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
Wednesday, August 24, 2005
Katrina closes federal courts tomorrow at 1PM
District Court Operations and Tropical Storm Katrina Chief Judge Zloch announced that all Divisions of the United States DistrictCourt for the Southern District of Florida will be open to the public at 9:00 A.M. on Thursday, August 25th. The Court’s public functions at alllocations will be suspended at 1:00 P.M. in anticipation of the onset ofwind and rain conditions associated with Tropical Storm Katrina. Thisincludes the Court’s locations in Key West, Miami, Fort Lauderdale, WestPalm Beach and Fort Pierce.No new jury trials will be started nor will jurors be called to report onThursday, August 25th. Jurors who are currently sitting on trials mustfollow the instructions of the presiding judges.Criminal duty matters in all Divisions will be conducted before Noon. Alldistrict court staff should report for work as scheduled. A determinationabout the status of continuation of non-public functions will be made bynoon Thursday. A liberal leave approval policy will be observed for staffwho are not able to report to work. Further information about the status ofthe Court’s operations for Friday, August 26th will be available on theCourt’s website: www.flsd.uscourts.gov by 1:00 P.M. Thursday.
Hoeveler assigns homework
Tuesday, August 23, 2005
New County Attorney
Greenberg starts out in the county’s top legal job with a solid base of goodwill, even from lawyers who have done battle with his office over the years. “Murray is one of the finest lawyers and people I’ve ever known,” said Greenberg Traurig land-use attorney and shareholder Cliff Schulman. “Murray’s a straight shooter, and I think everyone else in that office will follow that lead.” Fort Lauderdale lawyer Bruce Rogow, who represents Citizens for Reform, a business-backed political action committee that supports Alvarez’s campaign for a strong-mayor form of government, said the county attorney’s office “has been a wonderful office with a great reputation under the kind of joint leadership of Bob and Murray.”Congrats to Murray on this promotion.
Monday, August 22, 2005
Martinez Nelson team up
The article explains that while mostly made up of Republicans, there "are a handful of Democrats" which include: "Mark Schnapp, a former federal prosecutor and a partner at Greenberg Traurig in Miami; Michael Hanzman of Hanzman & Criden in Miami; and Steven E. Chaykin, a former federal prosecutor and a partner at Zuckerman Spaeder in Miami."
Sunday, August 21, 2005
Blog update
Thursday, August 18, 2005
New federal JNC
"The members from the Southern District include chair Justin Sayfie, Roberto Martinez, Barry Silverman, Tom Tew, Mark Schnapp, Luis Perez, Manny Kadre, Gonzalo R. Dorta, Robert Dunlap, Peter S. Sachs, Scott A. Srebnick, Charles Garcia, Dexter Lehtinen, Beverly A. Brame, Jillian Inmon, state Rep. Ellyn Bogdanoff, Thomas Panza, Steven E. Chaykin, Joseph Reiter, and Michael Hanzman. Their first task will be to help select a successor to former Miami U.S. Attorney Marcos D. Jimenez."
News and notes
2. The Sun-Sentinel reports: "U.S. District Judge Donald Middlebrooks in Miami sentenced Ricardo Contreras, 33, to serve 18 months in prison and three years of supervised release, and Rogino Sánchez, 24, to 15 months in prison and two years of supervised release for illegally transporting people into the United States," almost two months after a young woman they snuck into the country hanged herself in Boynton Beach.
3. Fred Grimm writes about the Abramoff case here. He explains how the federal case is being used in "as a vise to squeeze" out some information about the deal and about the death of Gus Boulis.
Tuesday, August 16, 2005
News and notes
1. We have an anthrax arrest.
2. We have a huge fraud case, which was written up in the New York Times. More good press for the Lewis Tein firm, which was appointed as the receiver. Guy Lewis is quoted: "These guys were slick. They would have given Barnum & Bailey a run for their money."*
3. And we have possible cooperation from Jack Abramoff in a murder investigation.
*P.T. Barnum and James Bailey (along with the Ringling Bros.) started the Greatest Show on Earth, which was also a great movie (it won movie of the year in 1952).
Sunday, August 14, 2005
Update on the Polls
I'm also working on putting together links for important District websites that I will list on the blog. Please email me with any thoughts for links that should be included. I'll try to get that up on the site shortly. Thanks to those of you who have emailed me with suggestions for the blog and with tips on cases.
--David Markus
Thursday, August 11, 2005
Tom DeLay, Jack Abramoff, and the Southern District
More Cuban Spy news and the Grinch
In other news, seven years the Grinch received. Teach him, it will. I'm not sure if that's Yoda or Seuss speak... sorry.At first glance, a federal appellate court's decision requiring a new trial for five Cubans accused of spying appears to be a harsh and unwarranted censure of Miami and the prevailing anti-Castro sentiment in this community. The court remanded the case for a new trial -- elsewhere -- because ''pervasive community prejudice'' precluded the probability of a fair trial in Miami for the defendants.
Principle of fairness
No community would find this a welcome message. However, a close reading of the court's 93-page decision suggests that this is not so much a slap at the community as reaffirmation of the principle that fairness is the paramount ingredient of the American system of justice. To understand this decision, it's important to point out what the court did not say, as well as what it said:• It did not say that the jury was biased. In fact, the court cited an applicable ruling to the effect that the law does not require proof ''that local prejudice actually entered the jury box.'' Where community sentiment is strong (Who can deny that here?) and other factors such as pre-trial publicity come into play, a change of venue is necessary in the interest of fairness, the court said.
• It did not suggest that the defendants should have been acquitted on the basis of the evidence. Indeed, in reviewing the evidence matter-of-factly, the court referred to the defendants as ''agents'' and ''Wasp Network members.'' However, it noted that guilt or innocence based on evidence is not a determining factor when an appellate court reviews whether a change of venue was needed in order to ensure a fair trial.
• No single factor led the court to decide that only a change of venue could suit the interests of justice. Rather, it cited pre-trial publicity; a variety of other Cuba-related news stories around the same time, most prominently the Elián González controversy, that incited community passions; and ''improper prosecutorial references,'' including a statement that the ''jurors would be abandoning their community'' -- in the court's words -- if they did not convict.
Community passions
All of this, in the court's decision, amounted to a ''perfect storm'' of inflammatory conditions mandating a change of venue. It also noted that, in another legal action around that time, the government itself argued for a change of venue out of Miami on the theory that community passions were not ideal for rendering an impartial verdict in a case involving Cuba.
We do not endorse the notion that an impartial jury cannot be found in Miami to judge a case with Cuban connections. Neither did the appellate court. The court simply found that the interests of fairness would best have been served at the time by moving the spy trial elsewhere before the trial began. In the interest of fairness, we agree.
Wednesday, August 10, 2005
More on the Cuban Five
The Miami Herald contains this article today. The South Florida Sun-Sentinel reports today that "Court discards convictions of 5 Cubans accused of spying." The Chicago Tribune reports that "U.S. dealt setback on spies; Appellate court rules 5 Cuban agents were unfairly tried in Miami." In The New York Sun, Josh Gerstein reports that "Court Orders New Trial For 'Cuban Five.'"
And BBC News reports that "Havana hails US Cuban spy retrial; The Cuban government has welcomed a US appeal court decision to retry five Cubans convicted of spying."
Now that I've read the opinion a couple of interesting points:
1. Professor Gary Moran (from Florida International University's psychology department) did a venue survey pre-trial. He concluded that it would be impossible to receive a fair trial in Miami. The district court did not credit the survey, but the 11th Circuit quotes from it at length. I've used Gary Moran as a jury consultant and he (and his brother Bill) do great work.
2. The 11th Circuit relies not just on the publicity surrounding this case (of which there was a ton), but also relies on the Elian case, the government's admission in a civil case that there was community prejudice on this issue, witnsses during trial who baited the defense lawyers (even asking them if they were doing Fidel's bidding), and the government's comments throughout the trial (especially during rebuttal closing) mixing references to the Holocaust and Pearl Harbor and complaining to the jury that these "spies sent to destroy" this community had a legal defense "paid for by American taxpayers. "
3. A couple people have mentioned to me that this is the first reported decision of a federal criminal conviction reversed based on the denial of a motion for change of venue.
4. The venue motions were prepared by Joaquin Mendez (who, along with Richard Klugh, argued the issue on appeal) and Bill Norris, which relied on the survey by Moran.
5. Many have criticized the 11th Circuit and its opinion as being "liberal" or supporting "communism." It's an interesting criticism of a court that many would call the most conservative appellate court in the country. It's a recent and troubling trend of criticizing judges and courts when there is disagreement with a decision.
Tuesday, August 09, 2005
Cuban Spy case reversed!
The court is aware that, for many of the same reasons discussed above, the reversal of these convictions will be unpopular and even offensive to many citizens. However, the court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba. One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere. The court is cognizant that its judgment today will be received by those citizens with grave disappointment, but is equally confident of our shared commitment to scrupulously protect our freedoms. The Cuban-American community is a bastion of the traditional values that make America great. Included in those values are the rights of the accused criminal that insure fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be
treated fairly. Our Constitution requires no less.
Please use the comments to express your thoughts on the case. Read coverage here, here and here.
Sunday, August 07, 2005
ABA awards Albert Krieger
Saturday, August 06, 2005
Metrorail riders face searches
Friday, August 05, 2005
Judge Moreno moving on up?
Thursday, August 04, 2005
Miami-Dade school employees arrested for oxycontin
No more Steel Hector?
Wednesday, August 03, 2005
Crystalizing the DeFede debate and a SDFLA mention
The 1981 act has now become scrutinized in the media, on the Internet and among attorneys in the wake of Teele’s suicide and DeFede’s almost instantaneous firing. Froomkin and Miami criminal defense attorney David Oscar Markus have been debating the legal points of the issue on their Web logs, with Markus arguing that the taping was legal. Froomkin insists that it wasn’t. . . .
Markus ag[ued] that DeFede lacked any criminal intent. “There is a well carved out exception in the law that if you do something out of necessity, you are not criminally liable for doing so,” Markus said. He cited the example of a driver exceeding the speed limit so he could quickly deliver a heart attack victim to the hospital. “If DeFede was taping for some better good, then I think he was doing the right thing and there was no criminal intent,” Markus said.
Very cool that the blog was cited! The rest of the article is excellent, citing Dan Gelber (DeFede's lawyer), Bruce Rogow, Michael Froomkin, and Thomas Julin.
Monday, August 01, 2005
Who is Alex Acosta?
"Who is Alex Acosta? That’s the question South Florida attorneys are asking about the new acting U.S. attorney for the Southern District of Florida.
“No one knows anything about him,” said Brian Tannebaum, president of the Miami chapter of the Florida Association of Criminal Defense Attorneys.
“I haven’t met him yet.” Kathleen Williams, the top federal public defender in South Florida, said, “I have never met the U.S. attorney. He has not practiced in the area, so none of us knows him.” . . .
But what South Florida attorneys do know is causing them some concern — namely that Acosta has never tried a case and has little experience in criminal law. “The word on the street is that he has no criminal law experience,” Tannebaum said. “I would like a U.S. attorney who has experience in criminal justice … who has some working knowledge of criminal justice."
If you know anything about him, please use the notes to fill us in (you can even be anonymous if you'd like).
Sunday, July 31, 2005
South Florida investor sues Nasdaq over $600,000 loss
Saturday, July 30, 2005
Response to Prof. Froomkin
For DeFede to have committed a felony under Fla. Stat. § 934.03, the State must prove beyond a reasonable doubt:
1. DeFede recorded Teele's calls, without Teele's consent.
2. DeFede did so for an illegal purpose or for commercial gain.
3. Teele had a reasonable expectation of privacy in the calls.
I don't believe the State can prove any of these elements.
First, there is no question that DeFede recorded Teele's calls, but how can the State prove that it was without Teele's consent? Perhaps when Teele started to deteriorate on the telephone, DeFede asked him if he could record the conversation. Who knows. In the typical case, the State would call the "victim" to the stand and ask whether the calls were recorded with his consent. Obviously (and unfortunately) that cannot happen in this case; the point is that the State has no way to prove lack of consent.
Second, DeFede did not record the calls for any illegal purpose or for any commercial gain. In fact, he immediately turned the tape over and explained that he recorded Teele because he was truly concerned for the man as he spoke with him throughout the day. Certainly speeding is illegal, but if the purpose of driving in excess of the speed limit was to get someone who just suffered a heart attack to the hospital, then would anyone seriously argue that you had committedd a crime? Here, DeFede panicked and hit record. The State will not be able to prove that he taped the call for some illegal purpose or for commercial gain.
Third, it would be difficult for the State to prove that Teele had a reasonable expectation of privacy in the calls. If Teele placed the call from a public place where others could hear what he was saying, then there is no question that he had no reasonable expectation of privacy. Again (and unfortunately) we just don't know and the State will be unable to satisfy its burden here. More importantly, Teele was talking to a reporter who had written about him for the past 15 years. It would be a stretch to say that he had an expectation of privacy in those calls.
In addition, DeFede could assert an affirmative defense that he was recording the calls in the ordinary course of business. For reasons Prof. Froomkin points out, this isn't the strongest of arguments, but there is some support for it. See here.
Whether DeFede committed a misdemeanor violation of the statute is less clear, but for many of the same reasons outlined above, the State will have a tough time going forward.
UPDATE -- Prof. Froomkin replies here.
Friday, July 29, 2005
Is DeFede a criminal?
Thursday, July 28, 2005
Journalists for DeFede
UPDATE -- According to this Herald report, DeFede met with the State Attorney's Office today. More from the Sun-Sentinel.
Salvador Magluta news
"If the government elects to dismiss count 8 instead of retry Magluta on that charge, or if a retrial on that count occurs and he is acquitted, the district court shall, at its discretion, either reimpose Magluta’s sentence but with a reduction of 120 months as a result of there being no conviction for count 8, or the court may resentence Magluta on all the other counts for which he remains convicted. If the government elects to retry Magluta on count 8 and he is re-convicted of that charge, the district court shall then re-sentence him on all the counts."
Disclosure: Milt Hirsch and I wrote about the 205 sentence here.
Wednesday, July 27, 2005
Arthur Teele commits suicide at Herald building
One reader notes that the "Miami New Times cover story, which appears in print Thursday but is online tonight here is about Teele and is quite explicit -- looks like he may have gotten a look at it."
On a personal note, I'm just sickened by this. It's an eye-opening reminder that targeting someone (either by the press or by the state or by the feds) has real consequences. I am not suggesting that anyone is to blame for Teele's actions. That said, I have wondered why the feds needed to prosecute Teele after he had been convicted in state court and after he had lost his job and his life. In the end, was it necessary? Even assuming that he committed a crime, there are times when our prosecutors should use discretion. It's easy, of course, to say now that this was one of those cases, but I still wonder why this man (after what he had already gone through) needed to be prosecuted. I'm sure this comment will draw criticism and I'm eager to read and respond to any comments.
UPDATE -- Herald columnist Jim DeFede has been fired for taping his calls with Teele. ''As Teele was becoming unglued [on the phone], I turned on a tape recorder because I could tell that he was distraught and bouncing off the walls,'' DeFede told more than a dozen staffers in the newsroom. "I made an illegal tape and the company decided to fire me.'' DeFede, who did not want to comment further, issued a prepared statement: ''In a tense situation I made a mistake,'' he said. "The Miami Herald executives only learned about it because I came to them and admitted it. "I told them I was willing to accept a suspension and apologize both to the newsroom and our readers. Unfortunately, The Herald decided on the death penalty instead.''
UPDATE 2 -- The Sun-Sentinel caught up with the now unemployed Jim DeFede. Read here.
Former federal prosecutors team up as lawyer/client
Herald reporter Jay Weaver reported in May that O'Connor failed to disclose on her judicial application that two of her employees had filed discrimination complaints against her when she worked for the U.S. Attorney's Office. O'Connor, who managed the U.S. attorney's Fort Lauderdale division, has denied that any ''formal complaints'' were lodged against her by fellow employees. ''Judge O'Connor wants the truth to come out,'' said Michael Tein. "If the JQC wants her file, she will give them everything she gets from the government.'' Read the whole article here.
Sunday, July 24, 2005
The new federal courthouse makes waves
According to this Miami Herald article, the lawn around the courthouse is "a work of art, a security buffer and a place to loll on the grass." Criminal defense lawyers have already started joking about the courthouse being in the shape of a ship (i.e., if your client gets convicted, you can tell him Bon Voyage). Now add the green waves... ''It's meant to be inviting to the public,'' said U.S. District Judge K. Michael Moore, who has helped oversee the courthouse project, scheduled for completion at year's end. ``I haven't actually sat on it yet, but the mounds are sculpted like back cushions.''
They say the courthouse is to open by the end of the year. Apparently, all the district judges will be moving in to the new courthouse, the magistrate judges will move into the tower building, the U.S. Attorney's Office will remain in the JLK building, and the folks in the Claude Pepper building will be filling in the old post office and the rest of the JLK. If aynone has more specifics about timing or space or anything else about the new courthouse, please post them in the comments.
Saturday, July 23, 2005
Joke charges, Reneau arrested, and Publix settles
There was also a significant arrest at MIA today. Steve Reneau, 46, was arrested Friday at the airport, said Barbara Gonzalez, a spokeswoman for the Bureau of Immigration and Customs Enforcement. Reneau was linked to the Andrew ``Papa'' Brown cocaine drug smuggling ring. Read about it at this Sun-Sentinel article.
In other SDFLA news -- after seven years, Publix Super Markets has put an end to a class-action lawsuit (in front of J. William M. Hoeveler) charging that the supermarket chain violated requirements of the Americans with Disabilities Act. Publix promised to improve disabled access at its 857 stores and pay up to $260,000 to settle a 7-year-old federal class-action lawsuit. William Charouhis represented the disabled plaintiffs, and Carol Lumpkin represented Publix. Read entire article here.
Friday, July 22, 2005
News and notes
1. USA v. Serge Edouard, a closely watched trial in front of Judge Moore, resulted in a guilty verdict. According to this Miami Herald article, "A federal jury in Miami convicted a powerful Haitian businessman Thursday of running a conspiracy to export tons of cocaine and pay hundreds of thousands of dollars in bribes to top security officials in the government of ousted President Jean-Bertrand Aristide. Serge Edouard, 43, reputedly one of Haiti's richest men, showed no emotion when the jury found him guilty of 11 counts of cocaine smuggling and money laundering. He could spend the rest of his life in prison." Representing the government, Lynn Kirkpatrick and Matt Axelrod.
2. The drunk pilots ended up with sentences of 5 years and 2 1/2 years. Read about it here. Although this case ended up in state court, it was in federal court for a bit, in front of Judge Seitz, before the 11th sent it back to state court. You can read about the federal proceedings here.
3. Roy Black's new legal reality TV show. The Daily Business Review covers it here (pass through link required).
Tuesday, July 19, 2005
Southern District snubbed
Justice Altonaga!
Monday, July 18, 2005
SDFLA news and notes
1. In today's Miami Herald: "Detention method defended; Prosecutors took a tough stand as two terrorism suspects held in federal detention in Miami asked a judge to address complaints of poor treatment by prison officials." Veteran lawyer Ken Swartz represents one of the defendants; prosecuting the case is another veteran, AUSA Russ Killinger. Judge Cooke is presiding.
2. Also, congrats to Mark Eiglarsh for his successful defense in a 3 week fraud trial in front of Judge Hurley.
Saturday, July 16, 2005
Southern District of Florida Blog on MSNBC?
UPDATE -- Well, someone pointed me to this transcript of Tucker Carlson's show, in which he mentions the op-ed on doing away with peremptories (the post has a number of interesting comments, most of which disagree with me). Here is the portion of the transcript:
TUCKER CARLSON: Anyway, David Oscar Markus writes . . . that race bias needs to be eliminated in jury selection—quote—“Any trial lawyer who says he does not consider race as a factor when selecting a jury is not telling the truth. The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice.” Boy, is that true. And this has been going on really since Edward Bennett Williams brought Joe Louis into the courtroom during the Jimmy Hoffa trial. And the problem with playing the race card is, it works.
Friday, July 15, 2005
Biggest case for this district?
3 months in prison for FEMA Fraud
Thursday, July 14, 2005
Art Teele charged in federal court
UPDATE -- Brian Tannebaum informs me that he just came back from Little Rock, Arkansas, where Teele's lawyer is in the 4th day of a 4 week trial. Anyone know if Teele's lawyer was notified?
FURTHER UPDATE -- Art teele has commited suicide. Read more here.
What would the 11th do?
Rehnquist Released from Hospital
UPDATE -- And he has silenced rumors about his departure, saying that he will stay as long as he is healthy. The best place to read up on this is the S. Ct. Nomination Blog, which has a number of interesting posts about it, including what it means for the President's nomination strategy. How Appealing always has the latest news.
Wednesday, July 13, 2005
The Chief is hospitalized
Tuesday, July 12, 2005
Strike Three?
Saturday, July 09, 2005
Shhhhh....
More short lists...
Friday, July 08, 2005
Judge Moreno makes a short list!
Wednesday, July 06, 2005
Race in jury selection
Posted on Wed, Jul. 06, 2005
JUSTICE
Eliminate race bias in jury selection
BY DAVID OSCAR MARKUS
dmarkus@markuslaw.com
Any trial lawyer who says that he does not consider race as a factor when selecting a jury is not telling the truth. And that includes prosecutors, who -- it has been repeatedly shown -- attempt to exclude minorities from juries.
The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice. Each side in both civil and criminal cases can strike a number of jurors from the panel for no reason. These strikes are called peremptory challenges. The idea behind allowing these sorts of strikes is that if the trial concerns, for example, a lawsuit over a dog bite, the lawyers should be permitted to strike a juror who has had a bad experience with a dog, even if that juror claims that she could be fair.
Peremptory challenges, however, have been used to strike jurors for a whole host of other impermissible reasons, like race, religion, gender and ethnicity. The Supreme Court has been struggling with how to keep race out of the jury selection process for many years.
Back in 1986, the Supreme Court in Batson vs. Kentucky prohibited lawyers from using race in their peremptory challenges. The court's decision in that case was nice as a matter of theory, but has failed miserably in practice. It is nearly impossible to show that a potential juror was stricken for a racial reason. Seasoned trial lawyers explain that they struck a juror for ''race-neutral'' reasons, such as the person gave a hostile look or seemed to have too much or too little knowledge of the subject matter, and so on.
Justice Thurgood Marshall -- the first African-American justice -- wrote a separate opinion in Batson, arguing that peremptory challenges always would be abused and that a just and fair system would abolish them altogether. The only way to ''end the racial discrimination that peremptories inject into the jury-selection process,'' he concluded, ''was to eliminate peremptory challenges entirely.'' No one paid Marshall much attention.
The issue of peremptory challenges again came to the Supreme Court's attention last month in Miller-El vs. Dretke, a death penalty case in which 19 of the 20 black potential jurors were stricken. Finding the prosecution's explanations for its strikes ''incredible,'' the court reversed the conviction, reaffirming the unworkable formula in Batson for determining when peremptory challenges were being used appropriately.
Justice Stephen Breyer, agreeing with the reversal, wrote separately to explain that Marshall had it right almost 20 years ago when he suggested that we do away with these challenges altogether. Breyer points out that lawyers are becoming more savvy in explaining away their juror strikes, going so far as to hire expensive jury consultants to help them base their strikes on the theory de jour regarding a particular group of people. Some jury consultants (as the ones used in the cases of Michael Jackson and Martha Stewart), it has been reported, command as high an hourly rate as the lawyers themselves.
Breyer and Marshall are right -- the only way to cut race out of the jury-selection equation is to do away with the peremptory challenge. To do this, judges need to allow lawyers to conduct a real inquiry into jurors' backgrounds so that jurors who would have obvious biases or problems judging a particular case can be excused for cause by the judge.
The Miller-El case demonstrates the high improbability of ever showing racial discrimination under the Batson formula. Despite the strength of his claim, Miller-El's challenge resulted in 17 years of largely unsuccessful and protracted litigation involving 23 judges, eight judicial proceedings and eight judicial opinions, the great majority of which found no Batson violation.
Amazingly, race still plays a major part in selecting juries. More amazing still is that we continue to ignore an easy solution to this problem. The time has come to do away with peremptory challenges and in so doing, to do away with racial prejudice in jury selection.
David Oscar Markus is a criminal defense lawyer in Miami.
**the picture in the Herald is of another David Markus in Miami! The Herald asked me for a picture, which I emailed. For some reason, this wasn't enough and they printed someone else's picture.... my parents were thrilled.
Justice Cantero??
Tuesday, July 05, 2005
Why can't we all just get along?
Monday, July 04, 2005
Supreme Southern District victories
Since we're on the topic of the Supreme Court, let's celebrate two huge Supreme Court victories from the Southern District of Florida.
Paul Rashkind and the Federal Defender's Office for the Southern District of Florida won big in Gonzalez v. Crosby. This was an important issue to habeas practicioners and defendants around the country. Justice Scalia framed the issue this way: "The question presented is whether, in a habeas case, [Rule 60(b)] motions are subject to the additional restrictions that apply to second or successive habeas corpus petitions under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) codified at 28 U. S. C. §2244(b)." Reversing the 11th Circuit, the Court answered the question in the negative. Here is the Court's opinion, Justice Breyer's concurring opinion and the dissenting opinion written by Justice Stevens. Big win for Rashkind and Richard Klugh.
Eugene Stearns of Stearns Weaver Miller in Exxon v. Allapattah Services. Stearns represents a class of Exxon dealers suing Exxon in litigation that has lasted well over a decade. The stakes were quite high as the jury verdict will mean over a billion dollars for the class. The issue was whether a federal court in a diversity action may exercise supplemental jurisdiction over additional plaintiffs whose claims do not satisfy the minimum amount-in-controversy requirement, provided the claims are part of the same case or controversy as the claims of plaintiffs who do allege a sufficient amount in controversy. Civil procedure nerds and class action lawyers have been waiting for this opinion for a long time. In an opinion written by Justice Kennedy, the Court ruled that, if one party satisfies the minimum jurisdictional amount, the claims of others in the case may be decided even if those are for less than $75,000. Here is the Court's opinion, Justice Ginsburg's dissenting opinion and the dissenting opinion written by Justice Stevens. Exxon hired Supreme Court litigators in Washington DC to combat Stearns and co. It didn't pay off. Congrats to Gene Stearns and the Allapattah team (Mark Dikeman and Mona Markus and countless others).
Some disclosures: I was the counsel of record for the NACDL's amicus brief which was principally written by Professors Aya Gruber and Howard Wasserman in Crosby and my wife is on the Allapattah team.
Sunday, July 03, 2005
Saturday, July 02, 2005
Appoint a Floridian
Appoint a Floridian
BY DAVID OSCAR MARKUS
http://www.markuslaw.com
The nine justices on the U.S. Supreme Court have served together longer than any other nine justices in recent history.
Nevertheless, President Bush may have the opportunity to appoint up to four justices to the court during his second term. Speculation has been increasing ever since Chief Justice William Rehnquist was diagnosed with thyroid cancer, requiring him to work from home and to participate only on a limited basis. The pundits have also pointed to Justices John Paul Stevens, Sandra Day O'Connor and Ruth Ginsburg as potential retirees.
There has been a great deal of discussion about whom Bush should appoint. But perhaps an equally important question is where this jurist should come from. Florida is the best choice.
No Floridian has ever been appointed to the Supreme Court. True, 18 other states are also unrepresented, but Florida's population is more than three times the size of the next largest of the 18, Wisconsin.
The current court is made up of justices from Arizona (Rehnquist and O'Connor), Illinois (Stevens), New York (Ginsburg), Massachusetts (Stephen Breyer), California (Anthony Kennedy), Georgia (Clarence Thomas), Virginia (Antonin Scalia) and New Hampshire (David Souter). Certainly there is a place for a Floridian. Consider the fact that we have produced some of the major cases to go before the court (Bush vs. Gore) and that we have more than 75,000 lawyers and judges to choose from. Only California (55), New York (31) and Texas (34) have more electoral votes than Florida (27).
In 1978, William J. Daniels attempted to discuss why the 19 states were not represented on the court, saying: ``The 19 states which have not yet had a person appointed to the court have tended to be the least populated of their region.''
O'Connor tried to explain it this way: ''The Supreme Court and other appellate courts benefit by having judges from diverse backgrounds and experiences.'' Unfortunately, ``there are fewer people of rural backgrounds to go around, on the bench or elsewhere.''
With all due respect to Idaho and the Dakotas, Florida seems to have bucked the rural label quite some time ago. And as for diversity, there is no more diverse state than Florida.
Back in 1978, Daniels concluded by saying, ``One can reasonably expect that presidents will continue to be concerned with the geographic factor, and that officials from the as yet unrepresented states will continue to call attention to their status when vacancies occur on the court.''
So here's an issue that all Floridians -- Republican, Democrat or independent -- can support: The next Supreme Court justice should come from our great state.
David Markus is a Miami criminal trial and appellate attorney at David Oscar Markus PLLC.