Judge Thomas Barber – Nominee for the U.S. District Court for the Middle District of Florida

A well-respected state court judge in Florida, Judge Thomas Barber is a fairly uncontroversial choice for the federal bench.

Background

Thomas Patrick Barber was born on December 1, 1966 in Pittsburgh, Pennsylvania.  Barber graduated from the University of Florida in 1989 and from the University of Pennsylvania Law School in 1992.[1]  After graduating, Barber joined the Tampa office of Carlton Fields P.A. as an Associate.

In 1997, Barber became a state prosecutor at the State’s Attorney’s Office, and, after two years, became an Assistant Statewide Prosecutor with the Florida Attorney General’s Office.[2]  In 2000, Barber moved back to Carlton Fields, becoming a Partner in 2002.[3]

In 2004, Barber was appointed to be a County Court Judge for the Thirteenth Judicial Circuit.[4]  He was elevated to be a Circuit Judge in 2008.  He still holds the judgeship.

History of the Seat

Barber has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on August 29, 2017, when Judge James Whittemore moved to senior status.

Barber was one of four finalists nominated for this court by the Judicial Nominating Commission (JNC) set up by Florida Senators Bill Nelson and Marco Rubio.[5]  Barber was formally nominated on May 7, 2018.

Legal Experience

Barber has spent his entire pre-bench career either at the firm of Carlton Fields or as a state prosecutor.  Over the course of his career, Barber has tried approximately seventy cases, including approximately twenty jury trials.[6]

Among the highlights of his career, Barber helped prosecute the leaders of a theft ring that stole baby formula from Florida drug stores for resale in Texas.[7]  The case, which ended with a 76-month prison sentence for the ringleader, revealed links between the operation and the funding for the 1993 terrorist attacks at the World Trade Center.[8]  In other matters, Barber represented a whistleblower who uncovered numerous improprieties at the Florida Department of Health & Rehabilitative Services[9] and represented a family in supporting an elderly patient’s right not to receive skin graft procedures in accordance with her living will.[10]

Judicial Experience

Barber served as a County Judge in Florida from 2004 to 2008 and has served as a Circuit Judge since 2008.  In this role, Barber handles civil cases involving more than $15000 and felony prosecutions.  Over the course of his career, Barber has handled approximately 700 cases.[11]  Among his more prominent cases, Barber ruled that the new Florida “stand your ground” law could not apply to cases currently pending when the law passed.[12]

Over the course of his judicial career, Barber has been reversed approximately thirteen times.  For example, Barber was reversed in two cases for granting motions to dismiss on behalf of criminal defendants.[13]

In one notable case, Barber granted a motion to suppress evidence, finding that the warrant was based on information based on an officer’s nonconsensual entry into a backyard.[14]  The Florida Court of Appeals for the Second District reversed, finding that the affidavit supporting the warrant still met the probable cause requirement without the officer’s personal observations.[15]

Overall Assessment

Looking at Barber’s record overall, senators are unlikely to find his nomination controversial.  His judicial record reflects a relatively low rate of reversal and does not suggest a bias towards either prosecutors and defendants.

However, Barber was among a group of nominees who received his hearing during the October recess, when Democrats were not present.  As such, unless Barber is given a second hearing, he may get some votes against him from Democrats who are protesting their lack of input in the confirmation process.  Barber may also receive questions regarding his ruling limiting the scope of Florida’s “stand your ground” law and for his work representing an elderly woman’s “right to die.”

Nevertheless, Barber faces a strong likelihood of a bipartisan support next year, and will likely be confirmed in due course.

 


[1] Sen. Comm. on the Judiciary, 114th Cong., Thomas P. Barber: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id. at 46.

[6] See id. at 36.

[7] William R. Levesque, 3 Receive Probation in Baby Formula Theft Ring, St. Petersburg Times, Aug. 25, 1999.

[8] See Barber, supra n. 1 at 37.

[9] See Irven v. Dep’t of Health & Rehab. Servs., Case No. GC-G-95-2652 (Fla. Cir. Ct. 1997).

[10] See In re Rosemary Frost, Case No. 2001-1954 (Fla. Cir. Ct. 2001).

[11] See Barber, supra n. 1 at 14. 

[12] State v. Smith, 16-CF-007477 (Fla. Cir. Ct. 2017).

[13] See State v. Ramirez, 198 So.3d 52 (Fla. App. 2d. 2015); State v. Codore, 59 So.3d 1200 (Fla. App. 2d. 2011).

[14] State v. Rodriguez, 56 So. 3d 848 (Fla. Ct. App. 2d. 2011).

[15] See id.

William Jung – Nominee to the U.S. District Court for the Middle District of Florida

It is not uncommon for unconfirmed nominees at the end of a president’s term to be renominated by a future president and then confirmed.  However, William Jung is unique as a nominee to have been renominated by two presidents of different parties only to see both nominations fail.  Now, Jung has been nominated by a third president and has to hope that the third time’s the charm.

Background

William Frederic Jung was born on March 29, 1958 in Fort Belvoir, Virginia.  Jung graduated magna cum laude from Vanderbilt University in 1980 and summa cum laude from the University of Illinois College of Law in 1983.  After graduating, Jung clerked for Judge Gerald Bard Tjoflat on the U.S. Court of Appeals for the Eleventh Circuit and for then-Associate Justice William Rehnquist on the U.S. Supreme Court.[1][2]

While most Supreme Court clerks parlay their clerkships into D.C.-based positions at large law firms, Jung instead joined the Tampa office of Carlton Fields Jordan Burt, P.A. as an associate.[3]  After two years, Jung moved to Miami to join the U.S. Attorney’s Office for the Southern District of Florida as an Assistant U.S. Attorney (AUSA).[4]  In 1990, Jung moved back to Tampa to be an AUSA in the Middle District of Florida.[5]

In 1993, Jung joined Anthony K. Black in starting the law firm Black & Jung, P.A.[6]  The firm was renamed Jung & Sisco, P.A. in 2000 when Black left and attorney Paul Sisco joined the firm.  Jung continues to practice as a partner at the firm to the present.

In 2007, Jung was one of 36 applicants to fill two vacant judgeships on the U.S. District Court for the Middle District of Florida.[7]  He was selected as one of four finalists by U.S. Senators Bill Nelson (D-FL) and Mel Martinez (R-FL).[8]  On July 10, 2008, Jung and U.S. Magistrate Judge Mary Stenson Scriven were nominated for the vacancies by President George W. Bush.  While Scriven was confirmed by the Senate on September 26, 2008, Jung did not get a hearing from the Democratic-controlled Judiciary Committee and his nomination was returned to the President.  President Obama declined to renominate Jung and instead nominated another finalist, Judge Charlene Honeywell, who was confirmed.

In 2013, Jung again applied to fill one of two open judgeships on the Middle District.[9]  Nelson and Sen. Marco Rubio (R-FL) selected Jung as one of four finalists.[10]  However, Obama chose to appoint two other finalists, Judge Carlos Mendoza and Paul Byron, who were confirmed.

In 2015, when two more seats opened on the Middle District, Jung applied once more.[11]  This time, Jung was nominated by Obama for the vacancy, alongside Judge Patricia Barksdale.  However, as in 2008, Jung’s nomination did not receive a hearing from the Republican-controlled Senate Judiciary Committee and was returned unconfirmed to the President.

History of the Seat

Jung has been nominated to a seat on the U.S. District Court for the Middle District of Florida.  This seat opened on August 1, 2015, when Judge Anne Conway moved to senior status.  On April 28, 2016, Jung was nominated by President Obama to fill this vacancy.  However, the Senate did not take any action on Jung’s nomination.

In early 2017, Nelson and Rubio urged Trump to renominate Jung and two other unconfirmed Obama picks in Florida.[12]  Jung was formally nominated on December 20, 2017.

Legal Experience

Jung started his legal career as a litigation associate at Carlton Fields.  In this role, Jung tried one “slip and fall” trial and handled one appeal in the Eleventh Circuit before becoming a federal prosecutor.[13]  As a federal prosecutor, Jung tried nearly 40 federal trials including white collar and public corruption cases.  Among his more notable cases, Jung prosecuted Tampa lawyer Charles Corces for “fixing” cases in collusion with state prosecutors.[14]

In 1993, Jung left the U.S. Attorney’s Office to start his own law firm.  In this role, Jung’s practice is evenly divided between complex civil and criminal defense matters.  Jung has particularly made a name in white collar defense, representing, among others, baseball players prosecuted for their use of steroids,[15] healthcare executives accused for accounting fraud,[16] a seafood company accused of importing rancid shrimp,[17] and the human resources director of a company alleged to have hired undocumented workers.[18]

Political Activity

Jung has been fairly active as a Republican donor, donating $2500 for Martinez’s 2004 campaign and $2500 to Rubio’s 2010 campaign, among others.[19]  Additionally, Jung served on the Hillsborough County Republican Central Executive Committee between 1998 and 2002.[20]

Jung has also supported Florida Democrat Dan Gelber, hosting a reception for his senate campaign in 2010 and donating $1350 to his campaign.[21]

Writings

Throughout his legal career, Jung has occasionally written on issues of law and policy.  Three articles that Jung has authored are particularly interesting.

Corporate Rights

In 1983, as a law student, Jung authored an article arguing that the Indictment Clause of the Fifth Amendment, which prohibits prosecution for a capital or infamous crime without a grand jury indictment, applies to corporations.[22]  While acknowledging that a corporation cannot face a capital charge, Jung delves into the common law history of “infamy” to argue that corporate infamy is not based on the potential for incarceration.[23]  Rather, Jung argues that, given the importance of public opinion on a corporation, it serves as a serious deterrent on criminal conduct.[24]  As such, Jung argues that corporations should receive the protections of indictment via grand juries.

Miranda v. Arizona

In a 2009 article, Jung discussed the Supreme Court decision in Miranda v. Arizona and the role of Chief Justice Rehnquist in reshaping the jurisprudence.[25]  Jung also makes a series of recommendations to improve Miranda including the implementation of uniform warnings and a requirement that all custodial interrogations be recorded.[26]

School Desegregation

In 2006, Jung wrote for the Florida Bar Journal in praise of his former boss Judge Tjoflat: specifically, praising Tjoflat’s implementation of the Supreme Court’s desegregation mantle in Swann v. Charlotte-Mecklenburg Board of Education as applied to the segregated Jacksonville school district.[27]  Specifically, Jung’s praises Tjoflat’s decision to insist of immediate desegregation rather than gradual and suggests that the judge is an unlikely hero of desegregation alongside civil rights heroes such as the Fifth Circuit four.[28]

Overall Assessment

While Jung’s last two nominations ended in disappointment, there is good reason to expect Jung to be confirmed this time around.  First, Jung’s nomination has the requisite qualifications for a district court appointment.  He has over thirty years of federal practice experience and has handled almost fifty federal trials.  Second, Jung is not particularly controversial, having the support of both Rubio and Nelson.  Finally, Jung’s last two nominations were made by a lame duck president facing an opposition congress in the last year of his term.  This time, Jung faces a senate that is eager to confirm Trump’s picks.  As such, his nomination will likely be confirmed fairly smoothly.

During the confirmation process, Jung may be asked to elaborate his views on the proper role of a trial judge, given his strong praise for Judge Tfolat’s assertive actions during the Jacksonville desegregation crisis.  He may also be asked to explain his views on corporate rights and whether he has evolved his opinion that corporate crimes are “infamous” for Fifth Amendment purposes.  However, barring the unexpected, such inquiries are unlikely to derail his nomination. After all, if Bush and Obama and Trump were able to agree on Jung’s fitness for the bench, it is unlikely that senators would disagree.


[1]Jung’s tenure as a Supreme Court clerk overlapped with, among others, Arizona Supreme Court Chief Justice W. Scott Bales and former Solicitor General Donald Verrelli.

[2] Sen. Comm. on the Judiciary, 114th Cong., William F. Jung: Questionnaire for Judicial Nominees 2.

[3] See id.

[4] Id.

[5] Id.

[6] See Susan Clary, Who’s News, St. Petersburg Times, Feb. 1, 1993.

[7] Elaine Silvestrini, 36 Step Up for 2 Open Federal Judgeships, Tampa Tribune, Nov. 12, 2007.

[8] Tampa & State, Four Nominated for Federal Judgeships, St. Petersburg Times, Dec. 18, 2007.

[9] Patty Ryan, 4 Left in Search for U.S. Attorney, Tampa Bay Times, Aug. 29, 2013.

[10] Derek Gilliam, Finalists Selected for Positions; 2 from NE Florida in Running for District Judge; 1 for U.S. Attorney, Florida Times-Union, Sept. 19, 2013.

[11] See supra n. 1 at 34-35.

[12] Andrew Pantazi, Rubio, Nelson Urge Trump on 3 Judges, Florida Times-Union, March 24, 2017.

[13] See supra n. 1 at 21.

[14] See Bruce Vielmetti, Jury Begins to Decide if Lawyer Was Taking a Bribe or Entrapped, St. Petersburg Times, Dec. 10, 1992.

[15] See United States v. Scruggs, No. 5:08-cr-144 (N.D. Cal.)

[16] See United States v. Whiteside, et al., No. S97-52-cr-FtM-24(d).

[17] See United States v. Sigma Int’l Seafood et al., No. 85-95-cr-T-24 (M.D. Fla.).

[18] See United States v. Ross, et al., No. 4:10-cr-201 (S.D. Tex.)

[20] See supra n. 1 at 19.

[21] See supra n. 19.

[22] William F. Jung, Recognizing a Corporation’s Rights Under the Indictment Clause, 1983 U. Ill. L. Rev. 477 (1983).

[23] See id. at 499-503.

[24] See id. at 504-05.

[25] See William F. Jung, Not Dead Yet: The Enduring Miranda Rule 25 Years After the Supreme Court’s October Term 1984, 28 St. Louis U. Pub. L. Rev. 447 (2009).

[26] See id. at 456-58.

[27] William F. Jung, The Last Unlikely Hero: Gerald Bard Tjoflat and the Jacksonville Desegregation Crisis 35 Years Later, 80 Fla. Bar. J. 10 (March 2006).

[28] See id. at 14.