Go, Dore, Go!

One of my daughter's favorite TV shows is Go, Diego, Go!

Now we have a new blog feature: Go, Dore, Go! We'll track the fun quotes from Marshall Dore Louis during the Padilla trial (previous quotes here and here). Louis is second chair to Bill Swor, who represents Padilla co-defendant Kifah Wael Jayyousi.

The latest from today's Miami Herald:

''These gentlemen are not accused of conspiring to kill Americans,'' said Jayyousi's attorney, Marshall Dore Louis. ``It just inflames the jury against bin Laden more than they already are.''

They love Osama

That's the prosecution theme in the Jose Padilla trial.


It started in opening. And it continued yesterday with the government calling al Qaeda expert Rohan Gunaratna. This is all leading up to the government playing a CNN interview with Osama bin Laden, which Judge Cooke already has said portions can be played.

So can this evidence link any of the defendants to any al Qaeda attacks? According to Jay Weaver:

None of the evidence presented in the Miami trial links the three men to the Sept. 11, 2001, terrorist attacks or any other alleged al Qaeda attacks during the previous decade.

It's not even clear to me why this expert or the CNN tape is relevant to the charges in this trial. The CNN tape is relevant, the government says, because two of the defendants (not Padilla) watched it and discussed it. Hmmmm. Think about that for a second. You better start thinking about the shows you watch or the websites you visit.

As for Padilla's argument that he only was captured on tape a couple of times, here's Curt Anderson describing the re-direct of the government's case agent:

On Monday, he also said Padilla likely spoke with Hassoun on many more occasions than the seven substantive telephone intercepts on which his voice appears. They met at a mosque in Florida, Kavanaugh said, and also used letters and human couriers to communicate.

Huh? "Likely"? What does that mean? Where's the actual proof? Isn't that what the tapes are for? They recorded hundreds of thousands of calls, but they "likely" spoke on other occassions not captured?

But they loved Osama.

For me, the real controversy is how to spell al Qaeda (Miami Herald spelling). Or is it al Qaida (AP spelling). Blogger doesn't like either spelling.

Monday Morning...

Monday morning has me swamped....

So, if you are interested in the big Supreme Court decisions that came out today (including the Bong Hits for Jesus case), check out Scotusblog.com.

If you are interested in reading a great legal blog, check out the WSJ blog.

If you want fun legal gossip, check out Abovethelaw.com

And if you want some law and some other interesting stuff all mixed together, check out Althouse.

And there's always Rumpole for our state court updates.

Will get back to SDFLA news as soon as I can.

More discovery leaks in the Miami 7 case

This case -- this is the "terrorist" case about the 7 guys in Miami who discussed blowing up the Sears Tower in Chicago -- hasn't been in the news in a while. The last time it was, we were discussing leaks. Here we go again.

This time prosecutors made public the post-arrest statements of the defendants. And the defense lawyers are none too pleased. According to Vanessa Blum of the Sun-Sentinel:

Defense lawyers for Abraham and Augustin lashed out at prosecutors for publicly filing the statements from their clients, which they are trying to keep out of the trial.

A summary of statements themselves:

The man federal authorities accused of plotting with an al-Qaida operative to bomb the Chicago Sears Tower and government buildings in Miami told FBI agents he was trying to hustle a man he knew as Mohammed for money.At first Narseal Batiste, a Liberty City resident, denied ever discussing such attacks, according to notes from an interview conducted after his arrest exactly one year ago.

He changed his story after the agents played a videotape showing him and several accused associates reciting an oath of allegiance to al-Qaida and Osama bin Laden. The pledge was led by an informant working undercover for the FBI who called himself Mohammed and posed as an al-Qaida contact from Yemen."I can't believe I got these guys into this," Batiste said after watching the video, according to the FBI notes.

Happy meal lawyer sanctioned

Judge Laurel Myerson Isicoff ordered William P. Smith, of the famous comment that the judge was "a few french fries short of a Happy Meal", to take an online course in professionalism administered by the Florida Bar. Smith could have had his pro hac vice license pulled, which would have been a big blow to his practice. In addition, he is going to do pro bono work and has agreed to step down as the head of McDermott Will & Emery's bankruptcy practice.

Did this thing get a wee bit overblown? Thoughts?

TMZ ordered to show cause...

...for posting the entire book IF I DID IT -- OJ's "fictional" account of the murders. Bankruptcy Judge A. Jay Cristol (pictured) had a hearing on the emergency motion today and ordered TMZ to show cause why he should not hold them in contempt. Here is trustee Drew Dillworth's* motion.

Some background from the Smoking Gun:

A court-appointed bankruptcy trustee wants a gossip web site held in contempt for its publication yesterday of the entire manuscript of "If I Did It," O.J. Simpson's purportedly fictionalized account of the murder of his ex-wife and a male friend. The "exclusive" posting of the 235-page book by TMZ.com came days after a federal judge ruled that the work's copyright can be pursued by the family of the late Ron Goldman, who was murdered along with Nicole Brown Simpson in June 1994 (Simpson was acquitted of the killings). According to an emergency motion by Drew Dillworth, the federal trustee, the web site's posting of the manuscript in a downloadable PDF format has likely "diminished or destroyed" the value of the book, which the Goldmans may eventually publish (and promote) as Simpson's confession.

*Disclosure: Drew Dillworth works at Stearns Weaver where my wife works.

Caruso on cross

Lead Jose Padilla lawyer, Michael Caruso, cross-examined the lead FBI agent today and by all accounts, did a ton of damage.

The agent conceded that Padilla never used any of the code words that the other defendants had used. And he admitted that Padilla was focused on learning Arabic and memorizing the Koran. Some examples from the AP article:

Caruso asked Kavanaugh if Padilla ever was heard using what prosecutors say were code words for violent jihad, such as "picnic," "smelling fresh air" or "eating cheese."
"No, he does not," Kavanaugh replied.

***

Caruso asked Kavanaugh if Padilla was ever overheard discussing jihad training.
"No jihad training that I've seen," Kavanaugh said.

***

"He's not referring to anything here but studying Arabic, correct? Study means study, right?" Caruso asked.
"That's what they're talking about," Kavanaugh testified.

More on Caruso's cross from the Miami Herald here.

This isn't the first time that the defense has scored points on cross. See here and here and here and here. My wife says boring (but she's watching a rerun of Brothers & Sisters, so what does she know!). I say fascinating.

My wife says this blog is boring.

Broward Circuit Judge Larry Seidlin resigns

The DBR has the scoop here. First Judge Korda, and now Seidlin...

You remember Judge Seidlin -- the one who cried during the Anna Nicole litigation. State court, especially in Broward, seems so much more exciting than the Southern District, no?

I'm sure lots of commentary to follow from the Broward Blog.

Back to the Padilla trial

The Padilla trial was back in action yesterday.

According to the AP, "William Swor sought to prove his client Kifah Wael Jayyousi was driven to charity by his compassion for his fellow Muslims, not to supporting terrorism, a defense that began last week."

The Herald also covered the defense cross of the agent here:

''It's clear from Dr. Jayyousi's state of mind that he was concerned about getting relief to the Chechnyans in Russia,'' said defense lawyer William Swor, citing one FBI-intercepted phone call in March 1995.
''He made such statements,'' FBI Special Agent John T. Kavanaugh Jr. acknowledged under cross examination.
Kavanaugh has been on the witness stand for the past two weeks in the terror trial against Jayyousi, Adham Amin Hassoun and Jose Padilla, asserting the three Muslim men used code words such as ''tourism'' for ''jihad'' to conceal their true militant mission.

And Vanessa Blum has this very interesting article about Jose Padilla's conversion to Islam, which occurred while he was in the Broward County Jail. After he converts and is released, he gives a radio interview which Blum obtained and covers. Definitely worth a read, but here's a snippet:

Upon his release from jail, Padilla called Islamic organizations out of the Yellow Pages seeking a Koran, the holy text of Islam.He also took a job at a Taco Bell in Davie. The manager, Mohammed Javed, who was Muslim, finally gave him a copy of the Koran, Padilla says. Javed could not be reached for comment.
"I stuck to the book and just read and read and read," Padilla says. "I read it once and then I went back and read it twice."Javed invited him to attend a South Florida mosque. When Padilla saw the clothing and the worshipers' turbans, he recalled his vision."I said 'yes' this is it," Padilla says. "This is what the Almighty wants me to be."At the end of the interview, the host asks Padilla for his advice to non-Muslims."Don't believe all the propaganda that is being portrayed out there about Islam, about terrorism and extremists," Padilla replies.

"How did you know Judge Paine was on vacation? He wore a plaid shirt to work."

That's from the Palm Beach Post's coverage of Judge James C. Paine's retirement from the Southern District of Florida. Judge Paine is a President Carter appointee and has been a favorite among SDFLA practitioners because he judges from the old school. More from the article:

If you ask a passel of South Florida lawyers about Paine - winners or losers in cases from all quarters - many will mention his impartiality and demeanor. That he is the perfect persona of a judge, and still a humble human being.
Paine, of Palm Beach, spoke at the reception, saying he was flabbergasted by the number of people who came out on the rainy day. "You folks are awfully nice to be here," he said in the genteel way the lawyers speak of.
That is not to say that he demurred from bold statements, very bold.
In 1991, Paine called for controlled substances to be legalized. Drugs. Marijuana. Cocaine.
In a speech to lawyers, he described how the federal courts were overwhelmed with drug prosecutions and that he believed the war on drugs was lost.
"Alcohol didn't cause the high crime rates of the '20s and '30s, Prohibition did. And drugs do not cause today's alarming crime rates, but drug prohibition does," the judge said then.
South Florida's chief federal prosecutor at the time recalls it was a stunner. Former U.S. Attorney Kendall Coffey said Paine's comments started legitimate debate on the topic. "When a person with that high level of respect makes those remarks, they continue to resonate," Coffey said.

All the best to Judge Paine. We'll miss having you on the bench.

I have no idea what to title this post...

This week's Neighbors section in the Miami Herald profiled a local lawyer, Carolyn Kellman, AKA CK (pictured at left, from the Herald article). She works at Adorno & Yoss. From the article:

Passions du jour: I love accessories because they make an outfit. They don't have to be expensive but it should be coup de coeur (love at first sight). Fabulous stiletto shoes and soft, smooshy, large leather bags. I love black clothes, which I think has to do with being a New Yorker. You can take the girl out of New York but you can't take New York out of the girl.

Look: I like to mix high and low with new and old. Sophisticated, yet fun. I want to stand out for my unique fashion flare.

Here's her bio on A&Y. Her experience: Collections, Landlord/Tenant disputes, and workouts.

More: "Carolyn Kellman is a Partner in the Firm's Miami office and member of the Collections Department. Ms. Kellman focuses her practice in large-scale commercial collections with an emphasis on stipulated settlement workouts and landlord tenant workout and lease issues. She represents numerous national collection agencies, assisting them with resolutions with South Florida debtors. She also acts as a "lawyer-liaison" for clients who want their countrywide collections administered by a sole source."

Rumpole has been saying that I'm stealing his stuff, so I've moved away from his state court coverage to this piece, which is more like, say, AboveTheLaw..... I guess I'll go back to Padilla tomorrow. Hope everyone had a nice Father's Day weekend.

You can't make this stuff up...

Pot smoking judge resigns.

Judge of 50 years resigns for sexual comments.

Lawyer really really really sorry for happy meal comments to judge. (previous coverage here).

And police officers arrest man for asking them for warrant before cutting down his tree during the citrus canker days.* Then they make him watch the cutting down of said tree before throwing him in the slammer for 18 hours. Happy ending -- After a trial before Judge Lenard, a jury awards man some money.

Keep laughing Mr. Lat!!

*The cutting down of our fruit trees was perhaps the dumbest policy decision ever in this State. Is everyone still enjoying their $50 giftcards? (But I'm biased: See Markus v. Department of Agriculture, 785 So.2d 595 (3rd DCA 2001)).

News and Notes

1. There's a bunch of reaction in the comments and in articles this morning to the life sentence recommended by the jury in the Kenneth Wilk case. Here's the Herald article and the Sun-Sentinel article. Both mention that the majority of jurors were against the death penalty. I'm not sure what that means because the jury had to be "death qualified." I think Wilk's jury consultant will be getting a bunch of calls soon.

2. Julie Kay covers an interesting case where a NYSE company asked that its directors' addresses be removed from an animal rights' website. Judge Hurley denied the motion. So, you can get these addresses from websites, but we still can't get plea agreements online. Explain! (And to be clear, I'm not saying that I disagree with Judge Hurley's decision. What I really cannot understand is our District's policy of keeping public documents offline.)

3. Rumpole has been following the strange circumstances surrounding Judge Gerald Klein's recent resignation in state court. The DBR has lots of coverage today, including the resignation letter.

Big firm salaries in Miami

Above the law covers Miami salaries here.

From an April DBR article:

Playing its hand in the South Florida associate pay stakes, Greenberg Traurig raised the starting base salaries of its rookie lawyers in Miami and Fort Lauderdale to $135,000 and their total compensation packages to more than $150,000....
The base salary of Greenberg’s first-year lawyers now will match that of White & Case, which in February announced that it had raised first-year salaries to $135,000 in Miami.
Holland & Knight, Hogan & Hartson and Akerman Senterfitt recently raised salaries for rookie lawyers to $130,000 in South Florida.
Hunton & Williams has raised its first-year salaries to $145,000 in Miami. Two New York-based firms, Weil Gotshal & Manges and Boies Schiller & Flexner, pay first-years $160,000 in their South Florida offices.


Any thoughts?

Kenneth Wilk sentenced to life

Most people that I spoke to thought that he was going to get death, but as I said earlier, the federal death penalty is very difficult to achieve:

The death penalty phase is coming up. Although many death penalty advocates will point to this case as the prototypical case for death (the admitted shooting of a cop), I'd be surprised if Wilk gets sentenced to death. The federal death penalty is an almost extinct dinosaur. The standards for being qualified to do a federal death penalty case are so high that the lawyering is always at a very high level, as it was in this case.

Any reaction to the life sentence?

More Padilla and Wilk stuff

1. Jose Padilla's voice was heard again today in Court. Apparently that's newsworthy.

2. The AP's request (earlier coverage here) for same day access to the tapes played by the Government was denied, but the Court gave the media next day access.

3. The Miami Herald has written about the lead prosecutor and lead defense lawyer in Kenneth Wilk's trial. Here's the story about Assistant U.S. Attorney John Kastrenakes and here's the one on Bill Matthewman.


on the left is Bill Matthewman's picture from the Herald article and on the right is John Kastrenakes' picture from the Herald article

Alberto Gonzalez in town

Julie Kay covers Alberto Gonzalez's talk yesterday in Miami:

U.S. Attorney General Alberto Gonzales came to Miami Monday to talk about the threat of nuclear terrorism worldwide — but ducked questions about whether he will keep his job and about a new immigration judge scandal involving his Department of Justice.

"Ducked"? More like a sitting duck...

Gonzales was the luncheon keynote speaker at the Global Initiative Nuclear Terrorism Law Enforcement Conference in Miami. Law enforcement officials from 36 countries are attending the weeklong conference, featuring speakers including FBI Director Robert Mueller and New York Police Commissioner Raymond Kelly. After his speech about how countries must work together to intercept and foil plots by terrorists to acquire nuclear weapons, Gonzales fended off questions from reporters at a brief news conference. His demeanor was calm, even bemused. He didn’t seem ruffled, as he frequently was during his recent testimony before the Senate Judiciary Committee investigating the alleged political firing of eight U.S. attorneys.

Why be upset? Why get ruffled? He works for the Decider!

When asked how he can be effective while facing an unusual no-confidence vote in the Senate Gonzales said: “I’m not focusing on what the Senate is doing, I’m focusing on my job. That’s what the American people expect. I serve at the pleasure of the president.” By deadline Monday afternoon, the Senate had not yet voted on the non-binding resolution. When asked about an editorial in the New York Times Monday calling for his ouster, Gonzales laughed and said, “I haven’t read it.” Like President Bush, he said, “I remain focused on sprinting to the finish line. The issues we’re working on are too darned important. That’s why I’m here today talking about global terrorism. That’s why I was in Mexico recently talking about violent crime.” When asked by a reporter if he could still be effective in his job, he answered: “I’m still meeting with my counterparts and they’re interested in meeting with me.” Gonzales also was asked about a report in Monday’s Washington Post that the Bush administration and the Justice Department emphasized Republican Party loyalty over expertise in selecting immigration judges.

Read a newspaper?! Ha! No need to read newspapers! Let's go sprinting.

Gonzales declined to comment on the Post report except to say, “I don’t approve of practices that are not permitted by law.” He also deflected questions about why Jose Padilla, currently standing trial in Miami with several co-defendants for allegedly plotting acts of terrorism, was never indicted or charged with plotting to detonate a radioactive dirty bomb, as the Justice Department originally accused him. “He’s currently on trial and it would not be appropriate for me to comment,” he said. But he’s not standing trial for the dirty bomb charge, a reporter countered. “I will not comment on any activities involving Mr. Padilla that are not in the indictment,” Gonzales responded.

Yes, he left that to his predecessor John Aschcroft.

There's a new warden in town

The current warden of the Federal Detention Center in Miami, Florida -- Loren Grayer -- is moving. No word yet on the new warden.

Maybe I'm a sucker, but...

... I feel bad for Paris Hilton.

If she wasn't a celebrity, she wouldn't be treated this way. She'd be on house arrest right now and that would be it. She probably wouldn't have even gotten the 45 day sentence in the first place (for driving with a suspended license).

I actually think the fight between the judge and the jail as to who controls release dates and other prison decisions is very interesting. Most would think that of course the judge trumps the jail, but criminal practitioners know that judges oftentimes defer to jailors and marshals even though I believe that judges would and should win if a true showdown occurred.

Here's a prior post about a judge not backing down to the jail in a case that I was involved with.

11th Circuit quote

A tipster emails me:

Oral argument in the 11th Circuit on Thursday in a sexual harassment case where the defense was, apparently, that the sexual gestures/advances were welcomed by the receiver.

Judge Wilson made the point that, even if there was no sexual harassment at the outset, it at least became a jury question by the end, when defendant allegedly had opened his pants to the plaintiff in the workplace and exposed his genitalia to her, to which defendant's counsel replied, as best I recall:"I cannot leave the inflammatory comments from Judge Wilson hanging out there." Not the best choice of metaphor . . .

Judge Cooke keeps jurors happy...

... according to the NY Times:

The trial is expected to last months, and Judge Cooke has taken pains to keep jurors happy — letting them take Monday off, for example, because one is getting married over the weekend and wants a break.

The tapes have been playing and there has been lots of dispute as to what an FBI agent could "translate":

The intercepted calls, many in Arabic, are crucial to the government’s case. But on the surface, they seem to have nothing to do with terrorism — one caller, for example, tells Mr. Hassoun of plans to go on a picnic and smell fresh air.
All week, defense lawyers fiercely protested the government’s plan to let an F.B.I. agent who led the investigation tell jurors his interpretation of such words, so-called code for terrorist activities. The agent, John T. Kavanaugh Jr., testified that the defendants spoke in code because they suspected their calls were being monitored.
Judge Marcia G. Cooke responded to the defense by limiting what Mr. Kavanaugh could say about the conversations and telling the jurors his interpretations were nonexpert opinions.

Friday, jurors heard Jose Padilla's voice for the first time:

Mr. Padilla mumbled and chuckled throughout the conversation played Friday, sometimes calling Mr. Hassoun “bro.” Mr. Hassoun appeared impatient, asking Mr. Padilla if he was “ready.”
“Inshallah, brother,” Mr. Padilla replied, using the Arabic for “God willing” and urging Mr. Hassoun to have patience. “You know, it’s going to happen.”

Trial resumes Tuesday.

Juror didn't follow Court's instructions

This particular (alternate) juror in the Wilk case got caught not following the Court's instructions. I wonder how often stuff like this happens.... Check out this Sun-Sentinel article about a juror who was posting comments on web about the case:

For six weeks, jurors in the trial of Kenneth Wilk sat in court and heard a lot of evidence about how easily people can get tripped up by their online comments.On Wednesday, an alternate juror got kicked off the jury after she admitted posting a comment online about the case during the trial. The woman was not one of the 12 jurors who convicted Wilk on Tuesday for the murder of Broward Sheriff's Deputy Todd Fatta, but she had been scheduled to return to court today for the death penalty phase of the trial.
Kimberly Ann Martin told the trial judge she posted a comment on the Internet because she was upset by other readers' remarks attached to a news article. She did not identify which Web site she visited or when but said she wrote that nobody, other than Wilk and police, knows what happened in Wilk's Fort Lauderdale home .U.S. District Judge James Cohn had warned the jurors and alternates every day of the trial that they were not to get any information about the case, other than evidence presented in the court. They were not to discuss the case with anyone, they were not to read about it in newspapers, watch anything about it on TV, and they were not to get any facts about it online.Cohn was clearly displeased by the juror's answers and said she had a somewhat "cavalier attitude" but told her he would not punish her because he could not say she intentionally violated his orders. She could have been called on to decide Wilk's fate if one of the 12 jurors is unavailable. Only one alternate juror remains.Martin said she did not read the news report but clicked on a link at the bottom of the article, read other readers' comments and added her own."I didn't think I was really violating [the order] by reading the comments," she told the judge. "I didn't think it was facts, I thought it was opinions... I also thought I didn't discuss the case."Martin's actions came to light because the judge and attorneys on the case were trying to find the identity of a person who posted another online comment to a Sun-Sentinel.com report, claiming to have been a juror who was excused from the case during trial. "Burrowingowl" predicted on May 24 that Wilk would get life in prison because there are "a few jurors I can't see going along with the death penalty." The person, who has not been found, knew other details that indicated he or she was in court.

The death penalty phase is coming up. Although many death penalty advocates will point to this case as the prototypical case for death (the admitted shooting of a cop), I'd be surprised if Wilk gets sentenced to death. The federal death penalty is an almost extinct dinosaur. The standards for being qualified to do a federal death penalty case are so high that the lawyering is always at a very high level, as it was in this case. Thoughts?

Vamos a Cuba

Remember the book controversy over "Vamos a Cuba"? A year ago Judge Gold ruled that the School Board violated the First Amendment in banning the book. The Eleventh Circuit heard argument. From the AP:

In the hearing on Wednesday, Senior Circuit Judge Donald Walter, outlining a hypothetical situation, asked ACLU attorney JoNel Newman whether it would be acceptable to remove a book about Adolph Hitler that failed to mention the Holocaust.
"The political reality in Cuba is not what the book is about," Newman said, arguing the book about Cuba focused on daily life on the island, not Castro. "The school board can't remove it because it wishes to inject a political message into it."
Overruling the decision of two academic advisory committees and the county school superintendent, board members voted last year to remove the book after a parent who spent time as political prisoner in Cuba complained. Critics of the book say it does not mention Cuba's alleged lack of civil liberties, the political indoctrination of public school children, food rationing and forced child labor.
"These books are rife with factual omissions, misrepresentations and inaccuracies," said Richard Ovelmen, the school board's attorney.
The move was contested in federal court, with the judge ruling last summer that the board's opposition was political, and the issue would best be addressed by expanding the collection instead of removing books espousing views with which the board did not agree.
Circuit Judge Ed Carnes noted that "there's a difference in enormity" between the Holocaust and actions by Castro's government, but that Walter's hypothetical addressed the "omission of facts."
The 2001 book by Alta Schreier contains images of smiling children wearing uniforms of Cuba's communist youth group and celebrating the country's 1959 revolution. In discussing the daily life of Cuban children, the book says they work, study and play the same way children in other countries do.
Walter and Carnes both took issue with that premise.
"That's simply not true," Carnes said.
Carnes also presented his own hypothetical, asking Newman if a book about North Korea could be pulled from shelves because it failed to mention problems in that communist government.
Newman said such political discussions should not be required for books for elementary students.
The court did not indicate when it would rule.

"The value of freedom is found not only in the larger issues of life but also in the fanciful and strange."

So said Judge Middlebrooks about a naked protester in a case that went all the way to the Supreme Court.

The case involved what it means to be the prevailing party in a civil rights case. Here's David Savage, from the LA Times on the case:

The Supreme Court's first ruling on an Iraq war protest is not likely to be remembered as a landmark in the law. In a 9-0 ruling, the justices rejected a claim for legal fees filed on behalf of a Florida nudist who wanted to form a peace symbol out of naked bodies on a state beach.Toni Anne Wyner's planned demonstration ran afoul of the state's Bathing Suit Rule, which, as its name suggests, requires beachgoers to cover up. In February 2003, she went to court to challenge this rule as a violation of her 1st Amendment right to free expression. In the past, the Supreme Court has said that nudity and nude dancing can be a form of expressive conduct, though it can be regulated. At first, a judge saw merit to her complaint and allowed the nude protest to take place — but behind a screen, to shield other beach patrons at John D. MacArthur Beach State Park in Palm Beach County. "The value of freedom is found not only in the larger issues of life but also in the fanciful and strange," said U.S. District Judge Donald Middlebrooks. He continued: "Protesting a potential war through naked protest seems a bit quixotic, but it is also part of the freedom that both those supporting the war and those who oppose it seek to protect."After forming their peace symbol behind the screen, the nudists went into the water naked. When Wyner went back to court seeking a permanent order allowing such protests, the judge refused and ruled for the state. However, he said that the civil liberties lawyers who represented Wyner were entitled to be paid because they had won at least one round of the litigation. The Supreme Court reversed that decision Monday in Sole vs. Wyner. Federal law entitles the "prevailing party" in a civil rights or civil liberties case to obtain legal fees from the government. "Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral," Justice Ruth Bader Ginsburg wrote for the court. A plaintiff who wins a preliminary injunction, then loses on the merits, wins a battle but loses a war, Ginsburg wrote.

Case changes focus

Prosecutors have changed the focus of the trial from Jose Padilla to Kifah Wael Jayyousi. Here's the AP report on how it started:

A Muslim convert testified Tuesday that he grew suspicious and distanced himself from the leader of an Islamic charity after an associate returned from war-torn Chechnya with part of a leg missing from a land mine explosion.
Jeremy Collins, 33, said he worked at American Worldwide Relief that was headed by Kifah Wael Jayyousi, who is on trial along with alleged al-Qaida operative Jose Padilla and an another man on charges of contributing to Muslim extremist causes worldwide. All three face life in prison if convicted.
“It was just chaos. There was no relief work,” Collins said he learned from his associate. “There seemed to be more fighting than relief work.”

Collins’ testimony focuses on Jayyousi’s years in San Diego, well before Padilla, a U.S. citizen held for 3½ years as an enemy combatant, came on the scene.
Questions about the organization also were raised when the group’s $20,000 satellite telephone was shut down in early 1996 at the request of the Russian government, said Collins, who was the organization’s then-vice president.

Wilk guilty

blogging from the road....

--------------------
Wilk guilty of 7 counts in murder of BSO deputy, wounding of another
--------------------

By Paula McMahon
Sun-Sentinel.com

June 5 2007, 4:40 PM EDT

FORT LAUDERDALE -- Jurors in a federal death penalty case convicted Kenneth Wilk on Tuesday of three capital counts in the murder of a Broward Sheriff's Office deputy and the wounding of another deputy almost three years ago.

The complete article can be viewed at:
http://www.sun-sentinel.com/news/local/broward/sfl-65wilk,0,3625341.story?coll=sfla-home-headlines

Judge Altonaga is busy...

In addition to the 400 plaintiffs to be tried 5 at a time, Judge Altonaga also has the "child camel jockey" case, which was profiled this weekend in the NY Times:

The plaintiffs are thousands of boys from South Asia and Africa who say they were abducted, enslaved and forced to ride racing camels to entertain the rich in the Middle East. The defendants live in the United Arab Emirates.
But the case is pending in Miami, and the jockeys are represented not by human rights groups but by Motley Rice, a leading contingency-fee class-action firm based in South Carolina known for its work in tobacco, asbestos and other domestic injury cases.
The class-action bar is going global. Until recently, international human rights cases in American courts were brought mainly by public interest lawyers more interested in calling attention to abuses and in establishing universal legal standards than in a potential payday.
The prominent plaintiffs’ firms, their critics say, are in it for the money. And the fact that they have started to embrace international human rights law may be a reflection of the relatively limited opportunities left in domestic class-action suits after legislative and judicial efforts to cut them back.

Verdict in the NCL trial

Well, the first five plaintiffs can't be happy they went first in the case involving 400 plaintiffs against NCL for cruising through a big storm. They were zipped. Now what? I've heard that Judge Altonaga plans on using the same jury again in three months for the next five plaintiffs. Do they get to retry liability? Anyone in the know have any insight on what's the next step assuming no settlement.

AP files motion in Padilla case

A tipster tells me that the AP has filed a motion requesting access to the tapes that the government is going to play for the jury in the Jose Padilla case. The government says that the press can have them a day after the jury hears them. More to follow...

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.

News and Notes

1. Mario Claiborne has died, via Scotusblog. This is big news for judges, prosecutors and criminal defense lawyers around the country who have been waiting for the Supreme Court to decide United States v. Claiborne, which was to give us all more guidance on how sentencing hearings should be conducted post-Booker.

UPDATE -- the Supreme Court dismissed the case on June 4.

2. The DBR follows up on the Happy Meal comment to Bankruptcy Judge Laurel Myerson Isicoff that we covered earlier. Now that we are the DBR affiliate blog, we thought that we might get some props along with Abovethelaw, who broke the story...

Classic Miami posts

The boys over at Rakontur (Alfred Spellman and Billy Corbin) have started a series of posts titled Classic Miami. They are fun reading. Here's the latest re Jim Morrison. These are the guys who made the great documentary Cocaine Cowboys. If you want to watch a really interesting, well-done, and thought-provoking film, you have to check out Raw Deal, which is a documentary that Spellman and Corbin did on the "rape" case at the University of Florida. I highly highly recommend it.

Wilk jury out till next week!

I'm sure the prosecutors are not happy about this -- the Kenneth Wilk jury deliberated all day yesterday and then asked to be excused until next week because of various conflicts. They may very well convict, but the prosecutors must be asking themselves what is taking so long...

Shaq sighting

So I was in the federal courthouse this morning when I saw Shaq in an elevator surrounded by a bunch of Marshals. Before I could get my card out, a court security officer told me that he was there to be sworn in as a deputy marshal... Here is a picture of him being sworn in as a police officer.

Weekend reading...

Hope everyone had a nice holiday weekend.


The Wilk jury continues its deliberations tomorrow. The prosecution cannot be happy that they are still out and that they didn't come back quickly. The defense can't be happy that they were home over a long weekend where they would be pressured by family and friends to get it over with and convict. Ahhh, the stresses of having a jury out deliberating. There is nothing worse...

The Christian Science Monitor has been doing a very nice job covering the Padilla trial. Here's an article about the other two defendants in the case, Adham Hassoun and Kifah Jayyousi. And the article covers this fun exchange:


In testimony last week, FBI translator Majed Sam acknowledged that it was up to him to decide which conversations to translate. But he said he pursued no FBI agenda. "My goal is to translate everything in as accurate English as I can," he told the jury.
During cross-examination, Jayyousi defense lawyer Marshall Dore Louis asked Mr. Sam whether he was familiar with the American term "to cherry-pick."
"It means selecting what you want to select," Mr. Louis said.


Yes," Sam agreed.
At the conclusion of his cross-examination, Louis returned to that theme. He asked if Sam was familiar with other American terms: paint with a broad brush, stereotype, prejudice, bigotry.
Sam answered that he was familiar with each term.
The move appeared to be an effort to encourage the jury – made up of three African-Americans, four whites, and five Latinos – to closely scrutinize whether the government was using stereotypes and prejudice against Muslims to try to win convictions.
Later when the jury was excused for the day, Assistant US Attorney Russell Killinger complained to the judge about Louis's questions. "They were totally improper and uncalled for," he told US District Judge Marcia Cooke.
"I was a little surprised myself," the judge said.
Louis said he didn't mean to imply the translator was himself bigoted. His questions were intended to highlight the way the government is presenting its case.
"That's [an] argument" that can be presented later in the trial, the judge told Louis. "This witness didn't deserve those kinds of questions," she said.
Jeanne Baker, a lawyer for Hassoun, disagreed. "There is a right we have to advance our themes," she said.
Judge Cooke said the questions crossed the line into impermissible argument. "Everyone is on notice," she said.

Dore Louis has been no shrinking violet in this trial....

And here's the AP covering Judge Cooke, with only nice things to say of course...

"[You are] a few French Fries short of a Happy Meal."

That's what a lawyer (a partner from McDermott Will & Emery -- Chicago) said to bankruptcy Judge Isicoff here in the SDFLA. Here's the whole story and the transcript from Abovethelaw.com.

Wilk jury deliberating...

The Miami Herald and Sun-Sentinel have stories about the Kenneth Wilk trial going to the jury. Closing arguments were heated... From the Herald:

Wilk's home had been targeted in the past by gay bashers and Wilk had been threatened over the Internet, [Defense lawyer Bill] Matthewman said.
''They're busting into a man's house, his castle, and they know he has hearing loss,'' Matthewman said.
But prosecutors contend Wilk ambushed the officers that morning, saying he was obsessed with police officers and stockpiled guns for just such a day.
Prosecutors have said Wilk repeatedly indicated he wanted to harm police officers for what he saw as unfair child-pornography charges against his partner, Jones.
''No, the defendant didn't know the day they'd come,'' prosecutor Neil Karadbil said during closing arguments. ``No, he didn't know the time, but he was ready when they did.''
Wilk has simply made up excuses for his actions, Karadbil said, criticizing the defense's contention that Wilk suffered from severe hearing loss and AIDS-related dementia.
Wilk suggested Jones use the same defense after Jones' was arrested, Karadbil said.
''He thinks he can explain away everything in the case,'' Karadbil said. ``He thinks he's the smartest man in the room, but what he is, more than anything, is a liar.''
If convicted of the murder charge, Wilk could receive the death penalty.
The panel of eight women and four men began deliberations just after 3:30 p.m. Shortly after, the jurors asked U.S. District Judge James I. Cohn for a transcript of Wilk's testimony. Cohn told jurors there was not a copy of the transcript available for them and to rely on their recollection. The jury will resume deliberations today.

The prosecution got so upset, it made a completely inappropriate remark that will be looked at very carefully by the 11th Circuit if there is a conviction. From the Sun-Sentinel:

One comment the prosecutor made caused the defense to ask for a mistrial.Kastrenakes had ridiculed the defense's experts and remarked about how they were being paid by taxpayers."Where's our tax dollars going -- to pay them?" Kastrenakes asked the jury.The defense objected. Later, when the jury was out of the courtroom, U.S. District Judge James Cohn said jurors could interpret the comment to mean that the defense was wasting jurors' money on Wilk's defense.Kastrenakes said his comment was about the "value we are getting as citizens." The defense noted that taxpayers pay for prosecution witnesses too.The judge said he had to tell jurors to ignore the comment."That is a totally improper argument and you are to disregard it," Cohn told the jury.Wilk has a constitutional right to have the court pay for expert witnesses and the way the money was spent was not an issue in the case, Cohn explained.

Exciting news!

I am excited to announce that we are the new affiliate blog of the Daily Business Review. The look and feel of the blog will remain the same (although they are planning on spiffing it up in the near future). More about this soon...

How to catch the bad guys...

Laurie Stein interviews Dan Fridman (here's the video and the print version), who will be returning shortly to this District as an AUSA, about a new training seminar on how to catch internet pornographers:

"Project Safe Childhood", based in South Florida, is the he first conference of its kind. It brought local, state and federal agents together to track and catch online predators.

Another SDFLA connection here -- Stein is married to Mike Tein of Lewis and Tein.

Louis Robles plea deal rejected

Judge Alan Gold refused to accept the deal agreed to by prosecutors and defense lawyers which would have resulted in Louis Robles, the 59 year old asbestos lawyer, serving 10 years in federal prison (previous coverage here). The deal also had the blessing of Tom Tew, the receiver in charge of getting victims paid.

Query -- does a federal judge have the power to reject this sort of deal? Because this is a charge bargain deal, can't the government just dismiss the other counts on its own, leaving only the ten year maximum count? I think the real question is whether the government will have the heart to do this after Judge Gold has said he will not approve the deal. If in our adversarial system of justice the prosecution believes that a deal is fair, should a judge step in? Please give your thoughts in the comments.

This is just another odd turn in this very odd case. Just last week, Judge Gold took Robles into custody because Robles' girlfriend said he was hiring a pilot to flee overseas. The government stated that they did not believe that the girlfriend was being truthful.

Round (week) one goes to...

... the prosecution or the defense?

You would expect that the first week of the Jose Padilla trial would be an overwhelming victory for the prosecution, but there has been a lot of debate about who has taken week one. The Chicago Tribune called the prosecutors "frustrated" with some of the inroads defense lawyers have made with their witnesses, most notably the training camp witness.

The Miami Herald today has two separate articles -- one by Jay Weaver saying: "Like savvy Hollywood directors, federal prosecutors opened the Jose Padilla terrorism trial in Miami with a grabber -- his alleged application to join al Qaeda."

The other by Ana Menedez, concluding: "Now the government must persuade jurors that the man who filled out his al Qaeda application as its No. 1 Slacker was really a dangerous terrorist. What emerged in week one was a slightly different picture: that of a former gang member adrift in the world. 'The Immigrant' admitted he hadn't worked in the military field and couldn't list any combat experience. From the application, he seems not so much a terrorist as the ultimate underachiever, the kind of guy who'd admit to carpentry skills, but would modestly leave blank the question asking him to list his 'intellectual abilities.' Maybe he just didn't want the job."

To get back to my theme for this trial -- This is why we need cameras in federal court. It's impossible to form your own opinion about what's really going on because we can't see it. We have to rely on newspapers which have all sorts of different opinions. Why no cameras?

And just for your enjoyment -- Slate now has this Padilla quiz. Take it.

More compelling testimony in Padilla trial

Today, a member of the "Lackawanna Six'' terrorist group testified in general about al-Qaida training camps and how one could get admitted to such a camp. Prosecutors will argue that Jose Padilla followed those procedures. This witness, however, could not link Padilla to the camps.

From the AP: Prosecutors say Goba's testimony is critical because it describes for the jury what went on at the al-Farooq camp, which the government claims Padilla attended in summer 2000. It also links the defendants to the al-Qaida terrorist group, even if indirectly.``Is it possible to just show up at one of the camps?'' asked prosecutor Brian Frazier.``No,'' Goba replied.``You had someone to help you _ someone known and trusted by al-Qaida,'' Frazier continued.``Yes,'' Goba said.But Goba said under questioning by defense lawyers that his intent was only to prepare to defend Muslims in areas where they were oppressed and persecuted, not to commit murder or other crimes. He said he never became a member of al-Qaida.``Are you now, or have you ever been, a terrorist?'' asked Padilla attorney Michael Caruso.``No,'' Goba replied.

Louis Robles taken into custody

Julie Kay breaks this story:

A federal judge has thrown disbarred Miami attorney Louis Robles back in jail after Robles' girlfriend told the court he was planning to flee the country before finalizing a criminal plea deal on charges that he stole millions from his clients. Last Thursday, U.S. District Judge Alan Gold in Miami issued an arrest warrant and ordered Robles’ $1 million bond revoked, calling him a flight risk. Robles, a nationally known Miami mass torts lawyer, was placed in federal prison May 11, days before Gold was set to decide whether to accept a plea deal for a 10-year sentence that was worked out between Robles and prosecutors.

The big question now is whether Judge Gold will accept the 10 year plea...

"Wilk ends testimony about why he killed Broward deputy"

Kenneth Wilk testified for seven days! The Sun-Sentinel reports: "At times during his testimony, the 14 jurors -- 10 women and four men -- looked intrigued. At other times, they looked bored. They are expected to start deliberating early next week."

Padilla's prints

Yesterday, the government and defense debated the significance of Jose Padilla's fingerprints on an al-Qaida training camp application. His prints are found only on the first and last pages, so the defense was able to establish that it was consistent with Padilla being handed the form. To add to their theory, the prints weren't tested until August 2006, after he was already in the brig for quite some time. If he was asked about the form in the brig, he may have handled it. Of course, the government will argue that the prints demonstrate that it was Padilla who filled out the form. Here's the AP coverage of the testimony.

Today, one of the New York men who pleaded guilty to terrorism support charges is expected to testify. Yahya Goba has said he filled out an identical form for the same al-Qaida training camp Padilla is accused of filling out a form for. Goba is serving a 10-year prison sentence and is cooperating with federal prosecutors.

Civil trial

A helpful reader has sent me the following email:

You're missing out on the big civil trial going on right now in front of Judge Altonaga. In 2005, the M/V Norwegian Dawn sailed into a storm off the coast of South Carolina while en-route from the Bahamas to NYC. A class action was brought against NCL, but Judge Altonaga denied certification. The case has proceeded with 400 named plaintiffs. After initially granting plaintiffs' motion for bifurcation, then reversing herself, Judge Altonaga ordered that all 400 cases be tried, five plaintiffs at a time.

The first trial commenced today, and it's expected to last at least three weeks.

The attorneys are Curtis Mase and Richard Lara for NCL; Brett Rivkind and Nicolas Sakellis for the plaintiffs.

Yikes. 400 plaintiffs, 5 at a time is 80 trials. 80 trials at 3 weeks a piece is 240 weeks or 4 1/2 years. I'm sure Judge Altonaga goes home every night and prays to the settlement gods.

Robin Rosenbaum in the DBR

Julie Kay follows up on our scoop here that Robin Rosenbaum in the new Ft. Lauderdale Magistrate.

Tom Langston?

That's the name used by the CIA agent who testified in disguise during yesterday's proceedings in Jose Padilla's trial. Jay Weaver reports:

The man who appeared in Miami federal court on Tuesday hid his identity as a CIA officer by using the alias ''Tom Langston'' and wearing a discreet disguise -- black-rimmed glasses along with a closely cropped beard.
Testifying as a witness in Jose Padilla's terror trial, he told jurors that only three months after the Sept. 11, 2001, terror attacks, an unnamed man in Afghanistan gave him a blue binder with dozens of documents.
Among them: a five-page form written in Arabic that would eventually lead federal investigators to conclude that Padilla had applied to join the al Qaeda terror network.

Here's the AP and the Sun-Sentinel report on the bizarre beginning to the trial.

They let this guy testify in disguise and I can't even bring my phone into the courtroom (it has a camera and is allowed in the building and in every other courtroom) or my briefcase (because it had a newspaper in it). I understand we need security but the lawyers are officers of the court.

My prior coverage of the disguise ruling can be read here. Judge Cooke has had another run-in with a witness wanting to wear an odd item to court. I loved how she handled that one!

Padilla trial day 2

Lots of good Jose Padilla coverage from opening statements yesterday.

But what caught my eye was this reporter's comments about the rules for press coverage:

But court security officers are enforcing an unusual rule for the trial, which is set to get under way with opening statements Monday. They are prepared to prevent members of the media from asking questions of defense lawyers or federal prosecutors at the trial.
In effect, newspaper, radio, and television reporters are being granted observer status – they may sit quietly, watch the trial, and take notes. But if during a court recess they approach a defense lawyer or prosecutor in the courtroom with a question, they risk being whisked away by security officials.
The ban on media questions also extends to the lobby outside US District Judge Marcia Cooke's courtroom and chambers.
If reporters need to ask questions for clarification or routine housekeeping matters during the trial, they must ask their questions somewhere else.

The reporter, Warren Richey, for Christian Science Monitor, then explains what happened to him:

I learned about this rule the hard way. During a recent five-minute recess during jury selection, I approached one of the prosecutors and asked who at the US Attorney's Office was handling questions from the press.
He gave me the name of a spokesperson and a telephone number. When I lifted my notebook to jot these down, a court security officer confronted me. He accused me of conducting an interview and asked me to step out of the courtroom.
I told him that I'd merely asked a question, but added that I'd never heard of a rule barring news reporters from asking questions, or even from conducting brief interviews in a courtroom at a public trial at a time when both the judge and jury were not in the courtroom.
Having covered scores of hearings and trials in the federal courts as a journalist, I am well acquainted with courtroom etiquette. But I have never heard of courtroom officials barring reporters from asking routine questions.

Other reporters spoke with Richey:

Neither has Associated Press correspondent Curt Anderson, who has covered the Padilla case closer than any other reporter. "I don't know of such a rule," he said in an e-mail. "I haven't had any problem talking with the various lawyers anywhere in the courthouse or outside, even in the courtroom itself during breaks."
Jay Weaver of the Miami Herald also says he is unaware of such a rule against journalist questions. "I would like to know what the ground rules are. It is going to come up," he says.

It will be interesting to see exactly what this rule is and how it's enforced. I'm all for protecting the rights of the defendant, and being especially careful in a trial like this is important. That said, the public has a right to see and understand this trial. I really believe we should have cameras in federal court. The Padilla trial should be watched in classrooms and studied. Instead, our country is left with images of OJ as how our justice system works.