Posting Plea Agreements?

I'm quoted in the DBR article this morning criticizing the new policy in this District of not making plea agreements available online. Every other document in a criminal docket is available (unless it's sealed) except for plea agreements. Instead, you have to go down to the clerk's office to make a copy the old-fashioned way. This is a silly policy, which is only in place in this District (as far as I know). Hopefully it will be changed soon (the local rules committee is studying it).

If there are safety concerns for cooperating witnesses, then those concerns should be addressed in that particular case, but to have a blanket policy making it more difficult to get these documents.... Haven't we learned from the State scandal involving secret docs?

Dehumanization

Prosecutors in every trial try to dehumanize "the defendant." And defense lawyers always try to humanize "Mr. Defendant." So far, it appears that the Government is doing its job in the Wilk case. Check out this Sun-Sentintel article about what the jurors have seen so far:

The murder case against Kenneth Wilk has been one of disturbing images.The photo of a dark puddle of blood on the floor. That's where Broward Sheriff's Deputy Todd Fatta fell after a bullet pierced his chest while serving a federal warrant at Wilk's home. The autopsy photos. They showed the damage wreaked by the fatal shot that tore through Fatta's liver and severed his spinal cord. And the sordid images of child pornography. Prosecutors say Wilk and his partner possessed dozens of them on their personal computers.

No thanks

As posted yesterday, Louis Robles was supposed to plead guilty this morning in front of Judge Gold. The parties had agreed to 10 years in prison.

Well, not so fast. Judge Gold did not accept the deal today and rescheduled it in a month. Judge Gold has rejected plea agreements before, notably in the Al Gutman case.

At last week's symposium on ethics at the University of Miami, there was a panel discussion with 5 judges who were asked if they ever rejected agreed to pleas. They all responded that they did not. Should judges reject plea agreements? Comments?

Pretty pleas(e)

Lots of pleas being reported today. Former asbestos lawyer Louis Robles is taking ten years. And the Hollywood cops are pleading to a min/man ten years, with the hope of a cooperation reduction.

Think about where you were *ten years* ago. I think all of us forget how freaking long that is.

Jose Padilla trial to start

The lawyers about to start trying the Jose Padilla case must have that nervous stomach feeling that all trial lawyers get the night before... There's nothing like a criminal trial. The stakes are as high as they can be. The pressure is through the roof. Nothing in the law is more exciting and exhilarating... And the biggest trial in the Nation starts tomorrow in Miami. United States of America v. Jose Padilla. Start your engines.

Our local beat is of course all over the start of the Jose Padilla trial.

"Padilla terror trial is ready to unfold; After five years in detention, Jose Padilla will finally have his day in court as jury selection begins Monday in a high-profile terrorism trial in Miami": This article appears today in The Miami Herald.

The South Florida Sun-Sentinel reports today that "5 years later, Padilla terror case closer to trial."

And The Associated Press reports that "Padilla Jury Selection Opening."

"Sports agent guilty in Cuban ballplayer case"

That's the headline in today's Herald re the smuggling trial of Gustavo Dominguez. The same jury found Roberto Yosvany, charged with operating the boat, not guilty of the conspiracy and smuggling charges.

I won't really be able to post much today or this weekend as I won't have computer access....

Trial dogs...

There isn't a better District to be a lawyer (or to be a blogger!) -- we've got the most interesting cases and the most trials. Jose Padilla starts Monday and I've been writing a bunch about that. But right now, there are two other very high profile trials proceeding.

The first is the Kenneth Wilk cop-killing death penalty trial before Judge Cohn. From reading the coverage (Vanessa Blum is covering it almost every day -- here's the latest article -- and here is Nikki Waller's coverage), it looks to me like the defense may need to focus on saving this man's life instead of going for the NG. It's a very difficult decision in a DP case -- do you go full guns blazing for the NG and perhaps alienate the jury or do you try to keep the jury sympathetic enough to your client so that they don't want to kill him. I've never done a death penalty case before (unlike Wilk's very experienced DP lawyer Bill Matthewman) so thankfully I haven't had to make that crazy hard decision.

Then we've also got the Gustavo Dominguez, sports agent smuggling case going on in Key West before Judge Moore. The Defendant has taken the stand (according to today's Herald). There is no better drama than that. It's also the most difficult decision a defense lawyer makes in any trial. Apparently the defense is that Dominguez paid the drug smuggling convict $225K not to help smuggle but because he was afraid for his and his family's life. If the jury believes him, he'll walk. If they don't, bye bye. Forget about reasonable doubt when the Defendant testifies.

Where else can you get this kind of great stuff?

Judge Cooke denies Jose Padilla's motion to dismiss for outrageous government conduct

Judge Cooke issued a blockbuster ruling late tonight, denying Jose Padilla's motion to dismiss for outrageous government conduct -- without conducting a hearing. She says she need not conduct a hearing because she is denying the motion on legal grounds, accepting all allegations made by Padilla regarding torture as true.

UPDATE -- HERE IS THE ORDER (thanks to Discourse.net for posting -- I still haven't figured out how to do that!)

Here is the rationale from the concluding paragraphs of the 12 page order (lots of lengthy footnotes omitted):

First, the fact that the governmental conduct occurred at a time and place removed from the crimes charged makes the remedy Padilla is seeking considerably more attenuated and arbitrary. Short of resorting to a ‘two wrongs make a right’ judicial process, it is difficult for this Court to ascertain how the remedy sought emanates from the infirmity defendant describes. This is considerably distinguishable from a government entrapment scenario, where the crime that the defendant is charged with is the crux of the outrageous government conduct claim.

Second, the outrageous conduct occurred while Padilla was under military control at the Naval Brig in Charleston, South Carolina. At this time, Padilla was being held under Presidential orders in connection with his enemy combatant status and had not been charged with the crimes he is currently facing. This further attenuates Padilla’s outrageous government conduct claim. Even if Padilla’s due process rights were violated while being held at the Naval Brig as an enemy combatant, he fails to explain how this violation should result in the dismissal of distinct crimes that he was not charged with at that point.

Third, Mr. Padilla fails to explain why suppressing governmental use of any evidence obtained from him at the Naval Brig is insufficient for purposes of this trial. In his motion, Padilla acknowledges that the government has already averred not to seek introduction of any of the Naval Brig evidence at trial. Despite summarily rejecting this remedy as “clearly inadequate,” Padilla fails to support this contention or explain why his requested remedy is more appropriate. In fact, in his motion, Padilla relies heavily on United States v. Toscanino, 500 F.2d 267 (2d. Cir. 1974), a case where the Second Circuit sanctions this very approach. Padilla’s Motion concedes that “the court in Toscanino noted that many cases involving due process violations center on unlawful government acquisition of evidence and that, in those instances, the proper remedy would be the exclusion of the tainted evidence.” Def. Mot. at 11.

Mr. Padilla fails to present a cognizable claim of outrageous government conduct entitling him to dismissal of the indictment. The objectionable conduct Padilla claims violated his due process rights occurred during his military detainment in isolation of the crimes charged. Padilla also fails to adequately explain why excluding any unlawfully obtained evidence would not be an appropriate remedy in this case. Applying the exclusionary rule to bar inclusion of any illegally obtained evidence would sufficiently satisfy due process concerns. This may ultimately be a moot point since the government has averred not to utilize any Naval Brig evidence in its case. However, should the government decide to make use of any such evidence, an appropriate hearing will be scheduled to determine to what extent it is admissible.

I'm sure the government is breathing a big sigh of relief this morning. The last thing it wanted were these allegations to be aired in open court. What I'm wondering is -- if torture isn't outrageous government conduct, then what is? Perhaps we should just do away with the doctrine altogether. Padilla now how issue #1 -- and a very interesting one at that -- for his appeal if he loses at trial.

UPDATE -- MSM is catching up. The AP report is here.

"Judge rules high school club can meet pending outcome of lawsuit"

That's the CNN headline about Judge Moore's ruling:

A high school club that promotes tolerance of gays must be allowed to meet while a lawsuit is pending, a federal judge ruled.

U.S. District Judge K. Michael Moore ruled Friday that Okeechobee High School must grant the same privileges to the Gay-Straight Alliance that it grants other clubs, as mandated by the federal Equal Access Act.

The American Civil Liberties Union sued the Okeechobee school board in November on behalf of the high school's Gay-Straight Alliance after school officials said the group was a "sex-based" organization that would violate its abstinence-only education policy.

In his 12-page ruling, Moore wrote that the group and its founder, high school senior Yasmin Gonzalez, have "demonstrated a substantial likelihood of success" on their claim that the school violated federal law when it prohibited the club from meeting.

DBR on the Cuban Five

Picking up on our coverage here, the DBR discussed in detail the Cuban Spy appeal:

The 11th Circuit has set oral arguments for Aug. 20 to hear whether there was sufficient evidence to convict one of the defendants of conspiracy to commit murder; whether there was prosecutorial misconduct; whether prosecutors improperly kept classified material from the defendants; and whether sentencing guidelines were followed. In August 2005, the full 11th Circuit upheld U.S. District Judge Joan Lenard’s ruling — and overturned a three-judge panel ruling — that it was fair to conduct the trial in Miami despite the strong anti-Fidel Castro feelings there. Among the nine issues to be argued in August, the most important one for the defense is the sufficiency of evidence on the charge of conspiracy to commit murder. Lawyers will argue that prosecutors overreached in charging one of the defendants with that count.

***

Whatever the panel does, the case is eventually headed to the U.S. Supreme Court on the venue issue and other issues, say lawyers involved in the case. “The defense team remains optimistic and hopeful for a just outcome,” said Richard Klugh, an assistant federal public defender in Miami who represents Fernando Gonzales, who was convicted of failing to register as a foreign agent as well as immigration violations. “There are substantial issues of fundamental fairness at stake.” “We will never let the venue issue die,” McKenna said. “We will go to a higher court. We feel so strongly about it.” But Guy Lewis, who was U.S. Attorney in Miami at the time of the trial, said he’s confident the prosecution will prevail on appeal. “The defense arguments have no merit,” said Lewis, now an attorney at Lewis Tein in Coral Gables. “This is just Monday morning quarterbacking. The sooner the court hears the arguments, the sooner they’ll reject them and bring finality to the case.”


If you are interested in the briefs, you can read them at the DBR cite.

Picking a jury in federal court

This week, lawyers have begun jury selection in the Kenneth Wilk case. The Sun-Sentinel has coverage here. And jury selection started and was completed yesterday in the baseball smuggling case in Key West. The Miami Herald covers that story here. On the 16th, the Padilla trial gets up and running with voir dire.

Jury selection in Padilla and Wilk will take days, which is not the norm in federal court. Typically, as was the case in the Keys, jury selection in federal court lasts less than a day and sometimes less than a half a day. Lawyers are lucky to get 15 minutes a side to conduct voir dire.

Thoughts?

Fire rescue to the Tower Building...

... to pull out a District Judge from a stuck elevator.

No joke.

When is the new building going to open!?!

D. Kyle Sampson

Although some of you thought that the trivia question below about D. Kyle Sampson was another April Fool's post, it was not. He actually tried a felon in possession case -- United States v. Heron Stepherson -- in the Southern District of Florida in March 2004. Judge Hurley presided and the local AUSA was Lothrop Morristhe. AFPD was Bob Adler.

Thanks to one of my favorite readers for the answer to the trivia question!

As for felon in possession cases, check out Rumpole's riff here regarding gun prosecutions in both state and federal court. He raises an issue that the Federal PDs have been complaining about for a long time. The problem is that the cases which permitted dual prosecutions were decided when the feds did not really pursue the run of the mill state gun or drug case. Now that it's common practice, those cases really should be reconsidered. Or better yet, the Justice Department should follow its "petite policy."

As for American Idol tonight, Sanjaya Malakar won't be voted off. My bet is on Phil Stacey or Haley Scarnato to go.

UPDATE -- here are portions of the "petite policy":

"The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.

"This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General. ...

"The first substantive prerequisite is that the matter must involve a substantial federal interest. This determination will be made on a case-by-case basis, applying the considerations applicable to all federal prosecutions. See Principles of Federal Prosecution, USAM 9-27.230. Matters that come within the national investigative or prosecutorial priorities established by the Department are more likely than others to satisfy this requirement.

"The second substantive prerequisite is that the prior prosecution must have left that substantial federal interest demonstrably unvindicated. In general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest. That presumption, however, may be overcome when there are factors suggesting an unvindicated federal interest."

United States Attorneys' Manual 9-2.031

Cuban Five oral argument

Now that the venue issue has been resolved, the Eleventh Circuit has set the Cuban Five case (Cuban Spy case) for special oral argument on August 20, 2007 on the remaining 15 issues.

Southern District of Florida Trivia

A commentor asks:

Yesterday during his testimony we learned that the only criminal case ever tried by [Alberto Gonzalez's] Chief Asst. AG and Rove look-alike, D. Kyle Sampson was in 2004 in the SDFL--apparently it was a felon in possession case w/ a PWID "narcotics." Sampson testfied in response to questioning by Sen. Sheldon Whitehouse (D-RI) that he was "specially assigned" to USAO SDFL to try that case. WHY? What was so special about a case like that that the Dep. Chief Asst. AG was sent down to SDFL try it? Inquiring minds want to know.

Anyone know anything about this case?

Death Penalty trial to start this week

Vanessa Blum has a lengthy article about the Kenneth Wilk death penalty trial (SDFLA previous coverage here), which is to start this week in front of Judge Cohn. Apparently the defense is going to argue that Wilk was in the grips of AIDS-related dementia and believed he was acting in self-defense. They will not be able to argue that the victim, Todd Fatta, was using steroids. Here's the intro to the article:

In the beginning, it seemed like a routine operation. Roughly a dozen
Broward Sheriff's Office deputies arrived in the Fort Lauderdale neighborhood of
Coral Highlands on Aug. 19, 2004, to carry out an arrest warrant."Police!" they
yelled before breaking through the front door. "Warrant!"It was then, prosecutors will tell jurors, Kenneth Wilk crouched behind his kitchen counter with a Winchester 94 lever-action hunting rifle. When the officers entered, Wilk opened fire, killing Deputy Todd Fatta, 33, with a single shot to the chest.If convicted of first-degree murder, Wilk, 45, faces the death penalty. As his trial begins this week before U.S. District Judge James Cohn in Fort Lauderdale federal court, defense lawyers have no plans to dispute Wilk fired the shots that killed Fatta and wounded a second officer.Instead, the central question for jurors deciding Wilk's fate will be whether the gunfire was premeditated.Wilk's attorneys, Bill Matthewman and Rafael Rodriguez, have said they plan to argue it was not. They contend Wilk was in the grips of AIDS-related dementia and believed he was acting in self-defense.

I don't believe anyone from the SDFLA has ever been sentenced to death, but I'm not sure about this. Anyone know for sure?

VB was a busy bee the last couple days, with stories on the McCay brothers' sentencing (Michael McCay got 6 1/2 years and brother Robert got 15 months) and the sentencing of a doctor who worked at Mutual Benefits Corp (Clark Mitchell received 8 years).

And thanks to Rumpole for covering the story below. More at his blog.

FEDERAL JUDGES RESPOND TO STATE PLANS TO SELL JUDICIAL CORPORATE SPONSORSHIP

From tomorrows Daily Business Review, comes an excerpt of this article:

"The Chief Judge of the 11th Judicial Circuit has announced plans to sell corporate sponsorship for the court, courtrooms, and small corporate logos which can be placed on a Judge's Robe. The plan is being pushed forward to meet large anticipated deficits in local court funding. Included in the plans are the renaming of the criminal courthouse to the Fed-EX Gerstein Justice Building, renaming the Civil Courthouse the Kinkos Civil Courthouse, and having VISA become the official credit card of the 11th Judicial Circuit.

"While no Federal Judge would speak for the record, most were shocked at the blatant selling of corporate sponsorship for the State Judiciary. Said one Judge: 'I understand the rules are a bit looser over there, but this sounds like it could get them into trouble. What is someone is being sued by Kinkos over failure to pay a bill and they have to defend the suit in the Kinkos Courthouse? I'm not sure they thought this all the way through.'

"Another Judge was more dismissive of the issue: 'Typical State Court nearsightedness. This issue will end up over here and then they will get embarassed."



Rumpole thanks Mr. Markus for allowing us access to his blog for this story which bears watching closely.

Sparring with Scalia

One of my former (and one of my favorite) law professors, Arthur Miller, took a shot at Justice Scalia during an oral argument today and Scalia took a shot back. Here's the Washington Post's coverage of the fun exchanges:

A Bit of Brooklyn in the Supreme Court
Thursday, March 29, 2007; A17
Deference, with maybe just a touch of obsequiousness, is the rule for lawyers taking their cases before the nine justices of the Supreme Court.
So when Harvard law professor Arthur R. Miller yesterday mixed it up a little with the court's ever-ready pugilist Antonin Scalia, some of those in the packed courtroom later talked about it as one of those did-you-hear-that moments at the court.
Miller, whose white hair and dark, bushy eyebrows are familiar from his legal commentaries on ABC and his debate-style shows on PBS, is representing investors who want to sue Tellabs, alleging securities fraud. [Story, Page D3.]
Congress has set a high bar for such lawsuits: Plaintiffs must show not just credible allegations but a "strong inference" that the company acted with wrongful intent.
The justices wondered whether you could assign a percentage to such a "strong inference," a 33 percent chance plaintiffs could convince a jury the allegations were true, a more than 50 percent chance?
"I think it's 66 2/3 ," Scalia said, pulling another number out of the air.
"Is that because you never met a plaintiff you really liked?" Miller asked the conservative Scalia.
The room erupted in laughter. Scalia smiled. A little.
Miller backpedaled. A little. "I took a liberty there with the justice," Miller said.
But it was not over.
Scalia's chance came later, when Chief Justice John G. Roberts Jr. prepared to pounce on one of Miller's arguments. Miller stopped him first.
"Don't take me literally on that," Miller said. "For heaven's sakes, I'm from Brooklyn. I'm very colloquial. I'm very sorry about that.''
"Let me write that down," Scalia said with a satisfied smile. "We should not take you literally. All right."
Roberts was set to rule. "Okay, you two are even now."
-- Robert Barnes

Cert granted

The United States Supreme Court has taken a case from the Southern District of Florida, U.S. v. Williams, a case about the constitutionality of a child pornography law:

The [11th Circuit] court panel found the pandering provision of the PROTECT Act of 2003 was overbroad and impermissibly vague, saying that it criminalizes the speech of someone who touts material as child pornography when in fact it is clean or nonexistent.In the appeals court's view, the pandering provision could apply to an e-mail entitled "Good pics of kids in bed" sent by a grandparent, with innocent pictures attached of grandchildren in pajamas. One sender might be a proud grandparent while another might be a convicted child molester who hopes to trade for more graphic photos with like-minded recipients, the appeals court said. In asking the court to take the case, the Bush administration said the appeals court read the law's language more broadly than is warranted.

Judge Middlebrooks initially found the law was constitutional. Judges Barkett, Wilson and Reavley were the 11th Circuit panel that reversed (in an opinion by Judge Reavley,who was visiting from the Fifth Circuit), finding the Protect Act vague and overbroad. Rick Diaz and Lou Guerra represented Mr. Williams, who is now headed to Washington...

"Miami’s Acosta dragged into political spotlight"

That was the headline in today's DBR regarding the motion to reduce Jack Abramoff's sentence. Apparently, there has been criticism of Alex Acosta for this motion, which criticism is just silly. Here's the motion; and here's the intro to the article:

Federal prosecutors in Miami were caught off guard by criticism from Senate Majority Leader Harry Reid in Washington who suggested they were going soft on convicted former lobbyist Jack Abramoff.

U.S. Attorney Alex Acosta was flying to Colombia on Thursday when Reid, a Democrat from Nevada, criticized a proposed sentence reduction for the former Greenberg Traurig lobbyist at the center of one of the biggest corruption scandals in Washington. “Is he a Bushie?” Reid asked about Acosta. Tensions have been mounting between Democratic leaders in Congress and the White House over a scandal over the firings of eight U.S. attorneys allegedly for political reasons. Sources close to the Abramoff case bristled at Reid’s criticism, saying a recent court filing to secure a reduction for Abramoff was routine and that the disgraced former lobbyist was central to bringing down several high profile officials.

Reid is wrong to criticize Acosta. If Reid doesn't like the Sentencing Guidelines and the way that Rule 35 works, then let's change it. But right now, when someone provides substantial assistance, he gets a reduction in his sentence -- for better or for worse.

Weekend reading

For those of you who missed the SDFLA stories this weekend because you were too busy watching hoops or eating elephant ears at the Youth Fair:

1. "Green Beret now under arrest claims life of secret intrigue." (Miami Herald)

2. "Defense lawyers for Kenneth Wilk will not be permitted to tell jurors that the sheriff's deputy he killed had steroids in his system at the time of the shooting, a federal judge in Fort Lauderdale ruled Friday." (Sun-Sentinel)

3. "A Fort Lauderdale jury ruling in a federal discrimination case lashed out at Broward Community College on Thursday in a scathing letter citing evidence of religious bias in the college's theology department." (Sun-Sentinel)

4. "A federal judge refused Friday to dismiss the terrorism support charges against alleged al-Qaida operative Jose Padilla, rejecting defense claims that his 3 1/2 years in custody as an enemy combatant violated his constitutional right to a speedy trial." (AP)

The "light disguise" trend

After asking for its witnesses to testify in "light disguise" in the Ze'ev Rosenstein case(coverage here, here and here), the feds are now asking for the same thing in the Jose Padilla case for an instructor for the CIA. (Judge Dimitrouleas had ruled that the Israeli agents could testify in light disguise but required them to use their real names. Rosenstein ended up pleading guilty, so this issue never came to light at trial and appeal).

In the Padilla case, the Government isn't asking for for the disguise because the agent is currently assigned overseas, but instead because he could be assigned overseas, according to a statement filed by Suzanne M. Fleischauer, information review officer for the CIA's clandestine service. "For CIA officers to effectively and clandestinely collect intelligence and conduct operations around the world, they cannot openly admit that they work for the CIA," Fleischauer said. "The safety of this covert CIA officer is of paramount concern because of the high-threat areas of the world in which he has worked."

Here is the AP coverage and the Herald coverage.

Jack Abramoff's sentence to be reduced

No surprise here -- the Government has filed a motion to reduce Jack Abramoff's sentence pursuant to Rule 35 based on his "substantial assistance" in his case and other investigations. Apparently, he is still working with investigators from his prison cell in Cumberland, Md.

Any bets on how much time Judge Huck will hack off the sentence? I'll put the over/under at one third, the standard reduction in the Southern District of Florida....

"Federal prosecutors get OK to seek death penalty for man accused of murdering deputy"

That was the headline in yesterday's Sun-Sentinel: "The U.S. Supreme Court on Monday turned down an appeal filed by murder suspect Kenneth Wilk, clearing the path for federal prosecutors to seek the death penalty at his April trial."

Fixed!

The 11th Circuit reissued Thompson v. United States today, clearing up the name mess that I discussed here and here. It inserted the other DM's middle name Scott. And the Court even dropped a footnote: "This opinion is not referring to attorney David Oscar Markus, who was not involved in the case."

What a relief.

Added: For the record, I think David Scott Markus is a good guy and a good lawyer, and I am sorry the name confusion has brought unwarranted attention to this opinion.

Dude!

I couldn't pass up this story (by Kathleen McGrory and Nikki Waller) and on a Broward judge who was arrested for smoking pot while sitting on a bench in Stanley Goldman Park, just west of I95 near Hollywood Boulevard. Only in South Florida...

Actually, maybe I should say, Only in America -- the Supreme Court heard argument today in the "Bong Hits for Jesus" case.

Ft. Pierce courthouse approved

Julie Kay has the scoop in today's DBR -- apparently Ft. Pierce has been tapped for a new federal courthouse.

Now the question is whether it will open before the Miami courthouse...

News and Notes

Julie Kay writes today about Judge Moore's preclusion of the wet-foot, dry-foot defense in the baseball player smuggling case. Here's Judge Moore's order.

Jay Weaver discussed more discovery in Padilla here: " reputed al Qaeda member told U.S. authorities that the terror network scrutinized Jose Padilla as a recruit for Islamic extremism in 2000-01, according to a new document filed in federal court in Miami." And you can view the document discussed.

And to complete our federal court reporter trio, Vanessa Blum discusses the Hollywood cop hearing yesterday, in which Judge Seltzer granted the parties' request for extra time to resolve the matter before arraignment.

OSCAR

Thanks for the suggestions in the comments on what to do about the name issue. So far, I've written a letter to the Clerk of the 11th Circuit and Judge Barkett, who authored the opinion, asking them to insert his middle name. We'll see if it works.

The story has hit the blogosphere, which I think may be a good thing. Check out Orin Kerr at Volokh, Adam Levin at Southern Criminal Law and Justice, and Rumpole, all discussing "David Markus".

UPDATE -- the problem has been fixed.

"11th Circuit ruling in fraud probe a defeat for insurance companies."

And a victory for Roberto Martinez and Curt Miner, the receivers for Mutual Benefits Corp. So reports today's DBR:

"The insurers, including giants like Indianapolis-based American United Life Insurance, said in their lawsuits they should be able to cancel all policies that were sold by policyholders to Mutual Benefits because several of the policyholders lied on their appliactions. They cited four people who had lied about their HIV-positive status."

Judge Moreno said nope and was affirmed by the 11th.

"David Markus" ineffective

So the calls and emails started rolling in this morning. Who was that lawyer taken to task throughout the opinion in Richard Thompson v. United States, they asked. I quickly jumped onto the 11th Circuit website and read today's opinion.

The coffee I was sipping went all over my desk!

Judge Barkett, writing for the 11th Circuit, in a published decision explained how criminal defense lawyer "David Markus" was ineffective.

The thing is, it's not me -- it's the other criminal defense lawyer in town named David Markus. He's David Scott Markus. I'm David Oscar Markus. The court didn't use any middle initial. So now what do I do? Any suggestions?

UPDATE -- the problem has been fixed.

Okay, fine...

... back to the regular news.

Vanessa Blum wrote yesterday that one of the Hollywood cops may be close to pleading. Mel Black represents Sgt. Jeffry Courtney. Black "filed a motion asking a federal magistrate to postpone a Thursday hearing in Fort Lauderdale where the officers were expected to enter pleas so he could have more time to negotiate with prosecutors."

UPDATE -- Judge Seltzer denied the motion, according to this Herald article.

Rumpole on our case

Now even our friends are telling us to mind our own business....

Here's Rumpole's take on the Judge Highsmith story in italics and my response in bold:

Everyone's favourite federal blogger- David O Markus- whose blog can be viewed by clicking on the link on this page- got himself and his blog into a spot of hot water the other day, by publishing the well researched rumor that Federal Judge Highsmith was retiring.

I'm glad I'm Rumpole's "favourite federal blogger" and that he links to us. But is it really a "rumor" when the Judge himself announced it open court?

Julie Kay from the Daily Business Review jumped on the bandwagon and wrote an article and before you can say "contempt" Chief Judge Zloch was issuing denials. Actually, everyone apparently had a good laugh about the whole episode,
and the mere fact Mr. Markus was seen sweeping the floor of Judge Zloch's courtroom the other day had nothing to do with Mr. Markus's ill advised venture into the land of rumor and innuendo. Leave that stuff to us we say.

Judge Zloch's floors weren't dirty at all, so it wasn't a big deal... Fine Rumpole, you are the gossip king (queen?) so we'll leave this stuff to you in the future.

As Muhammad Ali used to say- "Your hands can't hit what your eyes can't see" and last we checked there was no known address for US Marshalls to appear at to take us into custody. Mr. Markus writes a great blog. But we think he is better off writing about the legislative histories of Federal Statutes and cheering on Judge Cooke in the Padilla case. In either event, it was nice to see that Rumpole isn't the only Florida legal blogger who needs counsel every now and then.

If we actually did need counsel, we'd hire Rumpole. What's the hourly rate these days?

More blog news

The Judge Highsmith story (controversy?) has made national blog news here at Above The Law, the fun and witty legal tabloid blog.

We had the pleasure of meeting the blog's author, David Lat, during his stay in Miami. He's a very engaging guy. It's no wonder his blogs have been so popular.

Blog controversy

Last week we reported that Judge Highsmith was going to retire by the end of the year and that he was getting off the criminal wheel.

Today, Julie Kay in the Daily Business Review says we're wrong. "Rumors began that U.S. District Court Senior Judge Shelby Highsmith was retiring after it was reported on a legal blog run by Miami criminal defense lawyer David O. Markus. . . . But last Thursday, District Judge William Zloch said in an interview he spoke to Highsmith and the judge is only retiring from criminal cases -- as of March. . . . 'Rumors of his demise are greatly exaggerated,' Zloch said with a laugh. 'I just spoke to him and he is not going anywhere. As a senior judge he has the option of taking a lighter load.'"

Interesting. A couple points though --

First, I did not start the rumors. I was told by a number of people that Judge Highsmith himself announced his retirement in open court. Second, I got confirmation from people who would know. I note that Ms. Kay did not speak with Judge Highsmith himself (to be fair, neither did I).... Third, don't you think that the article should have mentioned the blog by name!?

In any event, I hope Julie Kay is right and that Judge Highsmith is not retiring.

Lawyer guilty of Medicare fraud

"South Florida attorney Benjamin R. Metsch pleaded guilty today on charges he defrauded Medicare from October 2002 through August 2004."

Scooter

I know this isn't a SDFLA case, but a bunch of emails came in asking if I would post about it. So here is the story:

A federal jury has found 'Scooter' Libby guilty on 4 out of 5 counts of lying to a federal grand jury and obstruction of justice. He was found not guilty of one count of making false statements to FBI agents investigating the leak of former CIA agent Valerie Plame's identity. Libby's sentencing is scheduled for June 5, 2007.

You can read the following items at these links:

Indictment http://news.findlaw.com/hdocs/docs/plame/uslibby102805ind.html

Prosecutor Patrick Fitzgerald http://pview.findlaw.com/view/3543117_1?channel=LP

Defense Attorney Ted Wells, Jr. http://pview.findlaw.com/view/3279455_1?channel=LP

Trial Transcripts http://rd.findlaw.com/scripts/nl.pl?url=11712672000_nl

Jose Padilla DVD lost

Uh-oh.

Hat-tip Discourse.net

Judge Shelby Highsmith to retire

Judge Shelby Highsmith has announced that he will be retiring at the end of the year (the original post said March, but we've been informed that it's actually the end of the year and Judge Highsmith will go off of the criminal wheel at the end of March). We'll miss him.

Judge Highsmith was admitted to the bar in 1958. He graduated from the University of Missouri-Kansas City School of Law, after attending Georgia Military College and the University of Kansas. The Judge was the senior partner of Highsmith, Strauss, Glatzer & Deutsch, P.A., from 1975 - 1991 and before that served as a Circuit Judge in Dade County from 1970 - 1975. He served in the United States Army as Captain from 1949 - 1955. He was appointed to the federal bench in 1991 by Bush I, and he's been a Senior Judge since 2002.

We've always liked that Judge Highsmith looked at each particular person before him and tried to judge that person, as opposed to doing simple math to determine a guideline sentence. He also knew how to try a case, coming from a busy trial practice. Best wishes in retirement.

About that firing range...

The firing range for the Marshals is often cited as one of the cool features of the new courthouse. Apparently not so cool... From today's USA Today (Hat tip to FOB, that's Friend of Blog):

A U.S. Marshals Service official misspent $4.3 million meant for courthouse security and witness protection to pay for fitness centers and firing ranges at federal buildings, a Justice Department investigation found.

The Office of Management and Budget repeatedly told David Barnes not to use construction money on exercise and training facilities, citing agency policy and appropriations laws that restricted the money for improved prisoner security, the report said.

Barnes, who oversees courthouse space for the agency, concealed the spending from his superiors and directed $2.6 million in construction money for fitness centers and firing ranges at 20 federal courthouses from 2000 to 2005, according to a copy of the 41-page report obtained by USA TODAY.

The agency has not acted on the report, which it received last April.

Barnes also used nearly $900,000 budgeted for witness protection to build a firing range in the Miami federal courthouse, and he used nearly $400,000 in construction money to hire fitness center staff and clerical workers at the Marshals Service headquarters, where Barnes works, the investigation found. Some workers were friends or relatives of Barnes and his subordinates and were unqualified for the jobs, the report said.

Barnes' lawyer, Charles Printz, said his client had the authority to spend construction money on firing ranges and fitness centers. Printz said the investigation was spurred by disgruntled employees and he expected his client to be cleared.

Here's the breakdown of bad spending from one of USA Today's cool charts. Miami's in first place!!

REPORT: MONEY MISSPENT
According to a Justice Department report, $3,028,847 was misspent from fiscal year 2000 to fiscal year 2005 on building and renovating fitness rooms and firing ranges in 20 federal courthouses. (*) The locations and the amount:
Courthouse
Misspent

Miami
$881,500

Tallahassee, Fla.
$385,852

Fort Worth
$361,285

Seattle
$298,414

Phoenix
$226,345

Charleston, S.C.
$137,059

Charleston, W.Va.
$125,000

Buffalo
$105,802

San Diego
$80,158

Cheyenne, Wyo.
$60,000

San Francisco
$59,638

Hattiesburg, Miss.
$57,375

St. Louis
$50,000

Grand Rapids, Mich.
$46,835

Sioux City, Iowa
$46,322

Greenville, Miss.
$38,881

Elkins, W.Va.
$35,000

Oxford, Miss.
$22,950

Fairbanks, Alaska
$9,375

Syracuse, N.Y.
$1,056

Total
$3,028,847

* - In addition, more than $800,000 was spent maintaining and staffing some of these and other facilities.
Source: U.S. Department of Justice's Office of Inspector General

"The government’s arguments at the hearing sounded ridiculous and shameful."

That was the New York Times editorial in today's paper regarding the Jose Padilla competency hearing. Here's the conclusion:

Prosecutors said Mr. Padilla always seemed fine to his jailers, but it was his jailers who did things like standing on his bare feet with boots so they could shackle him. The brig psychologist testified that he had spoken to Mr. Padilla only twice, once when he was first detained, and two years later — through a slit in his cell door.

When a psychologist testified for the defense that Mr. Padilla was “an anxiety-ridden, broken individual,” the prosecution said her tests were invalid — because the jailers had kept Mr. Padilla handcuffed throughout.

We will probably never know if Mr. Padilla was a would-be terrorist. So far, this trial has been a reminder of how Mr. Bush’s policy on prisoners has compromised the judicial process. And it has confirmed the world’s suspicions of the United States’ stooping to the very behavior it once stood against.

Obviously there has been a ton of press on Judge Marcia Cooke's ruling yesterday saying Jose Padilla is competent. I'm not going to link to all of that here.

I'd bet that Padilla is actually happy that his lawyers lost the competency motion. I'm sure he did not want to go to a BOP mental hospital so that he could be made competent. To me, that sounds like torture -- just on a smaller scale. And I'm sure there were mixed feelings by the government about the ruling.

The Judge is still going to hear the motion to dismiss for outrageous government conduct. That is where things will get interesting.

Padilla competent

Judge Cooke ruled today that Jose Padilla is competent to stand trial after a 4 day hearing on the issue. She said that the decision regarding the defense's motion to dismiss for outrageous conduct is for another day. More to follow when I come up for air. Sorry.

Quick update on Padilla

I'm in trial, so not much time.... but here's the AP on the continuation of the Jose Padilla hearing today. Day 3 of the heairng tomorrow.

Julie Kay also reported today on an interesting wrongful shooting case against the Broward Sheriff's Office. Plaintiff's lawyers are Dave Kubillian and Lynn Overmann. Defense lawyer is Bruce Jolly.

Dedication Ceremony recap

It was a gorgeous day for the ceremony dedicating the new courthouse in honor of Wilkie D. Ferguson Jr.

The program included remarks from Chief Judge Zloch, Shenita Hunt, Rod Vereen, Larry Handfield, Tawnicia Ferguson Rowan, Kendrick Meek, Lincoln Diaz-Balart, Aaron Podhurst, Francisco Angones, George Knox, Lurita Doan, Donald Graham, Rosemary Barkett, George Knox (who read a letter from Bill Clinton), Thomasina Williams, Betty Ferguson, H.T. Smith, John Kozyak, and Father Kenneth Major. Yes, it was a long ceremony...

I had the pleasure of trying one case in front of Judge Ferguson. He was a great judge, smart, and a true gentleman. The speakers did a very nice job remembering him.

For (unintended) comic relief, Edwin Fielder -- the Regional Administrator for GSA -- introduced the speakers. I'm not exaggerating if I say that he only got 50% of the names correct. He was a disaster. Other than that, every thing went pretty smoothly.

The courtrooms and chambers are beautiful. Let's see if we can use them by the end of the year. That's the current over-under. Any takers?

Wilkie D. Ferguson Jr. Federal Courthouse

Today at 3PM will be the formal dedication ceremony of the new federal courthouse. As Julie Kay points out in the DBR, however, it is not set to open yet and there is no date for opening.

"Experts: Years of isolation made Padilla incompetent for trial"

That's the headline for the AP article. Here's the Sun-Sentinel coverage. The Herald's pre-hearing coverage is here.

My spies tell me that only two defense witnesses were heard from today. Apparently it was a very good day for the defense today, as expected. The exciting stuff -- the jailors' testimony -- isn't until next week. And because the Government is fighting that so hard, expect that to be a defense day as well. So, what's the judge going to do? Any thoughts?

Jose Padilla's competency hearing is today. I doubt that I'll be able to make it over to court, but it should be a fascinating hearing. I look forward to reading the reports. I will post any news as soon as I see it. If anyone is in the courtroom and wants to give an anonymous report, I'd be happy to post it.

Health care fraud

Julie Kay's Justice Watch analyzes Alex Acosta's "creative weapon in health care fraud" -- Operation Excise Equity, "a unique health care fraud initiative that targets Medicare crooks through civil channels and recoups funds directly from their banks." The Herald coverage is here.

Yesterday, commentors jumped on me for quoting a great scene in A Few Good Men. Well, here's another one: Col. Jessep: Take caution in your tone, Commander. I'm a fair guy, but this fucking heat is making me absolutely crazy.

"Methinks the lady doth protest too much"

That was Judge Cooke in response to prosecutors strenuous objection to allowing Jose Padilla's jailors to testify at this week's competency hearing. I believe the hearing is Friday, and it's going to be a doozy.

Whenever I hear that someone strenuously objected, I think of the scene in A Few Good Men when Demi Moore loses and objection and responds by telling the judge that she strenuously objects. Her co-counsel, Lt. Weinberg, says to her after court: "I strenuously object?" Is that how it works? Hm? "Objection." "Overruled." "Oh, no, no, no. No, I STRENUOUSLY object." "Oh. Well, if you strenuously object then I should take some time to reconsider."

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!