11th Circuit makes quick work of election lawsuits

 Here’s one that was published over the weekend. Judges that were appointed by three different Presidents (including Trump SCOTUS short-lister Barbara Lagoa) ruled unanimously. Chief Judge William Pryor, another previous Trump short-lister for SCOTUS) wrote the majority. It starts like this:

This appeal requires us to decide whether we have jurisdiction over an appeal from the denial of a request for emergency relief in a post-election lawsuit. Ten days after the presidential election, L. Lin Wood Jr., a Georgia voter, sued state election officials to enjoin certification of the general election results, to secure a new recount under different rules, and to establish new rules for an upcoming runoff election. Wood alleged that the extant absentee-ballot and recount procedures violated Georgia law and, as a result, his federal constitutional rights. After Wood moved for emergency relief, the district court denied his motion. We agree with the district court that Wood lacks standing to sue because he fails to allege a particularized injury. And because Georgia has already certified its election results and its slate of presidential electors, Wood’s requests for emergency relief are moot to the extent they concern the 2020 election. The Constitution makes clear that federal courts are courts of limited jurisdiction, U.S. Const. art. III; we may not entertain post-election contests about garden-variety issues of vote counting and misconduct that may properly be filed in state courts. We affirm

Greatest lineup ever

One of the fun parts of doing the podcast For the Defense is hearing follow-up stories about the lawyers and cases. I've received a lot of feedback on the Roy Black interview about the Luis Alvarez case.  

Here's one bit of information I did not know before the interview -- there was a photo lineup conducted where witnesses were asked to identify the shooter (Officer Alvarez).  Alvarez had a mustache, so the folks putting together the lineup got a bunch of pictures of police officers and others with mustaches.  But they needed one more (Alvarez is #4) and couldn't find a usable picture.  So they asked a familiar face to join the lineup in picture # 6 below:

Any guesses?  I'll put the answer in the comments so it's not spoiled here.

"Civility is overrated"

 That's the title of this Atlantic article.  And here's another article, this time by the N.Y. Times, about the traps of telling your opponent to be civil:

Mannered civility, in other words, can operate as a trap: order without justice, comity without commitment. It can pit you against an opponent who will happily fight dirty while insisting that you abide by Queensberry Rules.

Today's 11th Circuit en banc denial, in which Judges W. Pryor and Newsom attack Judge Rosenbaum's opinion for not being civil, reminded me of these articles. Judge Rosenbaum wrote a dissent in which she states her view, which was joined by three other judges (Wilson, Martin, and J. Pryor).  She wasn't being personal, and she even feels the need to apologize to Judges Pryor & Newsom and says that her dissent isn't personal:

I am truly sorry that Chief Judge Pryor and Judge Newsom seem to have taken my concerns personally. I do not believe this dissent to be personal. I have great respect for all my colleagues, and I value this Court’s collegiality. But I also have great respect for the rule of law and the need for our Court to maintain its legitimacy. And I don’t agree that defending these things or pointing out what I think is wrong with Keohane and explaining why I view it as such a big problem makes me “[un]collegial[]” and “[un]charitable,” see Newsom Op. at 22, or is an “attack[ on] . . . the integrity of judges or their commitment to the rule of law . . . [or] the legitimacy of this Court,” W. Pryor Op. at 5. Nor do the labels and characterizations the W. Pryor and Newsom Opinions feel a need to impose provide a good enough reason to remain silent in the face of the threat Keohane represents to our judicial norms. I am aware of no other way to oppose what I see as the failure of our Court to require the Keohane panel to comply with the prior-precedent rule, other than by writing a dissent that candidly discusses that problem and its significance.

I respect Judges Pryor and Newsom a great deal.  They are two of the smartest judges in the country.  And they are beautiful writers who often use colorful language.  So I don't see why they are so upset that Judge Rosenbaum uses the very same words and arguments that they have used in numerous opinions.  Do they feel the same way about Justice Scalia's opinions when he went after Justice Ginsburg or his other colleagues?  Here are some examples from the L.A. Times of Scalia's opinions:

When the U.S. Supreme Court ended its term July 1, Justice Antonin Scalia was more vindictive and isolated than ever. As the court’s most publicly confrontational justice, he repeatedly berates his colleagues. “The court must be living in another world,” as he put it. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”

*** Besides biting personal rhetoric, Scalia’s opinions sound certain constant refrains. Positions he disagrees with are typically derided as “demonstrably false,” “incoherent” and “terminal silliness.” They are invariably debunked as acts “not of judicial judgment, but of political will.” He is just as likely as GOP presidential contenders Patrick J. Buchanan or Bob Dole to decry the Supreme Court’s “judicial dictatorship"--in spite of the fact that seven justices were appointed by Republican presidents.

Attacks against an opponent's writing style or arguing for civility is just a distraction from the merits. 

 

 

Fighting for compassion, a guest post by Mikayla Espinosa

Fighting for Compassion

Guest Post by Mikayla Espinosa

In a recent article, the Wall Street Journal highlighted efforts by former federal judge John Gleeson and Marisa Taney—a former law clerk to Judge Kathleen Williams—to obtain compassionate release for certain individuals convicted of violating the federal firearm law, § 924(c).

The work is part of a national sentencing reform movement, designed in part to address racial disparities in the criminal justice system. The WSJ reports that “[a]bout 94% of the people convicted of multiple counts under section 924(c) in fiscal year 2016 were Black or Hispanic.”

Their strategy takes advantage of two provisions of the First Step Act, a 2018 law that itself was a major step in sentencing reform. First is a provision allowing inmates whose requests for compassionate release are denied by the BOP to appeal the decision to a federal judge. Second is the Act’s reduction of mandatory sentences for people convicted of multiple § 924(c) counts after the statute was passed.

Gleeson and Taney have filed motions on behalf of several inmates who were convicted before the statute’s passage, seeking compassionate release from their sentencing courts. As the WSJ puts it, they “began interpreting ‘extraordinary and compelling’”—the standard for granting compassionate relief—“in an expansive way: Harsh mandatory sentences, since eliminated, are a valid reason for compassionate release.” The novel interpretation has been uniformly opposed by the government, which views it as an end-run around Congress’s decision not to make the First Step Act retroactive.

One of Gleeson and Taney’s motions was filed in the Southern District of Florida before Judge Dimitrouleas earlier this year on behalf of William Kinsey (99-cr-08078). Kinsey and his co-defendant committed a series of armed robberies in which no one was harmed. His co-defendant was found to be “equally culpable” for the robberies. He pled guilty, testified against Kinsey, and ultimately received an adjusted sentence of 10 years. Kinsey was sentenced to 137 years. The discrepancy resulted in large part because the government dismissed most of the co-defendant’s counts and none of Kinsey’s. Thus, Kinsey received the mandatory, consecutive sentences imposed by the court.

At the time Gleeson filed the motion on Kinsey’s behalf, Kinsey had already served 20 years in prison and was a model inmate. Judge Dimitrouleas quickly denied the motion, concluding that Kinsey’s requested relief would be available only if Congress amended the First Act to apply retroactively to multiple § 924(c) convictions.

Gleeson and Taney have had better luck elsewhere: They’ve helped win the release of 11 inmates so far.

The full article is here:

https://www.wsj.com/articles/former-judge-seeks-to-shorten-mandatory-prison-terms-he-once-imposed-11606859191

Episode 6, For the Defense: F. Lee Bailey for Sam Sheppard

 I'm really excited about this week's podcast episode of For the Defense. You'll hear legendary criminal defense lawyer F. Lee Bailey discuss his representation of Sam Sheppard (which includes going all the way to the Supreme Court and then for a new trial).  At the time, there was no bigger case in the history of American criminal law -- it even inspired the TV show and movie, The Fugitive. These pictures show a young Bailey with Sheppard, and of course the picture at the bottom of this post is Bailey with O.J. Simpson and Johnnie Cochran as the verdict was read. You can catch this episode and all episodes on our podcast website here. The Apple platform is available here, and all other platforms can be accessed here.

This is the finale of Season 1 of the podcast. I have really enjoyed doing the interviews and speaking to such great lawyers.  I've also enjoyed hearing from so many of you about your own trial experiences and other take-aways from the interviews.

Season 2 is already in the works and we plan on launching sometime in mid-January with the premiere episode with Alan Dershowitz.  We will also have a bonus/holiday episode with Hank Asbill discussing the fascinating trial and appeal involving Virginia Governor Robert McDonnell that will likely air on December 22.  I need your help to continue the momentum of the podcast, so please subscribe and leave comments!

If you're new to the podcast, you can learn more from this CourtTV spot about it. If you or a friend would like to receive email updates, please sign up here.

Thank you again for your continued support! --David

Hosted by David Oscar Markus and produced by rakontur