Sorry about my rant the other day...

... about the comments on the blog.

But if you thought I was bad, check this out:

National news

Some interesting stuff in the papers:

1. John Paul Stevens is interviewed. (NY Times; Hat tip Rumpole). This is a fantastic article. One quote from the Justice who spends a ton of time in this District: “I don’t think of myself as a liberal at all. I think as part of my general politics, I’m pretty darn conservative.” He also explained this funny story:

Stevens also distinguished himself as the only justice to spend a substantial part of each Supreme Court term away from Washington. He and his wife have a condominium in Fort Lauderdale, Fla., and they spend two weeks a month there from November through April. ...“I do much more work in Florida than I do here,” Stevens told me, looking contented. He sometimes reads briefs on the beach. “One of my favorite memories is the time I was sitting” on the Supreme Court bench in Washington just after returning from Florida, he recalled. “I shook the sand out of the brief!”


2 . The job market isn't so great for law grads (WSJ; Hat tip WSJ blog)

3. District Judge Paul Cassell has resigned. (Sentencing Law & Policy)

West Palm movers

Julie Kay highlights this morning lots of movers and shakers in WPB. Notably Rolando Garcia has been named head of the West Palm Beach office of the u.S. attorney's office, where the numbers of cases is way up.

Blog change

I started this blog as a fun way to cover the Southern District of Florida, a court that I love.

During the past week, a number of comments (on this blog and others) and posts on other blogs have made it not so fun. I can't control other blogs and their comments, although I have tried to get the offending blogger to delete his inappropriate post. I even deleted the post about which he was commenting, but he now is linking to the cached page from Google, which I cannot control.

But I can control this blog's comments. I have changed the blog so that you cannot post anonymously anymore. I will delete any mean comment or any comment which I feel is inappropriate.

Anyway, sorry for this post -- but I feel strongly that the blog shouldn't be used to make people feel bad.

Friday afternoon fun

Some funny stories reported around the blogosphere today:

1. James Muirhead, a federal magistrate in New Hampshire, wrote a very funny order today based on Green Eggs and Ham after an inmate filed a lawsuit based on the food he was being served and attached an actual egg to the pleading. Here's part:

“I do not like eggs in the file. I do not like them in any style. I will not take them fried or boiled. I will not take them poached or broiled. I will not take them soft or scrambled Despite an argument well-rambled.” Thre rest of the order here.

2. Judge Posner, from the 7th Circuit, wrote an order about horse meat in which the court upheld an Illinois law making it unlawful to “slaughter a horse if that person knows or should know that any of the horse meat will be used for human consumption.” Here's the initial paragraph:

Horse meat was until recently an accepted part of the American diet—the Harvard Faculty Club served horse-meat steaks until the 1970s. No longer is horse meat eaten by Americans . . . though it is eaten by people in a number of other countries, including countries in Europe; in some countries it is a delicacy. Meat from American horses is especially prized because our ample grazing land enables them to eat natural grasses, which enhances the flavor of their meat.

Here's the opinion.

Check out page 11 -- which includes a picture of a lion eating a horse meat cake. No kidding. Here it is:

hat tips -- Wall Street Journal Blog and Above the Law.

District news

1. The Robles plea was accepted. Lots of news stories everywhere about it. There is a 15 year cap, instead of the 10 year cap previously agreed to by the parties. It will be interesting to see whether the government argues that a 10 year sentence is reasonable, notwithstanding the guidelines which I suspect will be a lot higher.

2. The Liberty City 7 case is underway. Again, lots of news stories about the jury selection and the start of the trial. Props to Judge Lenard for conducting a thorough voir dire. It looks like it will take a couple weeks to pick the jury in this case. That is appropriate considering the type of case it is and the press that has come with the case.

3. Last night Milton Hirsch had a constitution day party at his office. Here's the Joan Fleischman column about it. The office was packed with lawyers and judges. Federal judge sighting -- Judge Ungaro read the 15th Amendment, which states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

I read the Fourth Amendment. Does anyone remember that one?

UPDATED -- Here's a picture of Judge Ungaro, Judge Alex, his daughter, and psychologist Merry Haber:

One down, one to go...

Even though it looks like the District is about to lose the high-profile Louis Robles trial, we still have one other huge one starting this week -- "the Miami 7" trial. Here's Vanessa Blum's article outlining the start of the case. And here's Jay Weaver's, and the AP.

This is the trial involving seven guys from Liberty City who spoke to undercover officers about blowing up the Sears Tower in Chicago and other buildings in Miami. The government has described that group as "more aspirational than operational." Will their words and actions in this case be enough for conviction? How will the Jose Padilla trial sit in jurors' minds? Stay tuned -- same bat time, same bat channel.

Robles to take more time

Further to our post below, Robles will be taking 15 years and 3 counts. Wow. That is an awful lot of time for a first time non-violent offender.

If the government believes 10 years is just, how can it agree to this deal?

Sorry for the short and sloppy post. On the road today.

--David Oscar Markus
www.markuslaw.com
305-379-6667

Louis Robles to plead?

That's what Julie Kay is reporting. Apparently, a hearing is set for 9am tomorrow. I wonder if he is pleading to the original deal or taking more time. More to follow.

--David Oscar Markus
www.markuslaw.com
305-379-6667

Another high profile trial to start this week

This time it's USA v. Louis Robles. Here's Julie Kay's preview of the trial.

I'm sure both sides (defense -- Hector Flores; government -- Mike Davis and Luis Perez) were working hard this weekend, even though they had settled the case months ago. The problem is that the judge wouldn't accept the 10 year deal agreed on by the parties because he believed that the deal was too sweet for Robles, who turns 60 next year.

We've discussed this issue a number of times and we asked whether the government would simply dismiss the indictment and permit Robles to plead guilty to a 10 year count (or two five year counts). Well, it appears that the answer is no. So if Robles loses this trial, he will certainly appeal on this issue, and it looks like a good one.

So SDFLA readers, is this trial worth it? The government doesn't want it. The victims don't want it. The defense doesn't want it. The receiver doesn't want it. The trial will last about a month, costing the system six figures.

By the way, can you imagine if Robles walks?

Clerk of Court to move in mid-November

Clarence Maddox, clerk of the court for the Southern District of Florida, has resigned. He sent the following email today to the entire court:


Dear Friends:

Several weeks ago Chief Judge Moreno informed the District Judges of my interest in and pursuit of the Circuit Executive position in the Sixth Circuit. Earlier this week, following an interview with the Sixth Circuit Judicial Council, I was selected to succeed Jim Higgins as Circuit Executive upon his retirement later this year.

I discussed my interest in pursuing this position with Judges Moreno and Zloch last May, in the earliest stages in the application process, and I have kept Chief Judge Moreno apprised of my status in the selection process on a regular basis. This morning I informed Chief Judge Moreno of my selection and he wished me well, we had a brief discussion about planning for the transition process, and I assured him that I would work with the Court to provide for as seamless a transition as possible. In that regard, I may work closely with the committee chaired by Judge Lenard as a process for identifying a successor to the Clerk's position is outlined and implemented. I have not yet confirmed my start date with the Sixth Circuit, but I anticipate that I will commence my new duties in mid-November. Between now and then, I will likely have some limited travel to locations in the Sixth Circuit to participate in meetings with future implications for the Circuit.

My experiences these past eight years with the Southern District of Florida have enriched me personally and professionally, and I believe that we have accomplished a great deal together. I am grateful to you all for your support, understanding, and friendship, and it has been my privilege to have served and been a part of this great organization.

My most sincere thanks to you all for your support as well as my best wishes for your continuing success! cm

Clarence Maddox
Court Administrator - Clerk of Court
United States District Court for the
Southern District of Florida
301 N. Miami Avenue, Room 321
Miami, Florida 33128
(305) 523-5001

Thanks to a close friend of the blog for the tip. So, who should be the next clerk?

Sick (court)house

Julie Kay reports today on the serious mold problem at the David Dyer Building. The whole article is worth reading.

The intro:

Two studies performed at the historic David W. Dyer federal courthouse in downtown Miami show there are significant mold and air safety issues at one of Miami-Dade County’s oldest courthouses and suggest parts of the building are beyond repair.

The studies, which were obtained by the Daily Business Review, were commissioned by the U.S. District Court of the Southern District of Florida after U.S. Magistrate Judge Ted Klein became ill and died last year of a mysterious respiratory illness, and his fellow magistrate judges raised concerns about the building’s environment.

Employees believe that Judge Klein became sick and died because of the problem:

A healthy man who skied and jogged, Klein contracted a respiratory infection and died in September 2006. At the time, his family worried that something in the courthouse caused his illness. Shortly after Klein became ill, the court commissioned the first fungal contamination assessment, which was never made public. According to the report dated July 2006, “Magistrate Judge Theodore Klein has recently developed adverse health effects that could be attributed to exposure to molds. The assessment was performed to determine if fungal contamination was present in areas that he frequently occupies including his courtroom and his office areas.” The study showed fungal spores were present “in significant numbers” in samples. However, the study concluded these spores were not likely to cause health problems unless someone was in an immuno-compromised state. Still, the study recommended fungus on the plaster walls and courtroom wallpaper be removed. After Klein’s death, his courtroom was closed off and remains unused. His chambers are occupied by Magistrate Judge Edwin Torres, who recently transferred from Fort Lauderdale. “Why would they close off his courtroom if it’s not dangerous?” asked one employee who did not want to be identified. It is still not known what caused Klein’s illness because, in keeping with Jewish law, his body was not autopsied.

Chief Judge Moreno has taken steps to make sure employees are safe:

In an Aug. 27 memo, Chief Judge Federico A. Moreno said a new study is being commissioned by a company that performed mold remediation at the West Palm Beach federal courthouse. That courthouse, damaged by Hurricanes Jeanne and Frances, was closed for a year and a half while mold was removed.

“Our intention is to have the consultant review prior testing results, conduct additional on-site testing and then render conclusions about whether occupancy in limited areas of the building is likely to cause adverse health effects in occupants to a more serious degree than exposure to fungal levels,” Moreno said. “Please understand that I, who began his federal judicial service in the East Courtroom of the Old Courthouse, share your concern about your work environment in the Dyer Building.” Through a clerk, Moreno declined comment and said he preferred to let his memo speak for itself. In the memo, he encouraged any employees who have been in the “sealed document vault” — a basement area heavy with mold — to consult their doctors. Additionally, he mandated that no new sealed documents be taken to the basement, which is being “air-scrubbed,” and that anyone handling records coated with what appears to be mold use masks and gloves.

Read the whole memo from the Chief here.

The employees are understandably scared:

Klein is not the only federal employee in the building to fall sick. According to several courthouse sources, the law clerk for Magistrate Judge Barry L. Garber is very ill and has received permission to work at home. Garber declined to discuss the issue until the new study is completed. Another courtroom deputy who recently retired said she is very ill and recently had double pneumonia. “I’m scared to even go to my doctor to see what the heck is wrong,” she said. “They are keeping everything hush-hush,” said a judicial assistant who did not want to be identified. ”Everyone is scared. You don’t know how much your immune system can handle.” Another judicial assistant said she had no idea her chair was mold-infested until she saw a photo of it in the report, which labeled it “mold-infested.” She quickly found another chair in the office to use. Magistrate Judge Peter R. Palermo, who has worked in the Dyer Building for 37 years, is not sick but is concerned about his employees. “Who knows if there are health problems because of the mold,” he said. “We just want to know if it’s safe.” Palermo attended the Aug. 9 meeting held by representatives from Clerk of the Courts Clarence Maddox’s office to discuss the report. Neither Maddox nor Moreno or any other federal judge was present. However, Moreno has met with every employee to discuss the situation and is getting high marks for his concern. “He’s here in Miami and seems to care about us, whereas the previous chief judge was in Fort Lauderdale,” said one clerk.

Yikes.

Chief Judge Moreno is a people person and is a very practical judge -- he will do everything he can to fix this problem and make sure no one is subject to unhealthy conditions. I'm sure of that.

But I'm also sure that courthouse staff is wondering what the deal is with the brand new courthouse just sitting there. Why do they have to work in what they believe is an unsafe courthouse when a sparkling new one is built across the street. We need to sue those jokers who can't get the building ready to open. It's a bad joke already. The over/under is still January 1, 2008, but the smart money is on the over.

Remember...

It's hard to believe that six years have passed. I still vividly remember where I was when the first plane hit -- I was in trial in front of Judge Ungaro, along with Rick Bascuas. The courthouse was evacuated and I watched the first tower crumble in a pawn shop on North Miami Avenue. We all stood there in shock and disbelief. It is still really hard to believe...

Where were you on September 11, 2001?

The Demon Forces

That was the name of Chuckie Taylor's "Antiterrorist Unit" in Liberia. According to the AP:

The goal of the Antiterrorist Unit, according to the indictment, was to ''intimidate, neutralize, punish, weaken, and eliminate actual and perceived opponents of and threats to'' the Taylor government.

Taylor's real name is Charles McArthur Emmanuel. He pleaded not guilty to a superceding indictment today in front of Judge Altonaga. Some of the new allegations:

Many of the seven victims described in the indictment were held in below-ground pits covered with iron bars and barbed wire. In fall 1999, one victim was forced naked into a pit while members of Emmanuel's ATU allegedly ''shoveled stinging ants'' on top of him, the indictment said.

Melted plastic, hot irons, scalding water, electric shocks, beatings with weapons and iron bars, lit cigarettes and molten candle wax were all allegedly used to torture the victims described in the eight-count indictment, which covers the span from spring 1999 to late 2002.

Depressing...

The Dolphins lost. Ugly.
The Hurricanes lost. Badly.
How depressing.

Plus, my fantasy team is losing -- I need Chad Johnson, A. Boldin, and Todd Heap to have big games tonight.

If you aren't too depressed on this Monday morning and want to surf a bit before starting your day, here's Julie Kay's Justice Watch column wherein she reports that our new chief of criminal is Bob Senior, which is an excellent choice.

See ya, part deux

According to the AP, Judge Hoeveler has lifted the stay of extradition for Manuel Noriega, so it appears as though he will be headed to France...

I would post an over/under on when he'll be headed out of here, but I don't want to take any more of Rumpole's $... Now, he only wants action on the NFL. I'm happy to oblige, even if he did get lucky on last night's opener. (Note to AUSAs reading blog -- this is all in jest; there is no actual gambling occurring.)

Short stay for Noriega

Looks like Noriega's lawyers will have an all-nighter tonight -- Judge Hoeveler gave them until 9AM tomorrow morning to back up their claim that Noriega wouldn't be treated properly under the Geneva Convention.

From the AP:

A federal judge on Wednesday temporarily blocked the extradition of former Panamanian dictator Manuel Antonio Noriega, giving his lawyers time to present "credible evidence" that he would not receive Geneva Conventions protections if sent to France.
Noriega's lawyers had asked Senior U.S. District Judge William Hoeveler to stop the extradition to France, where he will face money laundering charges after his scheduled release from U.S. prison this weekend.
Defense attorneys have argued that Noriega should be sent back to Panama because he is a prisoner of war due the protections of the Geneva Conventions. They claim that there is "substantial reason" to believe that France instead intends to treat Noriega as a "common criminal."
Noriega's attorneys have until 9 a.m. Thursday to make their case, Hoeveler said. Federal prosecutors will then have until noon that day to respond, the judge ruled.

"This may be the worst day of my life."

That was Ken Jenne after his pleaded guilty today in federal court.

From the Sun-Sentinel:

Sentencing for Jenne was set for Nov. 16 before U.S. District Court Judge William P. Dimitrouleas at the federal courthouse in Fort Lauderdale. Until then, he remains free on $100,000 bond.

Sentencing guidelines in Jenne's plea agreement call for a prison term of 18-24 months, but prosecutors could ask for more, and Jenne's defense could ask for less.``If I give you a higher sentence, that's a chance you take. You understand that, don't you?'' Dimitrouleas asked.``Yes, your honor,'' Jenne replied.

This passage struck me:

Ever the politician, Jenne, 60, chatted amiably with the chief prosecutor, Michael "Pat" Sullivan, minutes before his morning court appearance."Good seeing you," Jenne told Sullivan, patting him on the arm. Jenne appeared stoic, dressed in a navy blue pinstripe suit.

Ken Jenne

The media is all over Ken Jenne's plea today.

High-profile defendants always bring with them the question of whether they should get more time because of deterrence and because they owed a greater duty to society and so on. Or should they get a lower sentence because of all the good work they have done for society? Should the court take into account that the time in prison will be more difficult for a high profile defendant? These questions seem particularly relevant when it's a police officer defendant.

So what say you SDFLA readers? If you were judge, what would your sentence be for Jenne. A guideline sentence of 18-24 months? More? Less?

Ken Jenne plea agreement and information

Here's the plea agreement and the information (courtesy of the Miami Herald).

A couple interesting facts:

1. The case drew Judge William Dimitrouleas, a Clinton (corrected from original post) appointee. Before getting appointed, Judge D (as he is known in this District) was a state public defender (for two years), a state prosecutor (for 12 years), and a state judge (for ten years). In other words, he knows Jenne well. How this will cut is anyone's guess.

2. The plea agreement calls for an advisory guideline range of 18-24 months. Many plea agreements do not set forth how the guidelines are calculated, but this one does in (complicated) detail.

3. Former U.S. Attorney Tom Scott, along with David Bogenschutz, signed the plea agreement as Jenne's lawyers.

4. Both sides reserved the right to argue for sentences different than the guidelines. Sometimes defendants and prosecutors will agree that the guidelines will apply and sometimes the defense reserves the right to argue for a lower sentence. In this case, the defense reserved its right to argue for a lower sentence and the prosecution reserved the right to argue for a higher sentence.

Ken Jenne resigns, will plead guilty

From the Miami Herald:

Broward Sheriff Ken Jenne -- at one time the county's most powerful politician -- has resigned and agreed to plead guilty to federal corruption charges involving tens of thousands of dollars he allegedly received from sheriff's office contractors and employees, sources said Tuesday.

After months of personal anguish, Jenne decided Monday to cut the plea deal on tax evasion and other felony charges to limit his prison time because he also was staring at an imminent grand jury indictment on more serious fraud and money-laundering offenses, sources said.

The U.S. attorney's office plans to file the charges, plea agreement and proffer statement involving the allegations against Jenne on Tuesday in federal court in Fort Lauderdale. The plea agreement means Jenne, who earned $169,800 a year as sheriff, will surrender to authorities to face tax-evasion related charges as early as Tuesday afternoon.

Jenne will likely serve some prison time -- possibly between one and two years -- and have to pay back taxes and fines to the Internal Revenue Service, sources said.

Jenne, a lawyer who spent most of his life in public service, also will likely lose his Florida Bar license and sheriff's pension because of the felony conviction. His pension is estimated to be about $125,000 a year. In the plea, Jenne is expected to admit to abusing the public trust, sources said, a concession that will hurt his post-conviction effort to save his pension.

More commentary to follow once we see the plea agreement and the information. For now, here's his resignation letter to the Governor.

Tom Scott in the house....

Ken Jenne has put together quite a legal team. His lawyer is well-respected David Bogenschutz . BSO is represented by former U.S. Attorney Guy Lewis and Michael Tein. And now, Jenne has added former U.S. Attorney Tom Scott (pictured here on the left by the Miami Herald, Bogenschutz on the right, and Jenne bottom left insert; article here).

Don't these guys look alike?

SDFLA criminal stats

The numbers are in. Criminal prosecutions are up 10% from last year, but still down significantly from 9-11. Vanessa Blum reports on the stats here:

At the current rate, the number of prosecutions in 2007 will be down roughly 12 percent from 2002, according to data analyzed by the Transactional Records Access Clearinghouse, a research organization affiliated with Syracuse University.

Federal prosecutors in the Los Angeles, San Francisco, Chicago, Detroit and Boston areas have seen even larger decreases in criminal filings over that period.

In this region, covering Broward, Palm Beach, Miami-Dade and six other counties, the number of drug cases has fallen dramatically, sliding from 1,461 in 2002 to 883 in 2006, according to the Syracuse group. As of April 2007, the seventh month of the fiscal year, prosecutors had filed roughly 580 drug-related cases, on track to surpass the 2006 figure but well below the 2001 prosecutions.

U.S. Attorney Alex Acosta: "When resources become limited, you have to prioritize." He added that the office is on its way to a record year for prosecutions targeting gang crime, illegal guns and health care fraud.The number of immigration cases is also rising, from about 300 in 2002 to 500 expected in 2007.

Whoooops!

The WSJ blog has a story about Alberto Gonzales's resignation letter, which has a major grammatical mistake:

It has always been my honor to serve at your pleasure. After much thought and consideration, I believe this is the right time for my family and I to begin a new chapter in our lives.

From the WSJ:

The mistake: “My family and I” should be “my family and me.” WSJ Supreme Court reporter Jess Bravin, who first pointed out Gonzo’s error to us yesterday afternoon, suspects it privately will delight the attorney general’s critics, who snicker at the sloppy way Gonzales ended his tenure. Such errors may be common in everyday speech, but perhaps they don’t belong in carefully deliberated public letters from cabinet officers to the president. So, Law Blog readers, what does Gonzales’s grammatical lapse symbolize: slipping of standards at DOJ, a rare common touch in official Washington, or, well, just a negligible gaffe?

How embarrassing!

Maybe Rumpole is A.G., as he often makes similar grammar gaffes on his blog...

Traffic on US1

This was the truck in front of me this morning... I snapped the picture with my phone because I couldn't believe the guy was sleeping like that.

Gotta love Miami.

For a cool picture series on Miami, check out this Flickr page. That photographer recently took some pictures of a person on South Beach and StuckonthePalmetto blog is asking whether it's a man or a woman. You decide.

Hilarious

Bored with the news of the AG resigning?

Sick of the round the clock coverage of Michael Vick?

Then, you must read this NY Times article about AbovetheLaw blogger David Lat and his run-in with Nixon Peabody over a video he uploaded to YouTube. YouTube took it down because Nixon Peabody complained, but here is the song at issue And better yet, here is a great video mocking Nixon Peabody:

"After 30 years, judge working hard until ‘they carry me out’"

Here is a very interesting profile on Judge William Hoeveler by Julie Kay.

There is also a five part video series from the interview, with Part I here. It's a little hard to hear Hoeveler but if you turn your volume up, it's definitely worth watching. It's pretty rare to get a judge on the record like this, so it's fascinating...

Here are some of the Q&As from the article:

Do you regret speaking out about the Everglades case?
That needed to be said. I was disturbed that our settlement and order pursuant to that was torpedoed by the Legislature after just a few days. And the lobbyists’ role in the matter didn’t please me either. But [Chief Judge Federico A. Moreno] has the case now, and he’s a fine judge. He’ll do well with it. But I probably spoke out too much.

Do you consider yourself an environmentalist?
Yes. The environment and the Everglades are one of my favorite causes. I take environmental positions when they are correct and don’t when they are not.

What other causes are you passionate about?
The First Amendment. I’ve had several important First Amendment cases. I feel extremely strongly about the right to speak out. The First Amendment is an extremely important area. I’m a Constitution lover. I’m distressed at what is happening now to the Fourth Amendment [right to due process]. It is being chipped away … the right to privacy. But I better not say anything more about that, some cases might come before me.

Do you regret any of your rulings?
No. I’m comfortable with all my rulings.

How has the bench changed since you first arrived?
In the ’70s, we handled a lot of drug cases. Also, our bench has grown much larger. We had six or seven judges then, now we have 16 or 18. We’re getting more civil cases now because we have more judges.

Has the quality of lawyering before you changed any over the years?
Not much. They have excellent career prosecutors at the U.S. attorney’s office and lots of new young lawyers who are good. Both prosecution and defense are pretty high quality here.

Who are the best trial lawyers you’ve seen in action?
Roy Black, Albert Krieger, Pat Sullivan, Dick Gregorie, Neal Sonnett.

We hear a lot about activist judges. Do you believe there are activist judges?
I read a lot that there are. But I don’t think there are. They don’t please everybody. [He reads a passage from his well-worn copy of the book “The Imitation of Christ,” a 15th century Christian spiritual book.] “And he that neither coveteth to please men nor feareth to displease them, shall enjoy much peace. From inordinate love and vain fear ariseth all disquietness of heart and distraction of the thoughts.” All judges should follow that.

Have you ever received a death threat?
Once. I received a phone call at my house threatening me from someone when I was hearing the Omega 7 case in 1984. [The case involved an anti-Fidel Castro group accused of bombing the Venezuelan and Mexican consulates]. For two weeks, we had marshals around the clock. I don’t know how they got my home phone number because it’s not listed.

Were you afraid?
My wife was moved by it.

What was your hardest decision on the bench?
The rock mining case. But I can’t get into it because it’s on appeal.

Who are your heroes?
Former Chief Judge Clyde Atkins. 11th U.S. Circuit Court of Appeals Judge Peter Fay. My contemporary judges are all my heroes, and some of the newer ones. Dwight Eisenhower. Jimmy Carter. He wasn’t that well-thought of but I thought he was a good and honest man. The writer Thomas Merton.

What about John F. Kennedy?
I didn’t like him. He played around too much.

Do you pray? [Hoeveler is a devout Episcopalian].
I pray every day. I pray before I rule.

Do you have any hobbies?
My hobby is my wife, Christine. We married three years ago. She was my physical therapist.

What are you most proud of in your career?
I’m proud of being a federal judge and doing what I think is right. Maybe I was wrong sometimes, but I have no regrets.

How long do you plan to keep working?
I’ll continue to work until they carry me out.

Noriega va en France

“This court never intended for the proclamation of defendant as a P.O.W. to shield him from all future prosecutions for serious crimes he is alleged to have committed,” Judge William Hoeveler said in his 12-page ruling, sending Manuel Noriega to France. “That being said, even the most vile offender is entitled to the same protections as those owed to a law-abiding soldier once they have been declared a P.O.W. It appears that the extradition proceedings should proceed uninterrupted.”

The NY Times reports on the case here:

Mr. Noriega was convicted in absentia in France in 1999 and sentenced to 10 years in prison for laundering more than $3 million in drug proceeds. France has agreed to hold a new trial if Mr. Noriega is extradited.
Mr. Noriega also faces legal jeopardy at home in Panama, where he was convicted in absentia of embezzlement, corruption and murdering political opponents. Although Mr. Noriega faces up to 60 years in prison for those charges, Panamanian law allows older convicts to serve prison time at home and Mr. Noriega’s Panamanian lawyers have expressed confidence they can beat the charges there and keep him out of jail.
Mr. Hoeveler, who presided over Mr. Noriega’s criminal trial in Miami, ruled that Mr. Noriega’s status as a prisoner of war does not prevent him from future prosecution.

....

Mr. Noriega may still appeal the ruling, which will keep him in U.S. custody for some weeks or months. Frank Rubino, Mr. Noriega’s Miami-based attorney, said he was disappointed by the ruling and would decide in the next week whether to challenge it in the United States Court of Appeals 11th Circuit or with the United Nations.

Jose Padilla jury speaks

Fascinating story below from Jay Weaver about the jury deliberations in Padilla.
Apparently, it was a very close case on Padilla and it came down to one phone call. Five months in trial and the case came down to one call. Amazing.
Check it out:
http://www.miamiherald.com/news/miami_dade/story/213540.html
--David Oscar Markus
www.markuslaw.com
305-379-6667

On the road again

Headed to the District of DC today. Blogging on hold for a bit.
--David Oscar Markus
www.markuslaw.com
305-379-6667

"Your honor, I am an innocent man, I have been wrongly convicted."

That was Kenneth Wilk before he was sentenced to life in prison (by Judge Cohn) for killing Officer Todd Fatta. Here's the Sun-Sentinel article about the sentencing.

Michael Vick

There are whispers that Virginia may pursue state charges against Michael Vick for dogfighting. Professor Berman asks whether this is fair. It's a good question and one that comes up in this District from time to time. It seems to me that once one sovereign or the other resolves a criminal case, that should be it. I understand that the double jeopardy clause has been interpreted to allow separate prosecutions by the state and the federal governments, but does this really make sense? This is one of those areas of the law that makes absolutely no sense to most lawyers and to the general public. Any thoughts from SDFLA readers?

And if you are looking for some Vick humor, here is David Letterman's top ten Michael Vick excuses.

If you are looking for some Miami humor, Rumpole is in good form today...

Cuban Spies go to Atlanta

While most of Atlanta was focused on Michael Vick today, the 11th Circuit heard a spirited oral argument (the third argument in this case) in the Cuban Spy case. According to this AP account, there was a line out the door to see the argument:

Dozens of people lined up outside the Atlanta courthouse more than two hours before the arguments began to watch the latest chapter of the decade-long saga unfold.

Pictured is defense lawyer Brenda Bryn and Richard Klugh. To her left is AUSA Caroline Heck Miller. The picture is from the AP's Richard Miller. Here's the background on the case:

The "Cuban Five" have been lionized as heroes in Cuba, while exile groups say they were justly punished.
Castro's government sent Gerardo Hernandez, Ramon Labanino, Rene Gonzalez, Antonio Guerrero and Fernando Gonzalez to South Florida to gather information about anti-communist exile groups and send it back to the island using encrypted software, high-frequency radio transmissions and coded electronic phone messages.
The five were convicted of being unregistered foreign agents, and three were found guilty of espionage conspiracy for failed efforts to obtain military secrets. Hernandez was also convicted of murder conspiracy in the deaths of four Miami-based pilots whose small, private planes were shot down in February 1996 by a Cuban MiG in international waters off Cuba's northern coast.
They were sentenced to terms ranging from 10 years to life in December 2001, but the case has ping-ponged through the court system the last six years due to a round of appeals.
In August 2005, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta tossed the verdicts, saying the five didn't receive a fair trial because of anti-Castro bias in Miami. But the convictions were reinstated exactly a year later by the full 11th Circuit.
Monday's arguments before another three-judge panel of the court offered the five their latest shot at freedom.

Richard Klugh for the defense:

Defense attorney Richard Klugh focused his arguments on Guerrero, who was accused of sending detailed reports on the Naval Air Station at Key West. He said his client could have used public information _ not clandestine espionage _ to piece together the reports.
"An enterprising reporter could have obtained the same info that Antonio Guerrero obtained on that base," Klugh said. "He's doing a life sentence for something that could have been published in the Miami Herald."

And Brenda Bryn followed, saying that "prosecutors breached 12 different categories of misconduct that 'have never before been identified in one case.' She said the law demands the court reopen the case based on the "flagrancy" of the misconduct, noting that 28 of 34 objections lodged against prosecutors during closing arguments were sustained."

AUSA Caroline Heck Miller responded:

"Red baiting. Communism. Your Honor, that was not the record of this case," Miller said. "It was a soberly tried case."

On the road

I'm in the middle district today. Blogging to continue when I return.

--David Oscar Markus
www.markuslaw.com
305-379-6667

"You don't have to be crazy to be a criminal defense lawyer in this town- but it helps!!!!"

Jack Blumenfeld, a long-time criminal defense lawyer in Miami, who has represented Jose Battle, Sr. and one of the "Cuban spies", emailed us last night regarding the Padilla verdict and how criminal defense lawyers suffer from disease where you convince yourself that you have a shot at a NG verdict in impossible cases. With permission, we reprint his email here:

If you want to talk to some lawyers to get an idea what the defense is going through, talk to [the Cuban Spy lawyers] about the effect on us when the Cuban Spy jury came back with guilty verdicts. We may have been the only 5 people in Dade County who thought that we could win a NG for Cuban spies in Miami- and that included the defendants, all 5 of whom knew what the outcome would be. I think judge Lenard saw the devastation on our faces, as she cleared the courtroom and had the doors locked, so we could partially recover. Ironically, the defendants were consoling the lawyers. I was in a daze for a week.

These people will go through the same thing. It happens when you ABSOLUTELY know you won the trial but lost the verdict. Cuban Spies- Alleged AQ members- and we all fought our hearts out for a NG- doesn't that make you feel great you chose criminal defense? You don't have to be crazy to be a criminal defense lawyer in this town- but it helps!!!!

Jose Padilla verdicts

Well, there will now be a bunch of articles from the MSM about the verdict (with the scripts depending on what side you're on).

Here is what I saw in the courtroom and my initial reaction:

1. Court security officers were insufferable. It was almost impossible to get into the courtroom. This is the biggest trial and verdict in the country right now and you can barely get in the courthouse! Silly.

2. The media is not permitted to have cell phones with them in the courtroom. After the verdicts were read, no one was allowed out of the courtroom for a couple minutes. I don't know how CNN and the AP got the articles up so quickly. It's a neat trick.

3. My cell phone crashed with all the people text messaging me and emailing me to post the verdicts. So my post was a couple minutes late, after my phone rebooted!

4. The defense lawyers' voices were all cracking as they asked for more time to file post-trial motions. I feel so bad for them right now. To put your life into a case for years and to have a 5 month trial and then to have the verdict so quickly is horrible. My heart goes out to these lawyers...

5. Sentencing is set for December 5. The defendants will be interviewed by the probation office, who will prepare a presentence investigation report for the judge. It will detail the defendants' history and the guideline ranges. Based on the verdicts, I believe the guideline range is life.

6. The appellate process. The defense has some interesting issues, which I will detail in another post. This will take time -- about a year after sentencing. We're looking at late 2008 or early 2009.

7. The government. Congratulations to the government lawyers. They fought hard and won and deserve credit for their victory. After the verdicts were read, they all shook hands and walked out of the courthouse through the back entrance to avoid the press. I'm sure DOJ will have a press conference later, but these trial lawyers deserve the credit.

8. Judge Cooke and her chambers. I'm sure they are thrilled to have this trial behind them. Oftentimes, we all forget how hard the court personnel work on these trials. Congrats to them. Go have a beer...

all defendants guilty on all counts

Padilla guilty on all counts.

In the courtroom

2:15
No verdict yet.
Buzz in the air.
Packed courtroom.
I was lucky to get in.
Stay tuned.
--David Oscar Markus
www.markuslaw.com
305-379-6667

Liveblogging Padilla verdict

Check in at 2PM.

--David Oscar Markus
www.markuslaw.com
305-379-6667

Padilla verdict in

To be announced at 2PM!!

--David Oscar Markus
www.markuslaw.com
305-379-6667

Fair settlement?

$1.6 million to the attorneys; a pair of socks to the class members. Hmmmmm. Fair?

Mike Tein (of Lewis Tein) and a bunch of attorneys general say no way.

Judge Altonaga will hear the dispute in the Sharper Image Ion Purifier class action case today. Here's Julie Kay on the case.

Michael Caruso closes for Jose Padilla

I wasn't able to attend the closing arguments today, but reports back tell me that Padilla's lawyer, Michael Caruso, was incredible.

The initial AP coverage here.

I like the strong start:

"For five years, Jose Padilla has waited for this day," defense attorney Michael Caruso told jurors. "The day we could stand before you and ask for justice."

Then jabbing the government, while trying to humanize Padilla:

Some of his argument was delivered in front of a large screen featuring bright pictures of a smiling Padilla with two of his children, in stark contrast to the dark photo used by prosecutors of Padilla wearing a traditional Arab headdress.
Padilla's mother, Estela Lebron, looked on from a back row in the courtroom.
"They picked this picture to scare you, to instill fear," Caruso said.

And the theme, simple but strong:

"His intent was to study, not to murder," Caruso said.

What about the form:

The critical piece of physical evidence is a "mujahedeen data form" Padilla allegedly filled out in July 2000 to attend an al-Qaida training camp in Afghanistan. The form bears seven of Padilla's fingerprints, but Caruso said they are only found on the first page and the back of the final page - consistent with Padilla simply handling the form, rather than writing on it.
"It raises more questions than answers," Caruso said.

Similar defenses from the co-defendants' lawyers:

"Dr. Jayyousi wasn't buying bullets. Dr. Jayyousi wasn't buying ammunition. Dr. Jayyousi wasn't sending fighters over there," Swor said. "Dr. Jayyousi was providing relief."
Similar arguments were made Monday by lawyers for Hassoun, a Palestinian born in Lebanon who overstayed his U.S. visa and could be deported if found innocent or after his release from prison.
"Their passion was relief," Hassoun lawyer Kenneth Swartz said.

Now it's in the jury's hands. This is the worst time for trial lawyers, no? As soon as there is a verdict, we'll let you know.

BTW, what's with good reporters still referring to Padilla's lawyer as Andy Patel? He hasn't been Padilla's lawyer in a long time...

UPDATE -- more from Caruso's closing via the NYTimes and Reuters.

The challenge is issued:

“I defy the government to somehow argue that Jose had the intent to commit cold-blooded murder,” Mr. Caruso said.

It was important throughout the trial to distance Padilla from the other two defendants:

On Tuesday, Mr. Caruso sought to disassociate Mr. Padilla from the other defendants. The government secretly recorded thousands of their phone conversations from 1993 to 2001.
Mr. Padilla participated in seven wiretapped conversations presented at trial.
Prosecutors say Mr. Hassoun and Mr. Jayyousi used code words like “football” and “zucchini” to discuss plans to help violent jihad in places like Chechnya, Kosovo and Somalia. But, Mr. Caruso reminded jurors, they never said Mr. Padilla used such code.
Mr. Caruso also made a point of contrasting Mr. Padilla with the other defendants, emphasizing that he was younger, had less education and was a recent convert to Islam who did not speak fluent Arabic.
He even described Mr. Padilla as “slow” and reminded the jury that Mr. Padilla had worked at a Chicken Plus fast-food restaurant in Broward County before leaving for Egypt.
“These men are more different than they are alike,” Mr. Caruso said.

More re the form:

He conceded that seven of Mr. Padilla’s fingerprints were on the document, which the C.I.A. recovered in Afghanistan in 2001. But the fingerprints are on just the first page and the back of the last page, suggesting, Mr. Caruso said, that Mr. Padilla had merely handled the form, and had not filled it out.
He also pointed out that a palm print was found next to the signature line on the form, but that the government never requested Mr. Padilla’s palm print to see whether it matched.
“They were not trying to find the truth,” Mr. Caruso said. “They were trying to create a case.”

And finally, don't convict because of security:

"We don't achieve security by bringing these types of charges on this type of evidence."

"Padilla was the star recruit of a terrorist support cell and he was discovered right in our backyard.''

That was AUSA Brian Frazier describing Jose Padilla in his closing argument. Interesting way to put it -- "star recruit"; discovered in "our backyard." I didn't hear the closing, but these are terms that jurors relate to and are very easily understood...

Frazier, of course, hammered the application form and repeated al Qaida as much as he could:

"You are already inside the al-Qaida organization when you get this form to fill out," Frazier told jurors. "He provided himself to al-Qaida for training to learn how to murder, kidnap and maim."

Here's the Herald, the Sun-Sentinel, and the AP on the government's closings.

Michael Caruso for Jose Padilla responds tomorrow.

Final arguments in Manuel Noriega

To be extradited to France or to go back home to Panama; that's the question for Judge Hoeveler.

Jose Padilla closing arguments...

...are underway.

The Government is up first, followed by Adham Hassoun.

Tomorrow will be Kifah Wael Jayyousi and then Jose Padilla. The Government will finish up with rebuttal.

Judge Cooke has decided to read the jury instructions before closing argument. I've had this done a couple times and don't really have a preference... Any thoughts on whether this is a good or bad thing? Does it matter?

"Federal Judge Accused of Religious Bias"

The federal judge referred to in the headline for this DBR article (which is going to be published Monday) is William Zloch:

Fort Lauderdale, Fla., attorney Loring Spolter is accusing U.S. District Judge William Zloch of bias in two employment discrimination cases, citing his deep religious beliefs, and wants the judge removed from the cases.

In a 110-page motion for recusal filed last month, Spolter cited Zloch's hiring of several law clerks from Ave Maria Law School, a donation to the Roman Catholic school and his attendance at several junkets for judges sponsored by conservative organizations.

I've had trials and a number of contested hearings in front of the former Chief Judge and have always found him to be fair and impartial. Definitely a no-nonsense judge, which is good. I think he lets both sides try their case. No complaints here...

To cite where a judge hires law clerks is just ridiculous. This motion will go nowhere.

News and Notes

1. Poor Monkey (Sun-Sentinel).

2. Our chief would never do this (WSJ Blog).

3. Jury instructions in Padilla almost finalized (AP).

4. Cop sues in federal court (DBR).

5. Sy's funeral. (Rumpole)

Water cooler talk

Forget about 756, everyone is talking about yesterday's 3rd DCA's opinion re Adorno Yoss.

From the concurrence by former AUSA (we had to have a SDFLA connection somewhere!) Angel Cortinas:

Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine.

Youch.

Here's the opinion.

Here's the coverage in the DBR, the Herald, and the WSJ blog.

Padilla update

The government has rested after a short rebuttal. The rest of the week is legal issues without the jury. Closing arguments Monday and Tuesday next week.