Wednesday, February 22, 2017

Response to Joe Patrice's post on criminal defense lawyers

As SDFLA blog readers know, I do not use this forum as a place to discuss my cases.  I use this blog as a place to cover news in this District and other court news that I find interesting.  Every now and then there is an exception, and this is one of those times. 

Joe Patrice at Above The Law had this post where he compared me and other criminal defense lawyers to the Trump administration’s attack on the media as fake news.  In a case that I am handling, the prosecution has come up with various theories which we do not believe have any support in the facts.  One such theory was that my client was paying for the defense of an indicted defendant.  Even though this is demonstrably false and even though the prosecutor never asked us if this was true, the prosecution filed a motion setting out this false theory.  I described the motion (and the prosecution in general) as based on “alternative facts.”

Based on this quote, Patrice then compared me and criminal defense lawyers to Trump’s attack on the media as “fake news”:

Today we grieve in solidarity with the victims of Sweden while the official organs of American government ask that we kindly get over our hangups and just accept the simulation they prefer. It’s how we do things around here now.
Which is not dissimilar to the role criminal defense attorneys routinely play. When you think about it, asking reasonable people to accept all sorts of ludicrous alternative theories in the spirit of creating that shadow of a doubt is a time-honored tradition. … Because defense attorneys are definitely respecting the tricks and tactics of the administration.

But he’s got the analogy backwards. Our Founders created a system with a robust bill of rights so that the media and lawyers could act as a check on the executive branch. Criminal defense lawyers are the cornerstone of our criminal justice system, just as a free press is the cornerstone of our democracy.  The media must be permitted to call out the executive branch when it is less than fully transparent and accurate.  So too must the criminal defense lawyer call out the executive when it fails to prove its allegations. 

Patrice's thinking -- that criminal defense lawyers are out there using tricks to subvert the truth -- has led to all sorts of problems in our system: innocent people being forced to plead guilty, prosecutors holding back evidence (see, e.g., Ted Stevens), and so on.  One study says that 10,000 innocent people are convicted each year.  

Forcing the government to back up what it says with actual proof instead of baseless statements isn’t a “trick” or “tactic.”  This isn’t a defense lawyer “flipping th[e] script” as Patrice describes it.  It is exactly the script that our Constitution dictates and one that I and other criminal defense lawyers are proud to carry out.

Monday, February 20, 2017

Judge William Zloch takes senior status

Thanks to a tipster, I see that Judge William Zloch took senior status on January 31, 2017.  That means that our District now has 3 open seats.  Judge Zloch was the Chief Judge of our District from 2000-2007.  Here's his wiki entry:
William J. "Bill" Zloch (born 1944 in Fort Lauderdale, Florida) is a Senior United States District Judge, as well as a former American football quarterback and wide receiver for the University of Notre Dame.
Following the departure of Heisman Trophy winner John Huarte in 1965, Notre Dame football coach Ara Parseghian was faced with a wide-open competition for the quarterback position. He opted to move senior Bill Zloch from wide receiver to quarterback for the 1965 season.[1] Directing a team that was heavily run-oriented, Zloch finished the season completing 36 of 88 passes for 558 yards and three touchdowns.[2] The team finished 7-2-1 and ranked 8th nationally.
After graduation, Zloch spent three years in the United States Navy, achieving the rank of lieutenant, then returned to Notre Dame Law School, completing a Juris Doctor in 1974. He returned to Fort Lauderdale to begin a private law practice.[3]
On October 9, 1985, President Ronald Reagan nominated Zloch to a newly created seat on the United States District Court for the Southern District of Florida. He was confirmed by the United States Senate on November 1, 1985, and received his commission on November 4, 1985. On July 1, 2000, he began a seven-year term as Chief Judge of the district, ending on June 30, 2007. He was succeeded as Chief Judge by Judge Federico A. Moreno.[4] He assumed senior status on January 31, 2017.
Judge Zloch on August 21, 2009 sentenced UBS whistleblower Bradley Birkenfeld to 40 months in prison with 3 years probation and a $30,000 fine, a term that was harsher than the prosecutors wanted. "Assistant U.S. attorney Jeffrey A. Neiman recommended that Birkenfeld get 30 months in prison for his conviction on one count of conspiracy to defraud the government -- down from the 60-month maximum sentence he is exposed to -- because of his extensive cooperation," the Miami Herald reported.[5][6]

Thursday, February 16, 2017

En banc 11th Circuit rules in "Docs v. Glocks" case

The en banc 11th Circuit opinion in the "Docs v. Glocks" case is here.  There are two majority opinions for the en banc Court, one by Judge Jordan and one by Judge Marcus. Judge Jordan’s opinion is joined by Chief Judge Ed Carnes and Judges Hull, Marcus, William Pryor, Martin, Rosenbaum, Julie Carnes, and Jill Pryor. Judge Marcus’ opinion is joined by Judges Hull, Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor.

Judge Jordan's opinion starts this way:
Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment 5 (2015) (“Reading the First Amendment isn’t easy.”); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 218 (3d Cir. 2001) (Rendell, J., concurring) (“[T]here are no easy ways in the complex area of First Amendment jurisprudence.”). Yet certain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions, “[c]ontent-based regulations [of speech] are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
This particular principle looms large in this case, which concerns certain provisions of Florida’s Firearms Owners’ Privacy Act, Chapter 2011–112, Laws of Florida (codified at Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026). And that is because some of FOPA’s provisions regulate speech on the basis of content, restricting (and providing disciplinary sanctions for) speech by doctors and medical professionals on the subject of firearm ownership.
Shortly after FOPA was enacted in 2011, a number of doctors and medical organizations filed suit in federal court against various Florida officials, challenging some of the Act’s provisions as unconstitutional. Ruling on cross-motions for summary judgment, the district court held that FOPA’s record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. See Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (Wollschlaeger I). The state officials appealed, and a divided panel of this court issued three opinions—each using a different First Amendment standard of review—upholding the challenged provisions of FOPA. See Wollschlaeger v. Governor of Fla., 760 F.3d 1195 (11th Cir. 2014) (Wollschlaeger II); Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015) (Wollschlaeger III); Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015) (Wollschlaeger IV). We voted to rehear the case en banc and heard oral argument in June of 2016.
Exercising plenary review, see ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009), and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–67, 571–72 (2011), we agree with the district court that FOPA’s content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech[.]”); Stromberg v. California, 283 U.S. 359, 368 (1931) (“[T]he conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.”). And because these three provisions do not survive heightened scrutiny under Sorrell, we need not address whether strict scrutiny should apply to them. We also conclude, this time contrary to the district court, that FOPA’s anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, we concur with the district court’s assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act.
 And Judge Marcus starts this way:

The Court has correctly determined that the record-keeping, inquiry, and anti-harassment provisions of Florida’s Firearm Owners’ Privacy Act (FOPA), Fla. Stat. § 790.338(1)–(2), (6), plainly target core First Amendment speech. Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).

Judge Tjoflat dissented.

Alex Acosta to be named Secretary of Labor

Congrats to former U.S. Attorney and current Dean of FIU law school, Alex Acosta, for being named as the nominee for Secretary of Labor.

Alex is a wonderful choice.  He's smart and ethical.  More importantly, he's a really good guy.

Wednesday, February 15, 2017

Breaking news-- U.S. Attorney Wifredo Ferrer resigns (UPDATED WITH QUOTE FROM FERRER)

Multiple sources have emailed me that Willy Ferrer has resigned today as U.S. Attorney for the Southern District of a Florida. Ben Greenberg is acting. More to follow.

UPDATE -- I have it confirmed that Ferrer has stepped down.

UPDATE 2 (1:15pm) -- Willy was kind enough to speak with me and confirm the news. He is a very good guy and we should all wish him the best. His resignation is effective on March 3, and Ben Greenberg already has been approved to be the acting U.S. Attorney starting March 4.  Willy announced the news at an office-wide meeting today after serving our community for 7 years as U.S. Attorney.  He previously worked as an AUSA for 6 years.  He had this to say:

There has been no greater honor than to serve and protect the same community that opened its arms to my parents when they immigrated to this country.  For almost seven years, I have been blessed to work alongside remarkable men and women in the U.S. Attorney’s Office, community leaders, and our federal, state and local law enforcement partners who strive tirelessly to combat crime and promote a safer, stronger and more united district.  I am incredibly proud of all that we have been able to accomplish together, in and out of the courtroom, including building meaningful bonds of trust with the diverse community we serve.
 I really like the sentiment, especially the opening line about his parents coming to this country, which welcomed them with open arms.