HAPPY NEW YEAR!

Sorry for the lack of posting during the Holidays. I've been taking it easy, trying to get ready for 2007. The blog will be back up and running on January 2, 2007. Apparently though, the Federal Courts are closed. This just in from the Court's website:

Court Closed on January 2, 2007 for National Day of Mourning
Following President George W. Bush's declaration of a National Day of Mourning to honor the memory of former President Gerald Ford, Chief United States District Judge William J. Zloch announced today that the United States District Court for the Southern District of Florida, at all its Divisions, will be closed to the public on January 2, 2007. Consistent with Federal Rule of Civil Procedure 77(a), the Clerk's Office will follow established protocols for receipt and processing of emergency filings which require expedited judicial attention.

Put that in your pipe and smoke it

Judge Moreno sentenced "a Hialeah carpenter convicted of selling counterfeit Cuban cigars in a high-stakes trial . . . to five months of home confinement on Thursday in federal court in Miami." Prosecutors had asked for five years in prison.

Jose Padilla to be evaluated in courtroom

Last week, Judge Cooke ordered Jose Padilla to be evaluated by a prison doctor to aid in the competency determination. According to the Miami Herald, Mr. Padilla did not object to that evaluation but did object to it being conducted in the prison:

One of Padilla's attorneys, Michael Caruso, argued that his client did not want to go through the examination in shackles in the detention center because it ''conjures up memories'' of his allegedly harmful experience of being detained as an ''enemy combatant'' in a Navy brig for more than three years.

Apparently the Government objected to the evaluation being done in the actual courtroom, and the Court is waiting to see what the jail's position is before ruling.

Sue em!

Things are getting ugly with the new federal courthouse. According to this DBR article by Julie Kay, "the Government Services Administration is considering suing the contractor for the Wilkie D. Ferguson Jr. Federal Courthouse in Miami for construction problems that have delayed the opening of the courthouse by at least 18 months." Lots of juicy tidbits in the article... Worth a read.

Padilla to be evaluated by jail doctor

Here is a good article summarizing the Padilla proceedings today. He will now be evaluated by a prison doctor. "Our position is, we don't have a problem with that," said Assistant U.S. Attorney Brian Frazier. Any bets as to what this prison doctor will say?

And a player to be named later...

Two more prosecutors have left the U.S. Attorney's office -- Chuck Duross is heading to DC to work in the fraud division and Matt Dates is taking a gig with the Red Cross. George Karavetsos was named as Duross' replacement as an Acting Deputy Chief in the Major Crimes Section. Also, Art Wyatt is the new Deputy Chief in the Narcotics Section starting in January (filling the spot vacated by Karen Gilbert when she was named Chief of the Major Crimes Section). Wyatt has been on a two-year detail to Bogota, Colombia as a Resident Legal Advisor for DOJ, and before that, he was working in the HIDTA office.

Weekend news and notes

1. "FIU couple to plead guilty in Castro agent case." FIU Professor Carlos Alvarez is pleading to a conspiracy count, capping his exposure to 5 years. And his wife Elsa is pleading to a misprision of a felony count, capping her sentence at 3 years. She's probably looking at a credit time served sentence of approximately 6 months.

2. Apply to be a magistrate judge in the Ft. Lauderdale division of the Southern District of Florida. (check the left hand side of the page). But only if you've been a member of the bar for 5 years, aren't 70, and aren't related to a district judge...

Padilla status conference Monday

Judge Marcia Cooke will hold a status conference Monday on the issue of Padilla's competency. According to this AP article by Curt Anderson, prosecutors and defense lawyers have agreed that before the case can proceed to trial, Padilla must be found competent after a hearing. Psychological evaluations have been submitted to the judge detailing Padilla's competency issues. Here are some of the findings as reported in the AP article:

• "Reports being suspicious of everyone, including his attorneys, and stated that he does not know who he can and cannot trust. He indicated he was unsure of whether his attorneys might really be federal agents posing as his attorneys.''
• "Appeared to become visibly distressed whenever asked about sensitive topics (his palms appeared to become sweaty ... his body would tense up, and he would rock back and forth).''
• "Is unable to watch video recordings of his interrogation ..."
• "Appears convinced at times that no matter what happens he will be returned to the brig, even if he prevails in the current case.''
• "Was certain that nobody could help him, that he could not be rescued from his current situation.''
• Both experts concluded that Padilla was not faking mental problems and, in Hegarty's words, "is terrified that anyone will consider him mentally ill or crazy.''

Train wreck

So, Narseal Batiste, the supposed leader of the Miami Seven has written a 25 page letter to Brian Andrews at Channel 4. Brian Andrews has been the center of controversy in this case before regarding leaks and he is stirring the pot again. The letter will look familiar to defense lawyers -- we see these sorts of letters all the time. But for it to be sent to the press... well, that's a little unique. I'm sure Batiste's lawyer, Ana Jhones, isn't having a happy morning.

Here is the letter. (It's actually addressed to Brian Adams, but I doubt he meant him.). Here is the Channel 4 story about the letter.

"Feds say agent smuggled baseball stars into U.S."

Here is Julie Kay's article in the Review. Free access today. Woohoo.
Ben Daniel is prosecuting this case. Susan Dmitrovsky and Abe Bailey are defending.

Ellis Rubin RIP

Icon Ellis Rubin has died.
Love him or hate him, he is a legend in this community... Way ahead of his time and a true trial lawyer. Rumpole has this to say:

Mr. Rubin was a throwback to the days when the solitary defense attorney rode into town to defend the person no one else would defend.Did Mr. Rubin like a case in the news? Sure. But don't let his cases in the press mask the underlying talent of an excellent trial lawyer. He should not be remembered for that one case everyone mentions (TV intoxication). He should be remembered for being a fighter, an innovator, a man who cared about his clients, and man who went to jail for his beliefs.
We proudly admit we bought and read his book "Get Me Ellis Rubin". One comment always stuck with us, and only a real trial lawyer would be able to write about it. Mr. Rubin wrote that he always enjoyed trying cases against a prosecutor who had a reputation for never losing. Because when he managed to cause them enough problems in trial, he knew they were in unfamiliar territory and he had the advantage. Only a lawyer who tries a lot of cases knows that feeling. From the outside looking in, we think his was a life well lived. We celebrate his memory.

Report from Court Administator

Clarence Maddox writes in to correct our previous post:
I think that it is important for me to note that as judges and staff continue to relocate to the WPB courthouse and get resettled this week, we are not open for business in the usual sense. In that respect the DBR was not accurate. I anticipate resumption of normal Court activities by Monday, December 18th. Clarence Maddox, Court Administrator, SDFL.
We stand corrected!

In other news, Judge Cecilia Altonaga found South Florida water managers in violation of U.S. water quality standards for pumping billions of gallons of polluted runoff from sugar farms into Lake Okeechobee without a federal permit. The Judge rejected an array of defense arguments from the South Florida Water Management District, including that a permit wasn't needed because the state agency wasn't the source of the tainted water, but was simply moving it between two similar places -- the giant lake and the drainage canals crisscrossing the vast farming area to the southeast. Here is the 100+ page ruling.

West Palm open

According to this morning's DBR, the Federal Courthouse in West Palm is open for business. Also of note, Judge Kenneth Marra will be moving from Ft. Lauderdale to the renovated courthouse.

News and Notes

1. Another first of its kind prosecution in Miami. A federal grand jury in Miami Wednesday indicted the son of former Liberian President Charles Taylor on torture charges in the first U.S. criminal case of its kind. Charles Taylor Jr., 29, accused of committing atrocities in Liberia as the former head of a paramilitary unit in his father's government, is in custody at the Federal Detention Center in Miami. He faces sentencing today on a separate passport-fraud conviction. The three-count indictment returned by a federal grand jury in Miami accuses the defendant, also known as Charles McArthur Emmanuel, a U.S. citizen, of burning his victim's flesh with a hot iron, forcing the victim at gunpoint to hold scalding water and shocking the victim's genitalia. Here is the Herald article and the Sun-Sentinel article. Here is the indictment. The case has been assigned to Judge Altonaga and is being prosecuted by Karen Rochlin.

2. "Gravely ill, Miami lawyer Ellis Rubin says goodbye. As he prepares for death, Miami lawyer Ellis Rubin says he is proud of his storied career." (Miami Herald)

3. "Case of the Dwindling Docket Mystifies the Supreme Court." (NY Times)

4. "Crumbling Dream: Jesus Palencia is likely to be taken from his family and deported. Did he place too much trust in the U.S. Court system?" (DBR)

Padilla replies to torture

We broke the Jose Padilla motions to dismiss based on torture and the Government's response. Padilla has now replied. I don't know how to link to stuff that I scan into my computer. Does anyone know how to do this? UPDATE -- Thanks to a helpful reader, HERE ARE ALL THE PLEADINGS. In any event, here is a synopsis of the evidence Padilla plans on presenting at the hearing on the motion (the Government opposes a hearing):
UPDATE -- Here is a NY Times article on the allegations and a picture of how Padilla was moved around while at the brig. And here is the AP article written by Curt Anderson in the Washington Post.

Although Mr. Padilla’s allegations, with nothing more, should merit an evidentiary hearing, Mr. Padilla does not anticipate reliance on merely his word in meeting his burden of persuasion in this motion. Attached as Exhibit “A” is an affidavit from Mr. Padilla affirming that all the factual allegations in his motion to dismiss the indictment for outrageous government conduct are true. Attached as Exhibit “B” is an affidavit from Dr. Angela Hegarty who has evaluated Mr. Padilla and concludes, to a reasonable degree of medical certainty, that Mr. Padilla was tortured during his detention as an enemy combatant and suffers from post-traumatic stress disorder as a result of the conditions of his confinement. Attached as Exhibit “C” is a memorandum from Dr. Stuart Grassian, a renowned expert on the deleterious effect of isolation, explaining the mental and physical problems that arise from prolonged isolation and sensory and sleep depravation. Attached as Exhibit “D” is a declaration from Andrew Patel, Esq., regarding his knowledge of Mr. Padilla’s conditions of confinement and the adverse reactions Mr. Padilla has suffered due to the conditions of his confinement, including an inability to assist counsel. Attached as Exhibit “E” are still frames from an unclassified video of Mr. Padilla being transported from his cell to other parts of the facility where he was confined. These still frames show Mr. Padilla being brought out of his cell with a mask and earmuffs and all manner of restraints. One of the stills provides a partial vantage of Mr. Padilla’s cell. In addition to the attached affidavits, Mr. Padilla will separately file a request for a § 5(a) filing pursuant to the Classified Information Procedures Act, 18 U.S.C. App. III, supporting the allegations made by his motion. Also, undersigned counsel have made a specific discovery request for information pertinent to Mr. Padilla’s conditions of confinement, including Mr. Padilla’s interrogation plan, all orders authorizing interrogation techniques employed against Mr. Padilla, and the identities of all persons who conducted interrogations of Mr. Padilla or were responsible for making determinations on Mr. Padilla’s condition of confinement. Finally, Mr. Padilla has also reiterated his demand that the government fully comply with this Court’s Order, DE 572, compelling the government to turn over records generated during Mr. Padilla’s confinement. This Court ordered the government’s compliance within thirty days of September 14, 2006. Id. As of this filing, almost eighty days have elapsed since September 14 and the government still has not fully complied with this Court’s Order.