Jury Trials in Criminal Cases Must Never Be “Virtual”

We will keep saying it until our courts come to their senses!!! Holding “virtual” jury trials, particularly in criminal cases, is a dangerous move that should not be countenanced. Let’s begin with the basics by reviewing the definition of the word, virtual. According to Dictionary.com, virtual means, “something that exists in essence but not in actuality.” In other words, it’s not real — it is something similar to a jury trial, but not really. When we are talking about depriving someone of their liberty, we must insist on the real thing.
While historians may argue its origin, we can safely say that since 1066 jury trials have been used as a means of protecting citizens from the power of the sovereign. People hahenry-hustava-j_Ch0mwBNds-unsplashve died for us to have this right and we should not give it up lightly.
We are not being hyperbolic when we suggest that having “virtual” jury trials for criminal cases will bring us closer to tyranny. People need to sit across from other people and make determinations regarding bias, motives, and overall credibility. This cannot be done effectively through a television screen. Additionally, there is something unique and essential to communicating with someone in person.
While we recognize that technology has a place in our justice system and can provide an effective tool to assist in the orderly dispensation of justice during a pandemic, to adopt the use of “virtual” trials in criminal cases, particularly when a defendant objects, is an exceedingly dangerous idea.
The Sixth Amendment to the United States Constitution establishes the right of a citizen accused of a crime to a public trial. Obviously, the founders of our republic had no way of envisioning technology such as we have today, but we are confident, given their vigilance and fear of a tyrannical government, that they would disapprove of a “virtual” public trial. Again, we are not being hyperbolic when we warn of the immense powers of the sovereign, and limiting the right to be tried by our peers, in person, is an affront to that basic right — juries are the last line of defense between the power of the government and the accused citizen. Jury trials in criminal cases must be done in person — period.
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CMS Relaxes Telemedicine Rules in Response to Covid-19 Pandemic

Friends, we commend to your reading this informative article from our friend and colleague, Jason Mehta of Bradley Arant Boult Cummings LLP, ( https://www.bradley.com/people/m/mehta-jason-p) discussing the relaxation of requirements associated with Medicare’s coverage of telehealth visits during the COVID-19 pandemic. This article not only informative but provides valuable practical advice for medical providers.

https://www.medicaleconomics.com/view/coronavirus-acp-partners-with-project-n95-to-provide-ppe

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DOJ Plans Increased Use of False Claim Act for Covid-19 Fraud

 

In a recent speech to the U.S. Chamber of Commerce, Institute for Legal Reform, Principal Deputy Assistant Attorney General for the Department of Justice Civil Division, Ethan Davis, elaborated on the enforcement priorities for the Department’s Civil Division for foreseeable future and specifically addressed the DOJ’s focus on enforcement of fraud related to the various relief programs designed to assist with the economic damage resulting from the COVID-19 pandemic.

In his remarks, Davis referred to the False Claims Act as, “one of the most effective tools in our arsenal” and suggested it would be a priority of DOJ to “aggressively use the False Claim Act against those to commit fraud related to the various COVID-19 stimulus programs, like the Paycheck Protection Program and the MainStreet Credit Facility.”

Of interest was Davis’ warning to private equity firms. “When a private equity firm wall-street-sign-pic[1]invests in a company in a highly regulated space like healthcare or other life sciences, the firm should be aware of laws and regulations designed to prevent fraud.” Davis referenced the pre-pandemic, False Claim Act case brought by the Department against the private equity firm, Rotdan, Lewis and Halden for an alleged kickback scheme of prescription referrals.

Whether the Department’s professed efforts actually materialize and lead to increased False Claim Act enforcement, or righteous criminal prosecutions remains to be seen; however, given the amount of taxpayer funds injected into the various COVID-19 relief programs and the likelihood of further taxpayer-funded efforts, the Department’s vigilance is warranted and necessary.

For a transcript of Davis’s remarks visit: https://www.justice.gov/civil/speech/principal-deputy-assistant-attorney-general-ethan-p-davis-delivers-remarks-false-claims

For additional information on our law firm and the services we offer, please visit: www.suarezlawfirm.com

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Justice not Kangaroos!

I hope this doesn’t come across as disrespectful to anyone but all you have to do is spend a couple of minutes watching this to recognize that moving forward with these virtual, Zoom “jury” trials will be devastating to our justice system.

I encourage every lawyer and every citizen to loudly voice opposition to this ridiculous notion. If this is ever adopted in our criminal courts, it is not hyperbole to suggest that it will bring us significantly closer to tyranny. I hope this ridiculous experiment ends now.

We are grateful to the National Association of Criminal Defense Lawyers for their advocacy and opposition to the use of these “virtual trials.” https://nacdl.org/getattachment/56802001-1bb9-4edd-814d-c8d5c41346f3/criminal-court-reopening-and-public-health-in-the-covid-19-era.pdf

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Don’t Fence Me In

We comscience-in-hd-oh40PfFL520-unsplashmend to your reading this interesting article by journalist, Liz Brody.
https://onezero.medium.com/googles-geofence-warrants-face-a-major-legal-challenge-ac6da1408fba
In this article, Ms. Brody highlights the increased used by law enforcement of geofence warrants. A geofence warrant requires a company, such as Google, to provide information regarding any Google-associated account located in a specific graphical area and timeframe. Ms. Brody illustrates the use by law enforcement of this intrusive investigative tool used in an pending bank robbery case in Virginia. Using a quote from a motion to suppress filed in that case, Ms. Brody crystallizes the privacy implications to innocent citizens whose devices are in use in the timeframe and location descrandre-benz-7hmCn_YE3aU-unsplashibed in a geofence warrant. “’Geofence warrants like the one in this case are incapable of satisfying the probable cause and particularity requirements, making them unconstitutional general warrants,’ the lawyers argued in a motion to suppress evidence. The brief goes on to describe them as ‘the digital equivalent of searching bags of every person walking along Broadway because of a theft in Times Square.’”
The motion to suppress can be found here: https://www.nacdl.org/getattachment/a16a7368-3691-4b32-b479-ad8128c53016/5f0ba578-cfe1-4fb9-9e76-5d40778f3f40.pdf (Our never-ending gratitude to the National Association of Criminal Defense Lawyers for allowing access to important legal briefs such as this one and for their tireless efforts to protect our constitutional rights and the support they give to criminal defense practitioners).

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Rethinking financing our communities

As people across our communities are engaging in dialogue about police practices, it is important to note that injustice permeates our system in other ways. This interesting article from The Hill highlights the inappropriate reliance of certain jurisdictions in fines and fees to raise revenue. This approach, coupled with biased and selective enforcement, tends to overburden poor people and creates greater injustice. Ferguson, Missouri, a jurisdiction that gave rise to national outrage when a black man, Michael Brown, was shot by a police officer, presents an example of this kind of approach to raising revenue, which tends to overburden the most vulnerable in our communities. In 2012, 13% of Ferguson’s municipal budget was funded by fines and fees.  By 2015, that amount had increased to 23%. This reliance on fines and fees creates an incentive to over enforce minor infractions, which, if coupled with uneven enforcement, unjustly burdens the poor and increases tensions in our communities.  Funding public services through fines and fees serves only to further a sense of frustration in our communities by overburdening the most vulnerable. https://thehill.com/opinion/criminal-justice/502603-how-fines-and-fees-perpetuate-injustice
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A Hopeful Decision

Yesterday’s Supreme Court decision holding that the Civil Rights Act of 1964 prohibits discrimination against gay and transgender workers is significant in a number of ways and we leave it to those who are more knowledgeable than us in matters involving employment discrimination to expound on the long-term impact of the opinion.

However, we think is important and hopeful to note that Justice Gorsuch wrote the opinion for the majority. In a world where tribalism is the norm, and pundits consistently distill issues into binary choices, it was encouraging to see Justice Gorsuch, a conservative Justice, appointed by President Trump, go outside the borders of his presumed tribe and write and honest opinion grounded in intellectual integrity.  We can argue as to whether or not the majority opinion is right, as Justice Alito and Kavanaugh did in their dissents, but it appears to us that there is little argument that Justice Gorsuch showed a willingness to set aside what are likely to be his personal views and to apply the law as he believed was correct, without concern for politics or tribalism. Whether you agree or disagree with the opinion (and we agree), we believe yesterday was a good day for the integrity and independence of the judiciary.   #SuarezLawFirm

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A Reckless Decision

According to the Charlotte Observer, federal courts in the Western District of North Carolina will resume holding jury trials this week. This decision by the Chief Judge of that federal judicial district has been roundly criticized by legal experts including, The National Association of Criminal Defense Lawyers, who called the decision, “reckless and irresponsible.” We echo the sentiments of The National Association of Criminal Defense Lawyers. Jury trials are critical part of our criminal justice system and serve as a real and effective buffer between the power of the government and the citizen accused. But resuming jury trials in the middle of a pandemic will undoubtedly put people at risk and necessarily limit those who are willing to serve in jury. This is a dangerous and unfortunate decision and one we hope is not repeated in other districts or in our state courts.

https://www.charlotteobserver.com/…/c…/article243514632.html

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The Undisputed Truth about Smiling Faces – Thoughts on the Use of Facial Recognition

surveillance

I couldn’t help myself — in 1971, The Undisputed Truth (and The Temptations) released the song, Smiling Faces Sometimes. It is interesting that in 2020, the undisputed truth and faces (more precisely facial recognition software) are making a comeback.

Face recognition software is certain to become more widely used in criminal investigations. This recent article in the New York Times highlights its current use by law enforcement, some of its apparent utility in solving crime and some of the problems associated with its use. For those of us practicing law in the Tampa Bay area, the apparent pioneering use of this technology by law enforcement in Florida, places an additional level of interest.

The anecdotes related in the article and the court cases discussed, highlight the importance for criminal law practitioners make specific discovery requests for all information relating to the use of face recognition software in the identification of defendants. It is apparent that the use of face recognition applications may not be fully set out in police reports and, unless practitioners are astute and diligent in ferreting out the use of this technology, its use may go undiscovered.

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“I’m going back to the border where my affairs ain’t abused” — Elton John, 1970

person-holding-silver-iphone-7-887751In a victory for those of us concerned about the erosion of privacy rights in the digital age, we commend to you this recent United States District Court opinion entered in Alasaad, et al. v. Nielsen, Sec. of the US, Department of Homeland Security, et al.. Case number, 17-CV-11730-DJC.

In a nutshell, U.S. Customs and Border Patrol and, to a lesser extent, U.S. Immigration and Customs Enforcement took the position that, without any individualized reasonable suspicion, it had authority to search the electronic devices of American citizens and permanent resident aliens entering the United States. In a carefully reasoned, detailed opinion, the District Court ruled that, because there is a diminished expectation of privacy at the border, probable cause and a warrant are not required prior to searching an individual’s electronic device; however, before such a search can take place, agents must have individualized reasonable suspicion or a national security concern.

Privacy issues such as our right to be secure in our personal electronic devices is essential to in our modern digital world where so much of our private thoughts and interests are stored in our personal electronic devices. We will continue to monitor this case and others impacting our privacy interests.

https://www.aclu.org/sites/default/files/field_document/alasaad_opinion_summary_judgment.pdf

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