What is the future of federal sentencing?

That is the debate topic at Legal Affairs. The debate is between Doug Berman and Frank Bowman.

State of the blog and Poll update

I wanted to thank all of you for reading and for the nice comments and emails you have sent to me about the blog. 2006 has started off well for SDFLA. We have topped 10,000 total hits and are now averaging more than 175 hits a day. The blog has been cited to by some of the bigger sites around -- TalkLeft, SCOTUSBlog, and HowAppealing. And we have added a blogger, Marc David Seitles, bringing our total to 3 (anon has been awfully quiet lately).

An update on the funniest Southern District of Florida judge -- Judge Moreno is leading in the polls by a lot. He currently has better than a 2-1 advantage over Judge Ungaro. A close third is Judge Palermo.

Blogging from me will be slow this weekend as I'm on vacation (the last time I'll be able to get away before baby #2 is born and before I start a six week trial in Savannah Georgia). Thanks again.

Padilla's Application to Join al Qaeda?

Did he apply or not apply - that is the question.

Prosecutors made public for the first time at Padilla's detention hearing that they have located his application to join al Qaeda. The U.S. military recovered the application, with more than eighty others, when it invaded Afghanistan. The Government stated that the application by Padilla was "authenticated" by a "cooperating witness" who was also previously convicted in an unrelated criminal matter. Padilla's lawyer, Michael Caruso, argued that there was no direct evidence that Padilla filled out the form, and questioned its authenticity. Click here to see the full story. UPDATE

"As American as Apple Pie"

So says Judge Moreno about the old Flagler Bridge, adding that the U.S. policy differentiating the abandoned bridge (wet foot) and the usable bridge (dry foot) is a "ridiculous distinction." The Herald explains: "Under the government's long-standing ''wet-foot, dry-foot'' policy, Cubans who reach U.S. soil are generally allowed to stay, while those stopped at sea are returned to the communist-ruled island unless they can demonstrate a fear of persecution."

Jose Padilla's bond hearing

UPDATED
I attended most of the bail hearing for Jose Padilla this morning in front of Magistrate Barry Garber. Although I didn't stay for the stunning conclusion, after you read my summary, I'm sure you'll be able to surmise whether Mr. Padilla will be serving the next nine months at liberty or in the special housing unit of the Detention Center.

The hearing started out with the arraignment of Padilla. Chief Assistant Federal Defender Michael Caruso said Padilla is "absolutely not guilty." Caruso was flanked by Tony Natale, Orlando do Campo, and Andy Patel.

Although the courtroom was packed, it seemed that less press attended the hearing and the security (although more than for any other defendant) was not as thick as it was for the previous two hearings. I counted around 10 marshals and court security officers. Padilla's mom and other family members were also in attendance.

Garber asked Padilla whether he pronounced his name padiYa or padiLLa and Padilla responded with the hard L -- Padilla.

AUSA Stephanie Pell was the government lawyer who handled the proffer to the Court. She went through the indictment, explaining that Padilla was recruited to travel overseas to participate in a violent Jihad. They even have what they believe to be his application to be a member of Al Queda and numerous intercepts from FISA. She also explained that they had cooperating witnesses. Her proffer lasted about an hour and is too long to reproduce here. Pell was joined by AUSA Russ Killinger and an agent.

Michael Caruso, who referred to his client as Jose, then asked the Court if he could question the agent on the case. He specifically wanted to ask about translations and the application. He also wanted to ask the agents about the "methods of interrogation" of the cooperating witnesses. He said that he needed to question the agent because "weak is not even the right word to describe the evidence against Jose."

Garber denied the request to question an agent saying that Caruso wanted to conduct a minitrial. Caruso tried again, and a funny exchange ensued with Caruso saying that they had plenty of time because Garber kept the case instead of putting it on the regular calendar and Caruso was thankful that Garber did so. Garber responded: "You're thankful even after I ruled against you?" Caruso: "I'm trying to butter you up." Garber: "Nice try. But denied."

Caruso then went into the history of confinement with Padilla -- how he was in total isolation without a lawyer, family or anything for 2 years. Then he got a lawyer, but he still was in a military prison with 10 cells and he was the only prisoner. "It is far beyond what any other American citizen has had to endure," said Caruso.

Both sides then went back and forth over the risk of flight and danger to the community and I had to leave. But based on Garber's refusal to allow the agent to be questioned, I have to assume that he will grant the government's request for pre-trial detention. More when I can confirm it.

UPDATE -- confirmed. Here's the AP article. And here's the drawing of Padilla and AUSA Pell. I'm usually a fan of Shirley Henderson's work, but I don't think this picture does Pell justice and I think it makes Padilla look older and thicker than he looked in court.

No comment

Although some of you have asked me about my represenation of Gilberto Rodriguez-Orejuela and about today's DBR article, because the litigation is ongoing and because I am involved in one of the issues, I will not comment at this time.

News and notes

A couple of things:

1. Padilla's bond hearing is tomorrow at 10AM in front of J. Garber. I am going to try and attend if work permits.

2. Congrats to AUSA Daniel Fridman (from this District). He has accepted a special assignment to work with the Acting Deputy U.S. Attorney General Paul McNulty (the #2 guy at DOJ in DC) on shaping the administration's criminal and civil rights policy. Those that know Dan, know that he is a good and fair prosecutor and I hope he uses the time in DC to promote his even-tempered philosophy.

3. Way off topic -- for those interested in a high profile exciting murder case involving allegations that you wouldn't believe if you read about them in a book, check out http://www.probodybuildingweekly.com/ and click on the replay of the telecast in which I serve as a legal analyst (I come on at around the 12 minute mark, after the break). For all the information on the case, you can check out www.titusandryan.com or www.getbig.com.

New SDFLA blogger

It is with pleasure that I welcome Marc Seitles as a co-blogger to the Southern District of Florida blog. Marc is a former Federal Defender in Miami and just started his own practice here in Miami.