Happy New Year!

Shocking story

Jay Weaver's story this weekend about an FDC prisoner being repeatedly raped by guards is a must-read.

The victim successfully sued the prison officials in federal court, but her case against the Bureau of Prisons was dismissed because of the statute of limitations:

A female inmate cooperating as a government witness was sexually assaulted numerous times by guards at the Federal Detention Center in Miami, but prison officials discredited her reports and did nothing to protect her over a four-year span, a federal judge has found.
Even the judge couldn't help the woman after she sued the U.S. government and four guards in 2007, accusing them of making her strip, touching her genitals and, in the case of one correctional officer, raping her repeatedly.
The victim, identified as ''S.R.'' in court papers, settled with three of the officers but lost her $5 million liability case against the government because of a technicality -- the two-year statute of limitations had run out.
But that didn't stop the judge from finding the U.S. Bureau of Prisons at fault.
''S.R. was sexually abused on numerous occasions by the individual defendants,'' Judge Cecilia Altonaga wrote in a November order. ``The BOP and FDC Miami did have notice of the illegal conduct taking place, and were woefully deficient in addressing it and giving S.R. protection.''

Although she was acting as a cooperating witness, the BOP falsely claimed that she was crazy and her allegations were made up:

According to court records, the Bureau of Prisons wrote off the inmate as ''mentally ill'' in an unsigned memo. A senior U.S. Marshals Service official said her allegations were ''fabricated.'' The Justice Department's Office of Inspector General -- which waited more than a year to question two of the three guards and didn't question the third -- said it couldn't substantiate her allegations in early 2005.

That's shameful, especially because the same government thought she was credible enough to use as a witness. The victim responded to Jay Weaver in a telephone interview:

S.R. said the prison system's dismissive response exacerbated her ordeal in the Federal Detention Center, which houses defendants awaiting trial and convicted prisoners cooperating with prosecutors.
''What they did to me they could never undo. I can't sleep at night. I've gotten to the point I don't trust anybody,'' said S.R., a 36-year-old North Carolina resident who was released from prison in 2006 after 10 years behind bars.
''The system took advantage of me,'' she told The Miami Herald in a phone interview. ``They knew when to pull me to testify. I was a very credible witness. I was competent. But then when I needed them, I was mentally ill. I was incompetent.''

What happened to the guards?

Prison authorities have fired two of the four guards named in S.R.'s lawsuit -- Antonio Echevarria and Damioun Cole -- for reasons unrelated to her allegations.
In 2005, Cole pleaded guilty to sexual abuse of female inmate ''B.P.'' at the Miami detention center and received a one-year sentence. Assistant U.S. Attorney Alejandro Soto said at the plea hearing that the government could have proved that Cole also sexually assaulted S.R., but Soto agreed not to prosecute Cole on that battery charge as part of the plea agreement.
The second accused guard, Echevarria, denied sexually assaulting S.R., according to investigative records. In 2006, he lost his job after pleading guilty to buying a firearm for a felon and was sentenced to five months in prison.
The third accused guard, Isiah W. Pollock III, resigned in 2003. He testified at S.R.'s civil trial that he resigned for family reasons, but prison officials testified he got caught playing cards with male inmates and bringing in contraband for female inmates.
Pollock's lawyer, Michael Pasano, vehemently denied his client ever sexually abused the inmate.
The fourth accused guard, Charles E. Jenkins, still works as a correctional officer at the detention center. He denied sexually assaulting S.R., records show.
After Justice Department investigators said they couldn't substantiate S.R.'s complaints against Echevarria, Pollock and Jenkins, federal prosecutors in Miami declined to file charges against them in 2005.

Dolphins

AFC EAST CHAMPS!


Unbelievable.


Plus, Dan Marino keeps his passing yards record by 16 yards as Drew Brees comes up just short.

Happy Festivus...

...for the rest of us.

Judge Cooke grants Ben Kuehne's motion to dismiss Count 1

FOR THOSE OF YOU LOOKING FOR THE POST ABOUT THE APPELLATE ARGUMENT, CLICK HERE. (The WSJ Blog and others have mistakenly linked to this old post).

Huge news during this holiday week. Big props to Judge Cooke for doing the right thing and for authoring a beautifully written 13-page order. I earlier had covered the oral argument of the motion hearing here. The issue as I explained then was:

The issue on Count I is whether an attorney (Ben Kuehne) can be prosecuted under 1957 for receiving legal fees in light of 1957(f)(1)'s exception for "transaction[s] necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution."

Judge Cooke found that Ben Kuehne could not be prosecuted because the funds were for legitimate legal services:

The Indictment states that the Defendants, including Velez and Saldarriaga conducted or caused to be conducted a wire transfer to the Ochoa criminal defense team immediately after each of the first four Opinion Letters. Indictment, ¶9. The purpose and object of the conspiracy in Count One was for the purpose of paying legal fees. Indictment, ¶38. Only fees for legitimate legal services are alleged in Count One. The language in the exemption does not require that he transactions involve only the client and the attorney. The statute exempts “any transaction.”

Judge Cooke makes clear that her Order does not provide blanket protection for money laundering by lawyers:

The dismissal of Count One of the Indictment does not prevent the Government from properly prosecuting attorneys for money laundering related crimes, nor does it totally negate criminal liability for an individual who may conspire to launder tainted funds to pay legal fees. The government’s concern that application of the § 1957 exemption would hinder or bar prosecution of anyone who had contact with tainted funds that were eventually used to pay criminal defense fees is unfounded. The Indictment, in Counts 2 through 6, also charges Defendants under 18 U.S.C. § 1956 with money laundering concealment conspiracy and
concealment money laundering. There is no exemption contained in § 1956 for transactions ecessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution. None of these Defendants have moved to dismiss Counts 2 through 6. For good reason. Accepting the allegations in the Indictment as true, as required at this juncture, the crimes are appropriately plead and any further determination of the charges should be made on a Rule 29 motion.

This is a huge and well-deserved victory for Ben. Congrats. There are still a number of counts left in the indictment, but the government's case is more in tatters right now. It should seriously consider dismissing the entire indictment at this point and moving on. (And yes, I am biased both because I am friends with Ben and because I am co-counsel for the National Association of Criminal Defense Lawyers who filed a brief in support of this motion).

Breaking!

Judge Cooke granted Ben Kuehne's motion to dismiss Count 1. More to follow soon.

Sent via BlackBerry by AT&T

Props to Judge Zloch

The Green Bag (a journal dedicated to "good writing about the law") announced its annual list of outstanding legal writing for the past year. A order from the Southern District was noted as recommended reading. See In re Beck, 526 F.Supp.2d 1291 (S.D. Fla 2007) (written by Judge Zloch). Here is a link to the order and a link to the list of honorees. We wrote about another Judge Zloch order last week that caught our attention.

Verdict in goggle case

Guilty on 3 conspiracy counts; not guilty on 3 substantive counts. A clear compromise...

I wonder how the prosecutor feels about this verdict against a pro-se woman who speaks English as a third language.... He did get a conviction. But he also lost 3 counts...

What a weird case. She comes to the U.S. voluntarily even though she never would have been extradited. Then she pleads guilty to a credit-time served deal. But the prosecutor asks to correct the sentence and Judge Cohn resentences her to 29 months. Then, she withdraws her plea because she understood that she would be sentenced to time-served. So trial it is.... And of course the jury hangs. She then decides to proceed pro-se, and she keeps the jury out for two days and is found not guilty on 3 counts. How bizarre...

Here is Vanessa Blum's coverage of the case. And Curt Anderson has an article for the AP here: Gholikhan said she would appeal and insisted the she is innocent. "I won't give up. It's OK. God is here," Gholikhan said in a brief courtroom interview. She appeared relieved that the trial was over.

Busy!

Each one of these items probably deserves its own post, but I've fallen behind on interesting stories and am going to include them all here in one post. Thanks to all the tipsters and commenters who have been sending me juicy items.

1. The jury is still out in the night vision goggle case. The prosecution gave a 90 minute closing today and Sharhazad Gholikhan gave a 90 minute closing in her own defense. The jury went out around lunchtime and were discharged for the day at 5pm. Vanessa Blum has the details here. Some of my favorite lines from her closing: She said her only crime was a "conspiracy of marriage." She explained she came to the U.S. voluntarily because she was innocent: "I came. Why? Because I'm clean."

2. No COLA increase for federal judges. Tony Mauro at BLT writes it up here. (HT: Captain). “Wrong time. Wrong place,” Sen. Claire McCaskill, (D-Mo.) exclaimed on the Senate floor Dec. 11. “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay. They die with the same salary they have today.” To counter: Federal judges are the only federal employees who will begin 2009 without a COLA. James Duff, director of the Administrative Office of the U.S. Courts, acknowledged that these are “challenging times” for the economy, but he added in a statement, “That is no reason for Congress to treat federal judges differently than all other federal employees, including members of Congress.” Our prior coverage on this subject is here.

3. Judge Zloch wrote an 82-page blockbuster order finding the Sex Offender and Registration Act (SORNA), which is part of the Adam Walsh Act, unconstitutional. Here's the Order. It's worth a read. It's hard to summarize such a lengthy opinion here, but it basically says that the Act violates the commerce clause because there is no link with registration and commerce. Here's the conclusion:

While providing Congress with the power to regulate sex
offenders in the manner attempted by SORNA would admittedly aid
Congress in its goal to protect the public, it is not has not among
Congress’s enumerated powers. Congress has never been accorded the
general police power it has sought to exercise in SORNA. See
Lopez, 514 U.S. 596-98 (Thomas, J., concurring); Cohens v.
Virginia, 19 U.S. (6 Wheat.) at 426. Cases are legion that note
that the federal government does not have the residual power held
by the states. E.g., Lopez, 514 U.S. at 584-602 (Thomas, J.,
concurring).
With statutes like those at issue here, Congress’s desire to
aid in the protection of society against sexual predators is
understandable and laudable. However, “the powers of the
legislature are defined, and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written.” Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). Specifically, the
grant of power made under the Commerce Clause is limited. Lopez,
514 U.S. at 552-553 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at
189-95). Therefore, the statutes challenged herein cannot be
upheld. Section 16913 transgresses entirely the limits set on

Congress by the Commerce Clause. It cannot be defended except by
adulteration of the text of the Constitution and controlling
caselaw. Section 2250 also exceeds that grant of power made to
Congress under the Commerce Clause. It is in no way a regulation
of persons in interstate commerce but an exertion of a general
police power through an illusory and impermissible jurisdictional
nexus. Thus, the Court declares that § 16913 is unconstitutional
in that Congress lacks the power to enact the same under the
Commerce Clause. Because an unconstitutional law is no law at all,
Defendant Edward Myers shall go hence without day.

And for you grammar nerds, check out footnote one of the opinion:

Many courts and commentators, especially in the passages
quoted herein, render the possessive of “Congress” as “Congress’.”
For clarity as to the number of congresses being referred to and
staying faithful to the traditional rules of grammar, the Court
will employ the natural construction “Congress’s” when referring to
the possessive singular of our national legislature. See William
Strunk, Jr. and E.B. White, The Elements of Style 1 (4th ed. 2000).

4. The Broward chapter of the Federal Bar is big time. Check out its inaugural 16-page newsletter. The most fun part is the interview with Chief Judge Moreno. His first job in college: working as a janitor at Notre Dame during summers. Favorite Movies: Rudy and Remember the Titans. Favorite Songs: Notre Dame Victory March and God Bless America. (I was sort of with you on the movies, Chief, but those are really your favorite songs?) Favorite Hobbies: Golf, Travel, and Food.

Tons of other fun stuff in the interview. Some good quotes: "When you're a judge you rule your own fiefdom, as Chief you are accountable for the whole kingdom." Courthouses should be like "secular temples" to inspire respect in the community just as cathedrals were built on a grand scale to capture the feeling of a divine presence. "I love jurors and lawyers, and the back and forth of trial and legal arguments."

5. Speaking of Judge Moreno, he sentenced Dr. Ana Alvarez-Jacinto to 30 years in prison today, 8 years more than the sentence recommended by federal prosecutors in this medicare fraud case. Jay Weaver's article is here.

"I thought I loved him, but now, when I look back, I feared him so much. I was his slave."

That was Sharhazad Mir Gholikhan during her 7 hours of direct testimony over the last two days before Judge Cohn. She has been representing herself during this retrial (Bill Barzee represented her during the first trial and has been standby counsel in this case. He directed her.) The prosecutor only had 5 minutes of cross after 7 hours of direct. Smart move? We're about to find out. Closing arguments are this morning.

Here's Vanessa Blum's coverage of this fascinating trial:

As an Iranian woman, Sharhazad Mir Gholikhan says she was required to wear a head covering, forced to marry a man she barely knew and forbidden to travel without her husband's consent.But in the Fort Lauderdale federal courtroom where Gholikhan is on trial, the 31-year-old mother is making her own decisions and acting as her own attorney.Gholikhan's defense to charges she tried to export American-made night vision goggles to Iran: that she had no choice but to obey the orders of her former husband, who dragged her into the illegal plot."Once you get married in Iran, your husband has control over you," she told the American jury deciding her case.
The jury is expected to begin deliberating today. If convicted, she could face more than 10 years in prison.

What can a prosecutor say to the media?

Rumpole takes state prosecutor David Waksman to task for his comments to the press after a not guilty by reason of insanity verdict, which raises the question about what prosecutors can say to the press. This NY Times editorial addresses the recent comments by Patrick Fitzgerald in the Gov. Blago fiasco. It starts out laying out the basic standards for prosecutors:

Prosecutors have a special place in our criminal justice system. The American Bar Association’s Model Rules of Professional Conduct note that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” and therefore owes a “special duty” to the court.
The United States Court of Appeals for the Ninth Circuit has emphasized that “a prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.” Another United States Court of Appeals has observed that “prosecutors sometimes forget that the prosecutor’s special duty is not to convict, but to secure justice.”

Does this apply to high profile cases?

There is no question that these principles extend to public statements, particularly in high-profile cases that engender public interest and press coverage. The obvious risk is that a prosecutor’s statements outside the courtroom, particularly statements that pillory a defendant, will taint the pool of prospective jurors and make it less likely that a defendant can receive a fair trial. For this reason, and also because it is fundamentally fair to do so, courts limit the prerogatives of lawyers, particularly prosecutors, to make public statements about pending cases.

So what did Fitzgerald say?

Against this backdrop, it is hard to feel comfortable with Mr. Fitzgerald’s remarks in announcing the charges that Mr. Blagojevich’s conduct amounted to a “political corruption crime spree” and “would make Lincoln roll over in his grave,” that “the breadth of corruption laid out in these charges is staggering,” that Mr. Blagojevich “put a ‘for sale’ sign on the naming of a United States senator” and that his conduct was “cynical” and “appalling” and has “taken us to a truly new low.”

To conclude:

This is not to express an opinion, one way or another, about Mr. Blagojevich’s guilt or innocence. But he is entitled to a fair trial, and it is hard to escape the conclusion that such a trial has become less likely as a result of these public remarks by this otherwise very competent and effective prosecutor.
In 1935, in a case read by virtually every law student since, the Supreme Court issued an eloquent statement of the special role of prosecutors:
“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 is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
As able a courtroom lawyer as Mr. Fitzgerald is, he — indeed, all prosecutors — might consider limiting pejorative characterizations of a defendant to open court, after the jury is in the box.

The Waksman comments are less problematic because they were after the jury reached its verdict. And Rumpole's commentors raise some pretty good defenses for Waskman. But can anyone defend Fitzgerald's comments?

!!!!

He's got pretty good reflexes!

FECA matter

The government has moved to dismiss the wrongful death lawsuit filed by Ted Klein's family.

Julie Kay has the details here:

A wrongful death case brought by the children of a federal magistrate judge in Miami who they say died due to moldy conditions at a federal courthouse should be dismissed for lack of jurisdiction, the government is arguing. In a motion to dismiss filed on Nov. 28, attorneys for the Justice Department argued that the only remedy open to Andrew and Jennifer Klein, children of former Magistrate Judge Ted Klein, is the Federal Employees' Compensation Act. "The FECA was enacted to provide benefits to federal employees injured or killed in the course of performing their duties," states the motion. "It serves as the sole remedy against the United States for any on-the-job injury or death. Liah Catanese, an attorney for the Kleins at Alan Goldfarb P.A. in Miami, declined comment, saying their response would be laid out soon in a court document.

Any FECA experts out there? Is the government correct?

Could the CEO of Coca-Cola win dismissal of a suit that contends he personally put mice in soda bottles?

That's the hypo that Justice Breyer presented at a recent oral argument. From the ABA Journal, which has been providing great coverage lately:

The issue before the court is whether Javaid Iqbal’s suit against former Attorney General John Ashcroft and FBI director Robert Mueller is specific enough to withstand a motion for summary judgment, the New York Times reports. Igbal contends that after Sept. 11 he was put in jail where he was beaten and subjected to extreme temperatures and constant light. He pleaded guilty to identity fraud and was deported to Pakistan, but was cleared of any involvement in terrorism, according to the Washington Post.
Iqbal claims Ashcroft and Mueller formulated policies that singled him out because of his nationality and religion. Most of the justices who spoke appeared sympathetic to the government’s argument in favor of dismissal, report the Los Angeles Times and Legal Times. Only Justices Ruth Bader Ginsburg and David H. Souter spoke in favor of allowing the suit.
One of those appearing to side with the government was Justice Stephen G. Breyer, who advanced the mouse-in-a-bottle hypothetical. Breyer explained the hypo this way, according to a separate Legal Times story:
"Jones sues the president of Coca-Cola. His claim is the president personally put a mouse in the bottle. Now, he has no reason for thinking that. Then his lawyer says: 'OK, I'm now going to take seven depositions of the president of Coca-Cola.' The president of Coca-Cola says: 'You know, I don't have time for this; there is no basis. ... I don't want to go and spend the time to answer questions.' "
Breyer asked if the Federal Rules of Civil Procedure would allow dismissal. Solicitor General Gregory Garre said the suit could be tossed under Rule 8. He noted the Supreme Court 2007 decision in Bell Atlantic v. Twombly, which interpreted the rule as requiring plaintiffs to “show a plausible entitlement to relief."

Federal judges to get COLA if...

...the auto industry is bailed out. Thanks to a helpful comment, I see from the WSJ law blog that:

So this $14 billion bailout bill currently making its way through the halls of Congress stands mostly to benefit the U.S. auto industry. But it also, oddly, stands to benefit federal district judges.
Here’s why: The bill attaches an annual cost-of-living adjustment — or COLA — for federal judges, which, when implemented, will bring them in line with members of Congress, who get a $5,000 boost at the start of the year. District judges and members of Congress make $169,300. Here’s the AP story. Click here, here and here for other LB posts on the topic of judicial pay, which has been raging for years.
Senate Majority Leader Harry Reid, D-Nev., insisted that the judicial pay raise go into the bill. The Senate passed the judicial pay measure as a separate bill in November, but the House never acted. As a result, Reid has taken the unusual step of linking the obscure but important judicial pay issue to the unpopular auto bailout.
There is concern among many policymakers that judges are not paid enough relative to the importance of their offices, and in six of the past 13 years, judges have been denied their pay raise as lawmakers opted not to take their own COLA.

I will be candid with you. I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

While the Third DCA is bashing a juvenile judge, check out this bashing by Justice Souter of a lawyer who was arguing on Tuesday in the High Court. Ouch... You never really want to hear that your argument is "utterly irrational." From Adam Liptak's NYTimes article:

There were flashes of incredulity and anger from justices at the Supreme Court on Tuesday as they considered whether Tennessee prosecutors had committed misconduct in obtaining and defending a death sentence against a man who murdered a Memphis couple in 1980.
Gary B. Cone admitted to the murders, and the only defense he offered at his trial was that he had been in an amphetamine psychosis. Prosecutors worked hard to discredit the defense, calling it “baloney.” Years later, though, it turned out that prosecutors had withheld evidence from Mr. Cone’s lawyers that would have supported his claim.
Jennifer L. Smith, a lawyer in the state attorney general’s office, was vigorous in her defense of the prosecutors’ conduct. She said that they had no legal or ethical obligation to provide the information to the defense and that it would not have mattered anyway.
Justice David H. Souter, who served as the attorney general of New Hampshire early in his career, did not like those answers. “I will be candid with you,” he told Ms. Smith. “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
After Mr. Cone’s lawyers finally obtained the withheld evidence more than a decade after his conviction, prosecutors gave the courts a series of wildly inconsistent reasons for why Mr. Cone’s conviction and death sentence should not be re-examined in light of the new information. The issue had already been decided, they said. Or it had been presented too late. Or it had never been presented at all.
On this point, Ms. Smith was willing to acknowledge that prosecutors had made missteps. “We have confessed that there was an error by the state,” she said. But she seemed to place some of the blame on Mr. Cone, saying his lawyers had filed unwieldy and confusing papers.
"He buried all his good arguments,” Ms. Smith said of Mr. Cone.

Oh... It was the defense lawyer's fault for burying all those good arguments! Breyer wasn't buying it.

Justice Stephen G. Breyer said Mr. Cone’s briefs had been clear enough.
“Don’t you think,” Justice Breyer asked Ms. Smith, that Mr. Cone was “saying in his briefs: ‘I’ve been getting the runaround. First, they tell me it’s one thing; then they tell me another’?”

If we really want to solve the Brady problem, discovery rules in federal criminal cases need to be fixed. To see the absurdity of the federal criminal discovery, one need only compare it to federal civil discovery. The best prosecutors are the ones who say, I'll give you everything -- I have an open file policy. Those prosecutors typically have the strongest cases and get the most pleas from defendants. When non-lawyers hear that you find out the witnesses and exhibits on the first day of a federal criminal trial, they can't believe it. Their jaws drop when they hear that you get the prior statements of witnesses when the witness actually takes the stand. More and more, judges are forcing prosecutors to turn over some material earlier, which is helpful. But there should be more liberal rules about witness statements being disclosed (including summaries of those statements by agents), and witness and exhibit lists being disclosed.

Find me guilty

Sharhazad Mir Gholikhan is back in trial before Judge Cohn. You remember her -- she's the one who is accused of exporting night vision goggles to Iran. Bill Barzee represented her at her first trial where the jury could not reach a verdict. This time she is representing herself! Yesterday she conducted voir dire and did her opening in her prison khakis. When asked why she wouldn't wear civilian clothes, she responded that she had nothing to hide from the jury....

Here's the trailer from the movie Find Me Guilty, about a mobster who represented himself in the longest trial in U.S. history.

Monday morning...

Wanna know why our justice system is totally screwed up -- look here. That's the Herald article explaining that Lyglenson Lemorin , the only Liberty City 7 defendant who was acquitted, has just been ordered deported. So to review -- the other defendants are out on bond waiting for their third trial, while Lemorin -- WHO WAS FOUND NOT GUILTY -- is stuck in an immigration jail waiting to be deported because an immigration judge found that he did the same things for which a jury said no.

Here is the Herald article:

A year after being acquitted on terrorism conspiracy charges in the Liberty City 7 case, a Haitian-born Miami man has been ordered deported by an immigration judge.
Lyglenson Lemorin won acquittal on criminal charges last December after persuading a federal jury that he was only marginally involved in the so-called Liberty City 7, a band of devotees of an inner-city religious group the government contends conspired to blow up the Sears Tower in Chicago and Miami's FBI building in 2006.
Lemorin fled with his family to Atlanta to get away from the group's leaders.
But Kenneth Hurwitz, an immigration judge at the Krome Avenue detention center who conducted a weeklong removal hearing in August, concluded in a 135-page ruling received by Lemorin's attorneys Friday that the Haitian native, a legal U.S. resident, did provide ''material support'' to a group he knew had plans for attacks.
The standard of proof is lower in immigration court, which is not a fully independent tribunal but part of the U.S. Department of Justice.
The material support Hurwitz cites: Lemorin's work for group leader Narseal Batiste's stucco business. His ruling concedes Lemorin did not participate in the main activities the group undertook in furthering alleged plans for attacks -- including surveillance photos and videos of potential targets or the alleged ''kidnapping'' of a pair of government informants who infiltrated the group.
But Hurwitz said Lemorin's knowledge of the surveillance, along with his pledging a contested ''oath'' to al Qaeda administered by one of the informants, was sufficient to classify him as a terrorist supporter, even though the judge concluded Lemorin was ''technically'' not a member or supporter of al Qaeda.
Lemorin testified he did not understand the oath and believed Batiste was, in the judge's words, ''talking crap'' about attacks to draw money from the FBI informants.
But, Hurwitz wrote, ``It does not matter if he believed that the organization was not going to commit terrorist acts. The court also does not believe that he did not understand what he was doing when he took an oath to support an organization that has forcibly opposed the United States.''
It's unlikely that Lemorin -- who has been held in immigration detention since his acquittal -- will be deported anytime soon.
His Atlanta attorney, Charles Kuck, said he will argue to Hurwitz that Lemorin should be allowed to remain in the United States because he could be tortured or mistreated if returned to Haiti. Kuck said he will appeal Hurwitz's decision if necessary.
That could take months. In the meantime, he expects Lemorin, who is being held in rural Georgia, to remain in detention and separated from his children and his ill wife, who are in Miami.
Four of Lemorin's co-defendants are free on bond following two mistrials. Batiste and the other five defendants are set for a third trial in January.

Someone explain to me how this is just.

In related news, Joel DeFabio was a finalist for most effective criminal justice lawyer in 2008 for his representation of Lemorin in the criminal trial. The most effective lawyers were Stephen Carlton, John Kastrenakes and Antonia Barnes for their prosecution of Palm Beach politicians. Other finalists were: Richard Lubin, Michael Metz, Douglas Hartman & Bruce Reinhart (for their successful health care fraud defense); and Ken Swartz, Marc Seitles & Steve Amster (for their successul drug trafficking and money laundering defense). Congrats to all of the winners and finalists for great results, especially my office-mate Marc, but how doesn't DeFabio win this one hands down? The other winners & finalists are here.

And finally while we are on the Review, John Pacenti covers Judge Peter Fay's speech from the Bench & Bar conference. He covers the portion dealing with judicial pay and Fay explains that district judges should get a raise from $169,000 to $342,000. I agree that $169K is way too low. First year associates in New York make more. So dear readers -- what are your thoughts? How much should district judges be making?

"Suspect in Dunkin' Donuts robberies barks at judge"

Why we need cameras in federal court: The headline and article about this case just don't capture what happened as well the video does (at this link).

Julie Kay follows...

... our post about the public defender controversy in Jacksonville here.

Here's the intro:

Attorneys who were fired en masse by a newly elected public defender and state attorney in Jacksonville, Fla., are considering legal action. Meanwhile, the incident is igniting controversy and debates about whether employees of these offices should be civil service employees and whether the position of public defender and state attorney should be appointed rather than elected. The Fourth Circuit in Florida, which includes Jacksonville and the counties of Duval, Nassau and Clay, both elected a new state attorney and public defender in recent months. Public Defender Matt Shirk and State Attorney Angela Corey, both Republicans, defeated longtime employees of their respective offices. Shirk, 35, worked as an assistant public defender in the office for five years and as a private attorney for four years. He defeated Bill White, a Democrat who worked in the public defender's office for 34 years. Shirk, who takes over the position on Jan. 6, fired 10 attorneys from the office on Nov. 21. He did so by sending an e-mail to White, telling him to fire the attorneys. In the e-mail, he spelled several of their names wrong.

From Celeste Higgins

I am happy to announce Dan Ricker will be the second speaker in the FBA's Luncheon Series.
Mr. Ricker is the publisher and editor of Watchdog Review and a local contributor to The Miami Herald, WLRN Radio and WLRN TV. Mr. Ricker gave up a life of wealth and leisure to be the community's eyes and ears in local government. He provides us with neutral and nonpartisan information about our elected officials.
As "all politics is local politics" and local politics affects us all, I'm sure Mr. Ricker will provide us with great insight to that part of our government we are not always able to observe first-hand.
You may have heard that our first speaker was Beth Wilkinson, former General Counsel of Fannie Mae. She provided us with a fascinating view from within the financial markets and mortgage crisis. Our second speaker is going to be just as interesting.

This month's speaker should prove to provide a very interesting presentation. It will be held Wednesday, Dec. 10th at noon at the Bankers Club. Please RSVP with Lourdes Fernandez at 305-523-5771.
Thank you,
Celeste S. Higgins, President
Federal Bar Association

Whoops.

Ileana Ros-Lehtinen hung up on Barack Obama.... TWICE!

Obama laughed it off:

"It is very funny that you have twice hung up on me," Obama said. Ros Lehtinen responded by telling Obama that radio stations in South Florida always make these sorts of jokes. Obama said similar pranksters reside in Chi-town.
"You are either very gracious to reach out in such a bipartisan manner or had run out of folks to call if you are truly calling me and Saturday Night Live could use a good Obama impersonator like you," Ros-Lehtinen joked with the president-elect.

RIP Frederick Zloch

Judge Zloch's father passed away Sunday. Here's a beautiful article about him by Vanessa Blum. From the intro:

Frederick J. Zloch, a longtime Little League coach and announcer at Fort Lauderdale's Lockhart Stadium, died Sunday in Fort Lauderdale. He was 87. A New York native, Mr. Zloch moved to South Florida as a teenager and graduated from Fort Lauderdale High School in 1939. He served with the U.S. Navy in the Pacific theater in World War II. After his discharge in 1945, Mr. Zloch spent more than 35 years as a letter carrier for the U.S. Postal Service. The former high school athlete became known for his involvement in youth sports, serving as a coach, umpire and referee."My dad was a great second father to a lot of the kids in Fort Lauderdale," said son Charles Zloch. Over the years, he mentored hundreds of young athletes and led his Little League team to four consecutive local championships in the early 1960s.
From 1951 to 1986, Mr. Zloch was the voice of the Flying L's, his alma mater's team. In 1960, he announced the game between St. Thomas Aquinas and the Flying L's that inaugurated Lockhart Stadium. In 2002, the city of Fort Lauderdale dedicated a baseball field at Holiday Park to Mr. Zloch. Mr. Zloch's three sons kept up the sporting tradition — all playing high school football in Broward County and later for the University of Notre Dame. Sending his boys to Notre Dame was Mr. Zloch's dream, said youngest son James Zloch: "If you know Fred Zloch, you know how much he loved Notre Dame."

Picture day

I am in a picture mood today, I guess. These two come from a reader who was on the turnpike this morning and had to stop when she saw these clouds rolling in. Pics taken with an iphone.

Bench & Bar Photos

Okay, so my pictures weren't the highest quality... SO....

here are some more professional photos from the Bench & Bar conference:

Shout out to South Florida Lawyers!

The ABA Journal named our anonymous blogging colleague -- South Florida Lawyers -- as a top 100 Blawg (law blog). Even though Rumpole and I got snubbed, a big congrats to SFL!

Public Defender elections

Florida is one of the few states that elects its Public Defenders. It's very strange. What platform do you run on for Public Defender? Tough on crime? Save the taxpayer money? Mostly, we've been lucky not to have anything crazy like this happen... But here's a story out of Jacksonville, where the newly elected PD, supported by the Fraternal Order of Police, fired all the top lawyers at the office. I kid you not:

Ten attorneys and three administrators found themselves suddenly out of a job, sacked Friday by the newly elected Public Defender Matt Shirk.
At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.
The firings came on the eighth anniversary of one of the office's most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.
***
McGuiness said they expected some people to lose their jobs when the new boss came in, but he said they didn’t expect the cuts to go so deep.
"Well, Mr. Shirk had not yet reached pre-K when many of these attorneys were trying cases already. I think he is uneasy around those with skill and experience," said McGuiness.
Shirk let 10 prominent attorneys and three administrators in the office know that in January they will be out of work.
"There are very few people who would have acted as divisively as Mr. Shirk in term of ridding the office of skill and experience without interviewing a single attorney or looking at a single personnel file," McGuiness said.
The mass firing occurred eight years to the day of when Butler was found not guilty after McGuiness and other attorneys who were recently fired proved the sheriff's department bungled the case.
McGuiness said the firings are payback.
"Mr. Shirk was supported by the Fraternal Order of Police and made certain representations to them, as I understand, that there would not be questions raised about integrity of policemen," McGuiness said.

Hat Tip: BT

Help

One of my favorite readers forwarded me this NPR quiz and I can't figure it out:

Name a type of lawbreaker that starts with the letter S, and which, upon removing the S as well as one other letter, becomes another type of lawbreaker.

UPDATE -- a friend just emailed me the answer. I will post it in the comments section so I won't spoil it for you if you want to figure it out.