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.

Sal Magluta resentenced

Sal Magluta was resented yesterday to 195 years in prison. The case was set for resentencing becasue the 11th Circuit had reversed one of his counts of conviction. Magluta had asked for a de novo sentencing hearing, which the judge denied. There were also some late fireworks as Magluta's lawyers filed a motion to recuse the night before sentencing, which was also denied. Here is the Herald article about the sentencing.

This decision will certainly be appealed. It will be interesting to see how the 11th Circuit deals with the Booker issues on appeal where Willie Falcon, Magluta's partner, was sentenced to 20 years as part of a deal and Magluta got 195 years for proceeding to trial. Is this reasonable?

Here is an op-ed that Milton Hirsch and I wrote, which was published in the Herald, after Magluta's first sentencing hearing -- but before the Supreme Court breathed life back into the 6th Amendment in Blakely and Booker:

Miami's last cocaine cowboy rode into the sunset last week. Salvador Magluta, considered one of Miami's most notorious narcotics dealers, was prosecuted in federal court for having witnesses murdered and for laundering millions of dollars in drug proceeds. A federal judge then punished Magluta with a 205-year sentence. Magluta, 48, will live in prison till the day he dies. But Magluta was never convicted of the homicides for which he was sentenced. A jury of his peers found Magluta not guilty of the murders, and guilty only of the nonviolent money-laundering charges -- crimes that carry a maximum sentence of 20 years.

The jury's verdict notwithstanding, the judge decided that Magluta was responsible for the homicides and sentenced him accordingly. In a watershed 1997 opinion, the U.S. Supreme Court ruled that federal judges, in imposing sentence, may ignore jury verdicts of acquittal and determine whether defendants have done wrong. The Herald applauded the punishment, and the new U.S. attorney claimed that such a sentence sends a message about justice. It does indeed: The message is that prosecutors can lose and still win, that a jury no longer stands between an accused American and a life sentence.

The jury is a special American institution and has been, until recently, the heart and soul of our criminal-justice system. The jury stands between arbitrary rule and the citizenry, and is a shield against overzealous government. Our Founding Fathers recognized that even an independent judiciary was not enough to protect us against abuses of power. They didn't trust judges to mete out justice on questions of guilt or innocence. To determine the answers to these questions, the Founders wanted the commonsense judgment of citizens. Acting upon the court's 1997 ruling, prosecutors and judges have found ways to end-run jury verdicts and the jury system itself. Judges sentence defendants convicted of lesser charges as though they had committed other, more-serious crimes, even in the face of a not-guilty verdict by a jury. Based on inconclusive evidence, or even rejected evidence, a judge is free to send a man to jail for life. Not guilty doesn't mean anything anymore. Conviction is optional. It is the jury verdict that separates America's legal system from that of so many other nations. All countries, even the worst, have laws, judges, lawyers. Most have trials -- or what are called trials -- and many even have juries. But in too many of those countries a verdict is a foregone conclusion: the prosecution having indicted, the jury is simply a rubber stamp. In Magluta's case the jury's verdict was treated as irrelevant, and because it was Magluta no one cared.

As Justice Felix Frankfurter famously warned: ``It is easy to make light of insistence of scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.''

Back to work

Welcome back to work after the long weekend!
Not much going on in the Southern District of Florida. If you have any news, please email me: domarkus -- at -- hotmail dot com.
In the meantime, here's an interesting article from the weekend about Justice Scalia, "the civil libertarian" by Scott Turow. One of the money lines: "Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases."
Will Alito and Roberts follow suit?

Turkey day news and notes

Some of the commenters are expressing frustration that I didn't post the verdict in the Jack Maxwell trial. In my defense, I was traveling over the weekend and just missed the coverage in the Herald, which was buried in the local section. BTW, it was guilty on all counts. Sheesh!

In another case we've been covering, Judge D has ruled (in a 14 page Order) on the Government's motion to have its witnesses wear "light disguises." He splits the baby, allowing the light disguises but requiring the feds to turn over the names of the witnesses and allowing cross-examination on the observation posts (which the Government did not want). I can't wait to see what they actually wear to Court. The Order says they can wear makeup, wigs, and facial hair -- as long as the jurors can see their eyes...

Finally, a reader who attended the potrait hanging for former AG Ashcroft writes in from the road: "...[T]he event was very nice, and it was interesting to see Gen. Aschroft sitting in the Great Hall directly underneath the nude statute he had covered up during his tenure with large drapes. The tall statute of the woman on the right of the stage has one breast exposed (a la Janet Jackson). When the current AG introduced Aschcroft, he was pretty funny about it. He said that the contrasts between him and the former AG were pretty obvious, starting off with: 'You know, several members of the media have commented on the different styles between John and me. And I suppose that's true. For example, John likes blue drapes. I happen to like a more open look.'"

Happy Thanksgiving

This is one of the few working days this year where there is no traffic on US1.... I'm not even in town to enjoy it. I hope all of you have a Happy Thanksgiving. If you are looking for a little reading: 1) The Government filed its appellate brief if Padilla; and 2) the trial started for the two brothers in the American Maritime Officers union case and only Sonnett gave opening statement while Haddad reserved. Last Thanksgiving, we were talking about similar items.

Power family

Other blogs write about their power couples, so I figured it's fair game to give a shout out to one of our own. Paul Huck Jr. was just named general counsel to incoming Governor Charlie Crist. Huck's wife is recently appointed Third DCA judge Barbara Lagoa. Dad -- who happens to be Federal District Judge Paul C. Huck (pictured to the left) -- must be proud...

Here is Huck Jr.'s bio from the article linked above:
"Paul Huck, General Counsel: Mr. Huck joined the Office of the Attorney General in 2003, serving as the Regional Deputy for South Florida and later as Deputy Attorney General. Prior to joining the Attorney General’s Office, he was a shareholder in the Miami law firm of Kenny Nachwalter. Mr. Huck is a graduate of Princeton University and Harvard Law School."

Trust us...

Magistrate Judge Barry Garber recommended that the motion to suppress the confession of the FIU Professor/Cuban agent be denied and that the motion to dismiss be denied (Jay Weaver, Herald). The defense contended that government agents had promised Carlos Alvarez that if he talked to them, they would not prosecute. That promise was not enough to suppress or dismiss according to the magistrate judge. Alvarez has ten days to appeal to the district court.

Trial time

Vanessa Blum has the story about a trial starting Monday morning involving the leaders of a Dania Beach-based union, American Maritime Officers. The two criminal defense lawyers, Neal Sonnett and Fred Haddad, represent the defendants. I think these are two of the best trial lawyers in Florida, and it will be fun to see them try a case together because their styles are so different... Anyone who catches some of the trial, please feel free to post a comment.

No joke...

via Abovethelaw.com:

Doe, A Deer, A Female Deer = Sexytime!

Bestiality-oriented necrophiliacs who live in Wisconsin, we bring you some potentially good news. In the next few weeks, a court could hold that you may have your way with whatever animals you please -- as long as they're dead.

From The Smoking Gun:

Meet Bryan James Hathaway, alleged venison lover. The Wisconsin man, 20, is facing charges that he had sex last month with a dead deer. Hathaway, who previously has served time for killing a horse he intended to sexually assault, allegedly found the deer in a ditch alongside a roadway.

Now Hathaway's lawyer has filed a court motion (a copy of which you'll find here) arguing that since the animal was already dead, Hathaway should not face a misdemeanor rap of sexual gratification with an animal. "The statute does not prohibit one from having sex with a carcass," lawyer Fredric Anderson wrote in the motion filed in Douglas County Circuit Court.

Anderson isn't trying to be a wise-ass; he has a plausible argument of statutory interpretation. Here's an account of the court hearing on the motion, from The Daily Telegram:

The Webster’s dictionary defines “animal” as “any of a kingdom of living beings,” Anderson said. If you include carcasses in that definition, he said, “you really go down a slippery slope with absurd results.”

Anderson argued: When does a turkey cease to be an animal? When it is dead? When it is wrapped in plastic packaging in the freezer? When it is served, fully cooked?

Sounds persuasive to us. So how did the prosecution respond? Well, they got a little Platonic on defendant's ass:

“The common and ordinary meaning of a word can be found in how people actually use the word,” Boughner wrote in his response to the motion.
When a person’s pet dog dies, [Assistant District Attorney James Boughner argued], the person still refers to the dog as his or her dog, not a carcass.
“It stays a dog for some time,” Boughner said.... “It did not lose its essence as a deer, an animal, when it died,” he said.

We hope the defendant prevails. 'Cause we're really looking forward to Thanksgiving.

Can You Get Dear With A Dead Deer? [The Smoking Gun]
Case Presents Unprecedented Challenge [The Daily Telegram]

News and notes

1. Jack Abramoff is reporting to jail. (CNN)

2. Steve Chaykin and Dan Gelber are reporting to Akerman Senterfit. (Daily Business Review)

3. On Stearns Weaver's motion, Judge Gold is stopping claims services from the unlicensed practice of law in the Exxon case. (DBR)

4. Patagonian toothfish in federal court. (Miami Herald)

5. The 11th Circuit has fast tracked the Government's appeal in Padilla. (Miami Herald)

6. Santiago Alvarez was sentenced to nearly four years in prison and Osvaldo Mitat to 3 years. (Sun-Sentinel)

Copy of Padilla Torture response

Here is a copy of the government's response to Jose Padilla's claims of torture, and here is Professor Froomkin's analysis of same.

Torture response

The government has responded to Padilla's claims of torture, denying all of them. Here's the AP story and a brief quote:

"Padilla's conditions of confinement were humane and designed to ensure his safety and security," the government said in its filing. "His basic needs were met in a conscientious manner." That included halal food, some outdoor exercise and medical attention when necessary. Prosecutors said Padilla never made any abuse claims while in military custody. "Padilla's allegations of torture have no merit whatsoever," prosecutors said.

If anyone has the brief, please email it to me and I'll try to post it.

Speaking of chiefs....

Chief Justice John Roberts was in town tonight, speaking at the University of Miami before an audience of about 3,600. For those that weren't able to attend, here's the AP summary. Sounds like the Chief still isn't as bold as is Justice Scalia who spoke at Yale this weekend. Here's a summary of his remarks, in which he says things like this in response to why stick to originalism:

"Originalists can have fun too!"
"I don't pretend to have all of the answers, but I have most of them!"
"My point is not that originalism is perfect, but that it's better than everything else."
"If you are a non-originalist, it's you have zero answers. Every day is a new day for you."
"Stay tuned, if we look at the ceiling next year, we may come up with the answer."
"Unless you can come up with some theory as to how the Constitution evolves, you can't answer anything!"

UPDATE: Here is the Herald article in which our own Judge Mary Barzee is quoted: ''He was so poised and seemed very happy to be here,'' said Mary Barzee, a Miami-Dade Circuit Court judge who attended Monday's event. ``He's clearly a champion of the rule of law.'' The Herald article also has a link to the entire audio, which is pretty cool.

(Soon to be Chief) Judge Moreno

Julie Kay writes today about Judge Moreno becoming Chief of the District in July. The article is very favorable to Judge Moreno (rightfully so). Here is the conclusion to the article:

Moreno was appointed to the bench in 1990 by President George H.W. Bush. He began his legal career as an associate with a civil law firm before becoming an assistant federal public defender in Miami. He then switched back to the private sector, becoming a partner at Thornton Rothman & Moreno in Miami. In 1986, he was appointed a Miami-Dade County Court judge. The following year, he was elevated to the circuit court by Republican Gov. Bob Martinez. Moreno has received numerous awards, including the 2004 Lawyer of the Americas Award, the Outstanding Immigrant Award from Catholic Charities Legal Services, the Pro Bono Service Award of the Cuban-American Bar Association and the “People Helping People” Award from the United Way of Miami-Dade. He is consistently rated near the top in Miami-Dade County Bar Association polls. Miami criminal defense attorney Roy Black calls Moreno “the perfect person for that job.” “He’s so engaging and personable,” Black said. “He treats the lawyers on both sides with courtesy and is the kind of person who can build consensus.”

In the same article, there is discussion about the Bankest sentencings that have been continued. Apparently the guidelines are life. Considering the recent variances in white collar sentencings in Enron, Adelphia, Dynegy, and so on, I don't think Judge Jordan will impose a life sentence.

Lawyer and Reporter to testify

Judge Martinez is requiring a lawyer and a reporter to testify (over their objections and over the objection of the defense) in a criminal fraud trial. The DBR article by Julie Kay is available for free here.

Anything going on?

The District seems awfully quiet. There are a couple trials going on, but nothing is jumping off the pages... Is it Holiday shut-down time already?

For your local election coverage, check out Rumpole. (Federal and State appellate lawyer Marisa Tinkler Mendez won a contested election -- congratulations).

For an interesting story about a bond hearing in front of Judge Seltzer, check out Vanessa Blum's article here.

Also, former AUSA Barbara Lagoa was sworn-in last Friday at the 3rd DCA. It was a beautiful investiture with Judge Huck (her father-in-law) swearing her in. Many Federal Judges and prosecutors (including Alex Acosta and former U.S. Attorneys Guy Lewis and Marcos Jiminez) were in attendance. Congrats to Judge Lagoa.

E-file or else!

Julie Kay writes today about the new e-filing system and how less than 60% of lawyers have signed up. The Chief is angry, issuing an order saying that starting today, if lawyers submit filings by paper, they will have to appear before him personally to respond to an order to show case why they failed to file electronically. Yikes!

Mr. Abramoff goes to Washington

The government really really wants Jack Abramoff close to Washington, D.C.

Ann Coulter

From CNN.com:

WEST PALM BEACH, Florida (AP) -- Conservative columnist Ann Coulter has refused to cooperate in an investigation into whether she voted in the wrong precinct, so the case will probably be turned over to prosecutors, Palm Beach County's elections chief said Wednesday.
Elections Supervisor Arthur Anderson said his office has been looking into the matter for nearly nine months, and he would turn over the case to the state attorney's office by Friday.
Coulter's attorney did not immediately return a call Wednesday. Nor did her publicist at her publisher, Crown Publishing.

Knowingly voting in the wrong precinct is a felony punishable by up to five years in prison.
Anderson's office received a complaint in February that Coulter voted in the wrong precinct during a February 7 Palm Beach town council election.
Anderson said a letter was sent to Coulter on March 27 requesting that she clarify her address for the voting records "or face the possibility of her voter registration being rescinded." Three more letters were sent to Coulter and her attorney, but she has yet to respond with the information requested, Anderson said.
In July, Anderson said, he received a letter from Coulter's attorney, Marcos Daniel Jimenez D'Clouet. The letter said the attorney would only discuss the matter in person or by telephone because, he complained, Anderson had given details to the media. Anderson said the matter had to be discussed in writing.
The right-wing commentator also authored a book that said some September 11 widows were "enjoying their husbands' deaths."

Looks like our former U.S. Attorney and previous guest-blogger will be representing her...

Boo.

Happy Halloween. In that spirit, the government wants its witnesses to wear disguises. Ze'ev Rosenstein's lawyers, Roy Black and Howard Srebnick, think this is a bad idea... Here is the intro from their response to the government motion for its witnesses to wear "light disguises":

Under the government’s proposed procedures, the defense may not conduct its own investigation of the surveillance officers, and instead must accept the government’s claim that "none of these officers have . . . information in their background that would provide ammunition for cross-examination . . . ." [Government’s Motion at 7].

Also under the government’s proposed procedures, the defense and the jury may not see or assess the true emotions and expressions of the surveillance officers while they testify.

Finally, the defense may not cross-examine these anonymous and veiled foreign witnesses about their procedures and techniques, and must accept their testimony that they were at all times able to accurately observe and identify people and what they were doing.

***

President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas. In Abilene, he said, it was necessary to "[m]eet anyone face to face with whom you disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry . . . In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow." Coy v. Iowa, 487 U.S. 1012, 1017-18 (1988).

A wig, make up, and fake facial hair is not "light disguise," as the government states. It is a complete costume, the shadow to which President Eisenhower refers. After all, the purpose of the disguise is to make the witness look like someone else entirely – to be unrecognizable. In Israel, and presumably in this Court if allowed, the witness will not only wear full facial disguise, but s/he will also wear a turtleneck shirt and a large overcoat, so that only a fake face is seen. If the witness fidgets, the coat will hide it. If he is a bald male and his head perspires when nervous, the wig will hide it. If his mouth twitches slightly, the fake facial hair will hide it. If she is a female and her ears turn red during testimony, the wig will hide it. If the veins on the neck enlarge out of fear or anger, the turtleneck will hide it. If the face turns pale during testimony, the make up will hide it. Essentially, the person on the witness stand will be a fake.

Lots of other good stuff in this response. Any bets on what Judge D will do?

News and notes

1. When a lawyer runs for office, is his choice of clients a fair target for attack? Vanessa Blum covers this debate here: "Less than two weeks before the Nov. 7 election, Broward County Commissioner Jim Scott is attacking challenger Ken Keechl for his legal representation of a company accused of defrauding investors out of nearly $1 billion. Scott wants voters to know that Keechl, a Democrat making his first run for public office, defended Mutual Benefits Corp. in lawsuits across the country as a partner at Fort Lauderdale law firm Brinkley, McNerney, Morgan, Solomon & Tatum." I particularly like Mike Tein's quote: "I think it's irresponsible and reprehensible for Ken's opponents to even suggest he did anything wrong simply because he represented Mutual Benefits," Tein said. "Any line drawing between the firm and the investigation into this former client is absolutely misguided."


2. The Florida Bar has come out with its Media Awards. "This year’s grand prize winners are The Miami Herald and The Florida Times-Union (newspapers and other periodicals with circulation more than 50,000), The Villages Daily Sun (newspapers and other periodicals with circulation less than 50,000), WTSP-TV of St. Petersburg (television), and WUSF of Tampa (radio). Honorable mentions are awarded to The Daytona Beach News-Journal and The Daily Business Review. " The Herald won for Jay Weaver's investigative series about Broward Circuit Judge Eileen O'Connor, which prompted the NAACP to file an ethics complaint against her with the Judicial Qualifications Commission. Where are the blogger awards!

Acosta sworn in

Alex Acosta was sworn in today as the U.S. Attorney for the Southern District of Florida. Great turnout in the Central Courtroom. Justice Alito -- who Acosta clerked for when he was on the Third Circuit -- spoke and administered the oath. When they were standing next to each other, they actually looked liked brothers. Striking similarity...

The program for the event had a quote that I often cite:

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he in a peculiar way and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer."
-- Berger v. United States, 295 U.S. 88 (1935) (Sutherland, J.).

The AP already has coverage of it here.

News and notes

1. Rumpole is going off about federal sentencing....

2. Judge Moore ordered restitution in the Masferrer case.

3. Big plea in the Mutual Benefits case.

4. Alex Acosta is being sworn in tomorrow at 2PM.

Read more about other law bloggers

here.

Weekend reading...

Here's a New Times article by Carl Jones accusing a criminal defense lawyer and some DEA agents of some bad bad things. The first in the three part series starts this way:

Back in July 1998, Pensacola prosecutors issued an arrest warrant for a 28-year-old father of three named Antonio Monroy. He had been charged with three counts of cocaine trafficking. Soon he was picked up in Miami. He was sent to a federal prison in Coleman, Florida, northwest of Orlando, and a few months later, with a trial looming, he pleaded guilty.
It was the kind of case that breezes through the courts every day.
Then a friend of Antonio's contacted his mother, Virginia. A Miami lawyer could get her son out of prison early, he said.
At the time, Israel Perez Jr. was a defense attorney with almost twenty years of experience, including time clocked as a prosecutor in Fort Myers and Miami-Dade, where he served under Janet Reno. Before he met Antonio Monroy, the only blight on his record had been a 1993 public reprimand by the Florida Bar for improperly handling the funds of a client. Perez had an office in a black and tan tower called the Gables International Plaza in Coral Gables. He seemed like a reputable guy.
Virginia agreed to meet the lawyer, who soon showed up at her aging apartment building on Indian Creek Drive across from the Intracoastal Waterway in Miami Beach. According to the woman's description of that meeting, Perez laid out a plan. Perez would fly to Coleman and tell Antonio to expect two Drug Enforcement Administration agents to visit him after sentencing. Then agents would tell the court he deserved to be freed. It was a sure thing.
The cost to Antonio and his mother would be $100,000.

"Pimpin' aint easy"

These were the videos found in Michael Miller's car when police arrested him. He was just sentenced in federal cour tto 10 years for attempting to transport a minor for prostituion. Here's the article from the Herald.

Padilla order appealed

Yesterday the Government filed its notice of appeal to contest the dismissal of Count I of the indictment. I suspect this will postpone by quite a bit the January trial date.

Fee disputes....

Julie Kay writes today (pass thru link required) in an interesting and lengthy article about the government trying to forfeit attorneys' fees in the Bankest trial. Here's the intro:

The defense attorneys for the brothers convicted of masterminding the largest bank fraud in Miami history could have to pay back the $757,000 they were paid in legal fees. Federal prosecutors are claiming that money used to pay Ed Shohat and Bruce Lehr was tainted, coming from the sale of a Manhattan condominium that was part of the fraud. In court papers, the attorneys deny that the funds used to pay them were tainted. Shohat worked for Eduardo Orlansky for three years, while Lehr represented Hector Orlansky for 18 months. Both attorneys worked through a 4½-month trial and four weeks of jury deliberations. They also paid for several medical experts to testify about the health of their clients. The Orlanskys, who face 30 years in prison, were convicted in August of massive fraud in their operation of E.S. Bankest, a Miami factoring company. The Orlanskys created fictitious checks, invoices and companies to inflate the value of account receivables by hundreds of millions of dollars to support the fraud targeting Portugal’s Espirito Santo Bank. The nine-year scam allowed the Orlanskys to illegally obtain $167 million from the bank and its clients. E.S. Bankest was a joint venture of the bank and Bankest Capital, which was formed by the Orlanskys. Experts say it’s highly unusual for the government to seek payback of attorney fees, particularly in nondrug cases, and this may be a first for the U.S. Attorney’s Office in Miami. “This is very rare,” said Miami attorney Scott Srebnick, who is also fighting forfeiture claims on behalf of his client, former Hamilton Bank Chairman Eduardo A. Masferrer.

News and notes

1. Apparently I (and my source) was wrong that there was a conviction on all counts in the cigar case. It was guilty on 3 counts according to the comments. Here's the Herald coverage of the verdicts.

2. Dep't of Interior employees won't be reading this blog or any other blog for that matter.

3. Jack Maxwell, a former electrical contractor will start trial Monday, accused of conspiring with the late Miami politician Art Teele to land a $20 million airport deal and then paying him tens of thousands of dollars as a consultant. Here's the Herald article about the trial. We did a lot of blogging on this subject, including debating Prof. Froomkin.

Cuban cigar counterfeitter guilty...

... on all counts. Background story here.

Federal Defenders secure release of "enemy combatant" shepherd

Another SDFLA exclusive!

We scooped the press on the Padilla motions last week here and here. Now we give you this story about Federal Defenders Paul Rashkind and Tim Cone and their victory in the case of Taj Mohammad.

Mr. Mohammad is a shepherd -- a member of the Gudjer Tribe, nomads who herd goats in the border mountains between Afghanistan and Pakistan. Taj was arrested at his home in Afghanistan as a result of an argument and fight he had with his cousin, Ismael. Taj is 27 years-old, has a wife and a young son, who was an infant when he last saw him. Gudjers are a poor and peaceful tribe, who have remained nomads while their country dealt with hostilities, first from the Russians, then from the Taliban. Due to the proximity of the mountain range, Gudjers have moved back and forth into Pakistan for their own safety. Indeed, even though Taj Mohammad is a proud Afghan Gudjer, he was actually born a refugee in Pakistan during the time of the Russian occupation. Herding goats in the mountains is possible only while it is warm enough to do so. In winter, the family travels down the mountain to the valley, the Asadabad area, where they live during the colder seasons. Taj was "on the mountain" during hostilities between the US and Taliban forces. When he returned to the family home in the valley, after the coalition forces declared victory, he learned that his cousin Ismael had laid pipe to supply water to all the homes of his village, except the home lived in by Taj and his family. Taj and Ismael fought about this and Taj hit Ismael with a stick. In anger, Ismael falsely accused Taj of being a Taliban, to have him sent away. What Taj had not known when he fought with his cousin was that Ismael was supplying the water pipes at the U.S. military’s instructions. Four days later, December 9, 2002, Taj was visited at his home by the American military, who questioned him about the fight. They detained him, took him to Bagram, and eventually to Guantanamo Bay, Cuba. He was detained at GTMO as an "enemy combatant" for nearly four years.

The Defenders began representing Taj about a year ago and, after security clearances were approved, Paul Rashkind began to uncover evidence and develop a strategy to obtain his release. Just 14 days ago, Rashkind and Cone filed a set of classified challenges to Taj's continued detention, explaining why he should be released now. Last night, on the eve of the military hearing, Taj was on a plane back to Afghanistan. He was released to his family earlier today. Rashkind commented, "America was not a safer place while he was detained, but we can certainly feel better about ourselves now that he is home."

A bunch of smoke?

Jay Weaver in today's Herald reports on the fake Cuban cigar trials, one of which starts today. Here's the start of the article:

The nation's biggest cigar maker has been on a mission to put suspected Cuban cigar counterfeiters from Little Havana to Hialeah out of business.
Fort Lauderdale-based Altadis U.S.A. paid tens of thousands of dollars to fund part of an undercover Miami-Dade Police probe of five suspects charged with trafficking in counterfeit cigars, court records show.
The first of three federal trials, set for today, raises controversial issues about the integrity of the investigation, the fake Cuban cigar market, and the U.S. trade embargo against the Castro government.
The police department, which normally funds its own investigations, said Monday it could not comment on Altadis' role in the probe because its legal department had not reviewed the matter and also because it involves a federal case. The U.S. attorney's office declined to comment. Altadis U.S.A. executives did not return two calls Monday.
Coral Gables lawyer Frank Quintero, who represents a defendant facing trial later this month, accused Altadis of trying to ''buy'' a criminal investigation from police for one purpose: to crush the alleged counterfeiters so the company can monopolize the U.S. market for Cuban cigars after Fidel Castro dies.
''It calls into question the impartiality of an investigation when witnesses including an informant are being paid by a private party that claims to be an alleged victim in the case,'' Quintero said.

Here is the indictment. Defense attorney is Frank Quintero (pictured, showing both the authentic and fake cigars). AUSA is Sean Cronin.

Update on Padilla motion to dismiss for outrageous government conduct

I've read through Jose Padilla's motion (written by the Federal Defender's Office -- Michael Caruso, Orlando do Campo, and Tony Natale) to dismiss for outrageous government conduct, which I originally covered last week here. Vanessa Blum covered the story this weekend here. Strangely, no one else has written about it. UPDATE -- It's now being covered by many of the big legal blogs, like Discourse, TalkLeft, and How Appealing.

Here is the motion.

The argument section starts out like this:

"Whoever fights monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, the abyss also looks into you."
Friedrich Nietzsche, Beyond Good and Evil 89 (Walter Kaufmann trans., Vintage Books 1966) (1886).

What was done to Padilla is described this way:

In an effort to gain Mr. Padilla’s "dependency and trust," he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla’s torture was stark isolation for a substantial portion of his captivity. For nearly two years – from June 9, 2002 until March 2, 2004, when the Department of Defense permitted Mr. Padilla to have contact with his lawyers – Mr. Padilla was in complete isolation. Even after he was permitted contact with counsel, his conditions of confinement remained essentially the same. He was kept in a unit comprising sixteen individual cells, eight on the upper level and eight on the lower level, where Mr. Padilla’s cell was located. No other cells in the unit were occupied. His cell was electronically monitored twenty-four hours a day, eliminating the need for a guard to patrol his unit. His only contact with another person was when a guard would deliver and retrieve trays of food and when the government desired to interrogate him.

His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation. His tiny cell – nine feet by seven feet – had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit. He was not given a clock or a watch and for most of the time of his captivity, he was unaware whether it was day or night, or what time of year or day it was.

In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep. This sleep deprivation was achieved in a variety of ways. For a substantial period of his captivity, Mr. Padilla’s cell contained only a steel bunk with no mattress. The pain and discomfort of sleeping on a cold, steel bunk made it impossible for him to sleep. Mr. Padilla was not given a mattress until the tail end of his captivity. Mr. Padilla’s captors did not solely rely on the inhumane conditions of his living arrangements to deprive him of regular sleep. A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest. One of the tactics his captors employed was the creation of loud noises near and around his cell to interrupt any rest Mr. Padilla could manage on his steel bunk. As Mr. Padilla was attempting to sleep, the cell doors adjacent to his cell would be electronically opened, resulting in a loud clank, only to be immediately slammed shut. Other times, his captors would bang the walls and cell bars creating loud startling noises. These disruptions would occur throughout the night and cease only in the morning, when Mr. Padilla’s interrogations would begin.

Efforts to manipulate Mr. Padilla and break his will also took the form of the denial of the few benefits he possessed in his cell. For a long time Mr. Padilla had no reading materials, access to any media, radio or television, and the only thing he possessed in his room was a mirror. The mirror was abruptly taken away, leaving Mr. Padilla with even less sensory stimulus. Also, at different points in his confinement Mr. Padilla would be given some comforts, like a pillow or a sheet, only to have them taken away arbitrarily. He was never given any regular recreation time. Often, when he was brought outside for some exercise, it was done at night, depriving Mr. Padilla of sunlight for many months at a time. The disorientation Mr. Padilla experienced due to not seeing the sun and having no view on the outside world was exacerbated by his captors’ practice of turning on extremely bright lights in his cell or imposing complete darkness for durations of twenty-four hours, or more.

Mr. Padilla’s dehumanization at the hands of his captors also took more sinister forms. Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time. Mr. Padilla was denied even the smallest, and most personal shreds of human dignity by being deprived of showering for weeks at a time, yet having to endure forced grooming at the whim of his captors.

A substantial quantum of torture endured by Mr. Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds. He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.

Throughout most of the time Mr. Padilla was held captive in the Naval Brig he had no contact with the outside world. In March 2004, one year and eight months after arriving in the Naval Brig, Mr. Padilla was permitted his first contact with his attorneys. Even thereafter, although Mr. Padilla had access to counsel, and thereby some contact with the outside world, those visits were extremely limited and restricted. Significantly though, it was not until Mr. Padilla was permitted to visit with counsel that one of his attorneys, Andrew Patel, was able to provide Mr. Padilla with a copy of the Qur’an. Up until that time, for a period of almost two years, Mr. Padilla was the right to exercise his religious beliefs.

The deprivations, physical abuse, and other forms of inhumane treatment visited upon Mr. Padilla caused serious medical problems that were not adequately addressed. Apart from the psychological damage done to Mr. Padilla, there were numerous health problems brought on by the conditions of his captivity. Mr. Padilla frequently experienced cardiothoracic difficulties while sleeping, or attempting to fall asleep, including a heavy pressure on his chest and an inability to breath or move his body.

In one incident Mr. Padilla felt a burning sensation pulsing through his chest. He requested medical care but was given no relief. Toward the end of his captivity, Mr. Padilla experienced swelling and pressure in his chest and arms. He was administered an electrocardiogram, and given medication. However, Mr. Padilla ceased taking the medicine when it caused him respiratory congestion. Although Mr. Padilla was given medication in this instance, he was often denied medication for pain relief. The strain brought on by being placed in stress positions caused Mr. Padilla great discomfort and agony. Many times he requested some form of pain relief but was denied by the guards.

The cause of some of the medical problems experienced by Mr. Padilla is obvious. Being cramped in a tiny cell with little or no opportunity for recreation and enduring stress positions and shackling for hours caused great pain and discomfort. It is unclear, though, whether Mr. Padilla’s cardiothoracic problems were a symptom of the stress he endured in captivity, or a side effect from one of the drugs involuntarily induced into Mr. Padilla’s system in the Naval Brig. In either event, the strategically applied measures suffered by Mr. Padilla at the hands of the government caused him both physical and psychological pain and agony.

It is worth noting that throughout his captivity, none of the restrictive and inhumane conditions visited upon Mr. Padilla were brought on by his behavior or by any actions on his part. There were no incidents of Mr. Padilla violating any regulation of the Naval Brig or taking any aggressive action towards any of his captors. Mr. Padilla has always been peaceful and compliant with his captors. He was, and remains to the time of this filing, docile and resigned – a model detainee.

Mr. Padilla also wants to make clear that the deprivation described above did abate somewhat once counsel began negotiating with the officials of the Naval Brig for the improvements of his conditions. Toward the end of Mr. Padilla’s captivity in the Naval Brig he was provided reading materials and some other more humane treatment. However, despite some improvement in Mr. Padilla’s living conditions, the interrogations and torture continued even after the visits with counsel commenced.

In sum, many of the conditions Mr. Padilla experienced were inhumane and caused him great physical and psychological pain and anguish. Other deprivations experienced by Mr. Padilla, taken in isolation, are merely cruel and some, merely petty. However, it is important to recognize that all of the deprivations and assaults recounted above were employed in concert in a calculated manner to cause him maximum anguish. It is also extremely important to note that the torturous acts visited upon Mr. Padilla were done over the course almost the entire three years and seven months of his captivity in the Naval Brig. For most of one thousand three hundred and seven days, Mr. Padilla was tortured by the United States government without cause or justification. Mr. Padilla’s treatment at the hands of the United States government is shocking to even the most hardened conscience, and such outrageous conduct on the part of the government divests it of jurisdiction, under the Due Process clause of the Fifth Amendment, to prosecute Mr. Padilla in the instant matter.

The motion ends this way:

In closing, the following words of dissent have often been repeated in the recognition that we, as a Nation, ignore the government’s violation of law at our peril:

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means – to declare that the government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). In defending this Nation against the threat of terrorism it is neither necessary nor proper for our government to abandon the bedrock principles upon which this Nation was founded. All that is sacred in our national life is secured by the promise that this is a Nation of laws and not of men.
It cannot be disputed that Mr. Padilla was tortured for a period of over three years. The pain and anguish visited upon Mr. Padilla will continue to haunt him for the remainder of his life. The government’s conduct vis-B-vis Mr. Padilla is a stain on this nation’s character, and through its illegal conduct, the government has forfeited its right to prosecute Mr. Padilla in the instant matter. Mr. Padilla respectfully requests that this Court dismiss the indictment against him for the government’s outrageous conduct and requests a hearing on this motion.

U.S. Attorney's office to hire journalist

According to Julie Kay in today's DBR, Alex Acosta is hiring "a journalist, rather than a lawyer to handle the media." Get this -- the pay is between $77,576 and $100,845. I wonder how much longer Julie is going to be writing her column for the DBR!

What about a U.S. Attorney's office blogger?

"Foley attorney David Roth is go-to guy for Palm Beach elite"

So says the Herald's Larry Lebowitz in this article about Mark Foley's lawyer.

"I'm not no prison escapee"

Prison Escapee Convinces Cop He is Actually a Jogger



In this week's New Yorker, there is an article about Richard McNair. McNair may be America's most prolific escapee (bot state and federal). In fact, he is the first person to escape from a maximum security federal prison in thirteen years.

This escape occurred last April when he was being held at USP Pollock in Lousiana. McNair escaped from Pollock by configuring himself within a shrink-wrapped pallet of U.S. Postal Service mailbags that had been refurbished by the prison's inmates. McNair used a snorkel-like cardboard tube to breathe. After the truck that contained the pallet was beyond the fence of the prison, McNair broke through and began running.

Later that day, a local police officer who was on the lookout for McNair actually stopped him "jogging" parrallel to the town's railroad tracks.

The officer stopped McNair and began to question him. The dash-cam of the officer's car captured the "investigation." Needless to say, he talks himself out of arrest.

Jose Padilla - Terrorist or Thug?

By Marc David Seitles

Interesting article in the Miami New Times about Jose Padilla. Author Trevor Aaronson gathered the information for this story from the federal courthouse in Miami, the Broward State Attorney’s Office, and through conducting witness interviews. He concedes, however, that much of the federal government’s evidence against the alleged terrorist remains under seal.

Aaronson basically concludes that “[i]n portraying Padilla as an evil mastermind behind a plot to kill thousands, the federal government forgot one thing: He’s just a punk. Federal and state court records prove that much.” The article details Padilla’s past criminal history in Chicago, his marriage, his conversion to Islam, and his alleged travels to the Middle East.

Probably the most interesting part of the article is the section related to Padilla’s detention by the FBI in 2002 while leaving Chicago’s O’Hare International Airport, and thereafter being declared “a continuing, present, and grave danger to the national security of the United States” by President George Bush.

While the article does not interview any of Padilla’s current lawyers, the author interviews Stephen Vladeck, who worked on the amicus brief that questioned the legality of Padilla’s detention at a navy brig. Mr. Vladeck claims that the government’s story has changed many times regarding Padilla’s role in this alleged terrorist conspiracy and he profoundly adds that “[w]hether Padilla is who the government says he is this time, whether he did what he’s charged with doing or not, there are scary ramifications for the American justice system.”

With very fine lawyers for both the government and the defense, it should be one heck of a trial.

"Cult leader Yahweh Ben Yahweh says he wants to die with dignity"

Curt Anderson has this interesting story about Mr. Yahweh's recent request to get off of supervision because he is dying. The case falls to Judge Marcia Cooke.

Jose Padilla on the offensive

The Federal Defender's Office has filed a number of motions on Jose Padilla's behalf, including a motion to dismiss for pre-indictment delay, a motion to dismiss for a violation of Padilla's speedy trial rights, and a motion to dismiss for outrageous government conduct. The motions have some extreme allegations, including saying the Padilla was tortured for three years because he was held in complete isolation. More to come after I've read them all.

Judge Prior says judiciary's independence not under attack

Despite the general agreement that our judiciary is under attack more than ever, Judge William Prior (on the 11th Circuit) wrote an op-ed, which starts out like this:

Recently some leaders of the bench and bar -- including, on this page last week, retired Justice Sandra Day O'Connor -- have decried what they describe as unprecedented threats to the independence of the judiciary. I respectfully disagree.

You can read the whole thing here.

Huh?

Posted by NOT SCALIA:

Prosecutors in the case of Ze'ev Rosenstein want Israeli undercover agents testifying at his Miami trial to wear disguises and use numbers instead of names to protect their identities. Apparently, this is how the agents would testify in Israel.

I guess that this would be a persuasive argument if the trial proceeded in Tel Aviv. Because the government extradited Rosenstein from Israel to the United States to be prosecuted under our Nation's laws, shouldn't the agents testify without disguises and under their real names?

Read Vanessa Blum's article in the Sun-Sentinel here.

Federal Court filings to be suspended

Ahhh, how technology continues to help us....

Julie Kay reports today that because of the new e-filing system that will be going into effect, the court has to suspend *all* filings (unless it's an emergency or indictment or some other exception) starting tomorrow thru October 12. Here's the Review's summary:

Lawyers who practice in the Southern District of Florida will get a one-week vacation, courtesy of U.S. District Court as it prepares to implement a new, long-awaited electronic case-filing system. No motions or pleadings will be accepted between the close of business Thursday and 9 a.m. on Oct. 12 as the court adopts its new CM/ECF case filing system. Exceptions will be granted for emergencies, such as jurisdictional deadlines for filing an appeal or a statute of limitations deadline. In those cases, motions must be brought by hard copy to the appropriate clerk of the court’s office in Miami, Fort Lauderdale, Fort Pierce and Key West. The court will automatically add five business days to filing and service deadlines that occur during the shutdown period, so no lawyer will be penalized for a delay. Chief Judge William Zloch ordered the shutdown and exceptions in an administrative order posted on the court’s Web site, stating that “a failure to take action may result in a miscarriage of justice.” “The hiatus is necessary,” said Thomas Meeks, chairman of the local rules committee for the Southern District of Florida. “They have to switch everything over.” On Oct. 12, the district will officially switch to the new, nationwide paperless filing system, becoming one of the last federal court districts in the country to do so. At that time, e-filing and hard copy filing will no longer be permitted and attorneys will have to file all motions and pleadings via computer to the Southern District of Florida’s Web site. They’ll be able to do so 24 hours a day, from any location. The only exceptions to electronic filing will be for: • Documents filed under seal • Documents related to habeas cases and Social Security cases • Civil complaints • Civil documents not requiring a filing fee, such as recovery of student loan, bankruptcy appeal, bankruptcy withdrawal, recovery of veteran’s benefits and appointment of a receiver • Criminal complaints, indictments, criminal information and plea agreements • Emergency motions and requests for emergency hearings • Summons • Surety bonds • Proposed trial exhibits The office of clerk of the court Clarence Maddox has been training the estimated 4,000 South Florida lawyers who practice before the court, as well as judges. David Markus, president of the Miami chapter of the Florida Association of Criminal Defense Lawyers, welcomed the court-imposed vacation. “You’ll never find a lawyer who will complain about getting a few extra days to file something,” he said. Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.

Acosta names new execs

Jeffrey Sloman is the new first assistant.
Matt Menchel is chief of criminal.
Karen Gilbert is chief of major crimes.
Robert Senior is the deputy chief of national security, public corruption, and civil rights.

Federal Courthouses open

In an odd break from both the State courthouses and the Supreme Court of the United States, our federal courthouses will be open Monday on Yom Kippur.

Federal Bar dinner

The local Federal Bar Association had its annual installation dinner at the Biltmore on Friday night. Congrats to Jackie Becerra, our incoming President.

''My main concern is, there comes a time when people have to pay the piper, so to speak. I think that time has come.''

So said Judge Huck after the government and defense asked for another delay in Jack Abramoff's case. Read here.

Ted Klein's funeral

For those that weren't there today, the services were very nice. Judge Klein's brother, Hank, spoke, as did Judge Martinez. Almost all of the federal judges were in attendance and many state judges appeared as well. Ted was loved by the community as was shown by the very large turnout from the U.S. Attorney's office, Public Defender's office, and lawyers from around town.

Theodore Klein

It is with great sadness that I report that U.S. Magistrate Ted Klein has passed away today. He was a gem of a person and a judge, and our community has suffered a great loss. He loved being a Magistrate Judge, loved being at the courthouse everyday, and loved working in this District. What a huge loss.

UPDATE: Here is Jay Weaver's very nice and lengthy obit:

Federal Magistrate Ted Klein dies at age 66
U.S. Magistrate Judge Theodore Klein, recognized as one of the sharpest legal minds in South Florida during a storied career as both a defense lawyer and federal prosecutor, died this afternoon of a lung disease.
Klein, 66, passed away at South Miami Hospital after battling a mysterious lung ailment that family members say may have been caused by exposure to mold spores in his home. Klein, appointed as a federal magistrate nearly three years ago, fell ill in December 2005 and had been hospitalized since June.
His brother, Hank Klein, said Ted's illness came as a shock to family, friends and others who knew him because he exercised regularly, ate healthy foods and never smoked.
''We don't know what caused this disease,'' said Klein, vice chairman of Codina Realty Services. ``He didn't smoke. He skied several times during the winter. He hiked during the summer. He jogged all the time. He was in excellent shape for a man of 66. That's why it comes as such a surprise to everyone.
``It's damn bad luck.''
Ted Klein was born in Czechoslovakia in 1940 during the Nazi occupation. His father, Rabbi Maurice Klein, escaped from a forced labor camp run by the Hungarian army and persuaded his wife, Sara, that they had to leave their homeland to survive.
They fled with the young Klein, then 9 months old, and his sister, Miriam, then 4. The family left Lisbon by ship on May 15, 1941, and immigrated to the United States, settling later with friends in the Cleveland area.
His parents eventually relocated the family to Miami in 1957. Klein enrolled at the University of Miami, where he studied finance. He was known as a bookworm and served as treasurer of the student body. He later graduated from UM law school, where he held the prestigious post as associate editor of the Law Review.
''He was the book guy and the nerd,'' said U.S. District Judge Jose Martinez, a UM schoolmate. ``I was the sports guy and the president of my fraternity.''
''He got the top grades in his class,'' said Donald Bierman, another UM law alumnus, adding that Klein was a ``compulsive preparer.''
After finishing at UM, Klein earned a master's degree in law at Yale University. Then he began making his mark in Miami's legal community.
In the late 1960s, Klein became a prosecutor with the U.S. attorney's office. Among Klein's peers: Martinez and Bierman, a future law partner.
Martinez said they would regularly go out for lunch at a local Cuban restaurant and talk about their cases -- and anything else that struck their interest.
''One time we were talking about mosquitoes of all things,'' said Martinez, who credited Klein with helping him get hired by the U.S. attorney's office after a stint in the Navy. ``Ted went to the library and memorized the names of about 650 mosquitoes.''
During that period, Klein and his wife, Leslie, started a family. The couple, who later divorced, had two children, Jennifer and Andrew, who grew up to become a Yale University history professor and a Miami psychologist, respectively.
Andrew Klein said his father -- along with his mother -- guided him through life's ups and downs.
''I've always been so proud of him and what he's done,'' said Andrew Klein. ``I've always looked up to him for everything. He had such a great sense of humor and was always able to give the support and guidance I needed to find my own direction.''
He said his father had that kind of impact on a lot of people in the community, noting, for example, that he taught countless students about trial law as a UM adjunct professor for nearly 30 years.
Jennifer Klein praised both her parents in the acknowledgment of her recent book, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State.
''They really were a model for me of political courage, integrity and humanism,'' she said. ``I always saw my father as a person who stood up for what was right.''
As an example, she said her father resigned from the Dade Heritage Trust, a historic preservation group, because it held its annual meeting in 1984 at Miami Beach's long-restrictive Bath Club.
She also said her father devoted most of his career to representing defendants because he viewed their right to counsel as vital to a functioning democracy.
''He was committed to the notion that a democratic society had to have a strong defense bar,'' she said, citing her father's narrow 1983 U.S. Supreme Court victory in an unreasonable search and seizure case on police profiling of drug suspects at airports.
Ted Klein spent most of his career at the prestigious Miami law firm, Fine Jacobson Schwartz Nash Block & England. He earned a reputation as formidable defense lawyer in white-collar, health-care and financial-fraud cases over more than two decades. Klein, listed in The Best Lawyers in America and a former member of the Florida Bar board of governors, almost became a federal judge after President Clinton nominated him.
''When I saw that Ted applied in 1993, I wrote a letter to [then-Florida Sen.] Bob Graham,'' said Martinez, who had applied a year earlier for another opening on the federal bench. ``I said as much as I would like to be a federal judge, the most qualified person was Ted Klein. I wanted it, but not at the expense of Ted Klein.''
Klein had been granted a hearing before the Senate Judiciary Committee in late 1993, but politics -- including a Republican takeover of Congress -- delayed a vote on his confirmation.
In early 1995, he said in letter to Clinton that the breakup of his old law firm, Fine Jacobson, ''has had devastating financial consequences for me,'' and that he has decided to form a new law firm in Miami with a couple of longtime friends, Bierman and Ed Shohat.
In one of Klein's more memorable criminal cases, he teamed up with Bierman to defend former Miami-Dade County seaport director Carmen Lunetta. Lunetta was indicted along with two port businessmen of stealing up to $1.5 million in public money and diverting it for illegal campaign donations and personal uses.
After government prosecutors rested, U.S. District Judge Donald Middlebrooks expressed dismay over ''substantial evidence of greed and public corruption.'' But he directed a verdict of acquittal for Lunetta and the co-defendants, saying they couldn't have stolen the money because it didn't belong to the county -- it belonged to the private firm that operated the port's huge gantry cranes.
In 2003, when there was an opening for a magistrate judge in Miami, Klein's name was at the top of the list. Sworn in that fall, Klein presided over arraignments, bond hearings and pretrial motions -- including a complex case involving Cali cartel founders Gilberto and Miguel Rodriguez-Orejuela.
Klein was respected by both prosecutors and defense lawyers, who remembered him as a persuasive advocate and fair judge.
''As a defense lawyer and magistrate, he was always a pleasure to deal with and he did it with a smile,'' said veteran federal prosecutor Dick Gregorie.
Klein was also known for his quick wit.
When a longtime fugitive who had been living the high life in suburban Pinecrest appeared before Klein on drug charges, the defendant's attorney said his client, Rafael Franco, had an alias.
''He was running around with a driver's license in the name Jorge Alonso,'' Klein noted.
''This is Miami,'' attorney Frank Quintero quipped, speculating Franco could have had a secret girlfriend.
''The rules are different here,'' said Klein, parroting a legendary tourism tag line.
The courtroom erupted in laughter.
Klein's brother, Hank, said that was his favorite place: ``He just loved his work and had a love for the law.''
In addition to his mother, son, daughter, brother and former wife, Klein is survived by his fiancée, Donna Syrop, and a sister, Miriam Klein Kassenoff, a Holocaust educator in the Miami-Dade public school system.
A funeral service is planned for 10 a.m. Friday at Temple Beth Am, 5950 N. Kendall Dr., in Pinecrest.
A scholarship has been established in Klein's name at UM law school. Donations may be made to the University of Miami School of Law, Alumni and Development Office, P.O. Box 248087, Coral Gables, FL.

Rodriguez Brothers plead

Since I'm involved in this case, I'm not going to blog extensively about it. You can read the coverage here, here, and here. Today's blog post is dedicated to Gilberto and Miguel, and their families.

Back to work

I'm back from a wonderful week in Colorado. We got to see fall and winter weather (from one day to the next there was 7 inches of snow).
















Also, thanks to the guest bloggers during the past week -- Marcos Jimenez, Brian Tannebaum, and "Not Scalia".

Unfortunately, it wasn't a complete break for me.... Next time, I'm leaving the blackberry at home.

DNA Evidence Frees a Man Imprisoned for Half His Life

This is an incredibly tragic story from the New York Times. Sixteen years ago, Jeffrey Deskovic was convicted of raping, beating and strangling a high school classmate in a jealous fit of rage. DNA evidence presented at his trial showed that semen in the victim's body was not his, but the police testified that he had confessed.

Yesterday, he walked out of the courthouse a free man after the DNA from the crime scene was run through a national database and matched that of a man who is serving time for another local murder. This man now has confessed to the murder.

The case against Mr. Deskovic hinged largely on a confession he made after six hours of questioning in a small interrogation room where two detectives took him for a polygraph test. At the time, Mr. Deskovic was 16 years old.

At his trial, investigators said they grew suspicious of Mr. Deskovic because he was late for school the day after the murder and seemed overly distraught about the death of a girl who was not his close friend.

Jeanine Pirro, the former district attorney, who took office after his trial refused to review the case. Ms. Pirro's successor, Janet DiFiore, agreed to run the evidence through a national DNA databank after she was approached in June by Barry Scheck, a director of the Innocence Project, which works to free the wrongly convicted.

New disclosure requirements for federal judges

The New York Times reports today about the new disclosure rules for federal judges. Judges will be prohibited from accepting reimbursement for attending a private seminar unless its sponsor has filed a public disclosure statement on the content of the program and all sources of financing. Judges will have 30 days to report their attendance at such seminars, and both the judges and the seminars reports will be available on judicial Web sites.

These new disclosure requirements have been adopted by the Judicial Conference, in part, because of complaints that two organizations that have provided free trips to hundreds of federal judges received large contributions from tobacco, oil and other corporate interests. An article about these complaints can be found here.

Despite my blog name I agree with Justice Scalia that "if it is reasonable to think that a [judge] can be bought so cheap, the nation is in deeper trouble than I had imagined." Notwithstanding, transparency is a good thing and Chief Justice Roberts should be applauded for his role in this development. Of course, these new rules do not apply to members of the Supreme Court who have no written ethical rules.

Federal Indictments, Federal Elected Officials

The Miami Herald has two stories today on new Southern District indictments where the defendants, or their conduct, are linked to U.S. Senator Mel Martinez, and U.S. Representative Ileana Ros-Lehtinen.

1. Three employees of the engineering firm PBS&J are charged with a $36 million dollar embezzlement scheme and a contribution of $11,000 to Senator Martinez. The contribution is the reason this story makes the front page of the main section of the Herald. The story is here.

2. A 36-count indictment was returned against a 14-year aide to Representative Ros-Lehtinen charging insurance fraud related to billing for HGH. Because the indictment is unrelated to any conduct of Ros-Lehtinen, it falls to page 6, of the local section. The story is here