Saturday, December 31, 2005
Friday, December 30, 2005
Happy and healthy New Year to all.
For your weekend reading, here is some info about the funniest Justice. And to the left is the graphic from the article. I'll never forget when a Miami lawyer continued to confuse Justice Souter and Justice Breyer. Justice Scalia started his questioning of the lawyer by saying, "I'm Scalia." Now that's funny.
Thursday, December 29, 2005
Wednesday, December 28, 2005
The Bush Administration, protesting that the Fourth Circuit Court has engaged in an "unprecedented and unfounded assertion of judicial authority," on Wednesday asked the Supreme Court to order the prompt transfer of terrorism suspect Jose Padilla out of military custody and into a regular federal prison. The new filing, escalating the inter-branch constitutional conflict that has now arisen over Padilla, complained that the lower court had made "an unwarranted attack on the exercise of Executive discretion," raising "profound separation-of-powers concerns" if not remedied swiftly. "The Fourth Circuit's order defies both law and logic," the new filing contended. Without waiting to see how the Justices would react to the rapid change of circumstances recently in Padilla's case, Solicitor General Paul D. Clement filed an application to shift Padilla to the Federal Detention Facility in Miami, so that he can face new criminal charges claiming he aided terrorism abroad. The Fourth Circuit last week refused to allow that transfer, saying the government may be trying to undercut Padilla's pending appeal to the Supreme Court. But the Circuit Court also said it would be up to the Supreme Court to decide Padilla's placement, and thus Clement turned to the Justices seeking what the lower court had denied.
Before this latest move, the Herald's Jay Weaver had this coverage of all the latest wrangling. And TalkLeft opines that Padilla's lawyers slap Bush Administration. The Daily Business Review (Julie Kay) had a piece about Padilla's and Hassoun's co-defendant, Kifah Jayyousi, but there is no public link available to review the article. Finally Brian Tannebaum has this to say about criminal defense lawyers in these sorts of cases.
The Southern District of Florida finds itself in the middle of this historic fight between the branches of government.
Monday, December 26, 2005
"Possible grist for your blog, but PLEASE KEEP MY IDENTITY ANONYMOUS IF YOU CHOOSE TO USE THIS IN ANY WAY....A few months back, I heard it from a well-placed source that the current Administration is looking for a way to get Raoul Cantero on the 11th Circuit. They are practically counting the days until Judge Barkett is eligible to take senior status, figuring that will give them a "Florida seat" to fill with Cantero. I've also heard that Cantero (like many Florida Supreme Court Justices) would prefer not to live in Tallahassee forever, so he'd be game. Now another possibility may have arisen -- this week Congress returned the nomination of Brett Kavanaugh to the DC Circuit (he's a darling of the Federalist Society right wingers), signaling that his re-nomination (if it occurs in 2006) would be a complete war. One piece of scuttlebut is that that Cantero could be considered for that open seat on the DC Circuit. If so, and if he makes it to the DC Circuit, his age & ethnicity would automatically jump him into the very top tier of any Supreme Court shortlist for the next vacancy. We might just get a Floridian in the Big House yet...."
A couple thoughts -- 1) I hope Judge Barkett doesn't take senior status any time soon. 2) I don't think Judge Cantero would be as conservative as the right hopes. I think the former Judge Davis' clerk would call it right down the middle. 3) Hope everyone had a nice holiday weekend.
Friday, December 23, 2005
Wednesday, December 21, 2005
Lyle Denniston, over at ScotusBlog, has great coverage of this remarkable decision. Here's his intro:
In a deeply serious setback for the Bush Administration's legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government's credibility in claiming a dire need to designate Padilla as an "enemy combatant" and thus to confine him -- for more than three years now -- in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts. The language used in the opinion --
reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged -- could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush's war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.
The Circuit Court denied the government permission to transfer Padilla out of military custody -- a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla's appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review
of the Fourth Circuit's Sept. 9 ruling. Judge Luttig, writing for a three-judge Fourth Circuit panel, said "we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." In addition, Luttig said: "We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review." Thus, he said, "we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision]."
Monday, December 19, 2005
I wonder how [s]he would feel about this comment in the Daily Business Review today about prosecutors leaving the U.S. Attorney's office: "Said Miami criminal defense attorney David O. Markus: “It’s a good attempt to solve the problem. But ultimately, what we need to do is pay these people more money, as we [also need to] do [for] judges and public defenders.”
The article has lots of good gossip about AUSAs -- some, like Harry Shimkat, have agreed to stay an extra two years in economic crimes. Here's the quote about those who have left:
While the U.S. attorney’s office in the Southern District of Florida has experienced turnover in the past, some liken the departures over the last six months as an exodus. Twenty-two assistant U.S. attorney positions are now vacant in an office with 233 total positions, or almost 10 percent of the office. Among those who have left in the last six months: Lilly Ann Sanchez, former deputy chief of the major crimes division, who became a partner with Fowler White Burnett in Miami; Carlos Castillo, former public information officer, who took a job with Seidman Prewitt Dibello & Lopez in Coral Gables; and Jonathan Loo, who moved to the U.S. attorney’s office in Hawaii. Other departures include Jonathan Lopez, who worked in major crimes and took a job with the Department of Justice in Washington; Eddie Sanchez and Willie Ferrer, who both just left for the county attorney’s office in Miami, and Maria Beguiristain, who last month became an associate at White & Case in Miami. . . . Seth Miles said he left to become an associate at Podhurst Orseck in Miami because “for me it was family reasons and it was just time to go. I knew I didn’t want to be a 40-year career prosecutor.”Finally, one unidentified prosecutor said: “There’s a lack of vision in the office. There’s no excitement, no clear direction on what we should be focusing on. There’s a leadership vacuum.” Yikes.
Also, following up on my post about Michael Caruso being named Chief Assistant Federal Defender for this District, Julie Kay has this to say:
After losing two chief assistants in one year, Federal Public Defender Kathleen Williams said, tongue in cheek, that she’s required her new second-in-command to sign a “noncompete clause.” Williams, the guest speaker at the Miami chapter of the Federal Bar Association’s monthly luncheon, announced that she named Michael Caruso, 39, an eight-year veteran of the office, as her new chief assistant. Caruso will assist Williams in running one of the largest public defender offices in the country and overseeing 45 assistant public defenders. Caruso replaces former chief assistant Martin Bidwill, who was appointed to a Broward Circuit Court judgeship by Gov. Jeb Bush in October. Bidwill was chief assistant for less than a year, taking the place of Reuben C. Cahn, who left in April to head the San Diego federal public defender’s office. “I’d like to address the rumor that I’ve had trouble keeping chief assistants,” Williams quipped, adding that her new top lieutenant “promised he will not go to the bench, he will not leave the office.” Caruso, who serves on the federal court practice committee, said he’s “extremely honored that Kathy chose me to assist her in leading the office” and will stay in the job “as long as she needs me.” Caruso serves on the federal court practice committee of The Florida Bar and the Southern District of Florida’s local rules committee.
Friday, December 16, 2005
Thursday, December 15, 2005
Wednesday, December 14, 2005
Professor Berman has this interesting comment about the case, which also contains a link to the case:
In his opinion for the majority in Blakely, Justice Scalia expresses concern about defendants possible being punished for an uncharged murder and possibly being punished based on weak hearsay testimony proven to a judge only by a preponderance of the evidence. If these issues truly concern Justice Scalia (and other members of the Blakely majority), the Supreme Court ought be interested in a cert. petition coming from today's decision by the Eleventh Circuit in US v. Baker, No. 00-13083 (11th Cir. Dec. 13, 2005) (available here). (Tech warning: the PDF of this opinion is causing Adobe to crash for me sometimes.) Starting at page 124 of an 137-page opinion(!!), the 11th Circuit in Baker affirms long sentences for a number of co-defendants in a large drug conspiracy on the basis of hearsay testimony concerning their involvement in an uncharged murder. Fans of Crawford debates will especially enjoy the court's work in footnote 68, where the Eleventh Circuit
explains why Crawford is to be inapplicable at sentencing.
Tuesday, December 13, 2005
Saturday, December 10, 2005
2. No bond for Cuban exiles in illegal weapons case -- From the AP: "U.S. District Judge James I. Cohn sided with prosecutors, upholding another judge's ruling denying bail for Santiago Alvarez, 64, and 63-year-old Osvaldo Mitat. They are charged in a seven-count grand jury indictment with illegal possession of machine guns and other weapons - some with serial numbers erased - that were allegedly stored at an apartment complex near Fort Lauderdale owned by Alvarez." "These weapons have no utilitarian purpose other than to harm others," Cohn said. Kendall Coffey, Alvarez's lawyer, said: "These aren't criminals. These are two honorable men. These men will be acquitted at trial."
3. Hamilton Bank trial -- no verdicts yet. Jury has been out a long time. The worst part of being a trial lawyer is waiting for the jury to come back. Terrible.
Tuesday, December 06, 2005
Monday, December 05, 2005
The dishy Washington, D.C., court blog UnderneathTheirRobes.com, which talked up the “hotties” of the federal bench, disappeared after the assistant U.S. attorney who wrote it was outed last month. But a Miami version debuted last month, and it features the same menu of irreverent judicial gossip and satire, including a poll ranking the sexiest judge on the bench. It’s likely to rile lawyers, judges and elected officials — and be devoured by them. “Welcome to the unofficial Richard E. Gerstein Justice Building blog,” the anonymously written blog reads. “This site will be dedicated to justice building rumor, humor, innuendo and good stories about the judges and lawyers who labor in the world of Miami’s criminal justice.”Our blog gets a mention:
But two other South Florida lawyer-bloggers, who put their names on their postings, doubt he’ll be able to maintain his anonymity very long. “We’ll see how long he stays in the closet,” said Miami criminal defense attorney David Markus. “E-mails can be traced.” That’s how the Washington blogger was outed. Predicted Miami criminal defense lawyer Brian Tannebaum: “He will be discovered.”Anyone know who it is?
“We are the busiest and best district in the country and we could always use more judges,” said David Markus, vice president of the Florida Association of Criminal Defense Lawyers. If new judgeships are created in South Florida, a battle over where they would be stationed is likely, said insiders. A push to post the new judges in Broward, Palm Beach or Martin counties, where the population is rapidly growing, is expected, although some would likely want the judges based in Miami. “We’d like to see them in our brand new courthouse which is opening next year,” Markus said.
Friday, December 02, 2005
Law.com this morning has this article discussing the state of Booker appeals in the 11th Circuit. The article reviews the interesting concurrences this week from Judge Tjoflat (discussed here) and Judge Carnes (discussed here). The article also interestingly notes that the "11th Circuit has handled nearly 1,100 decisions in the past 10 months that pertain to Booker, according to a Lexis database search."
Here's the conclusion of the article, which highlights the internal fights in the 11th:
Although a majority of the 12-judge circuit voted not to rehear the Rodriguez case, Tjoflat criticized Carnes' approach in a dissent, saying Carnes will make applying Booker "a meaningless formality in all but the rarest of cases." Carnes' rejoinder came in a 43-page opinion. Carnes wrote that Tjoflat's conclusion "requires not just a set of reading glasses but also a vivid imagination."
Thursday, December 01, 2005
Judge Luttig has asked for the following question to be briefed: "Whether, if the government's motion is granted, the mandate should be recalled and our opinion of Sept. 9, 2005, vacated as a consequence of the transfer and in light of the different facts that were alleged by the President to warrant Padilla's military detention and held by this court to justify the detention, on the one hand, and the alleged facts on which Padilla has been indicted, on the other." The government has until Dec. 9 to file its new brief on that issue. Padilla's lawyers are to file their brief a week later, by Dec. 16.
Lyle Denniston has this analysis over at ScotusBlog.com:
The Fourth Circuit had upheld Padilla's detention on the basis of more serious claims of wrongdoing than the charges contained in the new criminal indictment. The government contended, in seeking to justify his detention, that he had been
planning to release a radioactive bomb in a terrorist plot in this country. The
new indictment levels charges of joining in a terrorist "cell" of activity to support global terrorism efforts. The indictment describes a quite minor role for Padilla.
If the government has no interest in pursuing the more serious charges, for whatever reason, the Fourth Circuit may believe that its September ruling has been undercut. This will become clear after it acts following the new briefing. In the meantime, the Justice Department has until Dec. 16 to file its response to Padilla's appeal to the Supreme Court. The Circuit Court's order may complicate that proceeding, because it will not have ruled on the transfer motion, and the possible withdrawal of its September ruling, by Dec. 16. The government, of course, would be free to ask for a further extention of time to file its response.
No word yet on how this will affect the ongoing Southern District case.
Wednesday, November 30, 2005
In order to allow a free and fun discussion of the Justice Building, and because from time to time I need to get my clients a bond, I have assumed the identity of that famed English Defense Attorney Rumpole of the Bailey. What I can reveal is that I am a practicing criminal defense attorney in Miami, Florida who has the same high opinion of Judges, Prosecutors, Civil Lawyers, and stuffed shirts as my fictitious alter ego.I've been asked who the author is and have even been asked if it was me. I don't know who it is and it certainly isn't me.
*Although I use the male pronoun, for all we know Rumpole could be a woman. See, e.g., Article III Groupie, A/K/A AUSA David Lat.
Tuesday, November 29, 2005
Monday, November 28, 2005
Saturday, November 26, 2005
A couple of interesting points -- first, the case was originally assigned to Judge Graham who had to transfer the case because of Wilma. Second, the law has changed since the filing of the suit so that damages are now capped at $1 million. More coverage here and here. Plaintiffs lawyers were Ervin Gonzalez and Deborah Gander.
Wednesday, November 23, 2005
Tuesday, November 22, 2005
The interesting aspect of the case for me is that it shows true weakness by the President. Perhaps the administration lost confidence in its legal arguments due to the Supreme Court next week. Combine this with the recent polls and perhaps the feds figured this was an easy out. We'll see...
On a separate note, isn't Miami always the center of this poltically charged stuff -- Elian, Bush v. Gore, Padilla, and so on. Finally, via How Appealing: "Prepared Remarks of Attorney General Alberto R. Gonzales at the Press Conference Regarding the Indictment of Jose Padilla": You can access them online here, while the indictment itself can be viewed at this link. And the memorandum from President Bush authorizing the transfer of Jose Padilla from the control of the U.S. Military to the control of the U.S. Department of Justice is here.
As you may recall, Padilla had filed a cert petition with the Supreme Court seeking review of the question of whether "the President has the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial."
A response to the petition from the Justice Department was due next Monday. Interesting timing.
UPDATE (by DOM)-- There's lots to read about this interesting case. Check out ScotusBlog for detailed analysis. Also, in response to the comment, Judge Cooke is handling the case. Here is the indictment. I know Ken Swartz represents one of the co-defendants named Hassoun. I'm not sure if anyone has entered an appearance for Padilla yet. Anyone?
Monday, November 21, 2005
First is the DBR article about the internal district rules that were made public. Here's the intro to the article: "The so-called secret rules that federal judges in the Southern District of Florida have been operating by for more than a decade are no longer secret. Under pressure from defense attorneys and the Federal Public Defender Office after an article about the rules was published in the Daily Business Review, the district court in Miami has for the first time made public its internal operating procedures manual. The manual, signed by Chief Judge William J. Zloch Nov. 14, is available for viewing on the court’s Web site. The 20-page manual lays out procedures for how the federal judges assign and reassign cases, how new judges receive cases, jury instructions and magistrate assignments. It also details special powers of the chief judge, which include appointing the chief bankruptcy judge and chief magistrate judge, approving all requests for annual and sick leaves, approving all new courthouse construction projects and architectural plans and reviewing all complaints of judicial misconduct."
Also today's Miami Herald details the sentencing of Haitian informer, Oriel Jean, who got a reduction for his cooperation: "Oriel Jean, the former security chief for ex-President of Haiti Jean-Bertrand Aristide, was sentenced Friday to just three years in prison for his role in helping drug traffickers move tons of Colombian cocaine through Haiti to the United States.
With good reason: The 40-year-old defendant, held in custody since March 2004, gave federal investigators invaluable information on Haiti's drug underworld and the location of fugitives -- and even continued to testify after a cocaine smuggler threatened his life. Indeed, Jean proved to be the prosecution's star witness. At his sentencing hearing in Miami last week, U.S. District Judge Jose Martinez paid Jean a compliment, praising his ''good work'' for the government. The judge then gave him half of the six-year sentence he otherwise would have received for his money-laundering plea deal."
Friday, November 18, 2005
Thursday, November 17, 2005
Wednesday, November 16, 2005
Monday, November 14, 2005
Sunday, November 13, 2005
UPDATE 11/14 -- Speaking of secrecy, the Daily Business Review's cover story today is "Secrecy Slapdown." It discusses in great detail the secret docket problems of this District and the recent Ochoa decision telling the court not to engage in secrecy any longer. I'm trying to get a working link to the article (here it is)... In the meantime, here's the intro:
Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. “We … exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional,” the panel said in its unusual reprimand. Defense attorneys, civil liberties groups and the news media celebrated the panel’s words, which came in the course of upholding a drug lord’s conviction and sentence of more than 30 years in prison. Now, one of the South Florida federal judges who agreed to hide a case admits that she made a mistake and vows never to do it again. “Judges are not gods,” U.S. District Judge Patricia Seitz, a seven-year veteran of the federal bench, said in an interview. “Like any human being, we make mistakes. When your mistake is pointed out, you reconsider your action and you promptly make a correction.”
Wednesday, November 09, 2005
The commission spent nearly an hour grilling Acosta, who is considered by some a shoo-in for the post due to his Bush administration connections. “An issue that is still hanging out there is your lack of trial experience,” said Scott Srebnick, a Miami criminal defense attorney. “In terms of street credibility, will you be able to make the tough decisions? If you decline a case an agency has been working on for awhile … will the agents think, ‘What does he know, he hasn’t really tried any cases?’ ” Acosta replied that as head of the Justice Department’s civil rights division since 2003, he took on some of the hardest cases. “I haven’t had any pushback from law enforcement,” he said. “Look, the issue of credibility has come up before,” he said. “One-third of all U.S. attorneys across the country have no trial experience. At the end of the day, it’s not just about what your experience is but whether you can sit across the table and know the facts and have the confidence to say, ‘Look, I disagree,’ or ‘Look, this is the argument we need to make.’ ” “The U.S. attorney’s office runs itself,” he added.
Tuesday, November 08, 2005
Monday, November 07, 2005
Miami criminal defense attorney David Oscar Markus, who’s not involved in the Cuban spy case, said the 11th Circuit doesn’t often grant en banc review of a panel decision. “It’s very rare,” he said. “If it happens a couple of times a year, it’s a lot. But you know what? It was very rare what the panel did.” Markus said there are two possible reasons why the court granted en banc review. “One possibility is they have taken the case to show unity from the court [in overturning the convictions and ordering a new trial],” Markus said. “The other possibility is the rest of the court just disagrees [with the panel] and wants to quickly get rid of this opinion.” Markus noted that the August panel ruling was the first known case of an appellate court overturning a district court judge on a venue question. Another unusual aspect of the case, he said, is that it typically takes months for the full circuit court to decide to rehear a panel decision. The speed with which the court granted en banc review, just weeks after Acosta’s request, took almost everyone by surprise. “Boom, the opinion
came out, the government asked for review, and review was granted almost immediately, which I think does not bode well for defenders of the opinion,” Markus said. No more than two of the judges on the original panel will be able to rehear the case and defend it, Markus said. Judge Birch was the only active member of the 11th Circuit to decide the original case, while Judge Kravitch has the option to take part in the en banc review. Judge Oakes was sitting by designation. Markus said if Judge Kravitch chooses not to participate, a single judge from the original panel “puts a greater onus on Judge Birch to get a consensus on the court.”
Sunday, November 06, 2005
I'm back from Orlando (there is nothing like seeing Disney World through your kid's eyes...) and I see that Chief Judge Zloch has announced that everything is back to normal starting tomorrow. I wonder how jurors selected to sit for long trials are going to feel about it now that they can just get back to work themselves... It should be interesting. Here is the release:
Return to Normal Operations on Monday, November 7, 2005
Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will resume normal hours and operations on Monday, November 7, 2005. Clerk’s Office hours are from 9:00 a.m. to 4:30 p.m. Jurors should call in for reporting instructions at (800) 865-1775. This announcement applies to district court facilities in Miami, Fort Lauderdale, West Palm Beach, Key West and Fort Pierce.
UPDATE: Judge Zloch also issued an Order on behalf of the entire Southern District of Florida, tolling the speedy trial clock from October 24 through November 4, 2005 due to Wilma. Hat tip, Brian Tannebaum. I feel bad for the clerk's office because J. Zloch directs the clerk to file the Order in every criminal case and to give notice to all parties. What a headache...
Thursday, November 03, 2005
I will be out of town this weekend (I'm speaking at a sentencing seminar in Orlando tomorrow and then going to spend the rest of the weekend in Disney with my family) so blogging will be very light if at all...
Wednesday, November 02, 2005
Tuesday, November 01, 2005
UPDATE: Confirmed. Here is the text of the order:
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges*.
B Y T H E C O U R T :
A member of this Court in active service having requested a poll on the suggestion of rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above causes shall be reheard by this court en banc. The
previous panel's opinion is hereby VACATED.
*Senior U. S. Circuit Judge Phyllis A. Kravitch may elect to participate in further proceedings in these matters pursuant to 28 U.S.C. § 46(c).
In any event, most of the news is Wilma related and I'm sure everyone is Wilmad out. But if you're not, there is great coverage of how Wilma affected the courts and law firms in the Daily Business Review. All the articles require pass-through links, so it doesn't do any good to post them here. But if you can grab a copy of the Review, it's worth it. I was quoted in one funny article this morning about how half of Miami went to Orlando to ride out the storm. I offered my office (which has power, internet, etc) to any lawyer who needs it, "including prosecutors." To date, no prosecutor has taken me up on the offer...
United States District Court for the Southern District of Florida Open With Reduced Hours Beginning November 1, 2005 until Further Notice
Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will reopen on Tuesday, November 1, 2005 in all divisions. The Clerk's Office will be open in Miami, Fort Lauderdale, West Palm Beach and Fort Pierce; however, the District Court's hours of operation will be limited to between 9:30 A.M. and 3:30 P.M until further notice.
Southern District of Florida courthouse facilities will be generally open to the public but no new jury trials will commence until further notice. The Court will operate under this reduced schedule in consideration of localized power outages, supply shortages, and the recent conversion to daylight savings time which together may complicate evening commuting.
Information concerning the status of the Court's operations will be posted here on the Court's web site.
Last Updated: Monday, October 31, 2005
Monday, October 31, 2005
It's an interesting choice, especially when compared to Bush's other two nominations. Roberts was an unknown, but a very smart unknown. It was difficult for either side to really attack him because he was so qualified. Miers was viewed as a not-so-smart unknown. And it was easy for both sides to attack her because she was seen as unqualified. Now we get Alito, a known and smart commodity. He's been a judge for fifteen years and has a long track record, even on issues like abortion. See Planned Parenthood v. Casey (Alito supported abortion restrictions). His record will certainly make the hearings more exciting to watch.
For all the news, background, and gossip I would check out ScotusBlog, How Appealing, Professor Berman's site, and Underneath Their Robes.
Due to the ongoing community recovery efforts and supply shortages in the aftermath of Hurricane Wilma, Chief United States District Judge William J. Zloch announced that the United States District Court for the Southern District of Florida will be open on Monday, October 31, 2005 subject to the following restrictions: The Clerk's Office will be open in Miami only, and its hours of operation will be reduced to 10 A.M. to 3 P.M. The Clerk's Offices in Fort Lauderdale, West Palm Beach and Fort Pierce will remain closed.
All Southern District of Florida Courthouse facilities will remain generally closed to the public. The Miami Clerk's Office will be available during reduced hours to receive emergency filings. No jury trials or hearings will be held or commenced until further notice.
A further announcement about the status of the District Court’s operations will be made by 4:00 P.M. on Monday, October 31. Information concerning the status of the Court’s operations will be posted here on the Court’s web site.
Last Updated: Saturday, October 29, 2005, at 1:00 p.m.
Friday, October 28, 2005
Thursday, October 27, 2005
I hope my fellow South Floridians are doing okay. Most of us are still without power, hot water, gas, etc. They say we may get these things by Easter...
The DBR reports the following on courts:
Hurricane Wilma shut down state and federal courts in Miami-Dade, Broward, and Palm Beach counties. Most said they would remain closed through Friday. Officials at most of the courts said they would reopen for business on Monday though that is tentative. The lone exception is the 3rd District Court of Appeal, which covers Miami-Dade and Monroe counties, which will be open Thursday. Hearings Wednesday were canceled at state and federal courts and filings deadlines were expected to be extended. The Florida Supreme Court was expected to issue deadline-extension orders for state courts sometime Thursday. Wilma damaged several Miami-Dade County courthouses, forcing their closure for several days while authorities assess the damage. But the damage was not nearly as severe as that to the main Broward County Courthouse in Fort Lauderdale. Most trials and court proceedings at the main Broward courthouse will be postponed until Nov. 7 as workers make massive repairs to the facility in downtown Fort Lauderdale. About 175 windows were shattered and blown inside the building, water pipes burst, and wind and rain inundated judges’ chambers, court administration offices and the jury room. In the north wing of the building, an inch of water covered the floor. Nevertheless, magistrates are holding first-appearance criminal proceedings at the Broward County Jail In Palm Beach, all Circuit Court business has been suspended through Friday, except for first appearances, shelter hearings, and domestic violence-related matters, according to the court’s Web site. Those proceedings are taking place at the Criminal Justice Complex in West Palm Beach. A court epresentative was not available for comment Wednesday about any damage at court buildings. The four federal courthouses in downtown Miami appeared to have suffered no exterior damage, but did have some interior damage. The court’s Internet site reported that federal courthouses would be closed until further notice. A recorded message at the U.S. Bankruptcy Court said the bankruptcy offices in Miami-Dade, Fort Lauderdale, and West Palm Beach are also closed until further notice. The recording said bankruptcy hearings and creditors’ meetings would be rescheduled. Criminal court judges in Miami-Dade were handling first appearances at the county jail in downtown Miami Tuesday afternoon, and were working on emergency domestic violence intervention requests. Miami-Dade Circuit Court spokeswoman Jill Beach said it was too early to tell when the courts might reopen, although officials were hoping it would be next Monday. “We’re doing everything we can to get safely prepared for reopening for the public and the employees,” Beach said. “There’s no assurances what’s going to happen right now.” The 11th U.S. Circuit ourt of Appeals in Miami canceled oral arguments in Miami for the week. An 11th Circuit court clerk in Atlanta said attorneys should call their case manager to
arrange for deadline extensions, but extensions would be granted on a case-by-case basis. Officials at the 4th DCA in West Palm Beach, which includes Broward and Palm Beach counties, could not be reached Wednesday. The court’s Web site said it would be closed Wednesday and Thursday. No further information has been posted about when the court might reopen. No details of any damage were immediately available. Carl Jones can be reached at firstname.lastname@example.org or at (305) 347-6648.
Wednesday, October 26, 2005
I have no internet access at home or work, so I'll do the best I can to get updates to this site. Thanks to Stearns Weaver for lending me an office.
The state courthouses in Miami and Broward are closed the rest of the week.
The federal courthouses are going day by day. Their website has more info. Hopefully they will just close for the rest of the week. **UPDATE -- They listened -- all federal courts in this District are closed the rest of the week.
FDC-Miami is closed to visitors. **UPDATE -- You can call 305-982-1211 to find out when it is re-opening.
Many many offices on Brickell, including Greenberg Traurig, have been blown out.
Saturday, October 22, 2005
The court is aware that, for many of the same reasons
discussed above, the reversal of these convictions will
be unpopular and even offensive to many citizens.
However, the court is equally mindful that those same
citizens cherish and support the freedoms they enjoy
in this country that are unavailable to residents of
Cuba. One of our most sacred freedoms is the right to
be tried fairly in a noncoercive atmosphere. The court
is cognizant that its judgment today will be received
by those citizens with grave disappointment, but is
equally confident of our shared commitment to
scrupulously protect our freedoms. The Cuban-
American community is a bastion of the traditional
values that make America great. Included in those
values are the rights of the accused criminal that
insure a fair trial. Thus, in the final analysis, we trust
that any disappointment with our judgment in this
case will be tempered and balanced by the recognition
that we are a nation of laws in which every defendant,
no matter how unpopular, must be treated fairly. Our
Constitution requires no less.
The sentiment was that this language was offensive and that there was no reason to include it. Kathy defended the court's language (as I think she had to -- she is representing one of the defendants in the on-going litigation), arguing that each sentence in that paragraph was true and complimentary.
It does seem to me strange that it was included in the opinion. Query as to whether it would have been included if the defendants were African-American or Jewish. I doubt it. So why include it here? Thoughts?
Federal District Court Operations and Hurricane Wilma
Chief United States District Judge William J. Zloch announced that United States District Court operations in all divisions be closed Monday, October 24, 2005 due to wind and rain conditions anticipated to develop with the approach of Hurricane Wilma. These closures affect the District Court’s operations in Key West, Miami, Fort Lauderdale, West Palm Beach and Fort Pierce. The District Court in these locations will be closed to the public, and jurors have been or soon will be instructed to call in for further reporting instructions. The United States Bankruptcy Court will also be closed.
Federal court operations will resume at the regular time in all Divisions on Tuesday, October 25th. Please consult the Court’s website at www.flsd.uscourts.gov for changes to these instructions.
Thursday, October 20, 2005
A reminder -- tonight at Greenberg Traurig's office is the American Constitution Society event discussing the Cuban Spy opinion by the 11th Circuit. It should be a great and lively discussion. Will write about it tonight...
Wednesday, October 19, 2005
Monday, October 17, 2005
A bit of trivia: For whom did the Roberts' Court rule in its historic first published opinion? It ruled in favor of convicted murderer Paul Allen Dye, who sought a writ of habeas corpus based on prosecutorial misconduct. Check out Dye v. Hofbauer, 526 U.S. ___ (2005) (per curiam) here.
Sunday, October 16, 2005
Wednesday, October 12, 2005
Tuesday, October 11, 2005
Monday, October 10, 2005
Friday, October 07, 2005
Thursday, October 06, 2005
Hat tip to Brian Tannebaum:
BILL CALLS FOR MORE FEDERAL JUDGES FOR FLORIDA-- Ft. Myers News-Press,
http://www.news-press.com, October 6, 2005.
U.S. Rep. Katherine Harris today [Oct. 6] joined U.S. Rep. Ileana Ros-Lehtinen to announce legislation to authorize additional federal judgeships for Florida. Harris and Ros-Lehtinen introduced the Judgeships for Justice Act, H.R. 3953, to provide resources to address a growing need for additional judicial representation. Currently, weighted case filings per judgeship in Florida's Middle District are 47.7% above the standard set by The Judicial Conference of the United States; and in the Southern District, 19.3% above the standard. Prosecutions of fraud, drugs, firearms and immigration are putting a strain on the administration of justice in
Florida. Based on this workload data, in its most recent report the conference recommended the creation of seven permanent, and one temporary federal judgeships for Florida.
Tuesday, October 04, 2005
Ya’ll want me to stop?! Hurry up and wait!
Ya’ll want me shot?! Hurry up and wait!
Ya’ll hurry up and wait! Ya’ll hurry up and wait!
I’ve been brought up,
By street cats who didn’t get caught up
Like that New Jack Nino Brown at da Carter
I’m da new Tony Montana, only I’m just aLittle bit smarter!
-- Pitbull, Hurry up and Wait
Well, if you haven't gotten your fill of Pitbull, read this Herald article, which details:
Pitbull fans may have a new CD to put on their Dear Santa list this upcoming holiday season. A Miami judge has found that Slip-N-Slide Records can release an album of the Cuban-American rapper's old tracks that his current label, TVT Records, sought to block. In a 26-page opinion, U.S. District Court Magistrate Stephen Brown said Miami-based Slip-N-Slide has the right to issue the LP Welcome to the 305 as long as it affixes a sticker to it stating ``contains previously unreleased material.'' ''We couldn't be happier,'' said Slip-N-Slide attorney Richard C. Wolfe. "We think the
judge absolutely understood this case.''
In other news, the U.S. Attorney's Office is fighting internet fraud re Hurricane Katrina. Gary Kraser has been arrested for his website, www.AirKatrina.com.
And the office filed its petition asking for rehearing in the 11th on the Cuban Spy Case.
Monday, October 03, 2005
UPDATE -- Some, like Tom Goldstein, are already predicting that she will not be confirmed. I tend to agree, especially because she will be compared to the super-smart, well-qualified Roberts, who was a no-brainer.
Sunday, October 02, 2005
Friday, September 30, 2005
Thursday, September 29, 2005
Wednesday, September 28, 2005
UPDATE: When it rains, it pours. Here is more breaking news -- the government has decided to ask for rehearing on the Cuban Spy decision. Here is the press release they sent out today: "Today, United States Attorney R. Alexander Acosta and the members of the trial team in United States v. Camp, submitted to the EleventhCircuit Court of Appeals a Petition requesting that all twelve activejudges of the Eleventh Circuit Court of Appeals rehear that case. The Petition respecfully expresses a belief, based on a reasoned and studied professional judgment, that the panel decision in this case is contrary tothe decisions of the Supreme Court of the United States and of the EleventhCircuit, and that consideration by the full Court is necessary to secureand maintain uniformity of decisions in the Eleventh Circuit." The press release was emailed to every news outlet in Miami, even though the brief has not even been filed yet in the 11th Circuit.
Tuesday, September 27, 2005
In the meantime, Richard B. Rosenthal has emailed me this trivia question, which I reproduce here. Answer to follow in the next couple of days, but use the comment section if you wanna take a guess: Who is the youngest person ever appointed to the federal judiciary, what President appointed him or her, and on what court did he or she serve?
Monday, September 26, 2005
From: Jack Bauer
Sent: Monday, September 26, 2005 8:14 PM
Subject: New CUSPO
I write on behalf of Chief Judge Zloch to announce that the Court’s Judges selected Reginald D. Michael to be the District’s next Chief Probation Officer. Mr. Michael will succeed incumbent Chief Frank Schwartz when he retires later this year, and his official starting date has not yet been established. Mr. Michael earned a Bachelor of Arts Degree in Criminal Justice from Northeast Louisiana University and his experience in the federal probation and pretrial services system has spanned over 18 years. Mr. Michael comes to us from the U.S. Probation Office in the District of Nevada where he currently serves as the Deputy Chief U. S. Probation Officer. He formerly served as a U.S. Probation Officer and Supervising Officer in the Southern District of New York, as a Probation and Pretrial Services Administrator with the Administrative Office, and as Chief of Program Review for Probation and Pretrial Services at the Administrative Office. Mr. Michael possesses a solid background in probation and pretrial services and strong management, leadership and interpersonal skills. The District’s Judges believe Mr. Michael will make an excellent addition to the Probation Unit and that he will prove to be an effective leader within the District and within the federal probation community.
Sunday, September 25, 2005
2. WHOOPS! In the well-publicized drug prosecution of Evintz Brillant, the government's star witness picked out Justice Department attorney Thomas Pinder when asked to identify the defendant. Assistant U.S. Attorney David Weinstein quickly recovered and asked the witness to stand up and look around the courtroom for Brillant. ''I made a mistake,'' he said. "He's sitting right there, wearing a blue shirt.''
Friday, September 23, 2005
Thursday, September 22, 2005
Yes: Specter (R), Hatch (R), Grassley (R), Kyl (R), DeWine (R), Sessions (R), Leahy (D), Kohl (D), Feingold (D), Graham (R), Cornyn (R), Brownback (R), and Coburn (R)
No: (All Democrats) Kennedy, Biden, Feinstein, Schumer, and Durbin.
Professor Ronald Dworkin begins a recent essay about the Committee's confirmation hearings as follows: "Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts, and many people naturally fear that he will use his great power on the Supreme Court in the service of his politics. He promised that he would not, but the Senate Judiciary Committee should have been more effective than it was in testing that promise. In fact it failed dramatically in its responsibility to do so." Here is the entire essay.
Now, the government does not want the jury to hear this evidence. Judge Cooke will decide by Friday.
The Herald quotes Brillant's attorney, Howard Schumacher, as saying that he only learned last week from prosecutors that his client had taken the polygraph. This case has been pending for months, why did the government only disclose this evidence on the eve of trial?
Wednesday, September 21, 2005
Tuesday, September 20, 2005
A bunch of trials were delayed this week due to Rita. I was supposed to start trial on Wednesday; now I'll start on Thursday. In a more publicized case, The Herald reported that: "Jury selection is scheduled to begin later this week in the case against Evintz Brillant, the only one of four former senior Haitian police officials who has not pleaded guilty in the investigation of drug trafficking inside the Aristide government. . . . The trial's scheduled Monday start before U.S. District Judge Marcia Cooke was delayed a few days by the approach of Tropical Storm Rita."
Good luck with the storm today everyone.
Monday, September 19, 2005
Federal District Court Operations and Tropical Storm Rita
Chief United States District Judge William J. Zloch directed that United States District Court operations in all divisions be closed at 3:00 P.M. today and remain closed on Tuesday, September 20, 2005 due to wind and rain conditions anticipated to develop with the approach of Tropical Storm Rita. These closures affect the District Court’s operations in Key West, Miami, Fort Lauderdale, West Palm Beach and Fort Pierce. Federal courthouses in these locations will
be closed to the public, and jurors have been or soon will be instructed to call in for further reporting instructions. The United States Bankruptcy Court is also closed. Court staff are free to leave at 3:00 P.M. today and are instructed not to report for work on Tuesday. Federal court operations will resume at the regular time in all Divisions on Wednesday, September 21 . All staff should report for work at that time. Please check the Court’s website at www.flsd.uscourts.gov for changes to these instructions.
Friday, September 16, 2005
2. Judge Cooke denied a motion to move two accused terrorists out of the special housing unit of the federal detention center today because prosecutors said they could continue spreading Muslim extremism if allowed into the regular jail population. The Herald article is here.
Thursday, September 15, 2005
Wednesday, September 14, 2005
I wonder if the timing of the indictment is related to the resumption of the National Hockey League's schedule next month.
Should the Supreme Court survey or take into account international law when deciding an issue as Justice Kennedy believes? Or should the Court disregard international law as Judge Roberts apparently believes?
Tuesday, September 13, 2005
UPDATE -- Just came across this Dahlia Lithwick article about the hearings. For my money, this was the most entertaining article I've read.
Monday, September 12, 2005
Friday, September 09, 2005
UPDATE -- Professor Froomkin over at his blog actually takes the position that the State's decision not to charge supports his position that DeFede commited a crime. He bases his argument on the prosecutor's statement that the "uniqueness of the tragic circumstances" led to the conclusion not to prosecute, not any "special journalistic privilege or legal exception accorded to Mr. DeFede." Anyone buying?
Wednesday, September 07, 2005
Disclosure -- I am the representative for the CJA panel for the Southern District of Florida.
Tuesday, September 06, 2005
1. Steel Hector is no more. It has been gobbled up by Squire Sanders. I originally posted about this here. Steel had lots of trouble lately, but this is a sad close to a law firm with lots of Miami history.
2. Apparently there will be a charging decision soon with Jim DeFede. I'm not sure what they are waiting for, but we'll know soon. Prof. Froomkin and I debated whether DeFede's actions were legal here and here.
Sunday, September 04, 2005
Friday, September 02, 2005
*Back in the early days of the public service announcement (in the late 60's), the Do It Now Foundation convinced Jim Morrison of the Doors to tape an anti-drug ad for their "Speed Kills" radio campaign. Frank Zappa made a splash with an equally ominous spot warning listeners that "In general, this drug will make you just like your mother and father."
Thursday, September 01, 2005
Law.com reports that Judge James Hill (from the 11th Circuit) is not happy with the rule in the 11th Circuit that says that if an argument is not raised in an appellant's initial brief, then it is forever waived -- EVEN IF the Supreme Court changes the law after you have filed your initial brief. I have written about this rule before and have a cert petition pending in the Supreme Court challenging the rule. Here is Judge Hill on the issue: "The Bordons should have claimed relief under Booker -- before Booker was decided! For this precedent I am sorry. Stare decisis is an important doctrine, but I trust that, from time to time, it might be tempered with fiat justitia ruat coelum." (The last four words, from Latin, mean "Let justice be done though the heavens may fall" and are the motto of the Supreme Court of Georgia.) Contrasting the 11th Circuit with other appeals courts that have allowed broader application of Booker, Hill wrote, "I should like to think that a court would want to correct an erroneous sentencing of incarceration -- if an efficient and prudential method could be devised to do so. We must feel that we cannot. Yet, the other circuits in this country seem to be doing so -- and surviving!"
BTW, I am going on vacation to North Carolina tomorrow and may be without access to the internet. If so, and if I can't get my co-blogger (anon) to turn on his computer, then it may be a little quiet until next Wednesday.
Wednesday, August 31, 2005
Tuesday, August 30, 2005
Monday, August 29, 2005
1. Jay Weaver reports that "The attorney representing Gilberto Rodriguez Orejuela -- founder of the Cali cartel, which once supplied 80 percent of all the cocaine on U.S. streets -- wants a federal judge to let him withdraw from the case because of the great risk of accepting potentially tainted legal fees from his client. Today, Jose Quiñon will ask U.S. District Judge Federico Moreno for permission to step aside as the Colombian's lawyer because he does not have ''sufficient comfort to proceed with the representation,'' according to court papers.
The judge is likely to assign Rodriguez Orejuela's costly defense to a court-appointed lawyer who would be paid by the U.S. government -- a right normally reserved for poor defendants who cannot afford their own lawyer." The government has really put Quinon and Judge Moreno in a pickle. Of course, the CJA panel is not meant to provide legal services to Gilberto Orejuela. But what is the lawyer or the judge to do? This case really demonstrates the power the government has to keep a presumed innocent defendant from having the lawyer of his choice.
UPDATE-- Judge Moreno let Jose Quinon off the case. See coverage here. Orejuela has until next Wednesday to find a lawyer. If not, a CJA lawyer will be appointed. Stay tuned...
2. Julie Kay reports that the new U.S. Attorney has placed a priority on prosecuting pornography. Not terrorism. Not violent crime. Not drugs. Not white collar crime. Not CHILD pornography. But consenting adult pornography. Can this really be true? Here's some highlights from the article: "When FBI supervisors in Miami met with new interim U.S. Attorney Alex Acosta last month, they wondered what the top enforcement priority for Acosta and Attorney General Alberto Gonzales would be. Would it be terrorism? Organized crime? Narcotics trafficking? Immigration? Or maybe public corruption? The agents were stunned to learn that a top prosecutorial priority of Acosta and the Department of Justice was none of the above. Instead, Acosta told them, it’s obscenity. Not pornography involving children, but pornographic material featuring consenting adults. Acosta’s stated goal of prosecuting distributors of adult porn has angered federal and local law enforcement officials, as well as prosecutors in his own office. They say there are far more important issues in a high-crime area like South Florida, which is an international hub at risk for terrorism, money laundering and other dangerous activities. His own prosecutors have warned Acosta that prioritizing adult porn would reduce resources for prosecuting other crimes, including porn involving children. According to high-level sources who did not want to be identified, Acosta has assigned prosecutors porn cases over their objections."
Thursday, August 25, 2005
1. Fascinating article in the Business Review today about how e-mail is being used as a weapon against a corporate defendant in a contract dispute. John O'Sullivan and Jason Kellogg of Akerman Senterfitt are the lawyers for Quantum Communications and have dug up the e-mails that apparently sink defendant Ronald Hale. The case is in front of Judge Martinez. The DBR explained Judge Martinez's reaction when the defendant said he couldn't recall the e-mail: "Judge Martinez, a former prosecutor, did not buy that the dates of the negotiations slipped Hale’s memory. At the Aug. 3 hearing, he likened it to his days as a prosecutor, when he asked a witness if he was on an airplane that crashed in the Colombian jungle with 4,000 pounds of narcotics on it, and the witness said he could not remember. “That’s like telling me you’re asked have any of your children ever died a violent death, and you say, ‘I don’t really remember,’ ” Martinez said from the bench. Days later, Martinez granted the preliminary injunction for Qantum."
2. Eligio Perez, a former Customs Inspector at Miami International Airport, pled guilty yesterday before United States District Court Judge Federico Moreno in federal court in Miami to a criminal indictment charging him with disclosure of confidential government information, in violation of Title 18, United States Code, Section 1905. Under the terms of the plea agreement, Perez agreed to immediately resign from his federal employment and agreed not to seek any other federal or state law enforcement employment. Perez is scheduled to be sentenced on November 2, 2005. Case was prosecuted by Daniel Fridman.
3. Finally, the JNC is accepting applications for U.S. Attorney in this District. The deadline is October 3. Should I apply?