News & Notes

1.   Students (and sometimes judges) have gone off the rails at our law schools.  David Lat covers the latest debacle at Stanford Law School here, involving the Federalist Society, 5th Circuit Judge Duncan, and a bunch of protestors.  Here's a snippet of the long piece, which is worth reading:

Then the event got underway. Approximately 100 protesters lined up outside the event to boo those who entered, with some students calling out individual classmates—e.g., “Shame, John Smith”—à la Cersei’s Walk of Atonement on Game of Thrones. Another 50 to 70 students came into the room where the event took place, compared to about 20 FedSoc students (if that). The protesters carried signs reading "RESPECT TRANS RIGHTS," "FEDSUCK," "BE PRONOUN NOT PRO-BIGOT," and "JUDGE DUNCAN CAN'T FIND THE CLIT" (among others), along with trans-rights flags.

***

But here’s where things went off the rails. When the Stanford FedSoc president (an openly gay man) opened the proceedings, he was jeered between sentences. Judge Duncan then took the stage—and from the beginning of his speech, the protestors booed and heckled continually. For about ten minutes, the judge tried to give his planned remarks, but the protestors simply yelled over him, with exclamations like "You couldn't get into Stanford!" "You're not welcome here, we hate you!" "Why do you hate black people?!" "Leave and never come back!" "We hate FedSoc students, f**k them, they don't belong here either!" and "We do not respect you and you have no right to speak here! This is our jurisdiction!"

Throughout this heckling, Associate Dean Steinbach and the University's student-relations representative—who were in attendance throughout the event, along with a few other administrators (five in total, per Ed Whelan)—did nothing. FedSoc members had discussed possible disruption with the student-relations rep before the event, and he said he would issue warnings to those who yelled at the speaker, but only if the yelling disrupted the flow of the event. Despite the difficulty that Judge Duncan was having in giving his remarks, plus the fact that many students were struggling to hear him, no action was taken.

After around ten minutes of trying to give his remarks, Judge Duncan became angry, departed from his prepared remarks, and laced into the hecklers. He called the students “juvenile idiots” and said he couldn’t believe the “blatant disrespect” he was being shown after being invited to speak. He said that the “prisoners were now running the asylum,” which led to a loud round of boos. His pushback riled up the protesters even more.

Eventually, Judge Duncan asked for an administrator to help him restore order. At this point, Associate Dean Steinbach came up to the front and took the podium. Judge Duncan asked to speak privately between them, but she said no, she would prefer to speak to the crowd, and after a brief exchange, Dean Steinbach did speak. She said she hoped that the FedSoc chapter knew that this event was causing real pain to people in the community at SLS. She told Judge Duncan that “she was pained to have to tell him” that his work and previous words had caused real harm to people.

“And I am also pained,” she continued, “to have to say that you are welcome here in this school to speak.” She told Judge Duncan that he had not stuck with his prepared remarks and was partially to blame for the disruption for engaging with the protesters. She told Judge Duncan and FedSoc that she respected FedSoc’s right to host this event, but felt that “the juice wasn't worth the squeeze” when it came to “this kind of event.” She told the protestors that they were free to either stay or to go, and she hoped they would give Duncan the space to speak—but as one FedSoc member told me, the tone and tenor of her remarks suggested she really wanted him to self-censor and self-deport, i.e., end his talk and leave. [UPDATE (10:57 p.m.): The Foundation for Individual Rights and Expression (FIRE) posted a transcript of Dean Steinbach’s remarks at the Judge Duncan event, if you’d like to read her words for yourself.]

“This invitation was a setup,” Judge Duncan interjected at one point while Dean Steinbach criticized him. And I can see what would give him that impression: as you can see from this nine-minute video posted by Ed Whelan, when Dean Steinbach spoke, she did so from prepared remarks—in which, as noted by Whelan, she explicitly questioned the wisdom of Stanford’s free-speech policies and said they might need to be reconsidered. (At least at Yale Law School, Dean Heather Gerken had the decency to criticize disruptive protesters, instead of validating them.)

SLS has rightfully apologized.  But Judge Duncan could have acted more professionally himself.  

2.  CA11, per Judge Rosenbaum, upholds the Marjory Stoneman Douglas High School Public Safety Act in this interesting opinion:

Tragically, under-21-year-old gunmen continue to intentionally target others—now, with disturbing regularity, in schools. So along with math, English, and science, schoolchildren must be-come proficient in running, hiding, and fighting armed gunmen in schools. Their lives depend upon it.
But State governments have never been required to stand idly by and watch the carnage rage. In fact, during the Reconstruction Era—when the people adopted the Fourteenth Amendment, thereby making the Second Amendment applicable to the States—many States responded to gun violence by 18-to-20-year-olds by prohibiting that age group from even possessing deadly weapons like pistols.
Acting well within that longstanding tradition, Florida responded to a 19-year-old’s horrific massacre of students, teachers, and coaches at Marjory Stoneman Douglas High School in a far more restrained way. The Marjory Stoneman Douglas High School Public Safety Act (“the Act”) precludes those under 21 only from buying firearms while still leaving that age group free to possess and use firearms of any legal type. See 2018 Fla. Laws 10, 18–19 (codified at Fla. Stat. § 790.065(13)).
That kind of law is consistent with our Nation’s historical tradition of firearm regulation. Indeed, the Supreme Court has al-ready identified “laws imposing conditions and qualifications on the commercial sale of firearms” as “longstanding” and therefore “presumptively lawful” firearm regulations. District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008). Florida’s law does just that by imposing a minimum age as a qualification for buying firearms.
Because Florida’s law is consistent with our Nation’s historical tradition of firearm regulation, we affirm the district court’s judgment.

FPD Michael Caruso testifies before the Sentencing Commission

Awesome.

Here's the entire hearing.  You can catch Michael at the 3:01 and 5:31 marks.

KBJ speaks at Palmetto High School and also gets a street named after her

Very cool.

Earlier this week she was inducted into the Palmetto High Hall of Fame.  The students must have gotten a kick seeing her speak in their auditorium. Even other HOF inductees, like the wonderful Katie Phang, snapped selfies with her:

It’s not every day you get inducted into your high school’s Hall of Fame with a Supreme Court Justice, but thank gosh I didn’t have to speak after her! 🥰

Thank you @palmetto_high for the honor and congrats to Justice Ketanji Brown Jackson and my fellow inductees! pic.twitter.com/OYwtKHaYrC

— Katie S. Phang (@KatiePhang) March 7, 2023

Shake it Off

That’s Merrick Garland's favorite Taylor Swift song. Apparently he's a huge fan. Anyone with daughters, like Garland, can relate. From the WSJ:

At a congressional hearing on Wednesday, senators grilled Attorney General Merrick Garland on the Justice Department’s investigation into Ticketmaster, which botched ticket sales for Taylor Swift’s coming tour and is dominant in the concert industry.
Holding court

“Channeling Taylor Swift, I know that ‘All Too Well,’” Mr. Garland said, name-dropping the title of one of her songs. “I’m pretty familiar with Taylor Swift.”


Everyone in the Capital has been talking about Taylor Swift and Ticketmaster, from senators in congressional hearings to White House officials in public reports and fans holding protest signs on the streets.

Mr. Garland has been talking about her for years. In his home, in his car, and in his wood-paneled office suite on Pennsylvania Avenue, where he has prominently displayed nearly all of her CDs in a curio cabinet. He’s a die-hard Swiftie, as her fans are known, and he drops lyrics into legal arguments and discussions all the time.

***

Mr. Garland learned of Ms. Swift from his two daughters, who insisted on blasting the singer’s self-titled debut and 2008 follow-up album “Fearless” while Mr. Garland, then a federal appeals court judge, drove the girls to school when they were young.

“We invented carpool karaoke before it was a thing,” Mr. Garland said in his office, where the Swift CDs, given to him by his daughters, occupy a special place shared only by Bruce Springsteen’s autobiography “Born to Run” and a collection of Beatles albums. Now, whenever Ms. Swift releases a new album, the Garland family gathers on the phone to swap notes.

***

And Congress and pop culture have intersected in interesting ways before. Frank Zappa, John Denver and Dee Snider of Twisted Sister testified at a 1985 Senate hearing on explicit rock lyrics. People packed the hearing room to get a look. “I’ve been a fan for a long time, Mr. Denver,” then-Sen. Al Gore told the singer.
Dee Snider, right, of the metal band Twisted Sister appears at a packed Senate hearing on Capitol Hill in 1985.PHOTO: MARK WEISS/GETTY IMAGES

Things got chillier when Mr. Snider, who had long hair and wore a sleeveless T-shirt, asked if Mr. Gore planned to praise his music too. Mr. Gore conceded he enjoyed Mr. Zappa and Mr. Denver. “I am not, however, a fan of Twisted Sister.”

In legislative fights, House Republicans have deployed pulp-culture GIFs of celebrities, such as singer Britney Spears, the cartoon character Ariel of “The Little Mermaid” and Will Ferrell’s “More cowbell!” skit from “Saturday Night Live.”

Well before becoming a parent, Mr. Garland was at the vanguard of popular music. He recalled seeing the little-known Bruce Springsteen and the E Street Band open for Bonnie Raitt at the Harvard Square Theater in Cambridge in 1974, when he was in college there. “Nobody I knew had ever heard of Springsteen before,” he said. “And it was great.”

Obama White House aide Brian Deese let it slip in a videotaped interview years ago that Mr. Garland was “reasonably into Taylor Swift.” That prompted Mr. Garland’s clerks to present him with a (mock) tweet from TayTay that said: “I’m reasonably a big fan of yours too!”

Get off my lawn....

By John R. Byrne

If you live in the Village of Pinecrest--or any other municipality in Miami-Dade--you may want to read Judge Altman's recent order in Megladon, Inc. v. Village of Pinecrest and Miami-Dade County. Looks like Pinecrest was strong-arming new owners into effectively gifting the Village (or "dedicating," to use Pinecrest's term) 7 1/2 feet of their property. The leverage used was Pinecrest conditioning the approval of a certificate of occupancy on the "dedication." Instead of giving in, Megladon challenged the condition as violating the Florida Constitution's Takings Clause. Pinecrest threw out a host of defenses, the main one being that it had not taken anything yet because Megladon never gave in. Judge Altman rejected the argument, noting that the "whole point of the unconstitutional-conditions doctrine" was to prevent the government from "pressuring" a person into giving up a constitutional right. Worth a read, particularly if you want to keep your local friendly municipality off your lawn!

Order by John Byrne on Scribd

DOJ meets with FPD Michael Caruso and local bar re "Gideon Tour"

 It was the big ABA White Collar shindig this week in Miami.  1200 white collar prosecutors, defense lawyers, and federal judges descended upon the Hyatt and mingled all week.  DAG Lisa Monaco was also here.  In addition to giving a speech at the conference, she sat down with Michael Caruso, Henry Bell, Margot Moss, and others as part of DOJ's "Gideon Tour."  The Miami Herald has more:

Caruso, who oversees 50 assistant public defenders in the Southern District of Florida, described how the landmark Gideon decision and then passage of the Criminal Justice Act paved the way for indigent people to be represented by federally funded private attorneys and eventually public defenders in the 1960s. But at the meeting, Caruso highlighted shortcomings in the system, zeroing in on a defendant’s lack of access to a lawyer immediately after his arrest and placement in the Federal Detention Center. “In our district, an accused may not have a lawyer at various critical stages — like the initial appearance and bail hearing [in court],” Caruso said. “Those in prison — many of whom are seriously ill or who have a loved one who requires care-taking — may not have a lawyer to seek a compassionate release.

Federal Gideon "Explained"

By Michael Caruso

Because David’s readers are the most informed in the district, you know that this year marks the 60th anniversary of the Supreme Court’s decision in Gideon v. Wainwright. “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” the Court found, and “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

But people accused in federal court obtained the right to counsel twenty-five years earlier in Johnson v. Zerbst, and Gideon was a decision about incorporating the right and applying it to the states. Notwithstanding, Gideon profoundly affected the federal system. Before 1964 and the passage of the Criminal Justice Act (CJA), appointed attorneys were not paid to represent indigent federal defendants. Nor was there any funding for case-related expenses, much less investigators or experts. Gideon, along with the highly influential report of Professor Francis Allen (years later my 1st year Crim Law professor) to then-Attorney General Robert F. Kennedy (the Allen Report), was a significant reason for passage of the CJA and the creation of a funded federal defense system.

The Report’s words still ring true: 

When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused’s liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice. The essence of the adversary system is challenge. Survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions. It follows that insofar as the financial status of the accused impedes vigorous and proper challenges, it constitutes a threat to the viability of the adversary system. We believe that the system is imperiled by the large numbers of accused persons unable to employ counsel or to meet even modest bail requirements and by the large, but indeterminate, numbers of persons, able to pay some part of the costs of defense, but unable to finance a full and proper defense. 

The Allen Report proposed legislation that became the template for the landmark (CJA). The Report was submitted to Attorney General Kennedy on February 25, 1963, three weeks before the Supreme Court decided Gideon.

The CJA was not fully completed, however, until 1970. The original statute did not create federal public defender offices but relied solely on assigned private attorneys paid by the hour. The Department of Justice and the Judicial Conference convened another study in 1967, and the subsequent findings contained in the Oaks Report recommended Congress amend the CJA to include public defender offices. The bill passed, and aside from occasional minor amendments, the current structure of federal public defense has remained the same ever since. 

SDFLA Black History Month Event

 

By John R. Byrne:

Last Friday, the Court held its annual Black History Month event. Kozyak Tropin partner Detra Shaw-Wilder moderated a panel comprised of Judge Graham, Marilyn Holifield, and Markenzy Lapointe that discussed the advancement of Black lawyers in South Florida. The ceremonial courtroom was packed and, though the conversation was serious for the most part, there were some laughs to be had (as illustrated by the photo!).  

A good portion of the event served as a tribute to the late Judge Cooke, who was the first Black female federal judge in the State of Florida (2004, if you can believe that). Judges Altonaga, Gayles, Graham, and Williams—along with Enjoliqué Aytch Lett, a former law clerk—gave heartfelt speeches about her. She was loved by many and her absence will be felt at the Wilkie D. and beyond.