Rumpole has a funny post about the federal buildings here. From what I hear, there are trials scheduled in the new building in May... I'll believe it when I see it.
The AP's Curt Anderson reports here that Ashley Dupre is on video saying she is 18 and consenting to the Girls Gone Wild video:
The release came one day after series founder Joe Francis and his companies were sued for $10 million in Miami federal court by Ashley Alexandra Dupre, who claims she was only 17 at the time and too young to sign a binding contract. Dupre, now 22, also accused Francis of exploiting her image and name on various Internet sites.
In the new release, Dupre appears covered by a terrycloth towel and gives her name as Amber Arpaio. An unseen questioner asks if she is 18.
"Yes I am," Dupre answers in a strong Southern accent.
"Do you know what 'Girls Gone Wild' is?" the questioner asks.
"Yes I do," she replies with a laugh.
"Can I use this on 'Girls Gone Wild'?" she is asked.
"Of course you can," Dupre answers.
The video also displays a New Jersey driver's license with the Amber Arpaio name and a birth date that would have made her appear to be in her 20s.
Not so good for her lawsuit...
UPDATE -- the lawsuit fell before Judge Lenard.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Wednesday, April 30, 2008
Tuesday, April 29, 2008
"Prosecutors say jailhouse snitches won't be called to testify in Joe Cool case"
That's the headline from Vanessa Blum's article discussing the government's filing today. It makes sense not to call these guys, who would just muddy the case up for the government. Smart move.
From Blum's article:
Two jailhouse snitches who say they heard incriminating statements from a suspect in the Joe Cool murder-at-sea case won't be called to testify at trial, federal prosecutors stated in a motion filed Monday evening.Their announcement came after attorneys for Guillermo Zarabozo sought to have the so-called confession thrown out, claiming it violated Zarabozo's constitutional right to be represented by an attorney during questioning.U.S. District Judge Paul Huck set a hearing for Wednesday to discuss the government's filing. Huck canceled a hearing where the inmates, Antwan Hall and Daniel Noel, were expected to testify about the circumstances of their conversations with Zarabozo in Miami's Federal Detention Center.Zarabozo, 20, of Hialeah and Kirby Archer, 36, of Strawberry, Ark. are charged with murdering Joe Cool captain Jake Branam, 27; his wife, Kelley Branam, 30; his half brother, Scott Gamble, 35; and first-mate Samuel Kairy, 27 on Sept. 22.
***
But the confession posed problems for prosecutors. First, it could not be used against Archer, meaning the government would be forced to try the two defendants separately if it came in as evidence. Secondly, the inmates would have obvious credibility problems as witnesses, because they are convicted felons seeking sentence reductions.Most urgently, Zarabozo's lawyers wanted Huck to rule on claims the confession violated Zarabozo's right to counsel. In a motion filed last week, defense lawyers said prosecutors knew Hall and Noel were government snitches and intentionally placed the men next to Zarabozo to illicit a confession.Federal judges have ruled that informants who have pre-existing agreements to gather information for prosecutors may be considered government agents. That would make a jailhouse interrogation illegal unless the suspect's lawyer was present.Prosecutors disputed that was the case, saying the government had "no agreement or prearrangement" with the men to seek a confession from Zarabozo.Still, prosecutors agreed not to use the confession unless Zarabozo took the stand at trial and told a different story.The men's trial is currently set for early June but could be pushed back if the government opts to seek the death penalty.
From Blum's article:
Two jailhouse snitches who say they heard incriminating statements from a suspect in the Joe Cool murder-at-sea case won't be called to testify at trial, federal prosecutors stated in a motion filed Monday evening.Their announcement came after attorneys for Guillermo Zarabozo sought to have the so-called confession thrown out, claiming it violated Zarabozo's constitutional right to be represented by an attorney during questioning.U.S. District Judge Paul Huck set a hearing for Wednesday to discuss the government's filing. Huck canceled a hearing where the inmates, Antwan Hall and Daniel Noel, were expected to testify about the circumstances of their conversations with Zarabozo in Miami's Federal Detention Center.Zarabozo, 20, of Hialeah and Kirby Archer, 36, of Strawberry, Ark. are charged with murdering Joe Cool captain Jake Branam, 27; his wife, Kelley Branam, 30; his half brother, Scott Gamble, 35; and first-mate Samuel Kairy, 27 on Sept. 22.
***
But the confession posed problems for prosecutors. First, it could not be used against Archer, meaning the government would be forced to try the two defendants separately if it came in as evidence. Secondly, the inmates would have obvious credibility problems as witnesses, because they are convicted felons seeking sentence reductions.Most urgently, Zarabozo's lawyers wanted Huck to rule on claims the confession violated Zarabozo's right to counsel. In a motion filed last week, defense lawyers said prosecutors knew Hall and Noel were government snitches and intentionally placed the men next to Zarabozo to illicit a confession.Federal judges have ruled that informants who have pre-existing agreements to gather information for prosecutors may be considered government agents. That would make a jailhouse interrogation illegal unless the suspect's lawyer was present.Prosecutors disputed that was the case, saying the government had "no agreement or prearrangement" with the men to seek a confession from Zarabozo.Still, prosecutors agreed not to use the confession unless Zarabozo took the stand at trial and told a different story.The men's trial is currently set for early June but could be pushed back if the government opts to seek the death penalty.
Monday, April 28, 2008
Spitzer call girl sues Girls Gone Wild owner...
...here in the Southern District of Florida. Here's the complaint (Ashley Dupre v. Joseph Francis, et al), filed by attorney Richard Wolfe.
Here's some coverage by the Herald:
Five years after Girls Gone Wild filmed the unknown teen cavorting topless in South Beach, the now-notorious Ashley Alexandra Dupré is demanding a cut of the money from the video sales.
Dupré filed a lawsuit Monday in federal court in Miami, claiming Girls Gone Wild founder Joe Francis and his company owe her more than $10 million.
Now 22 (turning 23 Wednesday), Dupré was a few weeks shy of her 18th birthday when she ran into Francis' film crew outside Miami Beach's Chesterfield Hotel in March 2003. They got her drunk and filmed her flashing her breasts in hotel rooms, according to the suit.
Francis, 35, who arrived in Miami on Monday to promote his new Girls Gone Wild magazine, told The Miami Herald he has ''never sold one'' video of Dupré and referred questions to his attorneys.
Francis repackaged the footage last month after Dupré emerged as a central figure in the high-priced prostitution scandal that ensnared New York Gov. Eliot Spitzer, leading to his resignation. Investigators say Spitzer paid big bucks for sexual encounters with Dupré, who worked as an escort named ``Kristen.''
Dupré filed a lawsuit Monday in federal court in Miami, claiming Girls Gone Wild founder Joe Francis and his company owe her more than $10 million.
Now 22 (turning 23 Wednesday), Dupré was a few weeks shy of her 18th birthday when she ran into Francis' film crew outside Miami Beach's Chesterfield Hotel in March 2003. They got her drunk and filmed her flashing her breasts in hotel rooms, according to the suit.
Francis, 35, who arrived in Miami on Monday to promote his new Girls Gone Wild magazine, told The Miami Herald he has ''never sold one'' video of Dupré and referred questions to his attorneys.
Francis repackaged the footage last month after Dupré emerged as a central figure in the high-priced prostitution scandal that ensnared New York Gov. Eliot Spitzer, leading to his resignation. Investigators say Spitzer paid big bucks for sexual encounters with Dupré, who worked as an escort named ``Kristen.''
Friday, April 25, 2008
Joe Cool defendant wants to keep supposed statement out
Looks like the Joe Cool case is starting to heat up again...
At a status today, Judge Huck set a hearing on Guillermo Zarabozo's motion to exclude his supposed statement to a jailhouse snitch for next Wed. Here is the intro to Jay Weaver's article:
A Hialeah man charged with another man in the slayings last year of four Miami Beach charter boat crew members is trying to have his alleged ''confession'' to a jailhouse snitch tossed out before trial this summer.
Guillermo Zarabozo has asked a federal judge to suppress testimony by the government's jail ''informant,'' who claims Zarabozo confessed in custody that his co-defendant fatally shot the victims aboard the Joe Cool at sea last fall.
Zarabozo allegedly told the informant in the Federal Detention Center that Kirby Archer, a fugitive from Arkansas, used Zarabozo's gun to shoot the four after Archer argued with the boat captain about taking the vessel to Cuba.
A hearing on Zarabozo's new motion, filed by attorney William Matthewman, is set for Wednesday before U.S. District Judge Paul Huck.
The lawyer claims Zarabozo's right to counsel under the Sixth Amendment would be violated if the informant -- Antwan Hall, a felon serving 30 months for possession of a firearm -- is allowed to testify for the prosecution at trial on June 23.
''All that matters is whether the government informant deliberately used his position to secure incriminating information from . . . [Zarabozo] when counsel was not present,'' according to the motion.
Matthewman said Hall's cellmate, Daniel Noel, also convicted on firearm charges and serving 24 months, might be used as a witness to corroborate Hall's testimony.
At a status today, Judge Huck set a hearing on Guillermo Zarabozo's motion to exclude his supposed statement to a jailhouse snitch for next Wed. Here is the intro to Jay Weaver's article:
A Hialeah man charged with another man in the slayings last year of four Miami Beach charter boat crew members is trying to have his alleged ''confession'' to a jailhouse snitch tossed out before trial this summer.
Guillermo Zarabozo has asked a federal judge to suppress testimony by the government's jail ''informant,'' who claims Zarabozo confessed in custody that his co-defendant fatally shot the victims aboard the Joe Cool at sea last fall.
Zarabozo allegedly told the informant in the Federal Detention Center that Kirby Archer, a fugitive from Arkansas, used Zarabozo's gun to shoot the four after Archer argued with the boat captain about taking the vessel to Cuba.
A hearing on Zarabozo's new motion, filed by attorney William Matthewman, is set for Wednesday before U.S. District Judge Paul Huck.
The lawyer claims Zarabozo's right to counsel under the Sixth Amendment would be violated if the informant -- Antwan Hall, a felon serving 30 months for possession of a firearm -- is allowed to testify for the prosecution at trial on June 23.
''All that matters is whether the government informant deliberately used his position to secure incriminating information from . . . [Zarabozo] when counsel was not present,'' according to the motion.
Matthewman said Hall's cellmate, Daniel Noel, also convicted on firearm charges and serving 24 months, might be used as a witness to corroborate Hall's testimony.
Thursday, April 24, 2008
How not to do an oral argument
Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. ... She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.
Judge: That’s not much of thing you come in here and tell us, I guess.
Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.
Judge: What do you do about Morgan?
Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.
Judge: You don’t know Morgan?
Phipps: Nope.
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That’s why I wore a suit today, Your Honor.
Judge: Alright. We’ve got your attitude, anyway.
The Fifth Circuit wasn't too happy. It had this to say in a per curium opinion.
[W]e would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps’ conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client’s interest and for his obligation to the Court was both troubling and disgraceful. [FN4]
Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.
OUCH!
Judge: That’s not much of thing you come in here and tell us, I guess.
Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.
Judge: What do you do about Morgan?
Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.
Judge: You don’t know Morgan?
Phipps: Nope.
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That’s why I wore a suit today, Your Honor.
Judge: Alright. We’ve got your attitude, anyway.
The Fifth Circuit wasn't too happy. It had this to say in a per curium opinion.
[W]e would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps’ conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client’s interest and for his obligation to the Court was both troubling and disgraceful. [FN4]
Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.
OUCH!
Wednesday, April 23, 2008
Liberty City to be tried a third time
Trial to be set for the Fall.
Here are the minutes from today's hearing:
Government announced they will proceed with a third trial. Deft. Herrera’s motion for bond is granted; $50k ps co-signed by father; deft Abraham’s moton for bond is denied; Prebish’s m/withdraw granted, the Court to appoint counel w/in 2/3 days, further status set for 4/30/08 @8:30am. Trial expected to start sometime in the fall.
UPDATE -- from Vanessa Blum's article:
"We've worked very hard this past week reviewing everything in this case and considering it very, very seriously," said prosecutor Richard Gregorie. "The United States has decided it's necessary to proceed, your honor, one more time."U.S. District Judge Joan Lenard set a hearing for next week to decide on a new trial date. She said she would likely schedule the trial for late 2008.Acknowledging that two juries have been unable to resolve the case, Gregorie said the U.S. Attorney's Office would agree to the release of four defendants on bond.
Prosecutors oppose bond for the group's purported ringleader Narseal Batiste, 34, and Patrick Abraham, 28, who is an illegal U.S. resident.
Here are the minutes from today's hearing:
Government announced they will proceed with a third trial. Deft. Herrera’s motion for bond is granted; $50k ps co-signed by father; deft Abraham’s moton for bond is denied; Prebish’s m/withdraw granted, the Court to appoint counel w/in 2/3 days, further status set for 4/30/08 @8:30am. Trial expected to start sometime in the fall.
UPDATE -- from Vanessa Blum's article:
"We've worked very hard this past week reviewing everything in this case and considering it very, very seriously," said prosecutor Richard Gregorie. "The United States has decided it's necessary to proceed, your honor, one more time."U.S. District Judge Joan Lenard set a hearing for next week to decide on a new trial date. She said she would likely schedule the trial for late 2008.Acknowledging that two juries have been unable to resolve the case, Gregorie said the U.S. Attorney's Office would agree to the release of four defendants on bond.
Prosecutors oppose bond for the group's purported ringleader Narseal Batiste, 34, and Patrick Abraham, 28, who is an illegal U.S. resident.
Mold findings....
Some more coverage of the Dyer mold problem here and here and here.
From the AP:
Miami's historic downtown federal courthouse suffers from extensive contamination of dangerous types of mold and should have some sections closed for cleaning, according to a new environmental study released Tuesday.
But the analysis by a private firm - hired by the attorney for the family of a judge who died in 2006 of a lung ailment - stops short of recommending that the 75-year-old building be shuttered completely.
The now-sealed courtroom formerly used by the U.S. Magistrate Judge Theodore Klein before his death contained "very heavy growth" of hazardous mold and there are concerns that spores have spread throughout the building through air conditioning systems, said attorney Alan Goldfarb.
From the AP:
Miami's historic downtown federal courthouse suffers from extensive contamination of dangerous types of mold and should have some sections closed for cleaning, according to a new environmental study released Tuesday.
But the analysis by a private firm - hired by the attorney for the family of a judge who died in 2006 of a lung ailment - stops short of recommending that the 75-year-old building be shuttered completely.
The now-sealed courtroom formerly used by the U.S. Magistrate Judge Theodore Klein before his death contained "very heavy growth" of hazardous mold and there are concerns that spores have spread throughout the building through air conditioning systems, said attorney Alan Goldfarb.
Tuesday, April 22, 2008
Trial stats
The commenters were correct that I posted the wrong link concerning the number of trials in this District. Thanks to a helpful reader, here is the correct link for the total trials in this District and the rest of the country. The conclusion in the prior post -- that we try more cases in this District than any other -- is still correct.
Sunday, April 20, 2008
Weekend reading
1. Ben Kuehne. The feds decided to drop the obstruction count, but added a wire fraud count:
Federal prosecutors have added and subtracted charges in the money-laundering indictment brought against prominent Miami attorney Ben Kuehne and two others.
In a superseding indictment filed Friday, the Justice Department added a wire-fraud conspiracy count but dropped an obstruction of justice charge.
2. Trials. in 2007, the SDFLA had 155 trials, more than any other district, followed by SDNY (108), MDFL (108), SDTX(106) and WDTX(105). In fact, we had more trials than the entire 1st Circuit, and almost as many as the 3rd and 10th Circuits.
3. Libery City 7. Vanessa Blum examines why the government is having so much trouble in this case -- perhaps it was because they arrested too early:
The failure of federal prosecutors to convict any members of an alleged South Florida terror cell after two trials highlights the obstacles in a legal strategy of arresting terror suspects before they strike.That approach, known as preemption, has been the Justice Department's mandate since the attacks of Sept. 11, 2001, drove home the potentially lethal consequences of not acting soon enough to stop terrorism.But moving too quickly may have doomed the so-called Liberty City 7 case by leaving prosecutors without sufficient evidence to back up their sensational allegations that the men wanted to launch a ground war against the U.S. government.Violent rhetoric caught on tape from the group's leader and a grainy video of the defendants swearing an oath of allegiance to al-Qaida have not been enough to convince jurors the men were conspiring to join forces with the terror group and not, as defense lawyers argued, simply playing along in a scheme for money.
4. There is a white collar seminar in the Middle District coming up with some impressive speakers.
Federal prosecutors have added and subtracted charges in the money-laundering indictment brought against prominent Miami attorney Ben Kuehne and two others.
In a superseding indictment filed Friday, the Justice Department added a wire-fraud conspiracy count but dropped an obstruction of justice charge.
2. Trials. in 2007, the SDFLA had 155 trials, more than any other district, followed by SDNY (108), MDFL (108), SDTX(106) and WDTX(105). In fact, we had more trials than the entire 1st Circuit, and almost as many as the 3rd and 10th Circuits.
3. Libery City 7. Vanessa Blum examines why the government is having so much trouble in this case -- perhaps it was because they arrested too early:
The failure of federal prosecutors to convict any members of an alleged South Florida terror cell after two trials highlights the obstacles in a legal strategy of arresting terror suspects before they strike.That approach, known as preemption, has been the Justice Department's mandate since the attacks of Sept. 11, 2001, drove home the potentially lethal consequences of not acting soon enough to stop terrorism.But moving too quickly may have doomed the so-called Liberty City 7 case by leaving prosecutors without sufficient evidence to back up their sensational allegations that the men wanted to launch a ground war against the U.S. government.Violent rhetoric caught on tape from the group's leader and a grainy video of the defendants swearing an oath of allegiance to al-Qaida have not been enough to convince jurors the men were conspiring to join forces with the terror group and not, as defense lawyers argued, simply playing along in a scheme for money.
4. There is a white collar seminar in the Middle District coming up with some impressive speakers.
Friday, April 18, 2008
Jose Padilla to the Supermax
Jose Padilla was transferred today to Florence, Colorado -- commonly known as the Supermax -- to serve his 17 year sentence.
Wednesday, April 16, 2008
Judge Martinez speaks at the Federal Bar Association today
As expected, he was entertaining and the turnout to see him speak was great.
Apparently, the judges have been delayed moving into the new building because GSA forgot to order them the audio-visual equipment. This is not even funny anymore!
The buzz at the luncheon, of course, was whether the feds would retry the Liberty City group.
Liberty City mistrial
The Liberty City jury hung for a second time today. Judge Lenard will have a hearing next Wednesday to find out if the government will proceed a third time and if so, when that trial will be rescheduled. Lots of coverage from all the regulars.
I will re-post my questions from an earlier entry:
Well then SDFLA readers, should the government retry the case for a third time?
Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....
What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.
The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...
I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.
My prediction is that despite all of the above, the case will be tried a third time.
Finally, I feel for Judge Lenard. Can you imagine having to sit through the same lengthy trial 3 times. Shoot me now!
I will re-post my questions from an earlier entry:
Well then SDFLA readers, should the government retry the case for a third time?
Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....
What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.
The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...
I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.
My prediction is that despite all of the above, the case will be tried a third time.
Finally, I feel for Judge Lenard. Can you imagine having to sit through the same lengthy trial 3 times. Shoot me now!
Tuesday, April 15, 2008
Allen charged
The Liberty City jury sent another note that they were hung. Judge Lenard gave the dynamite charge, called the "Allen" charge. Here is the coverage of the Allen charge from the first trial.
Here is the text of the pattern Allen charge:
I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.
Here is the text of the pattern Allen charge:
I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.
Monday, April 14, 2008
Come see Judge Martinez speak Wednesday
This Wednesday from noon to 1:30 at the Banker's Club, you should come see Judge Martinez speak -- it will be entertaining for sure. Cost is $35; RSVP to Lourdes Fernandez at Lourdes_Fernandez@flsd.uscourts.gov
Sunday, April 13, 2008
Liberty City thoughts
Let's assume this trial ends in a mistrial, like the trial before it did.
Well then SDFLA readers, should the government retry the case for a third time?
Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....
What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.
The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...
I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.
My prediction is that despite all of the above, if there is a hung jury, the case will be tried a third time.
Well then SDFLA readers, should the government retry the case for a third time?
Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....
What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.
The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...
I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.
My prediction is that despite all of the above, if there is a hung jury, the case will be tried a third time.
Friday, April 11, 2008
Liberty City jury deadlocked?
The jury sent a note saying they were deadlocked today. Judge Lenard ordered them to keep trying...
Florida Supreme Court Justice Raoul Cantero resigns
A couple of years back we were saying that he might be nominated to the U.S. Supreme Court.
Today, he stepped down citing family reasons. Here's the article.
Today, he stepped down citing family reasons. Here's the article.
Interesting state case
Rumpole has been covering an interesting state case about how far our drug laws really reach. In closing argument, the defense lawyer argued (via Miami Herald):
''The only thing that is clear in this case is that the government is completely abusing its power in applying the law to my client,'' Morris told the jury, to the objection of the prosecution. Circuit Judge Jacqueline Hogan Scola told the jury to disregard the comment.
I love trials and evidence questions -- so I put this to you, my loyal blog readers: is this argument objectionable? Should the objection have been sustained? By my asking the question, I'm sure you know my opinion...
BTW, still no news on Liberty City. This jury has been out longer than LB7. Would the govt try it a third time?
''The only thing that is clear in this case is that the government is completely abusing its power in applying the law to my client,'' Morris told the jury, to the objection of the prosecution. Circuit Judge Jacqueline Hogan Scola told the jury to disregard the comment.
I love trials and evidence questions -- so I put this to you, my loyal blog readers: is this argument objectionable? Should the objection have been sustained? By my asking the question, I'm sure you know my opinion...
BTW, still no news on Liberty City. This jury has been out longer than LB7. Would the govt try it a third time?
Wednesday, April 09, 2008
Monday, April 07, 2008
Judge Martinez to speak Wednesday, April 16th -- CORRECTION
In what promises to be a very entertaining lunch, Judge Martinez is speaking Wednesday APRIL 16th, at the Banker’s Club at noon. Lunch is $35. RSVP to Lourdes at Lourdes_Fernandez@flsd.uscourts.gov
CORRECTED POST -- I originally put this Wed -- that is incorrect. It is Wed the 16th. Thanks.
CORRECTED POST -- I originally put this Wed -- that is incorrect. It is Wed the 16th. Thanks.
Sunday, April 06, 2008
News & Notes
1. Since Rumpole is shut down, I have invited him to blog over here.
2. The Justice Dept is investigating Dade County jails. I'm very happy about this. Broward should be next. The conditions are just appalling.
3. I've been slow to cover this story. But there is a lawsuit in our District re the Beatles. From Jay Weaver's article:
A London company representing The Beatles has won the first legal round to stop a Miami Lakes business from releasing rare live recordings of the group at a German club in 1962.
Apple Corps Limited and Fuego Entertainment struck an agreement approved by a Miami federal judge on Friday that requires Fuego to halt plans to release eight song recordings featuring Ringo Starr on drums as a Beatle for the first time.
The injunction also requires Fuego to remove any information about the planned release from its website, which has featured a sales pitch to customers to buy the CD. And it requires Fuego to cease any use of the trademark, The Beatles, for commercial purposes.
The temporary injunction remains in effect until a lawsuit is resolved.
4. Just when you think it can't get any worse for Broward judges...
2. The Justice Dept is investigating Dade County jails. I'm very happy about this. Broward should be next. The conditions are just appalling.
3. I've been slow to cover this story. But there is a lawsuit in our District re the Beatles. From Jay Weaver's article:
A London company representing The Beatles has won the first legal round to stop a Miami Lakes business from releasing rare live recordings of the group at a German club in 1962.
Apple Corps Limited and Fuego Entertainment struck an agreement approved by a Miami federal judge on Friday that requires Fuego to halt plans to release eight song recordings featuring Ringo Starr on drums as a Beatle for the first time.
The injunction also requires Fuego to remove any information about the planned release from its website, which has featured a sales pitch to customers to buy the CD. And it requires Fuego to cease any use of the trademark, The Beatles, for commercial purposes.
The temporary injunction remains in effect until a lawsuit is resolved.
4. Just when you think it can't get any worse for Broward judges...
Thursday, April 03, 2008
New courthouse is opening
Sort of.
Read Julie Kay's article here:
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1207133079914
Other than the flooding, air conditioning, and electrical failures, it should be great.
--David Oscar Markus
www.markuslaw.com
305-379-6667
Tuesday, April 01, 2008
"Is it against the law to swear an oath to al-Qaida, agreeing to abide by the directives of al-Qaida?"
That was the fascinating question that the Liberty City 6 jury asked Judge Lenard today.
Curt Anderson from the AP has more here.
Unsurprisingly, the government said that the Court should answer the question Yes, while the defense said No.
According to Anderson: "U.S. District Judge Joan Lenard answered with her own note telling jurors to carefully read her instructions in the case, particularly those describing material support to a foreign terrorist organization." *** "This is a determination for them to make," Lenard said outside the jury's presence. "They may see it as providing material support or they may not."
This is not an easy one -- In a pure vacuum, it's obviously not a crime to swear an oath to al-Qaida. The question is whether it's a crime in this case -- did the defendants have the requisite intent to offer material support for a terrorist organization? In that sense, the oath can be viewed as evidence.... So I think Judge Lenard's answer was the appropriate one, although probably not altogether satisfying to either party or to the jurors.
Curt Anderson from the AP has more here.
Unsurprisingly, the government said that the Court should answer the question Yes, while the defense said No.
According to Anderson: "U.S. District Judge Joan Lenard answered with her own note telling jurors to carefully read her instructions in the case, particularly those describing material support to a foreign terrorist organization." *** "This is a determination for them to make," Lenard said outside the jury's presence. "They may see it as providing material support or they may not."
This is not an easy one -- In a pure vacuum, it's obviously not a crime to swear an oath to al-Qaida. The question is whether it's a crime in this case -- did the defendants have the requisite intent to offer material support for a terrorist organization? In that sense, the oath can be viewed as evidence.... So I think Judge Lenard's answer was the appropriate one, although probably not altogether satisfying to either party or to the jurors.
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