Sarah N. Lynch
@SarahNLynch
Judge Cannon forgot to swear in prospective jurors and blocked the defendant ‘s family from attending jury selection, in violation of his Sixth Amendment rights. These errors came days after she was assigned to Trump’s case. w/
@jacq_thomsen
Trump documents case judge made multiple errors in earlier trial
By Sarah N. Lynch and Jacqueline Thomsen
WASHINGTON, Aug 4 (Reuters) - The judge in former U.S. President Donald Trump's upcoming trial over his handling of classified documents made two key errors in a June trial, one of which violated a fundamental constitutional right of the defendant and could have invalidated the proceedings, according to legal experts and a court transcript.
Florida-based U.S. District Judge Aileen Cannon closed jury selection for the trial of an Alabama man - accused by federal prosecutors of running a website with images of child sex abuse - to the defendant's family and the general public, a trial transcript obtained by Reuters showed. A defendant's right to a public trial is enshrined in the U.S. Constitution's Sixth Amendment.
Cannon, a 42-year-old former federal prosecutor appointed by Trump to the bench in 2020 late in his presidency, also neglected to swear in the prospective jury pool - an obligatory procedure in which people who may serve on the panel pledge to tell the truth during the selection process. This error forced Cannon to re-start jury selection before the trial ended abruptly with defendant William Spearman pleading guilty as part of an agreement with prosecutors.
Cannon's decision to close the courtroom represents "a fundamental constitutional error," said Stephen Smith, a professor at the Santa Clara School of Law in California. "She ignored the public trial right entirely. It's as though she didn't know it existed."
In Cannon's decision to close jury selection, the judge cited space restrictions in her small courtroom at the federal courthouse in Fort Pierce, Florida.
Legal experts said closing a courtroom to the public has been recognized by the U.S. Supreme Court as a "structural error" - a mistake so significant that it can invalidate a criminal trial because it strikes at the heart of the entire process. A public trial also has been found to implicate First Amendment rights of freedom of assembly, speech and press.
Cannon's decision raises questions about how she will handle the intense public interest at Trump's trial, which is scheduled to begin on May 20, 2024, in the same courtroom.
The unprecedented prosecution of a former president as he campaigns seeking a return to the White House promises to bring enormous public scrutiny. The trial also will represent the first time that Cannon handles a case involving classified evidence and the arcane rules surrounding it.
Cannon's trial errors also illustrate her judicial inexperience, five former federal judges - Democratic and Republican appointees - said in interviews.
"A lack of experience can be really hard in a big case, especially when there's all this media attention and everything you do is being watched and commented on and second-guessed," said Jeremy Fogel, a former federal judge who leads the Berkeley Judicial Institute in California.
Fogel said Cannon made "two fairly significant mistakes" during jury selection in the June trial.
"It looms larger because of who the judge is," Fogel added.
Mark Bennett, the former Chief U.S. District Judge of the Northern District of Iowa, said, "She should have figured ahead of time a way to accommodate a small number of family members in a very small courtroom, in my opinion. It's just the right thing to do, and not run the risk of there being reversible error."
Cannon did not respond to a request for comment. Scott Berry, a federal public defender representing Spearman, declined to comment, as did a Justice Department spokesperson.
LIMITED EXPERIENCE
As a judge, Cannon so far has presided over four criminal trials that resulted in jury verdicts. She previously also worked on four criminal trials that resulted in jury verdicts when she served a federal prosecutor from 2013 to 2020, according to a questionnaire she filled out before the Senate confirmed her as a judge.
Cannon faced a rebuke from the Atlanta-based 11th U.S. Circuit Court of Appeals when it reversed her 2022 order appointing a third party to review documents seized by the FBI from Trump's Mar-a-Lago resort home in Florida in the classified records investigation.
"We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so," the 11th Circuit panel of three judges - all Republican appointees - wrote in reversing Cannon's ruling and ordering the dismissal of a lawsuit filed by Trump that sought to shield documents from federal investigators.
Trump's upcoming trial on 40 criminal counts of retaining classified records, obstruction of justice, conspiracy and concealment will present a new level of complexity. Trump faces separate trials on two other sets of federal and state criminal charges.
Paul Grimm, a former federal judge in Maryland who now leads the Bolch Judicial Institute at Duke Law School in North Carolina, said it is not unusual for a new judge to have to deal with a high-profile matter, as case assignments are random.
"You get the case on the draw of it," Grimm said. "You can ask for help - but if you choose not to ask for help, then no one's going to make you" seek guidance.
'YOUR OBJECTION IS OVERRULED'
Cannon began jury selection on June 12 in the trial of Spearman, who was charged with conspiring to advertise and distribute images of child sexual abuse and with engaging in a child exploitation enterprise.
That day, the court transcript showed, Cannon failed to swear in the jury pool. Cannon also declined to open the courtroom to the public despite repeated requests from both prosecutors and defense attorneys, the transcript showed.
Some of the former federal judges interviewed by Reuters said their courtroom deputies sometimes would remind them of procedural steps like swearing in prospective jurors, as they may be focused on other aspects of running a trial.
Berry, the federal defender, argued in the courtroom that Cannon's refusal to let his client's mother and sister be present during jury selection was a Sixth Amendment violation.
"All right, thank you. Your objection is overruled," Cannon replied, according to the transcript.
A federal prosecutor in the case, Greg Schiller, later pressed Cannon to let in Spearman's mother. Schiller raised a 2010 U.S. Supreme Court precedent that held that judges must weigh less restrictive alternatives prior to closing a courtroom to the public, including during the jury selection process.
When Berry later pointed to two open chairs in the room, Cannon resisted his request again, saying the chairs were reserved for law enforcement.
"Mr. Spearman's mother is free to join us once the jury selection process has concluded and/or there is truly enough room in the courtroom," Cannon said, according to the transcript.
Cannon later offered to let in Spearman's family after the judge realized she also had failed to swear in the jury pool. She said there would be room in the courtroom after certain jurors who both sides in the case agreed should be dismissed had left.
The jury selection process never re-started because Spearman and the prosecutors entered into a "conditional" plea deal, an uncommon arrangement that preserves a defendant's right to appeal certain rulings by the trial judge. In most plea deals, defendants waive the bulk of their appellate rights.
The decision by Spearman, who is due to be sentenced by Cannon on Aug. 31, to enter a plea deal averted the problem with the court closure. But legal experts said it raises questions about how Cannon will handle public access for Trump's trial.
"She is going to have to make some accommodations," Santa Clara's Smith said.
Reporting by Jacqueline Thomsen and Sarah N. Lynch; Editing by Will Dunham and Scott Malone
Even experienced judges sometimes make mistakes, and there's nothing unusual about inexperienced judges making rookie mistakes. It's a peculiarity of the U.S. legal system, and (I think) particularly prevalent in the federal system.
Although these don't seem like the most heinous kind of judicial mistakes, they also involved pretty basic issues that even a new judge should have been able to figure out. It should have given her pause that lawyers for both the prosecution and the defense were telling her the same thing. The two incidents also suggest that Cannon might not have the knack of taking advantage of her experienced staff, which doesn't bode well.
I'd be interested to hear what bob has to say.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Fri Aug 04, 2023 3:37 pm
by bob
chancery wrote: ↑Fri Aug 04, 2023 2:05 pm
Even experienced judges sometimes make mistakes, and there's nothing unusual about inexperienced judges making rookie mistakes. It's a peculiarity of the U.S. legal system, and (I think) particularly prevalent in the federal system.
There's the maxim, "A defendant is entitled to a fair trial, not a perfect one." Because no trial is error-free, and, given all the decisions judges must make (often on the fly), it is unrealistic to expect it to be.
Swearing in prospective jurors is a ministerial task, i.e., it must be done, but unsurprising that judges occasionally fail to do it. And I really doubt there are prospective jurors out there thinking, "I didn't take an oath so I'm free to lie my ass off!" Especially in federal court.
And this is an area where a good clerk could save the judge's bacon with a simple, "Would you like to swear in the prospective jurors now, Your Honor?"
An open courtroom also is something where the logistics (i.e., what to do with all these spectators?) often overshadow the fundamental constitutional issue (i.e., a bright line rule, with a real punch, is needed to deter star chambers from ever happening). But, again, unsurprising that a judge was fixated on the immediate trees and not the forest.
I also note this defendant eventually pleaded guilty. So a habeas claim (of ineffective assistance of counsel for advising to plea) is possible, but I doubt any court would be persuaded to grant such a claim, which in any event would just vacate the plea agreement and necessitate another trial. (I note is was a conditional plea, but I don't know which appellate rights were reserved.)
So, bottom line, yeah, rookie mistakes. Which are not surprising for a nominee with a thin resume. More concerning is that judge's errors can be raised by the defense on appeal after a conviction, so this judge's incompetence may end up favoring this defendant (who nominated her to be a judge).
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Fri Aug 04, 2023 4:09 pm
by Sam the Centipede
Two points make me wonder about the lightly experienced Judge Cannon: her ignoring the fact that both sides' attorneys were saying there same thing, and the lack of an intervention from clerk or other courtroom staff to suggest swearing in. The first suggests poor social or situational awareness: an "uh oh!" alarm should have sounded in her head when opposing counsel were on the same page. The second suggests the possibility that she has asked the court staff with her attitude so they chose not to raise the issue, not their problem.
On a more practical point, many professions have discovered the value of checklists in auditing correct performance, such as surgeons starting operations, in addition to long term users, such as aviation. Maybe courts need them too.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Fri Aug 04, 2023 4:30 pm
by bob
Sam the Centipede wrote: ↑Fri Aug 04, 2023 4:09 pmOn a more practical point, many professions have discovered the value of checklists in auditing correct performance, such as surgeons starting operations, in addition to long term users, such as aviation. Maybe courts need them too.
Many courts (especially clerks) do have them. But there's no requirement; it is also very difficult to be fired from your lifetime appointment.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Mon Aug 07, 2023 3:43 pm
by realist
Didn't see this posted so if it's a duplicate, apologies.
Judge Cannon Issues Baffling Order in Trump Document Case
Trump-appointed Judge Aileen Cannon is back at her old ways with latest rulings
The new order by Cannon comes in response to the Special Counsel’s team requesting what is called a “Garcia Hearing” to address potential unwaivable conflicts of interest with Donald Trump’s political action committee paying for the same lawyer, Stanley Woodward, to represent co-defendant Waltine Nauta and at least three other fact witnesses who could give testimony against Trump and Nauta. Special Counsel Jack Smith’s team requested to file certain evidence about these conflicts of interests under seal (meaning confidential to the public, but not to the parties) because of grand jury secrecy.
On Monday morning, however, Judge Cannon issued an order striking the filing by the government stating that “grand jury secrecy” alone was not sufficient basis for the filing to be under seal.
More significantly, Judge Cannon, on her own initiative — what courts would refer to using the Latin term “sua sponte” — revealed that an “out-of-district grand jury” is still receiving evidence against Donald Trump post-indictment
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Mon Aug 07, 2023 3:48 pm
by Maybenaut
realist wrote: ↑Mon Aug 07, 2023 3:43 pm
Didn't see this posted so if it's a duplicate, apologies.
Judge Cannon Issues Baffling Order in Trump Document Case
Trump-appointed Judge Aileen Cannon is back at her old ways with latest rulings
More significantly, Judge Cannon, on her own initiative — what courts would refer to using the Latin term “sua sponte” — revealed that an “out-of-district grand jury” is still receiving evidence against Donald Trump post-indictment
S.D. Fla. wrote:The Special Counsel states in conclusory terms that the supplement should be sealed from public view “to comport with grand jury secrecy,” but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.
While this certainly indicates a bit of favoritism, it also could be just a "try again, but with feeling this time."
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Mon Aug 07, 2023 4:48 pm
by John Thomas8
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Mon Aug 07, 2023 9:52 pm
by RTH10260
as above but as reported by Faux News
Federal judge comes out swinging against DOJ special counsel in Trump classified docs case Special Counsel Jack Smith's use of out-of-state grand jury to continue investigating case questioned
By Thomas Catenacci | Fox News
August 7, 2023 12:30pm EDT
The federal judge overseeing the classified documents case against former President Donald Trump delivered multiple blows to Special Counsel Jack Smith's efforts in a brief Monday.
Judge Aileen Cannon of the Southern District of Florida – who is presiding over the case that stems from a Miami grand jury's June indictment of Trump – denied the Department of Justice's (DOJ) request for sealed filings, striking two from the record. Cannon also requested additional information from prosecutors about the continued use of an out-of-state grand jury to investigate the case.
"The Special Counsel states in conclusory terms that the supplement should be sealed from public view ‘to comport with grand jury secrecy,’ but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement," Cannon wrote in the brief, denying the DOJ's request.
"Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district," she continued in the brief.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Tue Aug 08, 2023 9:00 am
by Resume18
"What would you like me to do next, Mr. President?"
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Tue Aug 08, 2023 9:03 am
by pipistrelle
Are we gonna see her slapped down hard again?
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Tue Aug 08, 2023 9:17 am
by Foggy
... the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.
Sign of a great judge:
She says "the instant indicted matter in this district" instead of "this case". If she just says "this case," none of the attorneys have any idea what she's talking about.
I have more, but I must stroll. Not troll, stroll.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Tue Aug 08, 2023 10:57 am
by Reality Check
Judge Cannon is pissed off that Jack Smith has tarnished her moment of the glory of being Trump's savior and possibly getting a SCOTUS appointment in a second Trump term or at least a seat on the 11th Circuit. Now Judge Chutkan is going to trial first and history will remember her as just another inept Trump appointee.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Tue Aug 08, 2023 11:36 am
by Resume18
Gee, I wonder why the Diapered One hasn't asked Cannon to recuses herself?
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Wed Aug 09, 2023 5:05 pm
by raison de arizona
Kyle Cheney @kyledcheney wrote:
JUST IN: Trump's lawyers say they want Judge Cannon to approve the reestablishment of a SCIF at Mar-a-Lago, saying it would be more cost-effective than sending Trump (and his USSS detail) to remote facilities.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Kyle Cheney @kyledcheney wrote:
JUST IN: Trump's lawyers say they want Judge Cannon to approve the reestablishment of a SCIF at Mar-a-Lago, saying it would be more cost-effective than sending Trump (and his USSS detail) to remote facilities.
"reestablishment" when there was never a SCIF at Mar-A-Lago, at least in post-presidential times (did they establish one during the times of the "Winter White House"?) I do not think that his bathroom will qualify as such.
Look what he indends to do ---> he can claim that the DOJ gave him "his documents" back to keep forever and the temporary location can remain permanent.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Kyle Cheney @kyledcheney wrote:
JUST IN: Trump's lawyers say they want Judge Cannon to approve the reestablishment of a SCIF at Mar-a-Lago, saying it would be more cost-effective than sending Trump (and his USSS detail) to remote facilities.
"reestablishment" when there was never a SCIF at Mar-A-Lago, at least in post-presidential times (did they establish one during the times of the "Winter White House"?) I do not think that his bathroom will qualify as such.
Look what he indends to do ---> he can claim that the DOJ gave him "his documents" back to keep forever and the temporary location can remain permanent.
That wouldn't work. The documents still belong to the government. Another subpoena followed by an FBI raid would get them back. There is no room for negotiation.
ETA: But who knows, he is so dumb maybe he does think he could keep them?
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Wed Aug 09, 2023 6:00 pm
by Dave from down under
“ 6 The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.””
True
Most private residences are not public hotels with a history of accommodating foreign nation representatives/operatives.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Wed Aug 09, 2023 6:10 pm
by neonzx
Dave from down under wrote: ↑Wed Aug 09, 2023 6:00 pm
“ 6 The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.””
True
Most private residences are not public hotels with a history of accommodating foreign nation representatives/operatives.
Yes, and I have always found it comical that Mr. T**** calls it his personal residence when it is in fact a membership only club -- not a Holiday Inn Express hotel (apologies to our over-the-pond friends who might not know why that it funny). People pay BIG money for initiation fee and annual fees to be a member of his club -- and then pay super silly fees to stay at his club.
None of his MAGA groupies would ever be welcome to stay there. However, he will take their donations.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
None of his MAGA groupies would ever be welcome to stay there. However, he will take their donations.
He would have them horsewhipped, the hounds unleased upon them, and anything they touched deep cleaned or burned....
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Posted: Wed Aug 09, 2023 7:06 pm
by Suranis
neonzx wrote: ↑Wed Aug 09, 2023 6:10 pm
Yes, and I have always found it comical that Mr. T**** calls it his personal residence when it is in fact a membership only club -- not a Holiday Inn Express hotel (apologies to our over-the-pond friends who might not know why that it funny). People pay BIG money for initiation fee and annual fees to be a member of his club -- and then pay super silly fees to stay at his club.
Remember the agreement he made to open the place forbade him from making it his private residence. So it's hos way of sticking his fingers up at the world around him.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
neonzx wrote: ↑Wed Aug 09, 2023 6:10 pm
Yes, and I have always found it comical that Mr. T**** calls it his personal residence when it is in fact a membership only club -- not a Holiday Inn Express hotel (apologies to our over-the-pond friends who might not know why that it funny). People pay BIG money for initiation fee and annual fees to be a member of his club -- and then pay super silly fees to stay at his club.
Remember the agreement he made to open the place forbade him from making it his private residence. So it's hos way of sticking his fingers up at the world around him.
My recollection is he wanted to be able to construct some free-standing private homes/villas on the property and sell them. The county balked at that and denined that plan.
US v. Trump - Espionage Act - (9:23-cr-80101) District Court, S.D. Florida
Kyle Cheney @kyledcheney wrote:
JUST IN: Trump's lawyers say they want Judge Cannon to approve the reestablishment of a SCIF at Mar-a-Lago, saying it would be more cost-effective than sending Trump (and his USSS detail) to remote facilities.
"reestablishment" when there was never a SCIF at Mar-A-Lago, at least in post-presidential times (did they establish one during the times of the "Winter White House"?) I do not think that his bathroom will qualify as such.
Look what he indends to do ---> he can claim that the DOJ gave him "his documents" back to keep forever and the temporary location can remain permanent.
There was a SCIF in place at Mar-a-Lago when he was president howvere oneof the proviso's with the erction of and use of a temporary SCIF is....
B (3) -[c]
When possible, T-SCIFs shall be established within the perimeters of U.S.-controlled areas or compounds.
Considering his propensity for palling around with and taking money from various ..... foreign elements.... That may a be a height he could not reach.....
"reestablishment" when there was never a SCIF at Mar-A-Lago, at least in post-presidential times (did they establish one during the times of the "Winter White House"?) I do not think that his bathroom will qualify as such. 
