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
Judges Graham and Ungaro recently participated in a training program for Judges, lawyers, law enforcement personnel, court administrators and others in Jinja, Uganda. Beth Sreenan also participated as the DOJ representative. From what I understand, it was a great experience.
In other Monday afternoon news, the DBR covers the honest services fraud debate here. And they even have a video:
AFTERNOON UPDATE -- Very sad news: there's been a shooting at the Las Vegas Federal Courthouse leaving a court security office dead, and a marshal in critical condition. The shooter has been shot dead. The link above is from the local Las Vegas paper, which also has a video. Terrible news.
The White Collar Blog has some fun end of year posts here and here. The bloggers are really looking forward to seeing what the Supreme Court will do with the honest services cases coming up. More on that from me later. Even the Chief Justice got into the act with this end-of-year report. Here's the intro:
Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice. Best wishes in the New Year.
While we're on the Supremes, there's more on Scalia's obsession with the (non)word "choate" from the NYT magazine here.
Why does choate get under Scalia’s skin? Bryan A. Garner, who wrote “Making Your Case: The Art of Persuading Judges” with Scalia, told me the justice is “disgusted” by the term’s faulty etymological basis. As Garner himself puts it in his Dictionary of Modern Legal Usage, choate is “a misbegotten word,” since the in- of inchoate is not in fact a negative prefix. Its root, the Latin verb incohare, meaning “to begin, start out,” originated in the metaphor of hitching up a plow, derived from in- (on) and cohum (strap fastened to a yoke). Stripping the in- from inchoate is known as back-formation, the same process that has given us words like peeve (from peevish), surveil (from surveillance) and enthuse (from enthusiasm). There’s a long linguistic tradition of removing parts of words that look like prefixes and suffixes to come up with “roots” that weren’t there to begin with. Some back-formations work better than others. Unlike Scalia’s improbable analogy of changing insult into sult, back-forming choate is an understandable maneuver for anyone who isn’t a Latin scholar, given that inchoate is in the same semantic ballpark as words that really do have a negative in- prefix, like incoherent and incomplete. By ruling from the bench on what is and isn’t a word, Scalia is following in the footsteps of his former colleague William Rehnquist, who once interrupted the argument of a lawyer who dared to use the nonstandard word irregardless. “I feel bound to inform you that there is no word in the English language irregardless,” Rehnquist said. “The word is regardless.”
The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting. The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors should not have used them to help guide their investigation. Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements. "In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.
As for me, well, I came in second in the blog fantasy league, losing in the finals to RichRodisCuban (by a measly 5 points). Congrats on a good year. Here are the final results:
Sorry I haven't been blogging much this week -- I've actually been swamped... Soooo, we're gonna close down the blog until the new year unless something big comes up (For example, if I win the blog fantasy football championship this weekend against RichRodisCuban, I will post about it!). Other than that, though, I need a little break. Have a great holiday season. Happy New Year and see you in 2010.
It's one of the criminal justice system's dirty little secrets -- innocent people plead guilty because the risk if you lose at trial is too high. The Wall Street Journal covers this phenomenon here:
A surprise twist in the criminal case against Broadcom Corp. co-founder Henry Samueli again raises questions about plea bargains, one of the most important and controversial aspects of the justice system.
In a Santa Ana, Calif., court last week, federal Judge Cormac Carney dismissed the criminal complaint charging Mr. Samueli with lying to the Securities and Exchange Commission in its investigation of whether Broadcom misstated its earnings by improperly accounting for executive stock options. Judge Carney's dismissal came even though Mr. Samueli had stood before him in 2008 and pleaded guilty to that very crime.
Mr. Samueli did what lawyers and legal scholars fear a disturbing number of other people have done: pleaded guilty to a crime they didn't commit or at least believed they didn't commit. These defendants often end up choosing that route because they feel trapped in a corner, or fear getting stuck with a long prison sentence if they go to trial and lose.
The evolution of the criminal-justice system in recent decades has put many defendants "under all but impossible pressure to plead guilty, even if they're not," said Yale law Prof. John Langbein, a critic of the plea-bargain system.
A daughter of a defendant who recently pled guilty in this district says that her dad was innocent but couldn't risk a life sentence when there was a 2-year offer on the table:
But she wants to be pragmatic. Should her father risk spending the rest of his life in prison in an attempt to clear his name? She doesn't think so. Even before a plea bargain was offered, she said her father should consider one if it were offered. "It is really (awful), admitting to something you didn't do," she said. "He doesn't deserve any of this."
“When the government can increase your sentence tenfold for going to trial, then very few innocent people will have the courage to take that risk,” Gerger said. “They will just plead guilty, and that's wrong.”
Video cameras, long banned from most federal courtrooms, could be used in civil trials throughout the West under a new initiative in the federal judiciary’s Ninth Circuit. One of the first cases to be televised could be next month’s hearing over a challenge to California’s same-sex marriage ban.
The move was announced Thursday by Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit. Judge Kozinski called the move an “experiment” that “is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”
*** But as Judge Kozinski said in an interview, “a lot has happened since then.” He cited advances in technology, the rise of Internet video transmission and greater experience of successful use of video in state courts and at the federal appeals level. “We thought it was time to take another look,” he said.
Judge Kozinski emphasized that the new initiative was still an experiment, and that it would be dropped “if it in any way impairs the fair administration of justice.” But he also noted that he did not expect to see problems.
“It’s a little bit of an uphill battle” to get courts to adopt technology, he said, adding: “We all have to be much more tech savvy than we really ever were, or particularly wanted to be. It’s just the nature of life in the 21st century.”
So, we have a lot to discuss in the comments -- are innocent defendants pleading guilty? Should we have cameras in the courtroom?
UPDATE -- check out this law.com article about the attorney who was recently acquitted. Apparently the judge isn't too happy with the sweetheart deals given to the snitches:
A federal judge in Columbus, Ga., has slammed federal prosecutors for making "sweetheart plea deals" with drug dealers to further their "relentless pursuit" of a criminal defense attorney whose trial ended last month when a jury acquitted him of drug conspiracy, attempted bribery and money laundering charges. U.S. District Judge Clay D. Land issued his harsh criticism of the U.S. Attorneys' Offices for the Middle and Southern Districts of Georgia in an unusual 19-page order explaining why he more than doubled the recommended prison sentence of a federal witness who testified against Columbus lawyer J. Mark Shelnutt. Land suggested that the judgment of the U.S. Attorney's Middle District office in Macon, Ga., which oversees federal prosecutions in Columbus, "may have become clouded by its zeal to bring down a prominent defense attorney." "The Court became concerned that the focus of the U.S. attorney's office was on getting a high-profile lawyer and negotiating sweetheart plea deals with the actual drug dealers to accomplish that," Land wrote.
Joan Grady -- longtime assistant to Kathy Williams at the FPD's office -- has passed away. Joan was an incredibly hard worker, and was always available to the lawyers in the office and the CJA lawyers looking for help. She was really loved by everyone and we'll all miss her.
Rumpole and the DBRfinally broke what people have been talking about for weeks now -- that the White House is actively vetting Kathy Williams for the open judge seat and Willy Ferrer for U.S. Attorney.
Congrats to these two very well-deserving candidates. Both are going to be absolutely great....
As an aside, I held off on posting this news for the past couple of weeks because the vetting process is very sensitive and I didn't want anything to slow the process for Kathy or Willy. But now, it's out there, so I am posting it...
Hopefully the official nomination will happen by the end of the year.
No doubt that longtime court interpreter Angel Luis Nigaglioni "has seen it all." Here's a nice Herald article about him and his career.
The longest serving interpreter in U.S. federal court -- whose voice was also known to millions of Spanish speakers worldwide as that of late President Ronald Reagan en español -- has retired. During his 35-year career, Angel Luis Nigaglioni played a unique part in South Florida's tumultuous judicial history, participating in such high-profile proceedings as the prosecution of Miami River Cops on corruption charges and the trial of Gen. Manuel Noriega, the former military dictator of Panama. ``I have seen everything. It is a fascinating profession in that every day you learn something, not just about language but about the human condition,'' Nigaglioni, 70, said.
South Florida, the home of WhoCanISue.com, is known for its medical malpractice claims, never-ending tobacco lawsuits and generous verdicts. Trial practices favor plaintiffs, as exemplified by a string of reversals in a Miami-Dade case against Ford Motor Company. Florida is also developing a reputation as the place to bring slip-and-fall lawsuits due to its lower burden of proof compared to other states, making the state ripe for fraudulent claims. Supermarkets, corner stores, and restaurants have no choice but to settle, regardless of whether they could have prevented accidents. In addition, Florida is one of the few states that allow those who drive under the influence of alcohol or drugs to sue the automobile manufacturer for failing to prevent their injuries by designing a safer car, while hiding from the jury the driver's responsibility for the crash. South Florida is home to several legal scandals this year, in which lawyers enriched themselves with their clients' money and bought hospital records to solicit business. Even the organization representing plaintiffs' lawyers in the state has found itself in hot water.
That was Judge Turnoff today in presiding over the bond hearing for Robert Antoine, a former Haitian government official charged in a telecom bribery scheme involving Haiti's state-owned telecommunications company. Judge Turnoff set a 10% bond at $1 million, meaning that Antoine will have to post $100,000 with the court. He'll get that back with interest if he sees the case through. Here's the Herald article. A snippet:
Federal prosecutors argued that Antoine was a flight risk and wanted him detained. ``He is the primary mover and shaker who made this all happen,'' U.S. Attorney Kimberly Selmore said in court. ``Without him, this couldn't be done.'' Selmore argued it was Antoine who was responsible for the contracts that allowed Esquenazi and Rodriguez to allegedly defraud Haiti Teleco. Antoine was joined by 19 family and friends in court Monday, and family members say they will come up with the money. Another hearing is scheduled to determined if the money is clean. Antoine's attorney Dennis Kainen argued that his client should be allowed to post bail to fight the charges from behind bars. He said even before his extradition he had intended to fly to Miami from Haiti on Sunday. "His ties to the community are overwhelming,'' said Kainen, noting that Antoine has been living in South Florida since 1969.
Five Africans who claim they were tortured and abused in Liberia when former President Charles Taylor ruled will come to a Miami courtroom next week seeking millions of dollars from the man they say ordered the atrocities: Taylor's son, Charles McArthur Emmanuel. Emmanuel, also known as Charles ``Chuckie'' Taylor Jr., was convicted in federal court in Miami last year of violating U.S. anti-torture laws as a high-level enforcer for his father. He is serving a 97-year prison sentence. The five Liberian victims filed a lawsuit against him earlier this year, winning a default judgment in May that leaves only the question of damages for a trial that begins Monday. *** Emmanuel, 32, did not initially contest the lawsuit but will appear in court and apparently act as his own lawyer in the bench trial next week before U.S. District Judge Adalberto Jordan. He has already been transferred from a federal prison in Marion, Ill., to Miami's downtown detention center, and has filed several handwritten motions. In one of them, he asks an attorney for the Liberians for details about the victims and their case, but says it is doubtful that he will take the witness stand next week. ``I will not be testifying in the December proceeding,'' Emmanuel wrote. ``That could change based upon the information requested.''
The buzz around town this morning is the documentary "The U," which played Saturday night on ESPN as part of their 30 for 30 series. I have discussed it a bit in prior posts, but I had no idea how unbelievable the movie was going to be. I had very high expectations, but the movie far exceeded anything I could have hoped for. It transported me back to the late 80s, watching UM games with friends. If you haven't seen it, make sure you do.
A health crisis struck when she was 12. She collapsed at a Plantation Central Park karate tournament. Doctors found she had a blood vessel disorder in her brain, a condition that causes seizures and headaches. She took a break from her beloved sport. A 4.0 student at Seminole Middle School in Plantation, she became depressed and her grades slipped, the Sun Sentinel reported at the time. But she made a comeback, despite the health risks. "She's a great example of a never-quit attitude,'' her late grandfather John Shaffer told the newspaper. "She is both charming and intelligent. Her accomplishments in karate are rather amazing,'' her doctor told the newspaper. She went on to South Plantation High School. After graduating in 1992, she and her mother owned and operated a wellness center on University Drive in Davie, selling books and offering classes on yoga, belly dancing and reiki. She is a spiritual person, a practicer of Transcendental Meditation, and a good person, said Linnet O'Neal, a longtime acquaintance. Since meeting her now-husband, Kim has been studying Judaism. O'Neal shopped at the store and eventually bought it from Kim's mother, a spiritual adviser who now works at a holistic health center. "You've heard of people who are gifted clairvoyantly, who have intuition where they guide people almost as a life coach? Lynn is a wonderful teacher, and very humble and giving person. And Kimmie is a very humble and very sweet girl,'' O'Neal said. About nine years ago, Kim Rothstein went back to school to obtain her real estate license, making her mother proud, O'Neal said.
It was a packed event tonight as judges, former prosecutors, defense lawyers, and many others in the community came to celebrate with Ben. To the left is a picture of Ben from the party. And here are his remarks:
“Let there be Justice, and then no one will ask for anything unjust.” So proclaimed the revered patriot, lawyer, and scholar Jose Marti.
I am here today as proof to all that Justice lives in America. That we live in a time in a Nation that honors the message of philosopher Alan-Rene Lesage: “Justice is such a fine thing that we cannot pay too dearly for it.”
We are all fortunate to say we have a Justice Department whose goal is to try to do the right thing. I am humbled that the Department of Justice made the honorable decision to do the right thing. As Dr. Martin Luther King enunciated, “the time is always right to do the right thing.” The Department’s timing was impeccable.
And I do not mean the right decision just for me. Instead, the inevitable resolution of my own legal drama is a reaffirmation by the highest powers of our Government that lawyers, including criminal defense lawyers, serve an essential – a vital -- purpose in our society. Our professional endeavor of testing the government, checking the exercise of public power, and challenging our institutions in an ethical but adversarial manner – what we do every day – is an honorable cause.
One of the great trial lawyers of our time, Edward Bennett Williams, observed that “Law is but a means; justice is the end.” We lawyers serve that cause of justice, and this outpouring of community support is a welcome approval of that cause.
Seekers of justice see our system as one that actively embraces achieving the right result, with our independent judiciary willing to reach correct conclusions defined by the law and the facts.
I readily applaud the several brilliant jurists who were so willing to apply the law as it is, as it should be, without fear of criticism. I am the beneficiary of the attention and “eminently correct” rulings by several of the very finest federal judges to serve the public interest.
Although it is understandable in the crystal clear light of hindsight that my legal case is what we refer to as a “No Brainer”, that it became so is the direct result of my dedicated team of outstanding lawyers: led by John Nields, Jason Raofield, and Laura Shores from Howrey in Washington, D.C., and my good friend, Jane Moscowitz, from Miami. I publicly thank them for their skill, dedication, and commitment to me and the precedent-setting value of my case.
But the reason for this Appreciation Reception is because of you, your support and attention to my case and the underlying message of enabling lawyers to be lawyers, without fear of retribution or prosecution. This day would not have been possible without all of you serving as the constant, pervasive, and effective foundation for my demonstration of innocence.
A message repeated by our independent Fourth Estate, our media. I am gratefully indebted to the Miami Herald and its court’s reporter Jay Weaver, and the Daily Business Review, especially John Pacenti, as well as the other journalists both locally and nationally, who consistently reported the truth of my case. The message was heard loud and clear, and helped to bring about a fitting end to my case.
I work daily with a stellar group of lawyers and legal professionals who never abandoned me, content with the knowledge that I would prevail in this classic battle. Allow me the privilege of thanking Susan Dmitrovsky, Bob Ader, Beth Hitt, Robert Hertzberg, and Amanda Maxwell, as well as Mirta Rodriguez, Sandy Hart, Leeza Bodes, Serena Young, Luly Moreno, and especially Barney Brown, who after being exonerated after serving 38 years in prison for a crime he did not commit, works with me as my legal intern.
President Kennedy once observed that “Our nation is founded on the principle that observance of the law is the eternal safeguard of liberty, while defiance of the law is the surest road to tyranny.” As lawyers and community leaders, we must lead the way to ensure that observance of the law is ingrained in our society, so that no one, not even the government, can claim a right to ignore or countermand the rule of law.
Let us sharpen our pencils and write a clear message to those in our community who may not understand and appreciate the abiding passion for justice in our nation: Our diligence every day, as directed by our Constitution, to provide effective counsel to our clients, is the keystone to our democratic way of life.
Throughout this legal drama, my greatest strength has been the unsinkable spirit and love of my wife, Lynn, and our entire family. I want to thank them for knowing who I am, and of my sincere dedication to the law.
Allow me to close with a story about Rudyard Kipling, one of the great writers. In the prime of his career, it was said he was making the previously unheard of sum of one shilling per word. Learning of this, a group of Oxford students, on a lark, decided to wire the Great One a single shilling and ask, in return, for one - just one – of his very best words. Soon enough, Kipling wired back just one word: “THANKS.”
I thank you – all of you who work so diligently to bring justice to our community, our courts, our nation – most appreciatively for giving me the opportunity to work with so many great people in making our America and our community a better place.
Governor Charlie Crist today announced the appointment of David A. Haimes of Plantation to the 17th Judicial Circuit Court. “David epitomizes the spirit of a dedicated and committed public servant,” Governor Crist said. “With over 15 years of legal service under his belt, I am confident he has the expertise and insight to serve the people of the 17th Circuit well.” Haimes, 44, has served in the United States Attorney’s Office as an assistant U.S. attorney since 2003. Previously, he served as an assistant state attorney with the Florida State Attorney’s Office of the 17th Judicial Circuit from 1999 to 2003; as a judicial law clerk for the Honorable William Dimitrouleas from 1998 to 1999; as a trial attorney with the U.S. Department of Justice from 1995 to 1998; and as a judicial law clerk for the Honorable William J. Zloch from 1993 to 1995. He earned a bachelor’s degree from University of Notre Dame and a law degree from Notre Dame Law School. Haimes will fill the vacancy created by the retirement of Judge Robert B. Carney, effective December 31, 2009.
Judges Graham and Ungaro recently participated in a training program for Judges, lawyers, law enforcement personnel, court administrators and others in Jinja, Uganda. Beth Sreenan also participated as the DOJ representative. From what I understand, it was a great experience.
