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
To provide some context for these number, consider that the federal inmate population is "only" 175,000, and yet there are already 13 official COVID deaths within the federal inmate population [as of 4/13; this number is now way higher]. This is more COVID deaths than are being reported right now by the Worldometer accounting in seven distinct US states: Wyoming (population nearly 600,000), Alaska (nearly 750,000), North Dakota (nearly 800,000), South Dakota (nearly 900,000), Montana (over 1 million), Hawaii (nearly 1.5 million), and West Virginia (population nearly 1.8 million). This is also more COVID deaths than are reported right now by the Worldometer accounting in countries such as Qatar (population nearly 3 million), New Zealand (nearly 5 million), Slovakia (nearly 5.5 million) Singapore (over 5.5 million).
A federal magistrate judge in Miami has ordered U.S. immigration officials to disclose how many of its detainees and third-party contractors at three South Florida detention centers have tested positive for coronavirus.
The court order was issued Tuesday night following a Miami Herald story that revealed U.S. Immigration and Customs Enforcement did not consider its contractors ICE “staff,” and that the agency said it had no obligation to include them on its website detailing how many employees at its detention centers nationwide had contracted the virus. The Herald also reported that the agency got around having to disclose that a Miami detainee was sick with COVID-19 because the detainee was technically no longer at the detention center, but rather at a hospital. All three detention centers in South Florida are operated by third-part contractors.
“That isn’t something we have to provide,” the agency said, later noting that ICE’s role isn’t to publish or discuss information about a third party.
The Herald’s reporting was cited in a federal lawsuit filed in Miami federal Court Monday seeking the release of detainees at three South Florida detention centers. As part of the case — filed by immigration advocates against ICE and the U.S. Attorney General— Magistrate Judge Jonathan Goodman ordered that the government file the previously undisclosed information by Friday.
As of Wednesday morning, ICE says only 21 of its employees have tested positive. However, that does not include third-party contractors that operate at least 217 of its 222 detention centers nationwide.
“The purpose of the declarations is to provide the Court with information, and the information should be comprehensive and not limited by technicalities, such as whether a guard or officer is a government employee or an employee of a third-party contractor or contracting vendor,” Goodman said in his order. “For purposes of gauging the health risk to detainees, it matters little whether a COVID-19-infected guard or officer receives a paycheck from the United States or from Akima (or some other company).”
Akima Global Services is the government contractor that operates ICE’s Krome detention center in Miami-Dade. Last week, the Herald reported that two guards had contracted the virus, and that at least 60 others had been sent home to wait for test results or to quarantine.
In the magistrate judge’s order, Goodman specified that “staff members” is not limited to actual ICE employees or employees of the United States or one of its agencies or departments.
“To the contrary, it is designed to encompass anyone and everyone who works at the three facilities — including, by way of example, employees of third party contractors who provide services and personnel to the detention centers,” he said.
He continued: “Thus, to provide one specific illustration, if a company, such as Akima, provides services or employees at the Krome detention facility, then Akima employees who work as guards (or nurses or counselors or administrative aides or any other position at the detention center) would be included in the term ‘staff members.’ This same definition applies for all three detention centers.”
Goodman told ICE that if the clarification required them to obtain information from its contractors, “then so be it. The point is, I don’t want to be on the short end of the information stick.”
The U.S. Bureau of Prisons is finally acknowledging that at least two employees at the Miami Federal Detention Center have tested positive for COVID-19, according to its public coronavirus tracking website. A union official said Monday that a third officer at the Downtown Miami facility has also tested positive, and more are awaiting test results.2. The 11th Circuit in a 2-1 decision (Newsom wrote the majority, joined by Tjoflat; dissent by Hull) ruled that the Crimes Victim Rights Act does not apply to the Jeffrey Epstein case because no criminal case was ever brought. 120 pages of decisions here. Here's the intro to the majority:
The official, Jose Rojas, has been openly critical of how the Bureau of Prisons has handled the coronavirus crisis. He said officers were not allowed to wear masks while on duty until April 8, and the department continues to transport inmates from facility to facility, elevating the risk of spreading the highly contagious virus.
“They’re lying about the numbers they are posting on their website,” said Rojas, the Southeast regional vice president of the corrections council of the American Federation of Government Employees. “They won’t want to make themselves look bad.”
This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004. Petitioner Courtney Wild is one of more than 30 women—girls, really—who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her petition, Ms.Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA—in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.Things get a little testy. Newsom:
Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems, affirmatively misled—by government lawyers, we find ourselves constrained to deny her petition. We hold that at least as matters currently stand—which is to say at least as the CVRA is currently written—rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered. It’s not a result we like, but it’s the result we think the law requires.
Having so held, two final words.
First, regarding the dissent: Although we have endeavored along the way to meet a few of the dissent’s specific critiques, we must offer here two more global responses. As an initial matter, with respect to the dissent’s charge (Dissenting Op. at 65) that we have “dresse[d] up” what it calls a “flawed statutory analysis” with “rhetorical flourish”—well, readers can judge for themselves whose rhetoric is in fact more florid. See, e.g., id. at 61 (“So how does the Majority bail the U.S. Attorney’s Office out of its egregious CVRA violations . . . ?”); id. at 94 (“So how in the holy name of plain text . . . ?”); id. (“The Majority hacks away at the plain text with four tools.”); id. (“The Majority cherry picks the meaning of ‘case’ . . . .”); id. at 96 (“Nonsense.”); id. at 98 (“As its third tool to axe the plain text . . . .”); id. (“Do not fall for this.”); id. 106 (accusing us of ruling “by judicial fiat”); id. at 109–10 (twice accusing us of fearing crime victims more than “wealthy defendants”).
While the Majority laments how the national media fell short on the Jeffrey Epstein story, this case is about how the U.S. prosecutors fell short on Epstein’s evil crimes. See Maj. Op. at 6. Our criminal justice system should safeguard children from sexual exploitation by criminal predators, not re-victimize them. The Majority concludes that our Court is constrained to leave the victims “emptyhanded,” and it is up to Congress to “amend the Act to make its intent clear.” Id. at 19, 52. Not true. The empty result here is only because our Court refuses to enforce a federal statute as Congress wrote it. The CVRA is not as impotent as the Majority now rewrites it to be.
Given the undisputed facts that the U.S. Attorney’s Office completed its investigation, drafted a 53-page indictment, and negotiated for days with Epstein’s defense team, the Office egregiously violated federal law and the victims’ rights by (1) not conferring one minute with them (or their counsel) before striking the final NPA deal granting federal immunity to Epstein and his co-conspirators, (2) intentionally and unfairly concealing the NPA from the victims, as well as how the upcoming State Court plea hearing would directly affect them, and (3) affirmatively misrepresenting the status of the case to the victims after the NPA was executed. I would remand for the District Court to fashion a remedy.
For all of these reasons, I respectfully dissent from the Majority’s (1) decision that the crime victims of Epstein and his co-conspirators had no statutory rights whatsoever under the Crime Victims’ Rights Act, and (2) denial of the victims’ petition in this case as a matter of law.
“It is remarkable how many ATTORNEYS appear inappropriately on camera,” the judge wrote in the letter posted on the Weston Bar Association website. “We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.
“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”
Tips for Successful HearingsSo far, my experience has been that federal judges are mostly doing teleconference hearings and not video hearings. So you can still wear your pajamas and not brush your hair.
- Dress in a soft solid color (like a black robe for judges). If a tie is worn, use a solid tie rather than one with a pattern.
- When speaking, remember to look directly at the webcam, not at the screen.
- Position the camera at your eye level or slightly above eye level.
- Be mindful of what is behind you, choose a solid neutral wall if possible - or use our Judicial Virtual Background.
- Check the lighting. Light from a window behind you might blind the camera, making you look dark. Light above you in the center of a room might also cast shadows. Ideally, position a lamp, or sit facing a window, where light is directly on your face. Also be aware that your monitor casts light that can make you look blue.
- Remind the participants to speak one at a time and to pause prior to speaking in case there is any audio/video lag.
- Encourage the participants to mute themselves or mute them yourself when not speaking in order to avoid any potential background noise.
- Only email the link to the hearing to those participating in the hearing, encourage the public to view the hearings on the court's YouTube channel. Consider using a password for the hearings.
- Test your connection and setup with Zoom by testing your connection with a test meeting.
