Only in Miami

I just love these only in Miami stories about the Jose Canseco having his twin brother Ozzie standing in for him at a celebrity fight and about Luke Campbell running for mayor.

If you want to stick to the regular federal news, well then here's a story for you about why it's so difficult to get a cellphone into the courthouse.

The Fourth Amendment is not dead yet...

...not even in cars. See Arizona v. Gant, decided today (holding that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest).

The lineup of Justices is interesting -- Scalia votes with the majority while Breyer dissents. I think that right now Justice Scalia might be the most pro-defendant Justice on the Court. No joke.

In other news, check out this editorial in the DBR by Patricia Acosta in which she discusses the recent administrative order allowing reporters to bring in their cell phones, but prohibiting them from using them inside the courtrooms. Here's the conclusion:

A thawing of the federal freeze on electronic access? Hardly. The order — citing federal policies and rules adopted when television cameras were the size of refrigerators and blinding lights were needed to make them work — spells out that while the devices can be brought in, they cannot be used. Use, the order says, would “violate the sanctity of the courtroom and disrupt ongoing judicial proceedings.” Past administrative orders banned only the use of cell phones and cameras inside courtrooms but said nothing about text messaging or e-mailing. This bring-don’t-use rule does not, in my opinion, reasonably advance a legitimate judicial interest nor is it required by the old policies or rules. It assumes that texting is the same thing as 1960s-style broadcasting when that plainly is not the case. It also sets the stage for real disruption when all those BlackBerry-toting scribes rush for the exits after each key development to knock out a few lines, then try to get back in to see what they’ve just missed. The truth is that tapping text on silenced electronic devices is no more disruptive of courtroom proceedings than scribbling on a piece of paper, whispering in someone’s ear, a yawn, or a nod of the head in reaction to a ruling or a critical admission. No significant noise is created by the mere act of pressing the keys of a device to create or view a message. Federal judges themselves type electronic messages throughout trials and hearings. They know this does not disrupt the proceedings. Why then, the rule? It’s obvious. Once the tweeting starts, we’ll have real time, electronic reporting on big federal trials. This won’t harm the dignity of the proceedings, but it will further the case for letting video cameras in the door as well. Of course, the case for allowing that to happen was proven not only 30 years ago but also throughout the last 30 years of Florida state court history, so federal judges ought not be afraid that if they now allow a little twittering to go on, it will force them to do what they should have done long ago. We finally have reached the era where knowledge can be transmitted at the speed of light from almost any place. This technological advancement is here to stay and makes the world a better place. In the courtroom, it allows the journalist instantly to report the defendant’s gasp and the relative’s tears as the freshly rendered verdict shocks through the air. Thirty years ago, the spirit of openness drove seven courageous Florida judges to embrace a bold new technology that made our democracy better. Their federal colleagues need to start down that path somewhere. Tweet.

Update on Judge Moreno's Adminstrative Order

I have confirmed that the Order applies to attorneys as well as reporters (background here). No one is permitted to text, email, twitter, post, etc from inside the courtrooms...

New administrative order on text messaging, emailing, twittering, typing, and cellular phone use

Judge Moreno issued a new administrative order today allowing reporters to bring their cells into the courthouse, but:

prohibit[ing] text messaging, emailing, twittering, typing, and any cellular phone use from inside courtrooms. These actions by persons inside the courtroom violate the sanctity of the courtroom and disrupt ongoing judicial proceedings.

Judge Moreno went on to explain:

The Court, however, must balance the interests of preserving the conduct of judicial proceedings against the public's right to know what happens inside courtrooms. Accordingly, it is

ADJUDGED that emailing, text messaging, twittering, typing, and using cellular phones
shall continue to be prohibited inside the District's courtrooms. It is also

ADJUDGED that to balance the interest in preserving the sanctity and conduct of judicial
proceedings against the public's right to know what occurs inside the District's courtrooms, this Order amends Administrative Orders 2006- 16 and 2008-07 to allow news reporters to bring cellular phones, Blackberries, iPhones, Palm Pilots, and other similar electronic personal digital assistants (PDAs) into the courthouse consistent with what is permitted of attorneys, as long as the news reporters agree in writing not to email, text message, twitter, type, or use their cellular phones or other electronic device inside the District's courtrooms. A violation of the agreement will result in contempt of court. The Clerk of Court shall keep the list of reporters who have signed such agreement and make that list available to Court security personnel assigned to each courthouse. The Clerk of Court shall also make space available in each courthouse for those listed reporters to use their cellular phones and other electronic devices outside of the courtrooms. Of course, District and Magistrate Judges retain the discretion to maintain order in their courtrooms, which includes the right to lock their courtrooms should the entry and exit of news reporters become disruptive in a particular proceeding.

I applauded Judge Moreno for the last administrative orders on cell phones, allowing jurors to bring in their phones and allowing lawyers to have cells with cameras (as long as they weren't used) and his propensity to have an open courthouse with a free flow of information, but this order doesn't get it all right. True, the part of this order allowing reporters to bring in their cells is right on.

But not allowing anyone -- even lawyers in the gallery -- to email or text doesn't fit with all of Judge Moreno's recent efforts to catch the court up with technological advances. Does it disturb the courtroom more to write a note to an associate to go outside to call the secretary to bring over a certain file into the courtroom during trial or to shoot over a quick email (or text) asking for the file to be sent over electronically? Is it better for a reporter to scratch notes on a legal pad, run outside to make a phone call and then run back in to hear more of the witness or to simply send an email without getting up?

Plus, the administrative order says that the use of blackberries by lawyers shall continue to be prohibited inside the courtroom. In every single courtroom I have been in, there are lawyers emailing -- A LOT. (In fact, I spoke to a lawyer yesterday who had a cortisone shot in her thumb for typing so much.) So this sounds like a new prohibition to me.

And let me ask this -- does the email prohibition inside the courtroom apply to judges and staff as well? Sorry, but there is always an awful lot of typing going on from everywhere inside the courtrooms, not just counsel table.

Well, the Chief has made a lot of advances with cell phone usage, so it's hard to criticize this order too harshly. And I do love that Judge Moreno knows what Twitter is...

UPDATE -- did I jump the gun? An emailer points out that the order prohibiting emailing, texting, etc may only apply to reporters, not to lawyers. Hmmmmm... It seems more broad than that, but I'd like to be wrong. Thoughts?

SECOND UPDATE -- I was right.

Chief Judge Moreno allows cell phones for jurors

Big kudos to the Chief!

From Julie Kay's National Law Journal article:

Jurors and witnesses in South Florida federal trials will no longer have to bury their cellphones in the ground before entering the courthouse. U.S. District Judge Federico Moreno, chief judge for the Southern District of Florida, issued an order last week expanding the use of cellphones in the courthouse to prospective jurors, seated jurors and witnesses. The cellphones may have integrated cameras, he stated.

The issue of cellphones in federal court has been somewhat controversial in South Florida. Previous chief judges refused to even allow lawyers to carry cellphones into the courtroom, both for security concerns and to prevent photographs from being taken. Cameras are not allowed in federal courts nationwide, however a movement is now afoot to change that rule.

Since 2006, lawyers, judges, courthouse employees and federal agents have been allowed to bring cellphones into federal courthouses throughout South Florida, including in Miami, Fort Lauderdale and West Palm Beach. But jurors, reporters and others have complained about the rule. Sometimes unaware of it, visitors to the courthouses have been forced to bury their cellphones in the ground outside the courthouses and retrieve them when leaving.

In his order, Moreno noted that judges may need to contact jurors during recesses and attorneys may need to contact witnesses on short notice.

Because U.S. marshals will inspect all cellphones, security is not a concern, he stated.

"In today's modern world, security concerns are paramount," stated the order. "Yet these security concerns are satisfied by airlines, the White House, and the majority of courthouses in the United States where cellular telephones are permitted. Expanding the list to include these individuals will not diminish the security provided to the occupants of the courthouse, while at the same time enhance the availability of jurors and witnesses to participate in our court proceedings." Moreno did not extend the privilege to the use of laptops.

More news and notes

1. A former federal prosecutor, Ilona M. Holmes, turned state court judge does *not* like cell phones in her courtroom. ASA Imabel Ocasio gets 10 hours of community service for her phone going off. Ouch. Here's the Sun-Sentinel story.

2. Snitch testimony outside the presence of the jury in the Jose Padilla case. Why is the government calling these types of witnesses? Here's the LA Times on how it went for prosecutors:

In testimony that appeared to backfire for the prosecution, an ex-convict who attended the same mosque as terrorism suspect Jose Padilla testified Thursday that he himself had considered going abroad for training to become an Islamic holy warrior, as Padilla allegedly did.Herbert Atwell, 38, was the second prosecution witness to characterize the alleged actions of Padilla and two codefendants not as terrorism but as acts of altruism in helping Muslims under siege in foreign countries.
***
Inarticulate and at times surly under questioning by defense lawyers, Atwell conceded that he offered to testify against Padilla and Hassoun in hopes of getting out of prison. He said he was never promised any special consideration in return for supplying the government with accounts of what occurred at the Sunrise mosque, which he said he attended most evenings in the late 1990s."He was asking for money and for the brothers to be mujahedin fighters," Atwell recalled of Hassoun. "On several occasions he always had mujahedin fighters from all over the world — Chechnya, Palestine."The prosecutors seemed surprised when Atwell, under questioning by Baker, said he had considered becoming a holy warrior."I was thinking about going to be a mujahedin fighter myself," he said. "My wife was pregnant. If she wasn't pregnant, I would probably have gone to be a mujahedin fighter too."Asked whether he had wanted to become a terrorist, Atwell vehemently replied no. He said that the media now portrayed mujahedin as terrorists but that at the time they were simply Muslims coming to the aid of fellow believers.Atwell said Padilla "never talked that much" and that he remembered him mostly because of the Spanish-language Koran he would often read. Padilla is a U.S. citizen of Puerto Rican descent.Atwell will be brought back to testify before the jury Monday.But his credibility as a witness is in question. Judge Cooke noted that Atwell adamantly insisted he saw photos of Padilla and Hassoun on an NBC News broadcast in 2002, when Hassoun was not yet charged with a crime and no connection with Padilla had been made."These two things cannot be allowed to exist together in a truthful universe," she said of the witness' statement after he had left the courtroom. She added that she was curious how the prosecution would "deal with his credibility."Atwell reportedly has five felony convictions, including aggravated assault and battery of his now ex-wife. He contradicted himself repeatedly about what he could recall, depending on whether he was answering a question from the defense or prosecution.

Now I wonder whether the defense should have just waited to cross him in front of the jury. Will the government still call this guy?

3. Some advice for Rumpole: Don't blog about your own cases. See here.

Motion to sever from "dirty bomber"

William Swor and Dore Louis have filed a motion to sever their client Kifa Jayyousi from Jose Padilla, arguing in part that the media frenzy surrounding the alleged "dirty bomber" will invariably and prejudicially spill-over to him. One media outlet has had the audacity to ask the Court permission to bring in a cell phone and laptop so you know there is going to be some wild stuff going on in at the (new?!) courthouse! [To go off on a tangent for a second, it amazes me that the feds are so afraid of cellphones. Yes, we lawyers can bring them in, but shouldn't everyone be permitted to carry their phone? In Ft. Myers it's even worse. Lawyers can't bring their phones into the courthouse? WHY NOT?!!?!? I do not get it. More on this later.]

In other news, I figured out it wasn't the oysters that got me sick. It was the damn peanut butter sandwich that the hotel gave out free one night. Salmonella. No kidding. In freaking peanut butter!