Most quotable AND best dressed

"Their lawsuit is like Castro trying to seize Miami homes from families who fled from Cuba. Their lawsuit, if they win it, will create a precedent that Castro and Chavez can come in and sue every political refugee in Miami and seize their houses." That's Mike Tein on the cover of today's DBR. Plus I love the suit, but could never pull it off.

In other news, the Supreme Court really means what it says in the Confrontation Clause cases. From the WaPo:

The constitutional guarantee that a defendant be able to confront his accusers means prosecutors must produce even the technicians involved in the specific laboratory tests used in his trial, the Supreme Court ruled Thursday.

In a case involving a drunken driver from New Mexico, a majority of the court reinforced its recent decisions that fortified the right of defendants to cross-examine witnesses, established in the Sixth Amendment.

The rulings have scrambled the court’s usual ideological pairings, with Justices Antonin Scalia and Ruth Bader Ginsburg the most vigorous defenders of defendants’ rights in such circumstances.

Ginsburg wrote Thursday’s opinion, which said defendant Donald Bullcoming should have had the opportunity to cross-examine the lab analyst who provided the main evidence in his trial: a lab report showing his high blood-alcohol level. New Mexico prosecutors instead had called another analyst who had no role in performing the specific test.

“The Sixth Amendment does not tolerate dispensing with confrontation simply because a court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination,” Ginsburg said.

Scalia and Justices Clarence Thomas, Sonia Sotomayor and Elena Kagan agreed with the decision, but only Scalia joined Ginsburg’s opinion in full.

"The great Sony PlayStation caper"

That's the quotable Mike Tein on the new indictment accusing his client and others of exporting video games and other electronic products to a shopping mall in Paraguay that allegedly served as a front to finance the terrorist group Hezbollah. Here's the Herald article and more Mike Tein quotes:

"Believe it or not, this indictment actually charges these gentleman with supporting Hezbollah by shipping them Sony PlayStations,'' Tein said. "I guess that's a new type of weapon of mass destruction.''

Ben Kuehne event and other weekend news

This should be something:

BENEDICT P. KUEHNE
In Grateful Appreciation of the
Overwhelming Community Support of his Innocence

Invites the Community to his
APPRECIATION RECEPTION
On the Occasion of his Vindication

Sky lobby
Bank of America tower
100 S.E. 2nd Street
Miami, Florida 33131
Thursday, December 10, 2009
5:30 p.m. – 7:30 p.m.
RSVP to: RSVP@kuehnelaw.com

In other news, former AUSAs Mike Tein and Richard Scruggs sqaured off before their state court trial, which starts Monday morning. Tein filed a motion alleging prosecutorial misconduct and the judge allowed Tein to cross-examine Scruggs. Apparently, there were fireworks:

Fri., Dec. 4 2009 @ 9:11PM




Richard Scruggs is usually the guy asking people tough questions and getting witnesses to spill the beans. But today Miami-Dade's veteran public corruption prosecutor was on the receiving end of an intense grilling. And he was not enjoying himself.It went down inside the courtroom of Judge Beatrice Butchko in the Miami-Dade criminal justice building at 1351 NW 12th Street. The man putting the screws on Scruggs was Michael Tein, the criminal defense lawyer representing Rev. Gaston Smith, who is facing grand theft charge for allegedly stealing $17,000 in county grant money.Tein accuses Scruggs of prosecutorial misconduct in Smith's case.During several hours of testimony this afternoon, Scruggs's answers went from terse to angry. At one point he growled: "Mr. Tein will you calm the rhetoric please."He repeatedly denied he acted with malicious intent when he waited a month to inform Smith and Smith's other criminal defense attorney that a Miami-Dade police detective had secretly recorded two conversations they had with Scruggs and investigators before the clergyman was indicted. Tein zealously quizzed Scruggs if he ever informed Smith that he was a criminal target during the pastor's interviews before he was arrested. "No, no, no, no," Scruggs grumbled. "You got that!"
***
Scruggs disputed comments attributed to him by Miami New Times staff writer Gus Garcia-Roberts in this profile of Smith. He claims he never told Garcia-Roberts Smith had rejected a plea deal in exchange for his testimony against suspended Miami city commissioner Michelle Spence-Jones. (Scruggs is prosecuting her for allegedly stealing $50,000 in county funds.) Scruggs also denied telling Garcia-Roberts that he had reported Smith to the Internal Revenue Service for possible tax evasion. "Absolutely not," Scruggs said under oath. "I don't recall talking about taxes at all."Judge Butchko appeared skeptical. She asked: "So how would the reporter know that if he didn't get it from you? Is the reporter clairvoyant?"Scruggs' reply: "I don't know." He said that alot during his inquisition. And the assistant state attorney conceded that he did tell Garcia-Roberts that Smith "was caught with his hand in the cookie jar." But he claimed it was off the record.Then Scruggs revealed something that just made no sense. When Tein asked him why he didn't complain to New Times editor Chuck Strouse or demand a correction, Scruggs says he decided not to because "no one reads this stuff anyway." Tein: "No one reads the New Times?"Scruggs: "Yeah, Uh-huh."

Apparently, court went until 9:30 Friday night with Tein throwing punch after punch against Scruggs. This trial (preview here by the Miami Herald) should be a fun one to watch.

UPDATE -- here's another New Times article on the hearing, and here is a portion of the transcript including part of Tein's cross of Scruggs and the judge's ruling.

Thanksgiving weekend blogging

The Miccosukee Tribe of Indians was certainly thankful to Judge Seitz on Thanksgiving Day. Just hours before we all headed home on Wednesday to defrost our turkeys, Judge Seitz issued an order stating that she was “convinced that the Tribe will succeed on the merits” after a two-day preliminary injunction hearing last week seeking to halt construction on 21-mile “Loop Road” in the Everglades. The DBR’s article is here. Judge Seitz found that “the Government failed to comply” with environmental laws prior to starting the project. Michael Tein represented the Tribe at the hearing and accused the National Parks Service of a “cover up.” Mike produced Interior Department notes and memos indicating that government viewed public disapproval of the project as a “high risk” that would be handled with an “internal memorandum to file” instead of the full-blown public environmental study that federal environmental laws require. Apparently, the government was going to use money earmarked back in 2005 for “emergency Hurricane Wilma relief,” to pay for repaving the road, which Mike said had no hurricane damage. Mike’s brief charting out the alleged “cover up” is a fun read and I will post it shortly. After the hearing, the government agreed to delay the project another two weeks to allow for additional briefing. Judge Seitz said she would rule by December 14.

News & Notes

1. The big interviews are today with Senators Nelson and Martinez. They've flown down here and the interviews will be held at the federal courthouse. But they are closed to the public. (They should be open, shouldn't they?) If anyone hears anything about them, please email me.

2. Holland & Knight got sued. Julie Kay has the details:

The receiver in an alleged $347 million Ponzi scheme has filed a malpractice lawsuit against Holland & Knight and partner Scott MacLeod, claiming they failed to provide investors with crucial information about the disbarred attorney behind the investments. The suit filed Monday in Sarasota Circuit Court accuses the law firm and its attorney of preparing disclosure documents for investors that failed to mention Arthur Nadel, who headed the hedge funds, was a disbarred New York attorney who had drained a client’s escrow account. The suit also accuses Holland & Knight of conflicts of interest by representing Nadel and his investment funds simultaneously. The suit seeks in excess of $50 million in punitive damages, receiver Burt Wiand said. Karen McBride, a spokeswoman for Holland & Knight, said, “the firm’s position remains unchanged. We’ve done nothing wrong and we intend to vigorously defend this.”

3. Guy Lewis & Mike Tein keep growing their firm. Five new associates from UM Law School. Business is good!

4. The University of Miami will honor Steve Chaykin:

The University of Miami School of Law Center for Ethics and Public Service has established a fellowship in memory of the late Steve Chaykin, an Akerman Senterfitt shareholder and criminal defense attorney who died on vacation last year. Chaykin slipped in rapids while trying to rescue his wife, Melissa, who fell into the Colorado river. His wife survived, but Chaykin was knocked unconscious and drowned. The Chaykin fellowship has been established for third-year law students who served in one of the center’s programs or community service clinics. The recipient must display leadership and mentoring skills and a strong sense of ethical judgment, professional responsibility and professionalism. “The fellowship honors the significant, historic contribution that Chaykin made to the South Florida legal profession and to the law school, university community and the civic community,” said Tony Alfieri, a UM professor of ethics and public service and the center’s director.

5. Steve Zack broke his ankle in Napa... Was wine to blame? From Joan Fleischman:

Miami attorney Steve Zack, the American Bar Association's president-elect, won't be traveling for awhile. Zack, 61, broke his right fibula, the smaller of the two main bones near the ankle.
He's to blame, he says, for last week's midday slip-and-fall. Happened in Napa, Calif., but he swears he wasn't tipsy from wine. ``Had gone to tastings the day before.''
So how did it happen? ``Silliest thing. There was loose gravel over a road. My left leg slipped. I tried to catch myself with the right leg and I fell on it. When I heard the pop, I knew it wasn't a good day.'' He's using a wheelchair and crutches, and expects to have a plate put in to help the bone heal straight and stabilize the ankle.
``Last time I broke an ankle was 40 years ago, playing tennis. It seemed to hurt a lot less.''

This and that

1. Mike Tein is in the NY Times today, discussing the Liberty City verdict: “If you sledgehammer the square peg three times, eventually you’re going to blast it into the round hole. This isn’t a terrorism case; it’s an overcharged gang case.”

2. Judge Daniel T.K. Hurley imposed death sentences today on Daniel Troya and Ricardo Sanchez Jr. in the Turnpike murder case. It is the first federal death penalty case in the District. A snippet from the AP article:

"I must confess I have no confidence that Mr. Troya would not do this again if the opportunity presented itself," the judge said before reading the sentence.
Troya was shackled around the waist and guarded by four bailiffs. He offered an apology during the hearing, .
"First and foremost, to the victims and family members, I would like to apologize," he said. "Basically, I'm sorry to my family, the people that put faith in me to be good."
He also apologized for throwing a plastic water bottle at prosecutors in March after a jury recommended the death penalty for Troya and co-defendant Ricardo Sanchez Jr.
As he was led from the courtroom, Troya nodded to his mother, father and sister, who were silently crying.
The judge said Troya grew up in a "wonderful family" and added, "I have no idea how Mr. Troya got to be the person he is today, but he is an enormously dangerous person who has no regard for the taking of a human life."

3. And Jason Taylor re-signed with the Fins today.

Back from the West Coast

It was a fun week in San Francisco (I can't believe I missed the Father Cutié drama)...

I see the blog was in good hands while I was away. Rick was great and we hope to have him back on a regular basis.

Just a couple of quick hits before we get going for the week:

-- The Liberty City 6 jury (the latest version of it) will continue deliberating this week. That case is truly jinxed... (In his post on last week's LC6 happenings, Rick missed Mike Tein -- who, of course, is the most quotable lawyer in the District -- from the Blum article: "What a shameful waste of our taxes at the worst possible time. Just think what $10 million could have done for our schoolchildren in Liberty City.")

-- The District now has a Wiki page. It's interesting to look at the historical makeup of the Court. (Some trivia pointed out on the page: "This federal district has the dubious distinction of having had more judges removed through impeachment than any other district, with a total of two, one-third of all federal district judges so removed.")

-- Justice O'Connor had this to say about judicial elections: "They're awful. I hate them." More here.

-- Rick posted on the FIU faculty vote for Dean, and FIU law professor Howard Wasserman has a lot to say about the vote and the coverage here. Howard criticizes the open proceedings and compares it to watching sausages being made. Gotta disagree with Howard here -- we wanna know how sausages are made. Open proceedings are a good thing. Better to have the press in there and reporting (even if the coverage in this case wasn't complete) than the alternative of having the doors closed.

-- Rumpole demonstrates why the Ben Kuehne case needs to be dismissed.

"He left behind a watch collection that Prince Charles would be envious of."

Mike Tein has gotta be the most quotable lawyer in the District. The watch collection belongs to Won Sok Lee. The Palm Beach Post has the story:

After four years as a fugitive, alleged hedge fund swindler Won Sok Lee was in U.S. District Court on Friday morning; having been arrested in his native Korea in February as he tried to board a plane to Argentina.
Lee faces more than 30 counts of mail fraud, wire fraud and money laundering in connection with KL Financial Group, which swindled wealthy Palm Beach residents out of almost $200 million.

Tein was the receiver in the KL case.

-------------------------------------------------------------------------------------

A couple of you have emailed me the story about the federal lawsuit by ASA David Ranck against State Attorney Kathy Rundle. The Herald had an editorial about the case here. And Jay Weaver has been covering the case -- here's a snippet from the latest article:

The original prosecutor on the case, David Ranck, had similar misgivings about Espinosa's shooting of the teen. Ranck was taken off the case by Fernández Rundle after he told the Miami-Dade lead detective it was "not a good shoot" early in the investigation."The deceased was found unarmed, and no firearm was found around where he fell nor on the codefendant when he was captured, " Ranck wrote in an office memo a month after the January 2004 shooting, noting that homicide detective Charles "Buck" McCully told him that no gun was ever found.Also in the memo, Ranck alleged an "appearance of impropriety" because a Miami-Dade police major, Angus Butler, had called the state attorney's office to have him removed from the case. Ranck, who said he was taken off the case for "diplomatic reasons, " raised doubts about the "independence" of Fernández Rundle's office.Last August, Ranck sued Fernández Rundle and her top two assistants after she suspended him without pay for 30 days because he posted his memo on the Justice Building Blog, a Miami-Dade legal community website. Ranck said he posted it in May 2008 only after he had been assured by prosecutor Richard Scruggs that the case would be closed. A key hearing in Ranck's federal lawsuit is set for June. For his part, Llanes pleaded guilty in 2005 to burglary and second-degree felony murder charges, being held responsible for the officer's fatal shooting of Barquin. Llanes received a six-year probationary sentence as a youth offender.

There's Rumpole making news again. The case raises some interesting questions -- can a prosecutor be suspended for speaking out about the handling of a case?

“They have stolen the courthouse from the Superior Court of California, and I mean nothing short of that.”

So said Mike Tein in front of Judge Altonaga yesterday. Robert Parks wasn't happy about it and the gloves came off. Julie Kay has the whole story here.

"As rare as four-leaf clovers"

Mike Tein was referring to binding 11(e) pleas in this Sun-Sentinel article about Ze'ev Rosenstein (in which the parties agreed to a 144 month sentence -- see post below). I loved the quote, and I agree with Mike that you rarely see these sorts of deals in federal court where the parties agree on a particular sentence. The judge either accepts the deal and is then bound by the agreement or rejects it. It seems to me that both sides would want to do this more often. It gives everyone certainty, avoids litigation, and avoids appeals... Why don't we see more of these binding deals?