See no evil

Another fight brewing in the Padilla case -- this time over what evidence should be turned over to the defense. Here's the intro to Dan Cordtz's DBR article:

U.S. District Judge Marcia Cooke in Miami is expected Tuesday to consider an unusual motion by prosecutors in the terrorism case against Jose Padilla and two of his alleged accomplices to prevent the defendants from seeing classified information the government may use against them.

Although a government spokeswoman declined comment, defense attorneys said the motion shows that prosecutors plan to use classified materials in the upcoming trial of Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi and wants to prevent the defendants from seeing such evidence. The trial is now scheduled for September.

Such restrictions, said Miami solo practitioner Kenneth M. Swartz, counsel for Hassoun, “would be a big problem. A defense attorney has to be able to share information with his client in order to mount an effective defense. We will have to put up a fight about it.”

The three men, along with two others who are not in custody, are charged with conspiracy to murder, kidnap and maim persons in a foreign country and with providing material support to terrorists.

In his motion, filed last month, Assistant U.S. Attorney Russell R. Killinger invoked the federal Classified Information Procedures Act.

“In conducting its investigation of the criminal activities of the defendants, as well as in preparation to meet its discovery obligations, the government has concluded that there is classified material in various milieu, including written documents, which items may be relevant to this case and which are classified as ‘Secret’ or ‘Confidential,’ ” wrote assistant U.S. attorney Russell R. Killinger. “Some of this classified information is the property of foreign governments.”

JUDGE HENRY LEYTE-VIDAL HAS PASSED AWAY

Hello Federal Blog readers. Some of you read my State Court Blog, where I am infamously known as "Rumpole". David Markus was kind enough to invite me to be a guest blogger during his trial and absence from the Southern District. I am sorry that my first post on this blog brings such sad news. We have lost a wonderful Circuit Court Judge for the second time in a few months. The following is an email we received from one of our readers:

Judge Henry Leyte-Vidal has passed away yesterday. He died during the night while at Mt. Sinai hospital on Miami Beach. He was operated earlier this week for cancer. He has previously battled a brain tumor, skin cancer and I believe lung cancer. Henry came out of the operation OK but complained of some pain on Friday. The doctors were going to go back in but couldn't since he had low blood pressure (Could've been high, he suffered from one of these two). Since the doctors were unable to stabilize his blood pressure, they were unable to go back in. He then suffered cardiac arrest. and was placed back in ICU. This was all yesterday . Last night, He seemed to have stabilized when he died. Peter Heller just called me so I am passing it on to you. Peter was very close to Henry. They coached Little League together and Peter was with his son Danny throughout the day. Danny is 14yrs old. Judge Leyte-Vidal is also survived by two older sons Alex and Henrique or Enrique from an earlier marriage.

Is there anything worse for a trial lawyer...

...than having a jury out deliberating?

Rumpole invited

In the spirit of keeping the blog alive and kicking while I'm suffering in Savannah, I've invited Rumpole (yes, the Anonymous State Court Blogger) to guest blog. Enjoy.

Marcos Jimenez responds part II

Marcos Jiminez has posted comments responding to the DBR editor and to "anonymous." Here are the comments:

COMMENT #1"Anonymous" should listen to the tape and write us about it for attribution. Otherwise, any comments by someone named "anonymous" are laughable and cowardly. Posted by Marcos Daniel Jimenez to Southern District of Florida Blog at 3/20/2006 11:19:30 AM

COMMENT #2 My response to the Editor is simply this: anyone listening to the tape will agree that the DBR misconstrued my remarks in a sloppy and disingenuous fashion just to create an attention-grabbing opening. This made for such a confusing introduction that the DBR felt obliged in the third paragraph to notify the reader that I was actually defending the Bush administration during the debate. The Editor's response likewise selectively quotes my statements in order to downplay my defense of the administration's actions.

These attempts to twist what is said on these issues are obviously slanted and somewhat humorous. It reminded one of my colleagues about a recent ABC Stephanopoulous show interview of Sen. Specter:

STEPHANOPOULOS: You know, if the president did break the law or circumvent the law, what’s the remedy?

SPECTER: Well, the remedy could be a variety of things. A president - and I’m not suggesting remotely that there’s any basis, but you’re asking, really, theory, what’s the remedy? Impeachment is a remedy. After impeachment, you could have a criminal prosecution, but the principal remedy, George, under our society is to pay a political price.

You know what the headline was the next day in the LA Times? You guessed it: Arlen Specter: "Impeachment is a remedy"
Posted by Marcos Daniel Jimenez to Southern District of Florida Blog at 3/20/2006 11:16:00 AM

Judge gives maximum 10-year sentences to 2 Cuban smugglers

The Herald reports here regarding Judge Moore's decision to impose the statutory-maximum sentence in an smuggling case that resulted in the death of a young boy.

DBR editor responds

Carl Jones, a reporter at the DBR, was kind enough to email me the DBR's response to Marcos Jimenez's letter:

Editor’s reply: The article prominently noted that Jimenez defended the warrantless eavesdropping program and quoted him saying that the president’s conduct is “plausible and defendable.” It also explained that Jimenez was responding to a question about the appropriate penalty if the Bush administration went too far. The piece quoted Jimenez’s exact language that if the spying program monitored purely domestic communications, “the remedy if he exceeds his authority is impeachment.” The full nature and scope of the monitoring program has not been disclosed.

Marcos Jimenez responds (UPDATED)

A couple days ago the American Constitution Society held a debate between former U.S. Attorney Marcos Jimenez and Neal Sonnett regarding NSA's warrantless wiretapping. The Daily Business Review ran an article (by Julie Kay) on the debate, highlighting Mr. Jimenez's answers to questions (by Richard Rosenthal) about what remedy there should be if the President violated the Constitution. The article reported that Mr. Jimenez responded that impeachment would be appropriate. Mr. Jimenez has called the article misleading and has asked that his letter in response to the Daily Business Review editor be posted on the blog. So here it is.

***Today's "Dueling Over Eavesdropping" Article on Page A3 of your publication misrepresents and takes out of context what I saidduring the debate with my colleague Neal Sonnett. Towards the end of the debate, I was asked a hypothetical question regarding remedies for inappropriate action by the administration, and as part of my response I said that impeachment is a constitutional avenue to hold the President accountable. I never said or "suggested" that it would be"appropriate" to impeach President Bush in connection with theNSA's warrantless intercepts of terrorism-related communications. Indeed, during the debate, I vigorously argued in favor of the NSA'sand the President's actions, which are wholly appropriate and necessary to protect our country in this time of war.***Marcos Daniel Jimenez Kenny Nachwalter, P.A. 1100 Miami Center201 S. Biscayne Blvd.Miami, FL 33131Main: 305-373-1000 mjimenez@kennynachwalter.com

Here is the intro to the Business Review article:
Former U.S. Attorney Marcos Jimenez has suggested that it would be appropriate to impeach President Bush if it’s found that the Bush administration monitored domestic calls or e-mails without court approval, or if his approval for the warrantless spying program exceeded his constitutional authority. “My opinion is the [National Security Agency] program should not be used domestically, for state-to-state calls,” said Jimenez, a partner at Kenny Nachwalter, during a debate on secret spying in Miami last week that was sponsored by the American Constitutional Society. “In those cases, the Foreign Intelligence Surveillance Act would apply and the Fourth Amendment would apply, and you would need a warrant. The remedy if he exceeds his authority is impeachment.”

I'd like to thank Mr. Jimenez for making this letter available to the blog for posting. I would also invite Julie Kay and Richard Rosenthal to respond to this letter, as well as anyone else who was at the event. (Disclosure -- I am on the board of ACS and helped to plan the debate... Unfortunately I wasn't able to attend as I'm still stuck in Savannah).

UPDATE:
RICHARD ROSENTHAL HAS EMAILED ME HIS RESPONSE. HERE IT IS:
"David Markus has asked me to comment on the controversy surrounding a recent Daily Business Review article by reporter Julie Kay. Ms.Kay's article concerns comments made at the American Constitution Society's recent debate on the Bush Administration's NSA wiretapping program. One of the panelists in the ACS event, former U.S. Attorney Marcos Jimenez, now states that Ms. Kay's article misleadingly takes out of context some of Mr. Jimenez's answers to questions I posed to him. Because Ms. Kay audiotaped the entirety of the program, there is little that my own memory of the event could possibly add here. The recording will speak for itself. Perhaps an impartial third party would want to review the recording to make an independent assessment of Mr. Jimenez's present assertion. But -- as the ViceChair of the organization sponsoring the event, and as the person whoposed the rather pointed questions to Mr. Jimenez in the first place -- I am probably ill-suited to serve such a role. I would add only that I have the highest professional regard for Ms. Kay's journalistic abilitites and ethics, and equally high regard for Mr.Jimenez's legal abilities and ethics. I thank both of them for their presence and respective roles at the ACS event."