). As Judge Learned Hand once put it, “[t]here are some kinds of talk which no sensible man takes seriously, and if he does he suffers from his credulity.” Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918). Think, for example, Disneyland’s claim to be “The Happiest Place on Earth.” Or Avis’s boast, “We Just Try Harder.” Or Dunkin Donuts’s assertion that “America runs on Dunkin.” Or (for our teenage readers) Sony’s statement that its PlayStation 3 “Only Does Everything.” These boasts and others like them are widely regarded as “puff”— big claims with little substance.

Raag Singhal officially nominated to the District Court

Back in May, the blog reported that state court judge Raag Singhal was being vetted for an open district court seat in the Southern District of Florida.  Today, President Trump made his nomination official.  Congrats to Judge Singhal.  He's going to be great.  From the press release:

Anuraag “Raag” Singhal of Florida, to serve as Judge on the United States District Court for the Southern District of Florida.

Raag Singhal serves as a Circuit Court Judge for the 17th Judicial Circuit in Broward County, Florida, having been appointed to the bench by then-Governor Rick Scott in 2011. Before his appointment, Judge Singhal was in private practice in Fort Lauderdale where his practice focused on criminal defense in both the trial courts and courts of appeals. Early in his career, Judge Singhal served as a prosecutor in the Office of the State Attorney. Judge Singhal earned his B.A. from Rice University and his J.D. from Wake Forest University School of Law.

Gerald Tjoflat to take senior status

Big news out of the 11th Circuit today, as Judge Tjoflat is taking senior status upon the confirmation of his successor.  Tjoflat turns 90 in December and was a member of the 5th Circuit before the court split.  He is the longest serving judge in active service.

Was this cross examination “scandalous”? (TWO UPDATES)

** UPDATED BELOW WITH JUDGE AMY STEELE DONNER'S COMMENTS

There was a little dust-up on the FACDL Listserv this weekend over a cross examination conducted by an assistant public defender named Carl Vizzi back in the mid-80s.  I had never heard of Vizzi or this cross, but the AP covered it back in the day.  The cross won Vizzi’s client an acquittal and also landed him in jail.

During cross-examination of the alleged victim on Wednesday, Vizzi called her an exhibitionist and her husband a voyeur, adding, ″You turn tricks, don’t you?″

At one point, Vizzi slammed two quarters on the witness stand and said, ″You’ll dance nude for 50 cents. What would you do for a dollar?″

The woman charged that the defendant kidnapped and raped her, but the man claimed he had paid the woman for sex.

Holding Vizzi in contempt, Donner said, ″Any rape victim who had the misfortune to observe your conduct would have never continued with a rape prosecution.

″The cross-examination was scandalous, to say the least.″

Vizzi told Donner that he did not mean to violate her orders.

″I defended this man vigorously because I honestly believed he was falsely accused,″ he said.

How would this cross have gone over in today’s climate where the ABA in considering a resolution that would shift the burden to defendants to show affirmative consent. After numerous organizations opposed the resolution, it appears to be dead.

UPDATE — A helpful commenter points out the 3rd DCA case on the contempt order, which was upheld. Some additional cross, which formed the basis of the contempt order:

"Q. Isn't this place a front for prostitution?
MR. BAGLEY: Objection; this is irrelevant, Judge.
THE COURT: Sustained.
. . . .
BY MR. VIZZI:
Q. Isn't it true that girls that work at Live Peeps will often take coffee breaks to do things with the customers who liked how they danced and liked their body —
MR. BAGLEY: Objection.
Q. — and wanted to do a little bit more with them that could be done in those rooms where you work?
Isn't it true that that happens all the time?
MR. BAGLEY: Objection; improper question. It's a compound question and furthermore its irrelevant.
THE COURT: Sustained."
Later, he engaged in the following cross examination of the complainant which led to his contempt conviction:

"Q. Isn't it true that your 19-year-old now-husband doesn't like you to work after hours doing extra things other than work at Live Peeps?
MR. BAGLEY: Objection, your Honor; that's irrelevant.
THE COURT: Sustained. Move on, Mr. Vizzi.
BY MR. VIZZI:
Q. Isn't it true that your husband is a voyeur and you're an exhibitionist and he doesn't like it to get any further than that. He gets sexual gratification when you take your clothes off, but he gets very angry when you perform tricks with customers?
MR. BAGLEY: Objection.
THE COURT: Come to side-bar, Mr. Vizzi.

SECOND UPDATE -- in the comment section, Judge Amy Steele Donner makes the following comments.  Thank you for commenting for the blog Judge Donner:

He actually was a pretty bad lawyer and that was the only case he won in front of me. He also came to my house with his baby begging not to be put in jail. Coming to my house uninvited was also a violation of his oath and the order he violated was the rape-shield law, not that I personally enacted it. The prosecutor was the esteemed former circuit judge, Gerald Bagley who would definitely agree with my analysis of his trial behavior. Amy Steele Donner

One *billion* dollars in fraud

Pleading to a billion dollar fraud case is tough because the guidelines are so high. So sometimes it may be better to take your chances at trial (unless the defendant is permitted to plead to a 371 conspiracy with a 5-year cap). Here’s a Miami Herald article about a plea in the Woodbridge case for Robert Shapiro:

The founder of a South Florida real estate company pleaded guilty Wednesday to orchestrating a $1.3 billion Ponzi scheme that bilked thousands of mostly elderly investors.

Robert H. Shapiro, the former CEO of the Woodbridge Group of Companies, admitted in Miami federal court that he “misappropriated” between $25 million and $95 million of the investors’ money to himself and his family to pay for an estate in the Los Angeles area, chartered planes, global travel, jewelry, diamonds and vintage wines. Shapiro also collected artworks by Pablo Picasso, Marc Chagall, Pierre-August Renoir and Alberto Giacometti. He also owned a Mercury convertible.

Now, all those luxury items belong to the feds.

Shapiro, 61, who was arrested in April, faces up to 20 years for wire and mail fraud conspiracy and an additional 5 years for tax evasion at his sentencing on Oct. 15 before U.S. District Judge Cecilia Altonaga. In pleading guilty, Shapiro avoids going to trial but still is looking at a total of 25 years in prison.

Should we give this op-ed to all jurors?

It’s a very powerful piece about how important jury service is.

Plus, it will combat the idea that jury service is to rubber stamp prosecutors.  There are so many signals around courthouses about law enforcement (the posters in jury rooms saying that if you see something, you should say something; the “law-enforcement cafe;” and so on), that this op-ed might be a good way to temper it.

The conclusion:

We are told that there is a great divide in our country, and at the voting booth that is apparent. But in the jury room, we were just 12 random people pulled out of our daily lives and asked to administer the final decision in a case. It felt like our justice system at work.

I’ll vote in November, and it will be important. But I don’t think I’ll ever feel as significant as a citizen as I did in that jury room.

Meantime, let me be a proud dad for a moment and post the op-ed of my daughter in today’s Miami Herald:

And though I identify as an activist, I wish I did not have to. There is a large part of me that resents the fact that fellow teens and I have to wake up and focus on whether the government will pass the simplest background checks bill, or if there will be a shooting near me that kills someone I know.

I resent it because it should be adults and elected government officials focusing on these issues.

I would much rather spend my time dancing around the house, modeling clothes and makeup for my friends, and going to the beach. You know, typical things that those in government think teenagers do when they call us incompetent and assert that we do not know anything about politics, all the while allowing the gun violence epidemic to continue in an endless cycle. But I can’t.

Cool story about a jailhouse lawyer

Check out this NY Times story about Calvin Duncan, a jailhouse lawyer, who convinced the Supreme Court to hear a case about whether juries could convict without a unanimous verdict:

“For 23 years, I was a jailhouse lawyer,” said Calvin Duncan, a former inmate at the Louisiana State Penitentiary in Angola. “That was my assigned job.”

He had a 10th-grade education, and he was serving a life sentence for murder. The prison paid him 20 cents an hour to help his fellow prisoners with their cases.

He got good at it, and he used his increasingly formidable legal skills to help free several inmates. He knew how to spot a promising legal issue, and he was relentless. Seasoned lawyers sought his advice.

One issue in particular consumed Mr. Duncan. He could not understand how a Louisiana law that allowed non-unanimous juries in criminal cases could be constitutional. He would not let it go, working on about two dozen failed attempts to persuade the Supreme Court to address the issue.

The justices finally agreed in March to decide the question. They will hear arguments in the case, Ramos v. Louisiana, No. 18-5924, on the first day of their new term, on Oct. 7.

 This is so true:

Mr. Duncan visited Professor Mattes’s law school clinic not long after he was released. The students were in their third year, tired of studying and perhaps a little jaded.

Mr. Duncan asked to see the law library, and he marveled at the vast and pristine collections of cases, codes and treatises.

“All of a sudden, he stops and he turns to the students,” Professor Mattes said. “He gets very serious and he says: ‘You guys need to know how incredibly lucky you are. Because what you have here is power.’”

Defending Dersh

Here’s my latest piece, this time in Newsmax, about Alan Dershowitz. Here’s the intro:

Our criminal justice system is built on the notion that the burden is on the prosecution to prove a case beyond a reasonable doubt before one’s liberty, our most valuable asset, can be taken away. And for good reason. We don’t want innocent people in jail.

We are willing to live with some guilty folks going free so that we don’t have the horror of an innocent person behind bars. Our system, with all of its flaws (including the concept that prosecutors who charge people with baseless claims cannot be charged), has clung to this bedrock principle of presumed innocence.

The system still affords defendants due process of law.

But what about a private individual falsely accusing someone of a heinous crime?

Today it seems that anyone can accuse another without any real fear of repercussions.

And this is most certainly true when a person makes an allegation in civil litigation.

Such allegations are protected by the “litigation privilege” and are not subject to defamation suits.

When someone says something accusatory in public, he can be sued. But a person who makes up an allegation in a court document can’t be. And if such an accuser is found to have lied, they likely will never be prosecuted.

This is where famed Harvard law professor Alan Dershowitz finds himself: accused of a heinous crime without any real recourse or due process protection. As the accusations pop up on screens across the globe, they are assumed to be true even though Dershowitz has not been charged or convicted.