News and Notes

Lots of district news:

1. Liberty City seven: The expert (Raymond Tanter) is testifying. If the defendants are convicted, this will be issue #1 on appeal. Reports from the Sun-Sentinel & Herald. (I've been told that the expert plans on writing a book about his trial experience in this case -- cross examination is today, so we'll find out more.)

2. Joe Cool: Although the government has yet to decide if it will seek the death penalty, defense lawyers have asked that Bill Matthewman be appointed for his expertise in death cases. (Via Sun-Sentinel). And despite the comments to previous posts, Judge Huck has indicated that he will probably set the trial in about six months -- plenty of time for both sides to prepare.

3. Julie Kay's NLJ column: Her first is here (Florida leads states in wage suits; clogging fed courts).

4. Coverage of US v. Williams oral argument, via HowAppealing:

"An anti-porn law that will survive?" Lyle Denniston has this post at "SCOTUSblog."
"Justices Hear Arguments on Internet Pornography Law": Linda Greenhouse has this article today in The New York Times.
Today in The Washington Post, Robert Barnes reports that "High Court Surveys Child Pornography Law's Scope."
David G. Savage of The Los Angeles Times reports that "High court weighs child porn law; Justices seek to establish whether a tool to punish online purveyors of illegal pictures infringes on the 1st Amendment."
In USA Today, Joan Biskupic reports that "Court puts child porn law to test; Justices appear skeptical of challengers' arguments."
And The Miami Herald reports that "Child-porn law debated; The attorney for a former Miami-Dade officer argued before the U.S. Supreme Court that a law to curb child pornography is too broad."
"Supreme Court hears arguments over child-pornography law": McClatchy Newspapers provide this report.
"Supreme Court Takes Up Child Porn Case": This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
And at "The Volokh Conspiracy," Orin Kerr has a post titled "Oral Argument in United States v. Williams."

Oral argument transcript from the Supreme Court

The transcript of today’s argument in United States v. Williams, argued by Rick Diaz, is now available here.

Rick Diaz and Lou Guerra to Washington

At 10 a.m today, the United States Supreme Court is scheduled to hear oral argument in United States v. Williams (06-694), asking whether a federal ban on pandering material believed to be child pornography is unconstitutional. Solicitor General Paul Clement will argue for the petitioner, and Richard J. Diaz -- yes, that Rick Diaz -- will argue for the respondent. Louis Guerra will be joining Rick at counsel table.

Initially Judge Middlebrooks denied Diaz & Guerra's motion to dismiss. The 11th Circuit reversed. And the High Court granted cert.

Go get em Rick and Lou.

Should Liberty City 7 jury hear from "radicalization" expert?

Yes, says Judge Lenard who is going to permit the government expert Raymond Tanter to testify as to how regular people become terrorists. From Vanessa Blum's article in the Sun-Sentinel:

The federal government's leading expert witness in its terrorism case against seven Miami men will take the stand this week to answer what may be the most pressing question facing law enforcement since the Sept. 11, 2001, attacks: How do ordinary individuals become terrorists?

In what will be the first testimony of its kind in a U.S. terrorism trial, Raymond Tanter is expected to tell jurors that most would-be terrorists start off as unremarkable individuals seeking a sense of belonging and purpose within an extremist group.Prosecutors want Tanter, a political science professor at Georgetown University, to tell jurors the seven defendants accused of plotting to bomb the Sears Tower in Chicago fit that profile and were on a path likely to end in violence.

Tanter's testimony is based on a theory called the radicalization process. It is important to the government's case because the defendants — who have no Middle Eastern roots, mostly grew up in South Florida and practiced a blend of religions — may not fit jurors' notions about terrorists.Defense lawyers tried unsuccessfully to block Tanter from testifying, describing his theories as unscientific and too new to be considered reliable.

Joe Cool case to Judge Huck

The parties better get ready for trial!

Say hello to my little friend

You're gonna love this. Here's the AP coverage of yesterday's exchange between Albert Levin and star government witness Elie Assad:

The star prosecution witness in a terrorism conspiracy case against seven Miami men said he liked the gangster film "Scarface" so much he frequently used the main character's last name.

The witness, Elie Assad, acknowledged Wednesday under questioning from a defense lawyer that he was often known as Elie Assad Montana after arriving in the United States from the Middle East in the late 1990s. When asked why by defense attorney Albert Levin, Assad replied, "'Scarface.'"

"Like Tony Montana?" Levin asked.

"I liked maybe the movie, sir," Assad responded.

The 1983 film, directed by Brian De Palma and written by Oliver Stone, features Al Pacino as Tony Montana, a Cuban refugee who rises with spectacular violence to become lord of a Miami cocaine empire. The movie spawned many indelible lines, such as Tony's "Say hello to my little friend!" while brandishing an assault weapon.

So, who is this guy?

Working covertly for the FBI, Assad acted as an emissary from al-Qaida who was supposedly sent to help the group of seven Miami men, led by 33-year-old Narseal Batiste, realize their alleged goal of destroying the Sears Tower in Chicago and attacking five FBI offices around the country.

Assad filed a lawsuit in Broward County against a rental car company as a result of the trunk incident, which was ultimately settled, according to court records. The "Montana" references came up in a November 2006 deposition Assad gave in that case - a statement he refused Wednesday to acknowledge as truthful because he did not sign it.
"It's possible not everything is accurate," Assad said.

Can you imagine Albert Levin's glee when he found out that government witness thought he was Scarface...

Broward state court

JAABlog, Rumpole, the Sun-Sentinel and others are covering a Broward state court story where a high-school football player was a victim of (corrected, the original post said defendant; that's what you get for relying on Rumpole) sexual battery. Judge Levenson (a former AUSA* and a good guy) asked what position the victim played. The prosecutor responded, Linebacker. The public defender imprudently responded, Tight-end. The judge then insensitively joked "Wide Receiver?"

To his credit, the prosecutor said the comments were inappropriate. And to the judge's credit, he immediately (and repeatedly) apologized.**

This is the great benefit of blogs -- and the big trouble with them. Stupid comments like this have been going on for a very long time. They obviously aren't right, but blogs make the reaction angrier and more volatile than probably necessary.

I agree with Rumpole that Levenson should be forgiven. (I took out my comment about the PD because it wasn't his client that he was talking about. Obviously still inappropriate, but not in the same way.)

*I have to justify the post on the "federal blog" or Rumpole gets all upset.
**We previously have commented on Judge Levenson's good acts as judge here.

No bond for the Joe Cool defendants

Today, Magistrate Judge Bandstra denied the bond requests by the Joe Cool defendants. (via Miami Herald , AP and Sun-Sentinel).


"In this courtroom sketch, Kirby Logan Archer, 35, of Strawberry, Ark., left, and Guillermo Zarabozo, 19, of Hialeah, right, appear in federal court in Miami. The men, who were picked up in a life raft after hiring a charter boat to take them to the Bahamas, have been charged with murder in the incident. The boat's four crew members are still missing. (AP/Shirley Henderson / September 26, 2007) "

Restaveks in Federal Court

The front page of the Herald today has this article about a child Haitain slave (called a Restavek, here's the Wikipedia page):

Federal court documents paint a grim picture of a slave-like life for Simone Celestin -- 15-hour work days, seven days a week, no schooling and no freedom. An orphan smuggled into Miami from Haiti at age 14, she lived in a Southwest Miami home for almost six years, fearful of being deported, under conditions that amounted to involuntary servitude, prosecutors say.

Looks like an interesting case, which is headed to trial:

Four people -- a mother, two daughters and one ex-husband of a daughter -- were indicted in connection with the case in April. Charges include human trafficking and forced labor.

The indictment said Evelyn Theodore and her daughters, Maude Paulin and Claire Telasco, hit the girl with hands, fists and ''other objects'' to force her to work as a servant in their house in South Miami-Dade and in other houses.

''The prosecution of individuals involved in human trafficking is a top priority of the Justice Department,'' a U.S attorney's office statement said at the time of indictment.

The defense responds:

''These were well-intentioned people who had high hopes for improving Simone's future lifestyle,'' said Richard Dansoh, the Coral Gables lawyer defending Maude Paulin. ``They did not put any restrictions on her. They did try to advise her that, as she came of age, she needed to be careful about running around with men.''

As further proof, he cited a Miami-Dade police report showing that an anonymous abuse complaint lodged in 2000 was investigated at the home -- and determined to be unfounded.

The police report noted that the complaint involved the 14-year-old girl who reportedly had been ``smuggled into the country from Haiti and was being forced to work in the home as a maid.''

The report said a state investigator found the child to be in good health, that she spoke only Creole and there were ''no signs of child abuse/neglect.'' The report also noted that police had notified immigration officials about a ``possible illegal immigrant.''

"Lawyers for Liberty City 7 having tough time"

That's the headline in today's Miami Herald article about the Liberty City 7 case. Not exactly the article you want if you are sitting at the defense table....

A couple of exchanges from the article between Ana Jhones (the lawyer for the lead defendant) and the informant:

"It's all about the money, isn't it?" Jhones asked aggressively.

"No, ma'am," Assad answered calmly. "There is a list, too."

"If I remember, I never promised him anything," he continued. "I only promised I would give the list to my big brother."

The FBI informant then lost touch with Batiste for one month.

Batiste and his followers in the local branch of the Moorish Science Temple -- a religion that combines Muslim, Christian and Jewish faiths -- began to suspect that Assad was working undercover for law enforcement. They also had their doubts about the other FBI informant, al-Saidi.

In late January 2006, a few of Batiste's men met the two informants at the group's warehouse in Liberty City, changed their clothes and drove them to Islamorada.

There, inside a tent, Assad and al-Saidi met with Batiste in a tense confrontation. Assad salvaged the FBI's undercover probe when he blurted out to Batiste that he was a representative of al Qaeda, winning his trust again. Assad was allowed to keep his cellphone, which recorded the conversation.

"You're doing all the talking," Jhones told Assad on the witness stand.

The lawyer reiterated that Batiste said his group was "suffering" because it lacked money, suggesting he was only trying to con the informant for big bucks.

"He doesn't say he needs the money because he hates the United States," Jhones said on cross-examination.

But Assad fired back: "He says he needs the money to destroy the United States."

The informant only gave Batiste and his followers boots, supplied by the FBI. Assad later offered to provide them with a second warehouse in Miami, where they could plan their alleged terror mission.

Monday Morning Blogging

It's Monday morning -- messages to return; weekend mail to go through; getting to stuff we couldn't get to Friday afternoon...

But the Hurricanes beat FSU. That makes it all feel a little bit better, doesn't it?

Unfortunately, the Fins are the worst they have been in my lifetime. It's tough to watch. Rumpole has a funny post about them over at his blog.

As for SDFLA news, the Liberty City 7 trial is still going... Joe Cool arraignments should occur this week.

And it looks like we have a new Justice Watch columnist -- Alana Roberts. Welcome. She writes today about Jack Thompson, which we have covered in detail in prior posts.

Finally, a couple of you have asked about how to join the local chapter of the Federal Bar Association. Go to this site, pay by credit card, and make sue you pick the South Florida Chapter. You'll want to join soon -- our first speakers in November are Judges Barkett and Marcus. Should be fun.

Federal Bar Association dinner

The local chapter of the federal bar association had its installation dinner last night at the Biltmore Hotel. It was a really nice event -- the judges were all there, including Chief Judge Moreno and former Chief Judge Davis.

Our first luncheon will be in mid-November. Judges Barkett and Marcus will be speaking. More info to follow...

Three Liberty City 7 jurors dismissed

From the Sun-Sentiel:

U.S. District Judge Joan Lenard ruled after spending hours questioning jurors about a pamphlet on terrorism found in the jury room Monday. Miami police officers handed out the pamphlets last week at Metrorail stations, and the jurors who were dismissed said they had read or skimmed it.

One of the dismissed jurors said he considered it an "interesting coincidence" that he was handed a pamphlet about terrorism at the Government Center Metrorail Station as he made his way to court for a terrorism trial. The man said he brought the flier into the jury room after receiving it.

The pamphlet's cover features a police shield and the word "terrorism" in bold, capital letters. A police representative said the distribution, part of a program to alert the public to terrorist threats, was unrelated to the trial.

All but two of the 12 jurors and six alternates said they had seen a copy in the jury room and noticed it pertained to terrorism. To defense lawyers, that alone was enough to warrant a mistrial.

"To have that in the jury room in this type of trial, I think it's outrageous," said Roderick Vereen, who represents Stanley Phanor, 32.

Other defense lawyers weren't so happy with the jurors being dismissed:

Lawyers for every defendant but Batiste requested a mistrial based on the pamphlet, which includes a watch list of seven "signs of terrorism" and descriptions of deadly materials that could be used by terrorists.

Lenard denied the mistrial motions. However, she excused the three members of the jury panel who said they had read the brochure, explaining she was acting in "an abundance of caution."

Ana Jhones, who represents Batiste, protested Lenard's decision, saying her client had never complained about the pamphlet. "He is now faced with the consequences that he is not going to have the jury he has selected," she said.

Albert Levin, Abraham's attorney, and Joel DeFabio, Lemorin's attorney, also opposed dismissing the jurors.

Ah, the joys of trial. Crazy things always happen, don't they?

You go Judge Milian

Okay, so this isn't federal court, but it's a fun clip, isn't it?

Jeff Sloman -- new Broward Sheriff?

From the Sun-Sentinel:

There's a new applicant to be interim Broward County sheriff -- a high-ranking federal prosecutor who was involved in the investigation that ousted former Sheriff Ken Jenne.

Jeff Sloman, the No. 2 official in the U.S. Attorney's Office for the Southern District of Florida, was interviewed by Gov. Charlie Crist at 1 p.m. Monday in Tallahassee.Sloman's application for the job was received on Saturday, said Anthony De Luise, a spokesman for the Governor's Office.

That was quick -- application gets in on Saturday, interview on Monday. Looks like Mr. Sloman will be Sheriff Sloman. He would be great...

Mold and explosions

I feel bad for Chief Judge Moreno...

He has inherited two big problems -- he has to deal with mold in the old Dyer Building and a recent explosion in the new Ferguson Building. The over on the January 1, 2008 opening is looking pretty good right now.

Julie Kay details in the DBR today (yes, I thought she had left too) that Ervin Gonzalez is investigating the mold issue in the Dyer Building that we covered previously here. And she goes through some of the issues with the new building, including a recent explosion that has disabled the electrical system. (It was supposed to open in July 2005 and is $78 million over budget!) The good news is that a certificate of occupancy has been issued for the building.

"Nothing short of brilliant"

That's victorious Mike Tein on Judge Cecilia Altonaga's 61 page ruling, rejecintg a proposed agreement to settle a class action lawsuit over defective Sharper Image air purifiers. Here's the DBR article on the decision. Not a good day for plaintiff attorney Robert Parks. Our previous coverage here.

Analysis of the opinion here by new (and anonymous) blogger, "South Florida Lawyers".

Joe Cool charges -- First Degree Murder

We don't get many first degree murder cases in federal court (this one can be charged in federal court because the alleged murders occurred on the high seas), so that alone makes the Joe Cool case fascinating. Add to it that there are no bodies, weapon, or confession and you have all the makings of an unbelievable trial that should be covered on Court TV. But, (as I have complained of many times before) we have no cameras in federal court, so you'll just have to check in here to get your updates. (Our prior coverage of the case is here).

Here's the Sun-Sentinel coverage, the AP, the Miami Herald.

U.S. Attorney Alex Acosta on the case: "We believe the evidence is strong. We shouldn't shy away from a case just because it's not an easy one." He said Kirby Archer, 35, of Strawberry, Ark., and Guillermo Zarabozo, 20, of Hialeah, murdered the crew "in cold blood."

From the Herald article:

Archer's attorney, former federal prosecutor Allan Kaiser, said the charges were hollow.
''They're under the gun,'' Kaiser said. 'The magistrate judge said last week, `You better come up with more evidence.' This is the evidence? I don't see a first-degree, premeditated murder case predicated on alleged inconsistent statements.''

I work at Hunton & Williams Miami; hear me roar

Here's a Miami Herald article about how law firms are trying to find creative ways to keep women lawyers. Above is the picture from the article with a bunch of lawyers from Hunton & Williams: "Hunton & Williams law firm is moving toward more flexible schedules to appeal to women. From left are: Allie Hernandez Pennie, Grace Mora, Jennifer Ellis, Barbara Alonso, Laurie Uustal Mathews, Davina Figeroux and Ellen Ross Belfer."

Because the picture is of Hunton lawyers and because of the caption, I read the article looking for the creative ways the firm is appealing to its women lawyers. But this is the only mention in the article:

Firms are trying to reverse the trend as clients demand diverse legal teams. Most big firms offer part-time options, flex scheduling and women's retention/advancement programs aimed at keeping their young female lawyers.

Grace Mora, a Miami labor lawyer, participates in Hunton & Williams' Women's Networking Forum. She believes her firm is moving in the right direction. ''I think it takes time to get the word out there. '' She also believes flex scheduling is evolving from a perk to becoming part of the firm's culture. ''We're not 100 percent there, but we are moving in that direction.'' But Mora says it's not just women who want it, ``men are demanding it too.''

Ah well.... At least the picture is cool.

The article does detail the drop of women applicants to law schools:

Since 2002, the percentage of women in law schools has declined each year, a new study shows. While the number of applicants overall has dropped in the past two years, the percentage decline in the number of women has been even greater, according to the American Bar Association.

What say you, Miami readers -- are there any firms doing cool things to keep women lawyers?

The Jack Thompson hearing (by Jack Thompson)

Rumpole, you want answers?

Well, all I have on the Jack Thompson hearing today in front of Judge Jordan is (what purports to be) Jack Thompson's summary of the hearing posted on GamePolitics here:

I’m delighted to announce that Judge Jordan vacated his order regarding referring me to the disciplinary committee, and he decided to forego all disciplinary remedies.
The judge started out by suggesting that he did not feel comfortable doing so unless I admitted I had done something wrong. I said I did nothing wrong and would not admit that I did. He asked, “Then how do I know you won’t do it again.”
I pointed out to him that Christ said, “Render unto Caesar what is Caesar and unto God what is God’s.” Christ, then, was making it clear that people of faith are not free to disobey civil authority, and if he now entered a court order for me not to do this, then I would not, as Christians are not free to disobey the law without consequences. But I told him he could not order me to say I did something wrong, because as a matter of conscience I could not do so.
That obviously satisfied him, and he voided out the entire disciplinary matter. Norm Kent was there, which was hilarious, having moved the court last night at 10:30 pm to let him “intervene” and appear before the disciplinary committee against me. Poor Norm, he went away from the hearing sad.
As to the Bar’s motion to dismiss, the judge will rule in two weeks. I expect to receive from the court certain federal relief against this Bar. You all don’t know the case, and I do. Norm Kent, who is now unofficial legal consultatnt to Dennis McCauley as to all things “Jack” smugly predicted here and elsewhere that this disciplinary blow by Judge Jordan was sure to unravel everything for me.’
Now the disciplinary matter does not even exist. How did that prediction turn out for Norm and Dennis?
Kids, leave the lawyering to lawyers. I’ll leave the mind numbing games to you all.
I had a great day, standing before a federal judge for a 2 hour and 45 minute hearing, and I did just fine. Even Norm Kent would have to admit that.
Besides, Norm is a Yankee fan, and grew up in Cleveland. I’m having a very good 24 hours. Jack Thompson, Attorney and You’re Not

UPDATED -- GamePolitics has more on the hearing here.

Paul Rashkind goes to Guantanamo

I guess Julie Kay hasn't left yet. Her Justice Watch column today covers Paul Rashkind's representation of Guantanamo detainees.

Plus it details staff changes at the U.S. Attorney's office. Bob Senior is the new chief of criminal; David Weinstein is the new chief of public integrity and national security and Rick Del Toro is the new chief of narcotics.

Good luck to Julie Kay

The DBR's Julie Kay is moving on up.... to the National Law Journal. She'll still be covering this area, so if you have stories she still wants em...

Good luck Julie.

Judge Jordan and Jack Thompson

It's hard to keep up with all the Jack Thompson filings in the Judge Jordan case. The latest is that he tried to get Jordan off the case so that he could name him as a defendant. No go -- from Game Politics:

In an order issued late yesterday, Judge Jordan wrote:

In my opinion, the content of the numerous filings submitted by Mr. Thompson
indicate that he has difficulty separating the legal issues in this case from
broader social issues on which he has strongly-held beliefs. Mr. Thompson
unfortunately appears to believe that every act taken against him, and any
judicial ruling adverse to him, are part of a vast conspiracy designed to
silence him and destroy him.

Judge Jordan has scheduled a hearing for October 9th at 9:30 AM on motions by the defendants (the Florida Bar and Judge Dava Tunis, the referee in Thompson’s Bar disciplinary trial) to dismiss the case.

The judge will also hear from Thompson on a motion regarding the “show cause” order issued from the bench following Thompson’s inclusion of gay porn in a docket filing.

And if you can't get enough of this craziness, here's what happened in Thompson's other lawsuit in front of Judge Huck.

Whew.

Hugo Black funeral

The U.S. Attorney's Office asked me to post this information regarding the funeral arrangements for Hugo Black:

A memorial service for Hugo L. Black III will be held at Plymouth Congregational Church on Sunday, October 7, beginning at 2:00 p.m. A reception will follow in Davis Hall, also located on Plymouth's campus.

Plymouth Congregational Church
3400 Devon Road
Coconut Grove
www.plymouthmiami.com

There are some very nice comments about Hugo here.

Opening statements in Liberty City 7 case

Longtime prosecutor Richard Gregorie opened for the government. According to the Herald:

''These defendants wanted to wage a jihad against the United States,'' Gregorie said. ''They tell us so in unique detail,'' he said, citing wiretaps, videotapes and other FBI surveillances.
''This agreement is clear, ladies and gentlemen,'' he said. ``It's taped recorded and you are there.''

Ana Jhones for the lead defendant countered (from the AP):

Batiste attorney Ana M. Jhones countered that the purported plot was driven mainly by two paid FBI informants, including one known as Mohammed who posed as a representative of al-Qaida. She said Batiste's group was coerced into going along with the violent plan by "this great con man," who was paid about $80,000 by the FBI.
"This case is about an orchestrated event, a play," Jhones said. "These two informants knew how to work the system. They wrote the script."
***
"He never had any intent to do any of these things the government is accusing him of. He never had the ability," Jhones said. "Narseal Batiste was talking the talk and walking the walk."

And Rod Vereen for defendant Stanley Phanor (from the Sun-Sentinel):

"[Vereen] said the only possible outcome for his client should be a not guilty vote. 'This is a case where nonsense meets common sense,' Vereen said.

No bond for the Joe Cool defendants

So ruled Magistrate Judge William Turnoff.

Press coverage here, here, and here.

Apparently the feds have more evidence -- like shell casings, blow gun darts, and knives. Plus it looks like they were headed to Cuba, where they couldn't be extradited to the U.S.

In this courtroom sketch, Kirby Logan Archer, 35, of Strawberry, Ark., left, and Guillermo Zarabozo, 19, of Hialeah, Fla., right, appear in federal court in Miami Wednesday, Sept. 26, 2007. (AP Photo/Shirley Henderson)

News and Notes

1. More on the tragic death of Hugo Black III here from Julie Kay. There are some really nice comments in this post about Hugo. Feel free to add your memories of him. That's a picture of Hugo to the left.

2. We posted earlier about Jack Thompson upsetting Judge Jordan. Thompson has filed at least 14 responses to Judge Jordan's order. In one, he tells U.S. Attorney Alex Acosta to investigate Norm Kent: “You have no choice but to initiate a criminal investigation into this individual and if you do not so proceed by Wednesday, October 3, 2007 at 5:00 p.m., I shall proceed to secure a federal court order to compel you to do so.” Judge Jordan issued another order on Monday (posted here, courtesy of GamePolitics), saying that Thompson does not have “a free reign to unnecessarily flood the docket in this case with a series of motions…that have no bearing on the issues in dispute in this case.” The Judge added that while Thompson “may have think this case is a war with the world regarding the state of moral standards, it is not.” The court does not have “jurisdiction over moral standards.” Stay tuned.... UPDATE -- GamePolitics has all the goods here, including Thompson's most recent response.

3. The Supreme Court hears argument today in two big sentencing cases -- Gall and Kimbrough. These cases are being watched closely by prosecutors, defense lawyers, and judges because they will affect judge's discretion at sentencing. Early prediction -- defense wins on both cases, which will give district judges the full range of discretion they should have at sentencing. Here's an article discussing both cases, and you can always get more info at the best Supreme Court website -- scotusblog.com.

First Monday is here