Classic.

Jean-Marc Brun is scheduled to be sentenced in front of Judge Cooke. His lawyer, Milton Hirsch, filed a motion with Judge Marcia Cooke "to permit witness to wear hat in court." You may have seen Joan Fleischman's article covering this important litigation. Here's a piece from the article: "[Character witness] Eber always wears a cowboy hat -- his trademark. But hats are generally a no-no in court. 'We seek . . . an order granting Mr. Eber leave to wear his hat . . . in the courtroom during sentencing proceedings,' Hirsch's motion says. Eber, whose flagship salon is on fancy-schmancy Rodeo Drive in Beverly Hills, has styled the tresses of Cher, Elizabeth Taylor and Farrah Fawcett. From Hirsch's motion: 'His hat is a recognized and recognizable feature of his own style and fashion. . . . There is nothing more American than the notion that one man's nonsense is another man's cachet. Can we imagine Charlie Chaplin's lovable tramp without his bowler? Sherlock Holmes without his deerstalker? Humphrey Bogart as Richard Blaine in Casablanca without his fedora?' Prosecutor Andrea Hoffman 'has no objection' to a hatted José, Hirsch says."

Judge Cooke issued an Order on that motion yesterday. Here's the text of the order:

THIS MATTER is before the court on the Defendant’s Motion to Permit Witness to Wear Hat in Court, filed April 25, 2006.
The Court understands and recognizes the importance Mr. Eber places upon wearing his hat. It is well-known that part of Mr. Eber’s "image" is his trademark cowboy hat. As there are no cameras allowed in court, the possible negative effect of him appearing in the courtroom hatless cannot be gauged.
The wearing of hats is a tradition of a by-gone era, and as such, it is important that those choosing to reenact that era be aware of the proper rules of conduct that should be demonstrated by the wearer.
Generally, there are two degrees of politeness demonstrated by a gentleman wearing a hat: 1) lifting or tipping it, which you generally do for strangers, and 2) taking it off, which is generally done for friends, or as sign of patriotism or reverence.
Both are done as a sign of respect toward others are an expression of one’s own dignity. As rule, hats are removed during the playing of the National Anthem, while the American Flag is passing, at funeral or in the presence of passing funeral procession, and indoors–especially in a church, courtroom or restaurant. If in doubt, a true gentleman will remove his hat indoors as soon as in practical. Leaving one’s hat on when it is considered "proper" to remove it is generally considered aq sign of contempt and/or disrespect.
Would Charlie Chaplin, Sherlock Holmes or Humphrey Bogart as Richard Blaine choose to wear their headgear, when by so doing, they are making a statement that fashion, rather than commonly-accepted practices showing respect, dictate their behavior?
The Court feels this to be a matter of respect, and as such, respects Mr. Ever’s sentiments with regard to his hat. In light of the foregoing, the Court rules as follows:
Mr. Eber may choose to remove his hat as a sign of respect, in accordance with the commonly-accepted rules of etiquette, or he may choose to testify with his hat on. Perhaps the author his carefully researched motion, Milton Hirsch, a gentleman and Office of the Court himself, might assist in his decision.

CLASSIC! (UPDATE -- The Herald has now picked up the Order).

In other fun judicial decisions, apparently the judge handling the lawsuit over the DaVinci Code has inserted his own code into the text of the order. Here is some coverage. And here is the decision. UDPATED -- here is the solution. CNN has a story explaining the code and solution here and hints about the code here.

Great stuff, no?

The Constitutional Criminal Procedure Champion is...

... Justice Scalia.

I'm not kidding. He's penned Blakely (rendering unconstitutional the Federal Sentencing Guidelines) and Crawford (breathing life back into the Confrontation Clause). And after the oral argument in United States v. Gonzalez-Lopez, I'd bet Scalia is going to write another important criminal procedure decision, again supporting the criminal defendant -- this time defending one's Sixth Amendment right to have the lawyer of his choice.

The oral argument looked like a lot of fun, going so far as to invoke every criminal lawyer's favorite film, My Cousin Vinny.

Scalia had this to say at oral argument: "I don't want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

Alito countered: "Let's say the defendant wanted to be represented by a relative who specialized in real estate law. If that lawyer was disqualified and the defendant was eventually represented by an experienced criminal defense lawyer with a national reputation, "why wouldn't that be harmless error?"

That would still be "unquestionably a Sixth Amendment violation," Jeff Fisher (yes, that Jeff Fisher of Blakely and Crawford fame), the defendant's lawyer, replied.

Here's an article about the case.

Meth and the Florida Bar

The website has been down all day. Sorry...

I tried to make up for it with a catchy (even if a little misleading) title.

Meth labs have never been big down in South Florida. But apparently this has changed, according to this Herald article.

In unrelated news, the litigation between Louis Robles' former clients and the Florida Bar has been transferred to District Judge William B Hunt, Jr., a senior judge in Atlanta. The case was filed in the Southern District of Florida and initially was assigned to Judge Huck, who recused. Chief Judge Zloch then asked the 11th Circuit to assign a judge outside of Florida to handle the case. The story was in the DBR this morning (password required).

Double Agent...

The Miami Herald's Jay Weaver and Oscar Corral have this interesting story on the confidential informant in the weapons case involving Santiago Alvarez and Osvaldo Mitat. Here's the intro:

A federal informant playing a critical role in a South Florida weapons case against the wealthy Miami benefactor for Cuban exile militant Luis Posada Carriles also was sharing details about the exiles with a Cuban government official known as ''Daniel'' as far back as 2001, prosecutors have revealed.

Prosecutors also disclosed for the first time that the FBI informant, Gilberto Abascal, traveled by boat with Posada's benefactor and other friends last year to pick up the CIA-trained Posada in Mexico and bring him back to the United States illegally.

Details of Abascal's past contacts with a Cuban official and Posada's entry into the United States surfaced Friday as attorneys for the weapons-case defendants, Santiago Alvarez and Osvaldo Mitat, sought to obtain more information from prosecutors that could help their clients' defense.

For months, prosecutors claimed to have no evidence that Abascal communicated with Cuban government officials. Yet the April 6 letter made public Friday acknowledges that Abascal met with ''Daniel'' and perhaps others at least six times -- an admission that could bolster claims that the defendants were set up by the Cuban government.

The explosive admission was made public just two weeks before the May 8 trial in Fort Lauderdale, a location opposed by the defendants because they maintain they cannot get a fair trial outside of Miami-Dade.

I want...

... this case.

Slow blogging

I have to apologize again for the slow blogging. I just got back from Atlanta where I had an oral argument in the 11th Circuit Court of Appeals. The panel was Judges Anderson, Fay, and Siler. I always enjoy arguing appeals, as I did in this case, but I'm always amazed at how much preparation goes into a 15 minute argument. The preparation time to argument time ratio is all out of whack in the appellate court, isn't it?

And if you are a blog/law nerd, Ian Best at 3L Epiphany now has this post collecting law review articles citing legal blogs. Some recent related posts:
Judges on blogs and blogging
Blogging news and notes
The power of legal blogs
Amazing taxonomy of legal blogs

"Civil" depo (UPDATED)

Check out this video clip of a "civil" depo. Hilarious.

You may also want to check out Hannity & Colmes tonight. (UPDATE -- Richard tells me that his appearance has been postponed until tomorrow night.) Friend of Blog Richard Rosenthal will be on defending his client, Basil Dalack -- a 76 year-old Korean War vet who was recently elected to the town council of the Village of Tequesta (in Palm Beach). Dalak refuses to take the oath because of his disagreement with Bush and the Iraq war. Hannity must be frothing... Here's a Sun-Sentinel article about the case.

STATE COURT JUDGE LINDA DAKIS SERIOUSLY ILL

Hi Federal Court blog readers. Rumpole here. I am sorry to always be the harbinger of sad news (and I promise that I have a humorous Federal Court post on the way) but I am sad to report that State Court Administrative Judge for the Civil Division Judge Linda Dakis suffered a serious stroke over the weekend and is in intensive care at Baptist Hospital. The outlook is not good.
I know that many members of the Federal Judiciary and Federal Court practitioners know and respect Judge Dakis and I thought this is an appropriate way to let everyone know about her illness.

News and notes

Julie Kay's column, Justice Watch, in the DBR has lots of interesting notes today:

1. It describes in much further detail Alex Acosta's talk last week at the Federal Bar Association lunch. Here's one passage:

[Acosta] announced two new deputies in the major crimes division: Barbara Martinez and Ben Greenberg. They will join Chuck Duross, who Acosta named a deputy several months ago. Deputies play key roles, mentoring and supervising new assistant U.S. attorneys, who all start out in major crimes. Martinez, 34, joined the U.S. attorney’s office in Miami in 2000, after serving three years in the fraud section of the Department of Justice in Washington, D.C. Last year, Martinez received the second-highest honor given to federal prosecutors around the country, the Director’s Award, which is awarded by the Department of Justice. She received the award for her work on a child pornography case involving 100 victims. The defendant was convicted in 2004 and sentenced to 100 years in prison. Greenberg, 35, joined the U.S. attorney’s office in 2000. A skilled litigator, he is currently overseeing two of the office’s most high-profile cases — the prosecution of Z’ev Rosenstein, an alleged Israeli organized crime figure who is charged with a massive Ecstasy drug ring, and the fraud retrial of former Hamilton Bank chairman Eduardo A. Masferrer. Acosta related how Greenberg proudly “claims to have indicted 42 cases in one month” — a record for the office. He is the son of Miami-Dade County Attorney Murray Greenberg. Duross, 35, has worked at the U.S. attorney’s office in Miami since 2001. He previously worked at Kirkland & Ellis in Washington, D.C., for 4 1/2 years. Last year, Duross was named Federal Prosecutor of the Year by the Miami-Dade Chiefs of Police Association. He was honored for his work on Operation Check-Mate, in which 23 defendants were convicted in a massive counterfeit check writing scheme. In addition to announcing his new deputies, Acosta also said he would ask the Department of Justice for bonuses and raises for AUSAs in an effort to stem a high turnover rate. He declined to state how much he would request. With a new AUSA in Miami earning about $70,000, it is virtually impossible for them to afford a home in South Florida’s pricey real estate market, he said. By comparison, starting salaries for new associates at major Miami law firms are between $105,000 and $125,000. And since they cannot earn more than members of Congress, even more senior AUSAs are capped at a salary of $140,000 a year. “We’ve seen turnover similar to patterns seen in New York and California,” Acosta said. “The cost of housing is inordinately high here. Rather than hire a few more prosecutors, I’d rather use the money to reward the ones we have.” Former federal prosecutors later applauded Acosta’s plan. “The pay for federal prosecutors should be increased,” said Peter Prieto, managing partner of the Miami office of Holland & Knight and a former federal prosecutor. “They work very long hours and do highly sophisticated work.” Acosta said he’s also taking steps to replace the 30 or so prosecutors who have left in the last year. He reported that, after months of interviewing, he has hired six new prosecutors. Another initiative Acosta plans to start is a mentoring program to pair up senior litigation counsel, such as Richard Gregorie and Caroline Heck Miller, with younger attorneys. “All the big [USAO] offices have formal training programs, and it’s time Miami does too,” he said. According to several sources, Acosta found out he was chosen as U.S. attorney for the Southern District of Florida about two weeks ago. The White House is expected to forward his nomination to the Senate next month, said the sources who spoke on condition that they not be named.

2. The Hamilton Bank trial starts today. It's take two. Last trial was hung. Defense lawyers are the Srebnick bros.

3. The other big bank case, the Bankest case "was abruptly postponed on April 5 when one of the defendants, former bank president Eduardo Orlansky, underwent emergency gall bladder surgery." His lawyer is Ed Shohat. Prosecuting is Caroline Heck Miller, Matthew Menchel and Ryan Stumphauzen. Hector Orlansky is represented by Bruce Lehr.

4. In non-DBR news, the comments to the last post are fun and are not meant to make anyone upset. I hope everyone took them in that spirit.

Why I practice in federal court

By now you all have heard about the Sean Taylor prosecutor. Apparently this guy moonlighted as a DJ, tried to promote this night gig by saying he was the Taylor prosecutor on a MySpace account (in which he also posted what Taylor's defense lawyer (Richard Sharpstein) has called pornographic pictures). Are you kidding me?!

Say what you will about AUSAs, but can you imagine any of them doing this, especially the DJ part? Actually, this is great -- we have fodder for a new poll: which SDFLA AUSA is best suited for moonlighting as a DJ?

For the best state court coverage, check out Rumpole and the accompanying comments, which are always fun to read... Also, here's the AP report, the Herald and the CBS4 video.

Acosta at the Federal Bar Luncheon

Interim (soon to be permanent*) U.S. Attorney Alex Acosta spoke today at the Federal Bar Association Luncheon, praising the assistants in the office, even pointing out many by name. He also cited the large proseuctions currently pending in the district (Abramoff, the Rodriguez brothers, Rosenstein, Hamilton Bank, and others). He mentioned that he was going to focus on training young lawyers in the office and on paying them more (which will require hiring less attorneys) so that he can compete with hiring practices in Miami. The speech was about 15 minutes.

* Acosta emphasized that the articles saying his nomination was imminent were premature and that is only an interim U.S. Attorney.

$10 million bail...

... for Ze'ev Rosenstein "over the objections of federal prosecutors, who said they were concerned that Rosenstein had ready access to huge assets and could readily flee the United States." Rosenstein is represented by Roy Black. AUSA is Ben Greenberg. Magistrate Judge is E. Torres.

Welcome (permanently) Alex Acosta

All reports (here is Jay Weaver's Herald article from Saturday and Julie Kay has a piece in Monday's Daily Business Review) are that Alex Acosta has lost the interim from his title and is now the permanent U.S. Attorney for the Southern District of Florida, the best and busiest district in the country. Welcome Mr. Acosta and congratulations.

I'm thinking of posting my requests for the new administration. If you have any suggestions, put them in the comment section and I'll add them to the list.

Congress may not burn the house to roast the pig.

So says the 11th Circuit in US v. Williams, discussed below by Marc Seitles. Here is Carl Jones for law.com on the case.

PROTECT ACT PROVISION DECLARED UNCONSTITUTIONAL

Today, the Eleventh Circuit Court of Appeals, in United States v. Williams, No. 04-15128, handed down a signficant decision holding that the PROTECT ACT's provision that prohibits the promotion of child pornography is facially unconstitutional as overbroad and vague. This case originated in Judge Middlebrooks' division. And Louis I. Guerra preserved the issue and won on appeal.

Here is an excerpt from the decision -

"In the wake of Free Speech Coalition, sexually explicit speech regarding children that is neither obscene nor the product of sexual abuse of a real minor retains protection of the First Amendment. We believe the Court’s decision in Free Speech Coalition leaves Congress ample authority to enact legislation that allows the Government to accomplish its legitimate goal of curbing child abuse without placing an unacceptably heavy burden on protected speech. Certainly Congress took many cues from the Court in drafting the legislation at issue in this case.
Given the unique patterns of deviance inherent in those who sexually covet children and the rapidly advancing technology behind which they hide, we are not unmindful of the difficulties of striking a balance between Congress’s interest in protecting children from harm with constitutional guarantees. However, the infirmities of the PROTECT Act pandering provision reflect a persistent disregard of time-honored and constitutionally-mandated principles relating to the Government’s regulation of free speech and its obligation to provide criminal defendants due process. Because we find the PROTECT Act pandering provision, 18 U.S.C. § 2252A(a)(3)(B), both substantially overbroad and vague, and therefore facially unconstitutional, we reverse Williams’s conviction under that section."

Here's the whole opinion.

Big Money in Torture Case

Judge Joan Lenard ordered that a retired Honduran military officer pay $47 million dollars to victims of torture, murder, and kidnapping. A San Francisco human rights group, the Center for Justice and Accountability, brought the suit against former Lt. Col. Juan Evangelista Lopez Grijalba. Read more from today's Miami Herald.

More on Scalia

I'm not sure why (perhaps I'm catching up from the 6 weeks of trial), but I can't get enough of the Scalia story. So here's some great stuff out there for those that are interested:

1. Scalia's letter to the editor of the Boston Herald. This isn't the first time Scalia has written to an editor. See this!
2. Wonkette (formely Article III Groupie) on Scalia.
3. The Sopranos take on the gesture (I'm not kidding).
4. The best coverage of all, a must-read article by Slate's Dahlia Lithwick.
UPDATE -- 5. The Colbert Report responds to Scalia. Hat tip Richard Rosenthal.
For the more intellectual readers out there, here is some great analysis of the Padilla cert denial.

Enjoy.

Padilla cert denied

The Supreme Court denied cert in Jose Padilla's case this morning, giving the green light to the criminal prosecution here in Miami. It wasn't your ordinary cert denial as it had a number of opinions. Here is ScotusBlog's coverage:

Court refuses to hear Padilla appeal
Posted by Lyle Denniston at 10:02 AM
The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held in a military jail for more than three years as an "enemy combatant." The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order and accompanying opinions.
The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president's wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and -- for an extended period -- without a lawyer.
The Administration was so eager to have the case out of Court that it was willing to let the Fourth Circuit decision disappear, which would have been the result of a dismissal of the appeal on mootness grounds.
Three other Justices took the unusual step of issuing an opinion to justify the denial of review. They said that "there are strong prudential reasons disfavoring" Court review. Padilla is due to go on trial on criminal charges in civilian court, and "any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings."
In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla "has a continuing concern that his status might be altered again." That, however, "can be addressed if the necessity arises."
Kennedy wrote that "Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts." That, he said, "also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla's current [civilian] custody is part of the relief he sought, and that its lawfulness is uncontested."
Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case (Padilla v. Hanft, 05-533). Ginsburg wrote a separate opinion making the argument that the case was not moot, and should be reviewed. Breyer and Souter simply noted their votes in favor of review. It takes four votes to grant review, however.

Booker in the Southern District

Julie Kay has a thought provoking (and sobering) story today about sentencings in the Southern District after Booker. The premise of the article is that other than Judge Highsmith (and a couple of others), the Southern District judges are sticking to the guidelines. Although it's hard to argue with the numbers that the article cites, I'm not entirely convinced that our judges are completely sticking to the rigid sentencing guidelines. My experience has been that judges are willing to sentence below (and above) the guidelines in the right cases. The reason, I think, Julie had problems finding lawyers to give stories about particular sentencings outside of the guideline range is that no one wanted to out any judge on this issue because there is (I agree) a fear out there that everyone else is sticking to the guidelines. Hopefully this culture will change. For the best coverage on sentencing, I would go to Prof. Berman's sentencing blog. Here's the intro to the article:


Cover StoryNot so free after all
April 03, 2006
By: Julie Kay
Shelby Highsmith

Then the U.S. Supreme Court gave federal judges more discretion in sentencing defendants, defense attorneys in South Florida rejoiced. But 15 months after the closely divided court issued its landmark rulings in U.S. v. Booker and U.S. v. Fanfan, prosecutors are the ones smiling. Since getting the leeway from the nation’s highest court, federal judges in South Florida have opted to stay mostly within the guidelines. A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5 percent of 1,951 cases sentenced. That’s a significantly higher percentage than in many other districts. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 percent of 65,368 cases. The South Florida rate is also higher than in the middle and northern districts of Florida, where judges sentenced within the guidelines in 65.6 percent and 71.7 percent of cases respectively. In the Booker and Fanfan rulings, by 5-4 votes the justices granted judges greater freedom to tailor sentences to the individual circumstances of cases. The majority held that the tough mandatory federal sentencing guidelines in effect since 1987 should only be used as advisory. The court also said the mandatory guidelines violated the Sixth Amendment right to trial by jury because sentencing under the complex guidelines could be based on aggravating factors not found by the jury. South Florida criminal defense lawyers were thrilled that judges no longer would be allowed to lengthen sentences based on factors not found by the jury. And they hoped judges would use their new discretion to grant more downward departures from the guidelines. But since Booker, South Florida federal judges sentenced below the guideline range — known as departing downward — in 21.4 percent of cases. A breakdown shows 10.1 percent were supported by the government for cooperating witnesses. Slightly more than 2 percent were departures based on previously allowed factors such as mental defect, family status, and age. Nine percent of downward departures were for other reasons. That 9 percent reflects discretionary sentences judges could only make since the Booker ruling. The office of Interim U.S. Attorney Alex Acosta declined to comment on the sentencing commission report.

Scalia to reporters

Here is Scalia's gesture to a reporter asking him about whether he could be impartial about church/state issues as he was leaving church. He denied making such a gesture and then Peter Smith, a freelance photographer, released this picture. Smith was promptly fired!

In other High Court news, there is a move to put cameras in the Supreme Court and all federal courts around the country, which will produce similar gestures from Justices. In fact, two such bills are currently pending and are garnering support. I'm for it because it creates accountability for judges (and prosecutors). Thoughts?