Kevin Newsom confirmed to 11th Circuit

Congrats to my law school classmate Kevin Newsom on being confirmed to the 11th Circuit. The vote was 66-31, which is pretty incredible in this environment. He's very smart and well-qualified.

19 Justices?

19 Justices?  That's what Judge Posner is calling for:

"Mediocre and highly politicized," was the opinion the 78-year-old jurist gave of the justices who sit in D.C. during a recent talk at the University of Chicago.

"We have a very crappy judicial system."

Posner — the most highly cited legal scholar of the 20th century, according to the Journal of Legal Studies — repeated his complaint that politicians are more concerned with appointing "tokens" such as women or Hispanic justices, and with would-be justices' politics than they are with merit.

"If you had 19 members you would inevitably have more diversity," he told Prof. Luigi Zingales during the talk. Posner, who was appointed by President Ronald Reagan, said no president since Herbert Hoover has appointed a Supreme Court justice who "was not in either his personal or his political interest."

"The modern presidents don't think that way, but if the Supreme Court was much larger, they might say, 'Well, OK ... we have 19 justices, 12 of them are highly politicized, but we have these extra 7 seats, so we'll appoint them on the basis of quality,' and that would make a big difference."

Meantime, President Trump may be losing at a bunch of things, but he is winning on judges:

The White House has announced more than two dozen lower court nominees to date, and the Senate Judiciary Committee has been holding hearings and sending nominees to the full Senate for a vote at a regular clip.

Just Monday, after the news broke that White House communications director Anthony Scaramucci was ousted on the 11th day of his tenure, the Senate took a key procedural vote on a federal appeals court nominee out of Alabama, Kevin Newsom. On July 20 — as the White House dealt with fallout from an interview published the night before in which President Trump criticized Attorney General Jeff Sessions — the Senate confirmed Kentucky lawyer John Bush to the US Court of Appeals for the Sixth Circuit, notwithstanding a coordinated, well-funded opposition campaign by groups on the left.

“It’s just been a win on all fronts,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, which supports conservative court nominees.

The administration’s success with judges is about more than the fact that Republicans control the Senate. Lower courts remain mostly of regional interest, despite the fact that federal judges have lifetime tenure and issue rulings that can affect the entire country. Senators defer to their colleagues’ preferred local picks. There is little incentive to interfere, even if, as was true with John Bush, Republicans have concerns about a nominee’s record.

There’s also the fact that Republicans historically have been more organized on judges than Democrats, said David Fontana, a professor at George Washington University Law School who follows judicial nominations. There are numerous interest groups and political factions around issues like health care, he said, but there is a tight-knit community of conservative lawyers who foster and promote court nominees during Republican administrations.

Criminal Complaint against Imran Awan

Read the criminal complaint against Imran Awan here.  This is Debbie Wasserman Schultz's former aide, who  is charged with bank fraud.  The complaint is pretty vanilla -- he is accused of saying a rental property as a primary residence to get a loan.  Many are speculating that this case is just a place-holder for a bigger (and more sexy) case to follow. 

"Little’s logic lacks luster."

"Little’s logic lacks luster."  We see you, Chief Judge Carnes.  We see you.

Magistrate Judge Selection Panel

There is a new Magistrate Judge Selection Panel, to make a recommendation as to reappointment of Magistrate Judge Jonathan Goodman and the upcoming vacancy due to the retirement of Magistrate Judge William Turnoff.  Here is the committee:

Chair: Thomas E. Scott, Jr., Esq.
Members: Jerry Blair (non-attorney)
Raoul Cantero, III, Esq.
Laura Maria González-Marqués, Esq.
Markenzy Lapointe, Esq.
Tiffani Lee, Esq.
Abigail Price-Williams, Esq.
Nikki Lewis Simon, Esq.
H. T. Smith, Esq.
Rodolfo Sorondo, Esq.
Ryan Stumphauzer, Esq.
Dr. Jose Szapocznik (non-attorney)

Two wonderful magistrates.  Judge Turnoff will be missed... more on that to follow.

Mary Barzee Flores is running for Congress

Mary Barzee Flores is running for Congress. Ileana's seat. Mary is a former federal defender and was nominated by Obama to be a federal district judge. But Marco Rubio blocked her by not signing the blue slip. So she is fighting back. From her email this morning:

After a few years serving clients in private practice, I again answered the call to public service when President Obama nominated me to serve as a Federal District Court Judge for the Southern District of Florida. Although I enjoyed strong support from Democrats and Republicans, Senator Marco Rubio blocked my nomination. He complained about my support of progressive organizations like the ACLU and EMILY’s List.
Marco Rubio disagrees with my political views. I disagree with his.
So I can understand why Marco Rubio would not want me on the federal bench. He won’t want me in Congress either.
Petty partisan politics prevented me -- like Judge Merrick Garland and so many other Obama federal court nominees -- from fulfilling President Obama's call to public service. But I’m persistent and I don’t give up easily. I remain committed to serving this community and this country.

News & Notes

1. Richard Strafer's memorial service will be held on August 6 at 10am at Kendall Mt. Nebo, 5900 SW 77th Avenue. Miami, FL 33143.

2. We filed an emergency petition in the Supreme Court for former Panamanian President Ricardo Martinelli. Jay Weaver covers it here:

Attorneys for former Panamanian President Ricardo Martinelli, who is being detained in Miami on an extradition request to his homeland, filed an emergency petition with the U.S. Supreme Court on Monday that asserts his constitutional rights have been violated because his bid for bond was denied.

Martinelli’s legal team argued that federal courts nationwide have “misconstrued” a 114-year-old Supreme Court decision “as having erected a heavy presumption against bail in such [extradition] cases.”

“The belief that [this decision] imposed an unlawful presumption has prevailed [in extradition cases] for so long that it is now binding across the country,” Miami attorneys David O. Markus and Ricardo Bascuas wrote in Martinelli’s emergency petition for a writ of habeas corpus. “Only this court can resolve the confusion at this point.”

Markus and Bascuas, who were added to Martinelli’s legal team led by attorney Marcos Jimenez, said the U.S. Supreme Court was the former president’s only recourse because bond denials cannot be appealed in extradition cases in the federal district or appeals courts.

3. David Lat is blogging about Katherine Magbanua's case. Magbanua is represented by Chris DeCoste and Tara Kawass. Full disclosure, we represent Charlie Adelson.

4.  SCOTUS protestors get a taste of jail.  Via WP:

Five protesters who disrupted a session of the U.S. Supreme Court by shouting disapproval of its rulings on campaign finance law were sentenced to one or two weekends in prison Monday after losing a bid to overturn a 1949 law restricting public protest at the court.

U.S. prosecutors had asked U.S. District Judge Christopher R. “Casey” Cooper in Washington to order 10-day jail sentences for the defendants, members of an organization called 99Rise. They had stood and spoken one-by-one just after the court was gaveled into session April 1, 2015, about a year after the justices had struck down overall limits on campaign contributions.

RIP Richard Strafer

RIP Richard Strafer.

What a tragedy. Richard was a friend. A really great guy. Brilliant lawyer. He could spot a great issue and crank out a 50-page perfect brief faster than anyone I knew. Here's the DBR obit:

Miami criminal appellate lawyer G. Richard Strafer died Friday after contracting a mystery infection on a European cruise and letting his colleagues know before going into a coma in Britain. He was 66.

Strafer was known for his compelling appellate writing, including a 2012 petition that persuaded the U.S. Supreme Court to hear arguments in the Kaley v. United States on the constitutionality of pretrial asset freezes. The court later found them legal.

Strafer had his own firm for many years and last summer became of counsel at Black, Srebnick, Kornspan & Stumpf.

"He is one of the finest legal writers in this country," Black Srebnick senior partner Roy Black said while Strafer was hospitalized. "He has a brilliant and incisive mind and understands and resolves thorny legal problems better than anyone I know."

Strafer fell ill last month after contracting an infection on a Viking Cruises trip during a vacation with his husband, Jon Rick. Strafer was quarantined in his cabin, given antibiotics by the ship's doctor and taken to a hospital after the cruise ended.

At the hospital outside London, Strafer suffered cardiac arrest. That night, colleagues said his medical records show the hospital staff removed him from oxygen for nearly 10 minutes, and he lapsed into a vegetative state shortly afterward around June 22.

About a week later, he was flown to Baptist Hospital in Miami, where he was visited by his husband, 26-year-old daughter Jordan, friends, colleagues and his two dogs. Strafer trained the dogs as therapy pets so they could cheer up hospital patients, particularly children. In his final days, the dogs were allowed to climb onto his hospital bed and snuggle in his arms.

Under conditions of his living will, Strafer was removed from life support Monday. The source of the infection has not been determined.

And here is the Herald obit:

Richard Strafer, a brilliant, behind-the-scenes appellate lawyer at the marquee criminal-defense firm in Miami, has been a fanatical runner and bicyclist for years. He competed in two World Championship Duathlons, finishing eighth in his age group in Spain in 2011 and 22nd in Hungary in 2007.

So when he set off on a leisurely European cruise in early June, his colleagues and friends thought it was a tad ironic.

Days after departing from Stockholm, Sweden, on a cruise to Norway, the 66-year-old Strafer caught a chest cold. It soon flared up to a 104-degree fever and pneumonia.

By mid-June, when the ship sailed into Greenwich, England, Strafer had already been under medical supervision for the latter half of the cruise. After being transferred to an English hospital, doctors gave him antibiotics for a worsening lung infection that they could not diagnose, but the medication proved ineffective. As his lungs deteriorated, Strafer went into cardiac arrest that cut off oxygen to his brain. Within a week, he slipped into a coma.

Strafer, considered to possess one of the sharpest legal minds in South Florida, never awoke from it. After being flown in a private air ambulance to Miami in early July, he was taken to Baptist Hospital, where a stream of family and friends visited his bedside. Baptist doctors concluded his coma was irreversible.

***

“Everyone is heartbroken,” said attorney Scott Kornspan, managing partner of Black, Srebnick, Kornspan & Stumpf, where Strafer worked for more than 15 years. “How does this happen on a cruise line to a perfectly healthy man? We're all in shock and dumbfounded about what happened.”

Kornspan said he communicated with Strafer on June 17 just after he was transferred from the Viking Cruises ship to the English hospital. Strafer expressed alarm over his prognosis after doctors immediately told him in the hospital’s ICU that if he had arrived three hours later he would have died. They also told him that because of the seriousness of his condition, he should contact next of kin and a spiritual adviser.

#SeersuckerDay at the USSC meeting

#SeersuckerDay at the USSC meeting in DC. That's Judge Bill Pryor and Judge Charles Breyer.

Judges Pryor and Breyer start new USSC tradition! #SeersuckerDay pic.twitter.com/GY2Xte4TzS

— SentencingCommission (@TheUSSCgov) July 19, 2017

Judge Rosenbaum starts her opinion with a GoT quote

Judge Rosenbaum starts her opinion with a Game of Thrones quote.  And it's Tyrion Lannister, Hand of Daenerys Targaryen.  Looks like she was watching the premier with the rest of us on Sunday night.  Here's the intro:

“A wise man once said a true history of the world is a history of great conversations in elegant rooms.”1 Whether or not that may be accurate, a true history of the United States would be incomplete without a history of great political conversations, wherever they might have occurred. And great political conversations could not exist in the absence of the First Amendment. So the First Amendment generally prohibits government retaliation against a person for exercising his rights to free speech and association, including supporting the political party and candidates of his choice.

1. Tyrion Lannister, speaking of himself. “Oathbreaker,” Game of Thrones (2016), as quoted by http://m.imdb.com/title/tt4131606/quotes?item=qt2914807 (last visited June 20, 2017).

Judge Jordan concurs.  Instead of recent pop culture, he cites Shakespeare:

If a jury were to find that Chief Gomez did not have the City Manager’s blessing, then maybe everything that took place after the delivery of the letter to Mr. Rodriguez was just “sound and fury, [s]ignifying nothing.” William Shakespeare, The Tragedy of McBeth, Act V, scene 5 (1606).

SDFLA Summer

1. The SDFLA is pretty quiet right now.  There's a 4-5 trial nearing its end in front of Judge Gayles for the interns who want to see some good lawyering.  

2. Former SDFLA AUSA Michael Brown has been nominated to the district bench in the NDFLA.  Brown is a good guy, who currently works at Alston & Bird:

It's been a good month for Alston & Bird partner Michael L. Brown.
President Donald Trump nominated Brown July 13 to fill a long-vacant post on the federal court bench in the Northern District of Georgia. Brown's nomination came only 23 days after he and his New York law partner secured the acquittal of a bond trader in a federal trial in Connecticut closely watched by Wall Street.
Brown—a former federal prosecutor and co-leader of Alston's government and internal investigations practice—teamed up with Alston New York partner Brett Jaffe in a successful defense of Tyler Peters, a former vice president at international broker-dealer Nomura Securities International Co.
The jury convicted only one of Peters' co-defendants in the securities fraud conspiracy and gave Brown's client a clean sweep after the Alston team presented Peters as a junior trader who was simply doing what he had been trained by his supervisor to do and who did not know that the misstatements the traders made when making securities sales were illegal.
The court record included scrappy—and lengthy—letters Brown wrote to the judge on the defense team's behalf flatly accusing federal prosecutors of misconduct. The at times pugnacious letters were indicative of Brown's style. He is not afraid of a legal brawl.
"Mike is a great lawyer," said Atlanta attorney Page Pate, who has known Brown since the two were first-year law students at the University of Georgia. "If he is representing the government, he's going to be a hard-ass for the government. If he's representing a client, he's going to fight like hell for his client. He is one of a select group of people who can literally go either way."

3. This is a pretty funny tweet for you GoT fans:

The R+L=J Theory is SO last season... #GameOfThrones  #GoTS7 pic.twitter.com/t3dkAeo5h3

— DavidCaspi (@DavidCaspi) July 17, 2017

Judge Milton Hirsch's Constitutional Calendar

If you haven't subscribed to Judge Milton Hirsch's Constitutional Calendar, you should. To subscribe, send an email to is Milton-Hirsch-constitutionl-calendar+subscribe@googlegroups.com.

[UPDATE -- I had the unsubscribe email up earlier. Sorry about that, but it is fixed now.]

Here is today's entry:

On July 18, 1949, Jackie Robinson, the first African-American to play major league baseball in the modern era, appeared before the House Un-American Activities Committee. Robinson was not suspected of being a communist or “fellow traveler.” But communists at home and abroad were in the habit of making much of the hypocrisy of an America that preached democracy and equality, but practiced Jim Crow. HUAC wanted assurances that the American black community was not tempted by communist blandishments.

Robinson began his testimony with a brief statement. (This was a good sign. Many witnesses were denied the privilege of making any statement before answering questions.) It included the following:

"I have had a great many messages come to me, by wire, phone and letter, urging me not to show up at this hearing. And I ought to make it plain that not all of this urging came from Communist sympathizers. Of course most of it did. But some came from people for whom I have a lot of respect and who are just as opposed to Communist methods as I am.

"And so it isn’t pleasant for me to find myself in the middle of a public argument that has nothing to do with the standing of the Brooklyn Dodgers in the pennant race – or even the pay raise I am going to ask Mr. Branch Rickey for next year!

"So you’ll naturally ask, why did I stick my neck out by agreeing to be present and why did I stand by my agreement in spite of the advice to the contrary."

Robinson went on to assure the committee members that the African-American community would not be seduced by the communist sales-pitch. Apparently the committee was satisfied. Robinson never heard from them again.

New JNC members announced

Here's the list of new JNC members for the Southern District of Florida (h/t Celia Ampel):

The Southern District JNC members are:

• Chair Manny Kadre, chairman and CEO, MBB Auto LLC, Coral Gables

• Georgina Angones, assistant dean of law development and alumni relations, University of Miami School of Law, Coral Gables

• Ellyn Bogdanoff, shareholder, Becker & Poliakoff, Fort Lauderdale

• Reginald Clyne, partner, Quintairos, Prieto, Wood & Boyer, Miami

• Kendall Coffey, partner, Coffey Burlington, Miami

• Vivian de las Cuevas-Diaz, partner, Holland & Knight, Miami

• Renier Diaz de la Portilla, solo practitioner and mediator, Renier Diaz de la Portilla P.A., Miami

• Albert Dotson Jr., partner, Bilzin Sumberg, Miami

• Peter Feaman, president, Peter M. Feaman P.A., Boynton Beach

• Robert Fernandez, partner, Zumpano Castro, Coral Gables

• Daniel Foodman, partner, WNF Law, Miami

• Philip Freidin, partner, Freidin Brown, Miami

• Carey Goodman, mediator, Cudjoe Key

• Anat Hakim, general counsel, WellCare, Tampa

• Jillian Hasner, president and CEO, Take Stock in Children, Miami

• Marilyn Holifield, partner, Holland & Knight, Miami

• Eduardo Lacasa, chief operations officer, Chrysalis Health, Fort Lauderdale

• Ira Leesfield, partner, Leesfield Scolaro, Miami

• Dexter Lehtinen, partner, LSRCF Law, Miami

• David Leibowitz, general counsel, Braman Management Association, Miami

• Richard Lydecker, founding partner, Lydecker Diaz, Miami

• Debbie Maken, author and attorney licensed in Mississippi, West Palm Beach

• Tom Mersch, partner, Kelley Kronenberg, Fort Lauderdale

• Carlos Nunez, partner, WNF Law, Miami

• Thomas Panza, senior partner, Panza, Maurer & Maynard, Fort Lauderdale

• Edward Pozzuoli, president, Tripp Scott, Fort Lauderdale

• David Prather, partner, Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, West Palm Beach

• Dennis Richard, partner, Richard & Richard, Miami

• Robert Rigal, CEO, Echelon Medical Capital, Boca Raton

• Jon Sale, of counsel, Broad and Cassel, Miami

• Christian Searcy, president and CEO, Searcy Denney Scarola Barnhart & Shipley, West Palm Beach

• Harley Tropin, president, Kozyak Tropin & Throckmorton, Coral Gables

• Joanne Urquiola, Joanne R. Urquiola P.A., Miami

• Steve Waserstein, partner, WNF Law, Miami

• Stephen Zack, partner, Boies Schiller Flexner, Miami

Judge Frank Hull to take senior status

Zoe Tillman reports that Judge Frank Hull is taking senior status:

Two new upcoming vacancies: 11th Circuit Judge Frank Hull (HT @cardinals150) and SDNY Judge Kevin Castel, per federal judiciary

— Zoe Tillman (@ZoeTillman) July 12, 2017

This is big news as she is probably the most conservative judge on the Court as it relates to criminal justice issues, even though she is a Clinton appointee.

Plea bargaining and tattoos

Plea bargaining and tattoos.

Chief Judge Ed Carnes starts an opinion about plea bargaining this way, comparing the process to tattoos:

In negotiating a plea bargain both sides aim for the best terms they can get, placing bets on what the future will hold. The problem is that the future and certainty are strangers and not everyone wins a wager. Sometimes a deal, like a tattoo, does not age well and what appeared to be attractive in the past seems unattractive in the future. But plea agreements, like most tattoos, are written in permanent ink and cannot be redrawn just because one party suffers from the plea bargain form of buyer’s remorse. This case is here because two defendants convinced the district court, over the government’s objections, to take up the judicial pen and redraw their freely entered plea agreements whose ink had been dry for nearly a decade.

Still no cameras in the Supreme Court

You can film the cops on the street, but you can't watch a Supreme Court argument.  Something is wrong there.  The 3rd Circuit ruled last week that you have a constitutional right to record the police on the street.  From the AP:

A federal appeals court in Philadelphia has joined five other circuits in finding that citizens have a First Amendment right to videotape police in public.

The U.S. 3rd Circuit on Friday joined what it called the "growing consensus" that the public can photograph or record police without retaliation.

U.S. Judge Thomas L. Ambro stressed that the U.S. Constitution grants citizens the right to "information about how our public servants operate in public."

He acknowledged the pressure faced by police but said bystander recordings since at least the Rodney King beating by Los Angeles police in 1991 have both "exposed police misconduct and exonerated officers from errant charges." Such recordings, he said, provide different perspectives than the images captured by police dashboard and body cameras.

Cellphone recordings in the years since King's violent arrest was videotaped by a bystander have repeatedly captured shootings of motorists, suspects and others by police, fueling a national conversation around policing and minority communities, activists say.

"There's just no question in 2017 that the right to record the police is part of the liberty protected by the First Amendment, even more so now that smartphones are as ubiquitous as they are," said Molly Tack-Hooper, a staff attorney with the American Civil Liberties Union of Pennsylvania who argued the case. "A huge percentage of the country walks around with technology in their pocket that enables them to deter police misconduct by merely holding up a smartphone ... and distributing those recordings at the touch of a button."

Each federal appeals court that has weighed the issue has found it unconstitutional for police to interfere with such public recordings, Ambro said. The technology allows bystanders to complement traditional press accounts of how police use their power, he said.

Supreme Court Justices are public servants as well. We should get a chance to see how they operate in court.

Should judges be able to reject plea deals?

Should judges be able to reject plea deals?  That's the question raised in this case where "a federal judge in West Virginia has rejected a plea deal for a man accused of dealing heroin and fentanyl, arguing that 'the secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.'" From the Washington Post:

In his 28-page ruling, the district judge for the southern district of West Virginia, Joseph R. Goodwin, notes the severity of the opiate epidemic in West Virginia, calling the state “ground zero” in a crisis that amounts to “a cancer that has grown and metastasized in the body politic of the United States.”

He argues that given this context, “the bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.”

The judge makes a compelling case about needing more trials:

Plea bargains have become so widespread in part because of a perception that they place a lighter load on an overburdened criminal justice system.

But Goodwin argues that this perception is outdated. The judge draws on federal data sources to illustrate that federal criminal trials have fallen precipitously even as the number of U.S. attorneys has grown dramatically.

“In [fiscal year] 1973,” he writes, “each federal prosecutor handled over eight criminal trials on average. By [fiscal year] 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.”

Even though the system desperately needs more trials, it strikes me as wrong and dangerous to reject plea deals on an individual basis to accomplish this goal.  Rejecting plea deals on an individual basis will unfairly harm particular defendants, especially if that defendant will get a higher sentence should he lose the trial.

So, I think there are lots of ways judges can accomplish more trials.  For example, give more variances after trial.  Explain to defendants that there will not be a trial tax for going to trial.  Hold prosecutors' feet to the fire for discovery and other violations so that they don't think that they can get away with everything.  Enforce violations by excluding evidence.  Appellate courts need to have a more limited view of harmless error in the few cases that do go to trial.  There's a lot more to be said here.

Yes, more trials, but not this way.

Happy 12th Birthday to the Southern District of Florida Blog

Happy 12th Birthday to the Southern District of Florida Blog!

Twelve years ago in 2005, on the July 4 weekend, I started this blog and it's been a fun run of over 3,200 posts and over 5 million page views.

To put the 12 years in perspective:

The Wilkie Ferguson courthouse was not yet open.
Judge Zloch was Chief Judge of the District.
Mel Martinez was one of our Senators.
Alex Acosta had just been named Acting U.S. Attorney.
The Supreme Court had five different Justices than today: Rehnquist, Scalia, Stevens, Souter and O'Connor.
There was no Twitter.
My firm had one lawyer, me (it now has 5).
I had one daughter (I now have 3).
My commute was 20 minutes (it's now 45).
We still don't have a Floridian serving on the Supreme Court, which was the very first post!

Thanks again to all of you for reading and for the tips.  I still very much enjoy keeping tabs on the most interesting and exciting District in the country.

Top anticorruption prosecutor in Colombia arrested for ...

The top anticorruption prosecutor in Colombia was arrested for ...

you guessed it, corruption.

And of course there is Miami connection.  From the NY Times:

Colombia’s top anticorruption prosecutor was arrested Tuesday in his country’s capital after Drug Enforcement Administration agents in Miami said they had recorded him in South Florida at meetings where a former Colombian governor was asked to pay bribes in exchange for favorable treatment and names of witnesses.

The arrest is a blow to Colombia’s president, Juan Manuel Santos, whose conservative critics have accused his administration of mismanagement. In April, more than 10,000 people took to the streets to protest what many say is widespread graft.

The prosecutor ensnared in the latest case, Luis Gustavo Moreno Rivera, 35, is the director of the anticorruption unit of the attorney general’s office in Colombia. Mr. Moreno was under scrutiny by federal investigators in the United States because of accusations that he planned to seek a bribe from a criminal defendant while in Miami this month to deliver an anticorruption presentation to the Internal Revenue Service.

“With indignation and profound institutional pain,” the Colombian attorney general’s office said Tuesday, Mr. Moreno was held after Interpol issued a red notice “for conduct that seriously damages our institutional integrity.”

Meet your newest Magistrate Judge

Congrats to Shaniek Maynard, who was sworn in this week as our newest Magistrate Judge.  She will be stationed in Ft. Pierce.

(The blog first reported on the District's choice back in March).

Last day of the Term

This is a really funny note from Justice Rehnquist to Justice Marshall, expressing end-of-school-itis.  Today is the last day of the Term, and you can get all of your news at SCOTUSblog.

Funny Things Happen At Trial

Last week, the Supreme Court gave permanent resident Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, leading to Lee's deportation.  The twist here is that Lee's chances to win at trial were almost nil and therefore, he would get deported anyway.  So can a lawyer be ineffective for telling a defendant to plead guilty where the proof of guilt is overwhelming?

Chief Justice John Roberts, in his opinion for the court, said yes and explained that pleading guilty was a certain deportation and going to trial was an "almost" certain deportation.  Had Lee known this, he would have opted for trial even in the face of overwhelming odds.  I particularly liked NACDL's* amicus (available here), which explains that "funny things happen" at trial:

For all types of litigants, “there is no such thing as a sure winner . . . at trial” and “juries are inherently unpredictable.” Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 739–40 (N.D. Ill. 2014). Taking a case to trial may be more than just a “Hail Mary.” See Pet’r Br. at 30. Instead, it is a key part of criminal procedure that has nothing to do with “whimsy” or “caprice,” and everything to do with putting the government to its proof. Strickland v. Washington, 466 U.S. 668, 695 (1984).
Funny things happen on the way to, and at, the forum.12 The annals of criminal law are replete with unexpected developments and shocking results in the courtroom. A variety of factors influence a jury ver- dict, or a non-verdict. Trial practices affect trial out- comes. For example, juror note taking practices, the jury’s ability to ask the witnesses questions, the jury’s opportunity to discuss evidence before delibera- tion, jury instructions, juror sequestration, and the length of the deliberations may affect the outcome of a trial. Paula L. Hannaford-Agor, When all eyes are watching: Trial characteristics and practices in noto- rious trials, 91 Judicature 197, 200 (2008). Mr. Lee may reasonably weigh these factors, as well as those that affect a hung jury, against accepting his plea bargain. See Paula Hannaford-Agor et al., Why Do Hung Juries Hang? 251 Nat’l Inst. Justice J. 25, 26– 27 (July 2004). Many factors influence a hung jury, separate from jury nullification—the quality of the evidence, the degree to which jurors believe that the law they are instructed to apply is fair, and the jury deliberation process. Id. For example, a survey in the early 2000s revealed “39 percent of potential white jurors and 50 percent of potential black jurors would be ’very willing’ or ‘mostly willing’ to acquit, despite evidence of guilt, in a first-time, nonviolent drug pos- session case.” DeBartolo, 790 F.3d at 779 (citing Lawrence D. Bobo and Victor Thompson, “Racialized Mass Incarceration: Poverty, Prejudice, and Punishment,” in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010) (Fig. 12.9)).
 

*Full disclosure -- I am on NACDL's Supreme Court amicus committee, but did not participate in this brief.

Implicit Bias

One of the dirty little secrets of the criminal justice system is implicit bias.  This article by the Marshall Project shows what one district court is doing about the problem:

There’s something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named “Jury Lounge.” But in one federal district, the customary civics lessons for jurors have been given a twist to alert them to the hidden biases they might bring into the courtroom.
The source is a 10-minute video — believed to be the first of its kind — that since March has been shown to every prospective juror in the two federal courthouses, in Seattle and Tacoma, that serve the U.S. District Court for the Western District of Washington.
The video — which cost the court $15,000 to make — complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district’s U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffrey Robinson, an attorney for the American Civil Liberties Union who started his career as a criminal defense lawyer.
“You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam,” Robinson says in the video, describing examples of conscious — or explicit — bias. “Today, though,” he says, speaking slowly and looking directly into the camera, “I want to talk to you about unconscious bias: something we all have, simply because we’re human.”

Here's the video:



Will our District employ such a video?

Judge Milton Hirsch's Constitutional Calendar has this entry today:

On June 22, 1933, in the Limestone County, Alabama, Courthouse, Judge James Edwin Horton did one of the bravest and most principled things a judge can do.

Judge Horton had presided over the trial of Haywood Patterson, one of the "Scottsboro Boys." Patterson was a young black man charged in connection with the rape of two white women; and although it was perfectly obvious that there was no real evidence against him, he had been convicted with a recommendation for death. Horton had been cautioned by an emissary from the state capitol that if he were to grant the defense motion to set aside the verdict and order a new trial, there would be no chance of his being re-elected. "What does that have to do with the case?" he replied.

On that warm day in June, Judge Horton read aloud in open court every word of his order. It took over an hour. The defense motions were granted.

As he knew he would be, Horton was defeated overwhelmingly in 1934, and never served as a judge again. Haywood Patterson was re-tried in a case presided over by Judge William Callahan, who instructed the jury, inter alia, that if there was evidence of intercourse between a white woman and a black man, the intercourse was presumed as a matter of law to be rape.

If you'd like to be added to Judge Hirsch's email list, contact him at milton.hirsch@gmail.com

Senior Judge Roger Vinson order cross removed from park

Senior Judge Roger Vinson has this interesting and sure-to-be-challenged order removing a cross from a Northern Florida park:

A cross that has stood in Bayview Park for the last 48 years must be removed within 30 days, a federal judge has ruled.
U.S. District Court Judge Roger Vinson ruled Monday that the cross in the city park violates the Establishment Clause of the Constitution and must be removed within 30 days.
The American Humanist Association, a group that works to protect the rights of humanists, atheists and other non-religious Americans, and the Freedom From Religion Foundation filed a lawsuit in 2016 on behalf of four Escambia County residents who said the cross at Bayview Park violated the separation of church and state.
Attorneys for the city of Pensacola and the American Humanist Association presented their oral arguments to Vinson on Wednesday.
Vernon Stewart, spokesman for the city of Pensacola, said on Monday that the city had received a copy of the order.
"We are currently in the process of reviewing this with our legal counsel," Stewart said. "However, Mayor Hayward is traveling, and he will be the one to ultimately decide how to proceed."
Monica Miller, senior counsel with the American Humanist Association's Appignani Humanist Legal Center, said in a press release that she was pleased with court's ruling.
"The cross was totally unavoidable to park patrons, and to have citizens foot the bill for such a religious symbol is both unfair and unconstitutional,” Miller said.

The Bayview Park Cross is the subject of a lawsuit over religious freedom. The American Humanist Association and the city of Pensacola gave oral arguments Wednesday in federal court in Pensacola. (Photo: Tony Giberson/tgiberson@pnj.com)

Should there be a retrial in Cosby?

Many have been asking why the Double Jeopardy Clause of our Constitution doesn't prohibit a retrial of Bill Cosby after his hung jury.  Although the Supreme Court decided this issue back in the early 1800s and said that Double Jeopardy doesn't kick in when there is "manifest necessity" for a mistrial (and generally hung juries constitute "manifest necessity"), perhaps it is time to revisit this issue as citizens should simply not be forced to fight the Government more than once on the same facts:

“The underlying idea . . . is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187–188 (1957).

 If the Government cannot prove its case beyond a reasonable doubt at a trial, that should be it: “A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial.” United States v. Jorn, 400 U. S. 470, 479 (1971) (Harlan, J., plurality opinion).

Justice Stevens (in his dissent in Renico v. Leit) pointed out the lengths that judges at common law would push juries to reach a verdict because the thought of a second trial because of a hung jury was too much (cleaned up without footnotes):

At common law, courts went to great lengths to ensure the jury reached a verdict. Fourteenth-century English judges reportedly loaded hung juries into oxcarts and carried them from town to town until a judgment“‘bounced out.’” Less enterprising colleagues kept jurors as de facto “prisoners” until they achieved unanimity. The notion of a mistrial based on jury deadlock did not appear in Blackstone’s Commentaries; it is no surprise, then, that colonial juries virtually always returned a verdict. Well into the 19th and even the 20th century, some American judges continued to coax unresolved juries toward consensus by threatening to deprive them of heat, sleep, or sustenance or to lock them in a room for a pro-longed period of time.
Mercifully, our legal system has evolved, and such harsh measures are no longer tolerated. Yet what this history demonstrates—and what has not changed—is the respect owed “a defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U. S. 684, 689 (1949). Our longstanding doctrine applying the Double Jeopardy Clause attests to the durability and fundamentality of this interest.

 In our own District, there was a mistrial for a defendant last week after an 8-week mortgage fraud trial.  The prosecution should not be permitted to retry that defendant.  It's just not fair to have to fight the power of the Government a second time even if the mistrial was necessary because of a hung jury. 

RIP Phyllis Kravitch

RIP 11th Circuit Judge Phyllis Kravitch. She was 96 and was quite a woman. From the Daily Report:

When told she couldn't come to court, a white girl in a Southern town sneaked up to the courtroom's "colored" balcony in the 1930s to see her father defend an unpopular client.
Long before Harper Lee wrote about Atticus and Scout Finch in "To Kill a Mockingbird," a teenage Phyllis Kravitch yearned to watch her father work in the Savannah courthouse. Kravitch abandoned the idea of becoming a ballerina.
Kravitch learned from her father, lawyer Aaron Kravitch, that everyone deserves equal treatment under the law, although neither law nor custom was granting it to African-Americans or to women in those days.

***

 Graduating from Goucher College in 1941, Kravitch wanted to attend Harvard Law School, but it wouldn't admit women for another nine years. (African-American men had been getting Harvard law degrees since 1869.) At other elite law schools, women were admitted but were ignored or marginalized by professors.

So Kravitch went to the University of Pennsylvania law school. At the top of her class after her first year, she was elected to Law Review and graduated in 1943, having slipped to the No. 2 rank in her class.
She applied for clerkships in federal courts, but no judge would hire a woman. She did get an interview at the U.S. Supreme Court, which had no female clerks, she told a 2009 luncheon gathering sponsored by the Atlanta chapter of the Federal Bar Association. Kravitch didn't name the justice who interviewed her but said he told her that she was his second choice, the first one being a man with a Harvard law degree.
She sought work at law firms in New York and Philadelphia but again was turned away because of her gender or, in at least one case, because she was Jewish. So she returned to Savannah to practice law with her original mentor.

Ervin Gonzalez

Curt Miner, one of Ervin Gonzalez's partners at Colson Hicks, sent this very nice email to his firm which captures Ervin:*

I walked to Starbuck’s a little while ago and came across this gentleman holding this sign out front.  His name is Chaunce O’Connor.  I introduced myself and thought maybe he had been a client of Ervin’s.  I asked him how he knew Ervin.  Chaunce said that he sits in his wheelchair out in front of Starbuck’s often and that Ervin is the only person in a suit that had ever stopped to take the time to talk with him.  He said that he would often see Ervin going to get coffee and that Ervin would always remember his name and stop to ask how he was doing.  He said he was sad today so he went to the drugstore to make this sign.  Chaunce asked me to pass along his condolences to everyone at the firm.  He offered his help if we ever need it because, he said, Ervin would have helped him if he ever needed it. 


[Sorry, the picture isn't uploading from the road. I will try again later.  The sign says, "We love Ervin. #1 Attorney." --DOM]

SCOTUS Term wrapping up.

Like teachers, Supreme Court Justices get the summer off. I'm not sure why this tradition started, but it's weird to me. Why don't other judges get the summer off? Why not lawyers? Not too long ago, Miami courthouses shut down in August and lawyers took that month off (because the courtrooms were just too hot). Even after AC, the tradition continued for a while, but not anymore.

Anyway, unlike teachers, Supreme Court Justices have quite a bit of assets (their base salaries are $250,000). SCOTUSblog summarizes some of those here:

• They get presents. Alito received a “bronze cast of hand” valued at $3,000 from Bottega Mortet, an Italian sculpture studio whose website advertises an “Artisan Hand Project.” There is no way to know whether the cast was of Alito’s own hand.

• ***

• They have very few debts. Last year the average U.S. household had debts totaling over $132,000. But seven of the eight justices – Alito, Breyer, Ginsburg, Kagan, Kennedy, Roberts and Thomas – reported that they had no liabilities at all, while the eighth – Sotomayor – listed only one liability, a mortgage on a rental property in New York.

• But they have a lot of investments. Alito listed well over 100 investments and trusts, including mutual funds, municipal bonds and stocks. The forms provide only a range for the justices’ investments, but Breyer’s appear to total over $5 million. Roberts holds stocks in major companies such as Time Warner, Texas Instruments and SiriusXM, although he sold at least $250,000 in Microsoft stock at the beginning of January 2016. Roberts also reported at least $600,000 in bank accounts and over $600,000 in college savings plans.

• They own a lot of real estate. Breyer owns a house in Nevis in the West Indies – presumably the same one where he was robbed by a man with a machete in 2012 – valued at between $250,000 and $500,000. (Breyer reported only limited rental income, of $1000 or less, for the house for the year.) Breyer sold land in Concord, Mass., for at least $500,000 to Neil and Anna Rasmussen, who run a Massachusetts foundation that promotes historic preservation and natural resources conservation, but he continues to own property in Plainfield, N.H., valued at between $250,000 and $500,000. Roberts owns one-eighth of a cottage in Limerick, Ireland, valued at between $15,000 and $50,000, while Sotomayor’s rental property in New York is valued at between $1 and $5 million.

RIP Ervin Gonzalez (2 UPDATES)

RIP Ervin Gonzalez.

The awful news is making the legal community rounds this morning and everyone is shocked.



UPDATED with statement from Colson Hicks:

Colson Hicks Eidson Statement

"We are deeply saddened by the passing of Ervin A. Gonzalez, our beloved partner, friend and role model. Words cannot convey our grief, admiration, or affection for this pillar of our community. Our hearts and prayers go out to his wife Janice and his family and friends during this unfathomable time. A caring, warm, brilliant and masterful trial attorney, he set the standard for the profession in his compassion and vigorous advocacy for those who suffered grievances and injustices at the hands of others. He will be remembered for his intellect, skill and ability to befriend and defend the rights of people from all walks of life with a zest and dedication that was unrivaled. Ervin's passing reminds all of us that mental illness can strike anyone regardless of how accomplished or content they might appear. Like the Ervin we all knew and loved, he valiantly fought this personal challenge with unmatched effort. He simply was unable to win his hardest and final trial. It pains us to know he was suffering so terribly beyond his control.”

-Dean C. Colson

SECOND UPDATE:

Funeral Services
Tuesday, June 13th at 10:00 a.m.
Church of the Little Flower
2711 Indian Mound Trail
Coral Gables, FL 33134

Candidate list for U.S. Attorney expands (UPDATED)

UPDATE -- Dave Aronberg has pulled his name from consideration.

In an interesting turn, the search for U.S. Attorney has expanded to 6 candidates. The list, according to the Herald, is:

▪ Roy Altman, 35, worked as a federal prosecutor for six years, handling hundreds of criminal cases, including the conviction of a postal worker’s killer. In early 2014, he became the office’s deputy chief of special prosecutions, focusing on the sexual exploitation of children and federal violent crimes. A native Spanish speaker, he attended Columbia University and Yale Law School before clerking for an influential federal appeals court judge, Stanley Marcus. Altman, a partner in the prominent Miami law firm Podhurst Orseck, is considered among the favored candidates.

▪ John Couriel, 39, prosecuted economic and major criminal cases at the U.S. attorney’s office before joining the law firm Kobre Kim as a partner. He also ran twice unsuccessfully for the Florida Legislature. A native Spanish speaker, Couriel graduated from Harvard College and Harvard Law School. Couriel was considered a front runner but lost ground after Trump’s advisers learned he voted for Bush in the GOP presidential primary and predicted Democrat Hillary Clinton would win his Republican district by “quite a bit.”

▪ Jon Sale, 73, is a former federal prosecutor in New York and Miami who co-chairs the Broad and Cassel law firm’s white-collar defense and compliance practice. He is also a close friend of Trump confidant Rudy Giuliani. Sale, a graduate of the University of Pennsylvania and NYU Law School, was also an assistant special prosecutor for the Justice Department in the Watergate case that led to the resignation of President Richard Nixon. Sale, widely respected by colleagues and judges, could emerge as Trump’s pick.

▪ Dave Aronberg, 46, is the Palm Beach County state attorney. A Democrat, Aronberg declined to prosecute Trump’s former presidential campaign manager, Corey Lewandowski, for battery in April. Aronberg is also a former state senator. He graduated from Harvard College and Harvard Law School. Despite a being high-profile Florida Democrat, Aronberg has surfaced as an alternative selection.

▪ Jose Felix “Pepi” Diaz, 37, is a state representative from Miami and land-use attorney with the law firm Akerman LLP. A graduate of the University of Miami and Columbia Law School, Diaz came to know the president personally after appearing as a contestant on Trump’s TV show, “The Apprentice,” in 2006. Diaz, despite his association with Trump, is not seen as a strong contender for the post.

▪ Frank Ledee, 53, is a veteran prosecutor in the Miami-Dade state attorney’s office who has most recently served as chief of the gang-prosecution and gun-violence units. He’s also the office’s liaison to the U.S. attorney’s office. Last year, Ledee was appointed by Gov. Rick Scott to the South Broward Hospital District Board. He received bachelor’s and master’s degrees from Barry University and law degree from Nova Southeastern University. Ledee is considered a long shot for the job.

Judges are speaking out

More and more, judges are starting to speak out against the real problems in our criminal justice system.  This time it's Judge Mark Bennett saying that min-mans are the worst injustice he has seen while on the bench.  From CNN:

"I strongly disagree with that decision," the judge says firmly from the bench.
It is not the first time he has felt this way. Bennett says 80% of the mandatory sentences he hands down are unjust -- but that he is handcuffed by the law, which leaves no room for judicial discretion to consider a sentence based on individual circumstances of the defendant. 
Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins.
Bennett says if he had the power, he would jail Rice for perhaps a year, or 18 months. Across the street in a state courthouse, she would have been put on probation, he says.
"I think it's a miscarriage of justice," Bennett says. "But you know people are entitled to their own sense of what justice is."
In the courtroom, the judge lowers his head and his voice.
"With the greatest of reluctance, I sentence you to 60 months," he says.

Breaking News -- Judge Lenard to take Senior Status

Breaking News -- District Judge Joan Lenard informed her colleagues today that she will be taking Senior Status on July 1, 2017. She was appointed by President Bill Clinton in 1995 to fill Judge King's slot when he went senior. Before that, she was a state circuit and county judge, as well as a state prosecutor. This will create another open seat for President Trump to fill.  Congrats to Judge Lenard, and thank you for your service to the bench.

Summer is here (Updated with cell site cert grant)

UPDATE -- the Supreme Court granted cert in the cell-tower case today. Great news as the lower courts have gotten this one wrong. Hopefully it will be an opportunity to re-examine the third-party doctrine, which is the old rationale that the courts have used to justify the acquisition of the data without a warrant. As full-disclosure, I argued the en banc Davis case on this same issue.

School is just about out.
The Supreme Court is just about done.
Trump is tweeting again. And Neal Katyal is happy about it:

Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel.We don't need the help but will take it! pic.twitter.com/8ehqkLkOY2

— Neal Katyal (@neal_katyal) June 5, 2017

What's up here in the SDFLA? Who is in trial? In the Miami old days, the courthouses literally shut down in August. Now only Raja's downtown keeps up the tradition.

Interesting article about DOJ

"It's a building full of prosecutors."  That's how this interesting article about the problems with DOJ starts. More:

Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.

People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.

Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.

Despite an obvious conflict of interest, the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.

We need you, Judges, to check DOJ.  More than ever.  

Judge Martin criticizes the SDFLA's practice of stacking 924(c) counts

Judge Martin criticizes the SDFLA's practice of stacking 924(c) counts in this concurrence:

Although many things about this case are troubling, perhaps most worrisome is that Mr. Hernandez might never have received this sentence if he had been sentenced in another part of the country. The Sentencing Commission also reported to Congress that the practice of "stacking" § 924(c) charges happens in very few districts. The Commission's data showed "no evidence that those offenses occur more frequently in those districts than in others." Id at 361. The Sentencing Commission thus concluded that "this geographic concentration is attributable to inconsistences in the charging of multiple violations of § 924(c)." Id. at 361-62. As it happens, the Southern District of Florida, where Mr. Hernandez was sentenced, is one of the districts recognized as exceptionally prolific in charging § 924(c) crimes. In fiscal year 2010, at least one in thirty-five of our entire nation's § 924(c) sentences came from the Southern District of Florida. Id at 276. The Southern District of Florida was one of only twelve districts in the country that reported having over 50 of these cases that year. Id. For the same period, 38 districts reported having ten or fewer. Id.

Another local practice that may come under fire in the near future is the shackling of all defendants in magistrate court.  The 9th Circuit just found the practice unconstitutional, which is in direct conflict with the 11th Circuit.  The Supreme Court may get the issue, but it's hard to disagree with the 9th's conclusion:

We must treat people with respect and dignity even though they are suspected of a crime. * * * The Constitution enshrines a fundamental right to be free of unwarranted restraints. Thus, we hold that if the government seeks to shackle a defendant, it must first justify the infringement with specific security needs as to that particular defendant. Courts must decide whether the stated need for security outweighs the infringement on a defendant’s right. This decision cannot be deferred to security providers or presumptively answered by routine policies. All of these requirements apply regardless of a jury’s presence or whether it’s a pretrial, trial or sentencing proceeding. Criminal defendants, like any other party appearing in court, are entitled to enter the courtroom with their heads held high. The policy that defendants challenged here isn’t presently in effect. Thus, although we hold that policy to be unconstitutional, we withhold the issuance of a formal writ of mandamus at this time.   

Manuel Noriega has died.

Manuel Noriega has died.  Here's a sketch of him by Arthur Lien from his 1992 trial before Judge Hoeveler.

He received a sentence of 30 years and served 17. Because he was a prisoner of war, he had to receive a jail cell in accordance with the Geneva Convention. That meant he had his own cell with TV, a computer, and exercise equipment. Corrections officers called it "the presidential suite."

More federal judges?

Senators Rubio and Nelson have proposed more federal judges in Florida, with 3 new judgeships going to SDFLA.  But we have a bunch of openings now and a bunch more coming, so I'm not sure how adding more slots that aren't being filled is going to help...

RIP AUSA Beranton J. Whisenant Jr.

RIP AUSA Beranton J. Whisenant Jr.
He was only 37. So sad.
I did not know him, but I heard he was a good guy. 
Please feel free to remember him in the comments.

More on Kevin Newsom, 11th Circuit Nominee

The Vetting Room has a long, informative post about 11th Circuit Nominee Kevin Newsom here:

Kevin Newsom, President Trump’s first nominee to the Eleventh Circuit, is a seasoned appellate litigator, seemingly universally respected, with extensive experience in diverse areas of law.  A longtime member of the Federalist Society, his confirmation would cement the somewhat evenly balanced Eleventh Circuit back onto a firm conservative footing. 

11th Circuit rules that dogs aren't people

Uh oh... get ready for the hate mail. How could you rule that dogs aren't people?

Judge Rosenbaum starts off this entertaining qualified immunity case like this:

In history and literature, the name “Draco” has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word “draconian.” Antonios Loizides, Draco’s Law Code, ANCIENT HISTORY ENCYCLOPEDIA http://www.ancient.eu/ Dracos_Law_Code/ (last visited May 12, 2017). Draco Lucius Malfoy, of course, is Harry Potter’s perpetually maleficent rival in the Harry Potter literary series.*

And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court’s denial of Defendant-Appellants’ motion to dismiss Draco.

But while Georgia law does not allow for a negligence suit against a dog, it does permit negligence claims against a state officer who is not entitled to official immunity. Title 42, United States Code, Section 1983 likewise authorizes an action against a police officer who employs a dog in an exercise of excessive force. And Jones also sued the officers responsible for Draco’s encounter with Jones. In response, Defendant-Appellant Officers invoked official and qualified immunity and moved to dismiss. The district court summarily denied Defendant-Appellant Officers’ motion. Today we must reverse that denial and dismiss the claims. Jones has failed to allege facts establishing that the officer acted with malice, so the officers are entitled to official immunity. Nor does binding precedent allow for the conclusion that Defendant Officers’ employment of Draco in the circumstances of this case violated Jones’s clearly established rights, so the officers have qualified immunity.

*See J.K. Rowling, Harry Potter and the Sorcerer’s Stone (1997); J.K. Rowling, Harry Potter and the Chamber of Secrets (1998); J.K. Rowling, Harry Potter and the Prisoner of Azkaban (1999); J.K. Rowling, Harry Potter and the Goblet of Fire (2000); J.K. Rowling, Harry Potter and the Order of the Phoenix (2003); J.K. Rowling, Harry Potter and the Half-Blood Prince (2005); J.K. Rowling, Harry Potter and the Deathly Hallows (2007).

You be the judge -- Anthony Weiner

You be the judge -- former Congressman and Huma's husband Anthony Weiner pleaded guilty to a count of transferring obscene material to a minor. It carries a maximum sentence of 10 years. His guidelines are 135 months at the low end. The government has agreed to recommend a sentence of 21-27 months in this plea agreement. What will the judge do? What would you do?

Who could read all of this?

The 11th Circuit issued 284 pages of en banc opinions in the smoking cases, including Tjoflat's 225+ page (!!) dissent. I couldn't bear to read it all, but the Daily Report has this initial summary:

The U.S. Court of Appeals for the Eleventh Circuit issued a 284-page en banc opinion Thursday saying that smokers who won a class action against tobacco companies can also file individual lawsuits.

The judges had some fireworks. Three wrote dissents. One called the process a “chaotic poker game” and said judges should “stick to our day jobs” instead of advocating for plaintiffs.

In the end, the judges upheld the lower court decision in favor of Theresa Graham against R.J. Reynolds Tobacco Co. and its affiliates. Judge William Pryor wrote the majority opinion.

“This appeal presents the questions whether due process forbids giving a jury’s findings of negligence and strict liability in a class action against cigarette manufacturers preclusive effect in a later individual suit by a class member and, if not, whether federal law pre-empts the jury’s findings,” Pryor began.

11th Circuit now posts oral arguments on line

Big cheer for the 11th Circuit for posting same day oral arguments on its website. Apparently this has been happening for the past few weeks.

You have a right to remain silent.

After not speaking for a year, Gerald Petion pleaded guilty to a federal drug case. Paula McMahon has the details:

On Tuesday, after 12 months of politely but pointedly remaining totally silent and unresponsive in court, Petion resumed speaking to judges: He apparently decided it was in his best interest to accept a plea agreement offer from the prosecution.

“Guilty,” Petion said when U.S. District Judge Robin Rosenberg asked him how he wanted to plead to two federal drug-trafficking and weapons charges.

Prosecutors said they will recommend 20 years in federal prison when he is sentenced in August, but the final decision on his punishment lies with the judge. The maximum possible penalty is life in prison.

***
He remained imprisoned the whole time and only succeeded in delaying progress in his case for 12 months.

Earlier this month, Petion finally resumed speaking to his attorney after two in-depth mental health evaluations showed that there was nothing physically or mentally wrong with Petion and that he was legally competent for the case to proceed. The experts said he was faking mental illness.

After he was determined to be mentally competent, prosecutors made a plea offer and said they were considering filing a more serious charge, with a harsher punishment, if he planned to go to trial.

Meantime, we still have no U.S. Attorney. As far as I know, all of the finalists are still being considered. I imagine that we will have our nominee by the end of the month. It will be interesting to see if the nominee will accept the position and work for a Trump/Sessions administration.

Dismissed juror in Corrine Brown case was holding out for acquittal

When is it appropriate to dismiss a "holdout" juror? Representative Corrine Brown, who was convicted late last week, will argue that the judge should not have dismissed a juror holding out for innocence:

A juror dismissed from former U.S. Rep. Corrine Brown’s fraud trial told other jurors “the Holy Spirit” said Brown was innocent as the jury deliberated, according to a transcript the trial judge unsealed after a hearing Monday.
U.S. District Judge Timothy Corrigan’s decision to remove that juror will evidently become part of Brown’s effort to challenge her conviction last week on 18 out of 22 fraud and tax charges that could lead to years of imprisonment.
Although he hadn’t requested one Monday, Brown’s attorney, James W. Smith III, told reporters last week he planned to seek a new trial.
Corrigan acknowledged disagreement over the juror’s dismissal during a hearing that touched on a range of subjects involving the now-discharged jury.
“It is obviously a matter of contention in this case as to whether the court acted correctly,” Corrigan said.
“I thought it was the right decision, but I know you have rights and I want you to be able to take advantage of those,” the judge told Smith before denying a pair of oral motions that would have raised the possibility of attorneys talking with some jurors about their verdict.

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen." --Ralph Waldo Emerson.

AG Sessions is being criticized by both sides of the aisle for his new sentencing guidance, which requires prosecutors to seek much harsher sentences than under the previous administration.  The memorandum says:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

It's hard to believe that we are going backwards and this is the criminal justice system that we will now be operating in.  Which judges will stand up to the executive?  Which judges will write sentencing orders explaining why prosecutors are asking for sentences that don't comport with 3553? Which judges will say enough is enough?

The boat cases in SDFLA seem to be a good opportunity for a judge to say something about the absurdity of these sentences. How much time should a fisherman get for being paid $2,000 to be a crewman on a drug boat that isn't even headed to the United States?  The min/man is 10 years, and our prosecutors are seeking those sentences.  From the Miami Herald:

“All three defendants admitted their involvement in the drug-smuggling conspiracy and that they knew they were transporting drugs on board the vessel,” the complaint says. “All three defendants also admitted that the vessel was going to Mexico and all were paid between $2,000 and $3,500 to transport the drugs.”
...
But Marc David Seitles, Bustos Pereira’s attorney, indicated that his client is a victim of the enforcement system.
“Yet another impoverished fisherman with a second grade education facing a minimum of 10 years in federal prison,” Seitles said in an email message. “This is fighting the war on drugs? Laughable.”
Many Latin American defendants in similar prior cases have told U.S. enforcement officials that they are fishermen or farmers who have been coerced or threatened by drug traffickers into transporting cocaine on boats.

11th Circuit says no to death by firing squad

Anthony Boyd, sentenced to death, asked for his punishment to be carried out by firing squad or hanging.  The 11th Circuit, per Judge Marcus, said no. He will now be executed by lethal injection.  From the AJC:

Boyd had challenged Alabama’s new lethal injection protocol, alleging it violates his Eighth Amendment right to be free from cruel and unusual punishment.

Instead, he noted, legislatures in Utah and Oklahoma have approved the firing squad, which has a good track record of “speed and certainty for the condemned.” In the alternative, hanging is an option that has been approved by lawmakers in Delaware, New Hampshire and Washington. And Alabama is “fully capable” of approving those execution methods as well, the appeal said.

The 11th U.S. Circuit Court of Appeals, in a ruling written by Judge Stanley Marcus, said Alabama gives condemned prisoners the choice between two methods of execution: lethal injection and electrocution.

Also, Marcus wrote, the law is clear. Inmates challenging a method of execution must prove there is an alternative method of execution “that is feasible, readily implemented and in fact significantly reduces the risk of pain posed by the state’s planned method of execution,” he said.
“The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution,” Marcus wrote.

“But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses and unconstitutional risk of pain,” he noted. “Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.”

Marcus added, “Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution.”

Judge Wilson concurred in the result only but wrote separately to explain his disagreement with binding law.

In other news, tomorrow is the District's Bench and Bar conference. All of the judges will be forced to mingle with the hoi polloi. Good times, good times...

Ted Cruz v. Sally Yates

Sally Yates wins:

Victory for BBX, Alan Levan and Gene Stearns

Trial #2 goes to Bank Atlantic, Alan Levan and their lawyer Gene Stearns. A really big win for them over the SEC. From the DBR:

A federal jury on Monday ruled in Fort Lauderdale banker Alan Levan's favor on all claims filed by the Securities and Exchange Commission.

The SEC alleged Levan had misled investors about the health of certain real estate loans in Fort Lauderdale-based BankAtlantic's portfolio leading into the recession. The agency also claimed Levan's company BBX Capital Corp., which sold the bank in 2012, failed to properly account for loans in public disclosures.

It was the second SEC trial for BBX and Levan on the same claims. The first trial in 2014 ended with some jury findings against the defendants, a temporary ban on Levan running a public company and millions of dollars in fines. The appellate court overturned some pretrial rulings and sent the case back for another six-week trial in Miami before U.S. District Judge Darrin Gayles.

Levan and BBX also settled an earlier case brought by shareholders.

"I am pleased this regrettable nine-year ordeal is finally over and has ended in complete exoneration," Levan said in a statement. "This frivolous action by the SEC was clearly motivated either by incompetence or by malicious self-interest so the agency could say it did something to somebody other than watch the banking system collapse under its nose. I am ready to move on and build on the considerable success we have enjoyed at BBX Capital, which has prospered despite the unfair and unwarranted burden imposed on us by this SEC witch hunt."

Monday News & Notes

1. Trump is going to nominate Kevin Newsom to the 11th Circuit this week. Newsom, a law school classmate of mine, is well-qualified (former Alabama SG, former Souter clerk). He is one of nine nominations set to occur this week, via NY Times.

2. Prosecutors have plagiarized a blog post in amicus brief on death penalty case (via Jacksonville Times). Doh!

The Florida Prosecuting Attorneys Association apparently copied a defense attorney’s blog post in a critical brief dealing with whether prosecutors have the right to reject the death penalty.

The brief signed by Buddy Jacobs, an attorney and the longtime lobbyist for the prosecutors association, argued that an Orlando prosecutor deserved to have first-degree murder cases taken away from her after she said she wouldn’t seek the death penalty. The brief was signed by Jacobs and two other attorneys in his Fernandina Beach law firm.

Part of that brief is exactly copied from Richard Hornsby, an Orlando defense attorney. Hornsby posted last month on his blog why he thought Gov. Rick Scott was justified in his decision to re-assign capital murder cases away from State Attorney Aramis Ayala.

3. The Corrine Brown trial is set to go to closing today, via Florida Times-Union. That's up in Jacksonville. Apparently she cried on the witness stand on Friday. Any thoughts on whether she will walk?