Happy new year!

Happy and healthy New Year to all.

For your weekend reading, here is some info about the funniest Justice. And to the left is the graphic from the article. I'll never forget when a Miami lawyer continued to confuse Justice Souter and Justice Breyer. Justice Scalia started his questioning of the lawyer by saying, "I'm Scalia." Now that's funny.

Amicus fight

Professor Ricardo Bascuas, on behalf of NACDL, FACDL-Miami, and NAFD, authored an amicus brief in the Cuban Spy case, in support of the panel's determination that venue was improper. Typically these briefs are filed with the consent of both parties. In this case, however, the government has opposed the filing of the brief, making some unbelievable claims. For one, it claims that it's not fair because it doesn't have enough space to respond to the arguments raised by amici -- it even takes a shot at the panel saying that the panel used more words than were given to the government in its brief. In the same breath, it also says that the arguments raised by amici are not relevant. Finally, it asserts that the brief is "partisan." I have never seen the government take such an odd position. Amicus briefs are filed by organizations that have a unique perspective on the subject being debated in court. Of course they have a position. And if the arguments raised aren't relevant, why does the government have to waste any of its space addressing them? In the interest of disclosure, I am NACDL's vice chair of the amicus committee for the 11th circuit and I signed the brief on behalf of NACDL.

Padilla moves

Lots of moves in the Padilla case. The Bushies asked the Supreme Court to order the transfer of Padilla to FDC-Miami to face the indictment filed last month. Lyle Deniston has a lot of great things to say on the subject. Here's his intro:

The Bush Administration, protesting that the Fourth Circuit Court has engaged in an "unprecedented and unfounded assertion of judicial authority," on Wednesday asked the Supreme Court to order the prompt transfer of terrorism suspect Jose Padilla out of military custody and into a regular federal prison. The new filing, escalating the inter-branch constitutional conflict that has now arisen over Padilla, complained that the lower court had made "an unwarranted attack on the exercise of Executive discretion," raising "profound separation-of-powers concerns" if not remedied swiftly. "The Fourth Circuit's order defies both law and logic," the new filing contended. Without waiting to see how the Justices would react to the rapid change of circumstances recently in Padilla's case, Solicitor General Paul D. Clement filed an application to shift Padilla to the Federal Detention Facility in Miami, so that he can face new criminal charges claiming he aided terrorism abroad. The Fourth Circuit last week refused to allow that transfer, saying the government may be trying to undercut Padilla's pending appeal to the Supreme Court. But the Circuit Court also said it would be up to the Supreme Court to decide Padilla's placement, and thus Clement turned to the Justices seeking what the lower court had denied.

Before this latest move, the Herald's Jay Weaver had this coverage of all the latest wrangling. And TalkLeft opines that Padilla's lawyers slap Bush Administration. The Daily Business Review (Julie Kay) had a piece about Padilla's and Hassoun's co-defendant, Kifah Jayyousi, but there is no public link available to review the article. Finally Brian Tannebaum has this to say about criminal defense lawyers in these sorts of cases.

The Southern District of Florida finds itself in the middle of this historic fight between the branches of government.

Justice Cantero still a possibility?

A reader sent this email:

"Possible grist for your blog, but PLEASE KEEP MY IDENTITY ANONYMOUS IF YOU CHOOSE TO USE THIS IN ANY WAY....A few months back, I heard it from a well-placed source that the current Administration is looking for a way to get Raoul Cantero on the 11th Circuit. They are practically counting the days until Judge Barkett is eligible to take senior status, figuring that will give them a "Florida seat" to fill with Cantero. I've also heard that Cantero (like many Florida Supreme Court Justices) would prefer not to live in Tallahassee forever, so he'd be game. Now another possibility may have arisen -- this week Congress returned the nomination of Brett Kavanaugh to the DC Circuit (he's a darling of the Federalist Society right wingers), signaling that his re-nomination (if it occurs in 2006) would be a complete war. One piece of scuttlebut is that that Cantero could be considered for that open seat on the DC Circuit. If so, and if he makes it to the DC Circuit, his age & ethnicity would automatically jump him into the very top tier of any Supreme Court shortlist for the next vacancy. We might just get a Floridian in the Big House yet...."

A couple thoughts -- 1) I hope Judge Barkett doesn't take senior status any time soon. 2) I don't think Judge Cantero would be as conservative as the right hopes. I think the former Judge Davis' clerk would call it right down the middle. 3) Hope everyone had a nice holiday weekend.

Happy Festivus

... for the rest of us.

Padilla staying put

Unbelievable. Judge Luttig, one of the judges on Bush's short list for the U.S. Supreme Court, just gave the back of his hand to Bush's legal strategy on the war on terror, ruling that Padilla will not be transferred to the Southern District of Florida and that the Fourth Circuit opinion will remain intact -- teeing the case up for Supreme Court review.
Lyle Denniston, over at ScotusBlog, has great coverage of this remarkable decision. Here's his intro:

In a deeply serious setback for the Bush Administration's legal strategy for the war on terrorism, the Fourth Circuit Court on Wednesday afternoon kept intact its ruling in the now-celebrated Jose Padilla case, suggesting that the Administration may be trying to manipulate the judiciary by attempting to prevent Supreme Court review. The Circuit panel also raised questions about the government's credibility in claiming a dire need to designate Padilla as an "enemy combatant" and thus to confine him -- for more than three years now -- in a military jail, and about its overall credibility in presenting war on terrorism cases to the courts. The language used in the opinion --
reflecting a studied attempt to be temperate, yet coming out as tellingly sharp-edged -- could only be interpreted as the sternest of judicial rebukes on issues of fundamental importance to President Bush's war against global terrorism. The ruling was doubly effective because it was written by Circuit Judge J. Michael Luttig, who has been considered by President Bush as a potential nominee to the Supreme Court and who is one of the most conservative federal appellate judges in the nation.
The Circuit Court denied the government permission to transfer Padilla out of military custody -- a transfer that had a strong probability of keeping the case out of the reach of the Supreme Court. Padilla's appeal to the Justices is pending (Padilla v. Hanft, docket 05-533), and is likely to be acted upon by the Court in January. At this stage, the first issue for the Justices will be whether to grant or deny review
of the Fourth Circuit's Sept. 9 ruling. Judge Luttig, writing for a three-judge Fourth Circuit panel, said "we believe that the transfer of Padilla and the withdrawal of our opinion at the government's request while the Supreme Court is reviewing this court's decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." In addition, Luttig said: "We believe that this case presents an issue of such especial national importance as to warrant final consideration by that Court, even if only by denial of further review." Thus, he said, "we deny both the motion [to transfer] and suggestion [to vacate the Sept. 9 decision]."

Show me the money

Well, one of my readers and I got into it a little bit in the comment section.

I wonder how [s]he would feel about this comment in the Daily Business Review today about prosecutors leaving the U.S. Attorney's office: "Said Miami criminal defense attorney David O. Markus: “It’s a good attempt to solve the problem. But ultimately, what we need to do is pay these people more money, as we [also need to] do [for] judges and public defenders.”

The article has lots of good gossip about AUSAs -- some, like Harry Shimkat, have agreed to stay an extra two years in economic crimes. Here's the quote about those who have left:

While the U.S. attorney’s office in the Southern District of Florida has experienced turnover in the past, some liken the departures over the last six months as an exodus. Twenty-two assistant U.S. attorney positions are now vacant in an office with 233 total positions, or almost 10 percent of the office. Among those who have left in the last six months: Lilly Ann Sanchez, former deputy chief of the major crimes division, who became a partner with Fowler White Burnett in Miami; Carlos Castillo, former public information officer, who took a job with Seidman Prewitt Dibello & Lopez in Coral Gables; and Jonathan Loo, who moved to the U.S. attorney’s office in Hawaii. Other departures include Jonathan Lopez, who worked in major crimes and took a job with the Department of Justice in Washington; Eddie Sanchez and Willie Ferrer, who both just left for the county attorney’s office in Miami, and Maria Beguiristain, who last month became an associate at White & Case in Miami. . . . Seth Miles said he left to become an associate at Podhurst Orseck in Miami because “for me it was family reasons and it was just time to go. I knew I didn’t want to be a 40-year career prosecutor.”

Finally, one unidentified prosecutor said: “There’s a lack of vision in the office. There’s no excitement, no clear direction on what we should be focusing on. There’s a leadership vacuum.” Yikes.

Also, following up on my post about Michael Caruso being named Chief Assistant Federal Defender for this District, Julie Kay has this to say:

After losing two chief assistants in one year, Federal Public Defender Kathleen Williams said, tongue in cheek, that she’s required her new second-in-command to sign a “noncompete clause.” Williams, the guest speaker at the Miami chapter of the Federal Bar Association’s monthly luncheon, announced that she named Michael Caruso, 39, an eight-year veteran of the office, as her new chief assistant. Caruso will assist Williams in running one of the largest public defender offices in the country and overseeing 45 assistant public defenders. Caruso replaces former chief assistant Martin Bidwill, who was appointed to a Broward Circuit Court judgeship by Gov. Jeb Bush in October. Bidwill was chief assistant for less than a year, taking the place of Reuben C. Cahn, who left in April to head the San Diego federal public defender’s office. “I’d like to address the rumor that I’ve had trouble keeping chief assistants,” Williams quipped, adding that her new top lieutenant “promised he will not go to the bench, he will not leave the office.” Caruso, who serves on the federal court practice committee, said he’s “extremely honored that Kathy chose me to assist her in leading the office” and will stay in the job “as long as she needs me.” Caruso serves on the federal court practice committee of The Florida Bar and the Southern District of Florida’s local rules committee.

Kidan plea

This one was pretty obvious, but here's the news anyway -- Adam Kidan pleaded guilty to fraud and is likely to be a cooperating witness in a number of different cases, including against Jack Abramoff. Kidan's lawyer is Joseph Conway. Prosecutors are Lawrence LaVecchio and Paul Schwartz. Judge Huck is presiding over the case, which is still set for trial (for Abramoff -- represented by Neal Sonnett) in January. Coverage here and here.