Jack Bauer or real life?

When I watch 24 every week, I never thought that the torture scenarios that confront Jack Bauer on a weekly basis come up all that often in real life. Apparently, I was wrong. Here's an AP article about Jose Padilla's latest motion to exclude evidence on the basis that it were acquired by use of torture:

Jose Padilla's lawyers want a federal judge to throw out key evidence because the alleged al-Qaida operative's arrest was based on statements from one source who claims he was tortured and another who was heavily medicated and possibly unreliable. The evidence should not be allowed at Padilla's trial set for this fall based on an FBI affidavit "that distorted the facts in an apparent disregard for the truth," Padilla attorneys [Andrew Patel, Michael Caruso, Tony Natale, and Orlando do Campo] said in a court filing.

Kinda scary, no? And I don't think I'm against torture in all cases. I take the view of one of my law school professors, Alan Dershowitz, that we should debate the issue about when torture can be used and who should be accountable when it is. Certainly, a judge should have to approve it where practicable; the standard for employing it would have to be very high; whatever evidence is obtained by use of the torture should not be admissible in court; and it should only be used in life or death situations where absent torture people would die. Even in these *very* limited circumstances, I'm still extremely queasy about it, but it strikes me that there may be a case of mass terrorism where a large number of people would die absent torturing one of the involved terrorists. Suppose a suspect knew the location of a bomb that was to go off in a matter of hours that would kill thousands of people. If that person absolutely refused to disclose where that bomb was, would anyone chose letting the bomb go off over trying to extract the information from the captured terrorist? But Padilla's case is the other end of the spectrum. With Padilla, the feds were trying to build a case against someone who was already in custody. I can't imagine torture in those circumstances could be justified, and certainly such evidence -- if truly acquired by use of torture -- should not be admissible in a court of law.

Pledge Requirement Unconstitutional

Judge Kenneth Ryskamp found a state law requiring students to recite the pledge unconstitutional. Here's the Palm Beach Post article by Rani Gupta:

A federal judge has declared a state law requiring students to stand for the Pledge of Allegiance unconstitutional, stating it violated the rights of a Palm Beach County student who sued the state last year. U.S. District Judge Kenneth L. Ryskamp also ruled unconstitutional the provision of the 1942 Florida law requiring students to obtain permission from their parents to be excused from reciting the pledge. The American Civil Liberties Union cheered Ryskamp's decision as a landmark ruling that upholds all Florida students' free speech rights. "The highest tradition of being an American is freedom of thought and freedom of speech," ACLU attorney James Green said Thursday. "Freedom of speech includes the right to speak and the right not to speak, and not to be forced to speak in a certain way." But conservative legislators decried the decision, which they said was an assault by "liberal" and "activist" judges on the beliefs of the majority. State Sen. Mike Fasano, R-New Port Richey, called the decision "ludicrous." Fasano this year spearheaded an unsuccessful attempt to ask Florida voters to decide whether the state constitution should require students to stand and recite the pledge. Students would have needed a parent's permission to be excused. "What a federal judge has done is taken away patriotism from our schools," Fasano said.

Ryskamp was appointed by President Reagan.

Sentencing seminar

The Fifteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, begins today. All the particulars of this exciting event are set out in this event brochure. I would have gone, but instead I'm visiting the in-laws in NJ...

News and notes

Jessica Walker of the DBR had two interesting stories yesterday:

1. Holland & Knight raised 1st year associate salaries to $120,000: "In a change of plan, Holland & Knight is bumping salaries for first-year associates in Miami, Fort Lauderdale and West Palm Beach from $105,000 to $120,000. That will include a $5,000 signing bonus. Holland’s move raises the ante for other major South Florida corporate law firms, which are paying $115,000 at most for entry-level associates. Only White & Case in Miami is known to be paying first-years $120,000. Holland’s announcement Tuesday was unexpected, because major salary increases typically are announced around the start of a law firm’s fiscal year. Holland’s fiscal year begins on Jan. 1."

2. "In a dramatic reversal, U.S. District Judge Cecilia Altonaga in Miami overturned a $78 million jury verdict against Arriva Pharmaceuticals and dismissed the case. In a post-trial judgment issued Friday, Judge Altonaga ruled in favor of the Alameda, Calif.-based pharmaceutical company. A Miami jury had awarded Clearwater-based AlphaMedPharma- ceuticals $48 million in compensatory damages in December, and $30 million in punitive damages in January. It was one of the largest patent infringement cases in U.S. history. . . . Arriva, represented by Akerman Senterfitt shareholder Jonathan Goodman, filed a post-trial motion arguing that the verdict should be vacated because the likelihood that AlphaMed actually held a patent to a drug that would be successful was very slim, making the damages awarded unreasonable. "

3. Also here's a story by the Herald's Oscar Corral about the appeal of the detention hearing of alleged Cuban agent Elsa Alvarez before Judge Moore: "The detention of accused Cuban agent Elsa Alvarez was discussed in federal court Wednesday, about five months after she was jailed for allegedly sending information to the Cuban government. Alvarez, a counselor at Florida International University, and her husband, FIU psychology Professor Carlos Alvarez, were arrested in January. The couple is accused of being unregistered agents for Cuba. Jane Moscowitz, a lawyer for Elsa Alvarez, said that a federal judge would decide in the next couple of weeks if Alvarez will be released on bond. Moscowitz said that the court gave a strong indication that it was leaning toward granting Alvarez a bond, subject to certain conditions as she awaits trial. The court did not indicate the amount of the bond, Moscowitz said. ''Elsa and her family are looking forward to being reunited,'' Moscowitz said."

News and notes

Jessica Walker of the DBR had two interesting stories yesterday:

1. Holland & Knight raised 1st year associate salaries to $120,000: "In a change of plan, Holland & Knight is bumping salaries for first-year associates in Miami, Fort Lauderdale and West Palm Beach from $105,000 to $120,000. That will include a $5,000 signing bonus. Holland’s move raises the ante for other major South Florida corporate law firms, which are paying $115,000 at most for entry-level associates. Only White & Case in Miami is known to be paying first-years $120,000. Holland’s announcement Tuesday was unexpected, because major salary increases typically are announced around the start of a law firm’s fiscal year. Holland’s fiscal year begins on Jan. 1."

2. "In a dramatic reversal, U.S. District Judge Cecilia Altonaga in Miami overturned a $78 million jury verdict against Arriva Pharmaceuticals and dismissed the case. In a post-trial judgment issued Friday, Judge Altonaga ruled in favor of the Alameda, Calif.-based pharmaceutical company. A Miami jury had awarded Clearwater-based AlphaMedPharma- ceuticals $48 million in compensatory damages in December, and $30 million in punitive damages in January. It was one of the largest patent infringement cases in U.S. history. . . . Arriva, represented by Akerman Senterfitt shareholder Jonathan Goodman, filed a post-trial motion arguing that the verdict should be vacated because the likelihood that AlphaMed actually held a patent to a drug that would be successful was very slim, making the damages awarded unreasonable. "

3. Also here's a story by the Herald's Oscar Corral about the appeal of the detention hearing of alleged Cuban agent Elsa Alvarez before Judge Moore: "The detention of accused Cuban agent Elsa Alvarez was discussed in federal court Wednesday, about five months after she was jailed for allegedly sending information to the Cuban government. Alvarez, a counselor at Florida International University, and her husband, FIU psychology Professor Carlos Alvarez, were arrested in January. The couple is accused of being unregistered agents for Cuba. Jane Moscowitz, a lawyer for Elsa Alvarez, said that a federal judge would decide in the next couple of weeks if Alvarez will be released on bond. Moscowitz said that the court gave a strong indication that it was leaning toward granting Alvarez a bond, subject to certain conditions as she awaits trial. The court did not indicate the amount of the bond, Moscowitz said. ''Elsa and her family are looking forward to being reunited,'' Moscowitz said."

Back to work

Hope all of you had a good weekend. The HEAT looked good. The weather wasn't horrible. And now the traffic is bearable since school is out...

In the Southern District, things are pretty quiet. If you have any news to report, please let me know. In the meantime, here is some news about Broward County Sheriff Ken Jenne who is being investigated by the feds. Both the Miami Herald and the Sun-Sentinel had articles about it this weekend.

Also, here is a great article about the Enron lawyering from the Washington Post.

Random thought: Remember back in high school on a Sunday night after a long weekend, the dread about having to get up early to go back to school the next day...

News and notes

Before I get out of here for the long (rainy) weekend, here are a couple news and notes from the Sun-Sentinel's Vanessa Blum:

1. Jose Padilla is asking to review classified material, which shouldn't be a problem in this case because it's material he supposedly provided to the feds. Nevertheless, the government is objecting. Here's the issue as framed by the article: "The materials at issue are written records and videotapes of the statements Padilla himself provided to interrogators during his lengthy military detention at a South Carolina Navy brig.All of which poses an unusual conundrum: Padilla's lawyers, who have security clearances, may review the material but cannot discuss it with their client because the information is classified. In a legal brief filed this week in Miami federal court, attorney Andrew Patel [and FPDs Michael Caruso, Tony Natale, and Orlando do Campo] argues that Padilla must be given access to the classified material in order to receive a fair trial."

2. The oath of office case was decided by Judge Middlebrooks, who "ruled that the oath of office in the village of Tequesta does not violate the U.S. Constitution by requiring public officeholders to swear to 'support, protect and defend' the federal and state governments." From the sound of the article and from what those who were present at the hearing told me, the councilman's argument -- by Richard Rosenthal -- was lively and very forceful even though he was facing a very uphill battle.

Have a great weekend...

Air Marshals to avoid prosecution

Michael Pasano and Paul Calli represent the air marshals who shot and killed a passenger. The marshals apparently will not be prosecuted.

Here are some snippets from the report:

INTRODUCTION
On December 7, 2005, Mr. Rigoberto Alpizar and his wife boarded American Airlines Flight 924 from Miami International Airport to Orlando, Florida. Shortly thereafter, Mr. Alpizar abruptly traveled down the aisle toward the front of the plane passing Federal Air Marshals 1 and 2. The air marshals followed Mr. Alpizar onto the jetway. Federal Air Marshals 1 and 2 shot and killed Rigoberto Alpizar on the jetway connecting Gate #42 of Concourse D at Miami International Airport to an American Airlines airplane flight 924. Mr. Alpizar expired on the scene.

CONCLUSION
The shooting death of Mr. Alpizar, while tragic, is legally justified in light of the surrounding circumstances presented to the air marshals. It should be noted that both air marshals demonstrated remarkable restraint in dealing with Mr. Alpizar. Florida Statute §901.1505(2)(a) and (b) Federal Law Enforcement Officers; Powers, empowers federal officers engaged in the exercise of their federal duties to make a warrantless arrest of any person who commits a felony that involves violence. The statute further empowers them “[t]o use any force which the officer reasonably believes to be necessary to defend … himself or another from bodily harm while making the arrest or any force necessary… in arresting any felon fleeing from justice when the officer reasonably believes either that the fleeing felon poses a threat of death or serious physical harm to the officers or others or that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.” When Mr. Alpizar ran onto the jetway stating that he had a bomb and threatened to detonate it, given that he had a backpack strapped to the front of his chest and failed to comply with commands to stop and desist, the air marshals had probable cause to arrest Mr. Alpizar for violations of Florida Statute: 1. §782.04(1) and (2) and §782.051: The attempted murder of the crew member and/or every passenger aboard American Airlines Flight 924 and/or in relative proximity to him, including those in the airport terminal, through a) aircraft piracy and/or b) the unlawful throwing, placing or discharging of a destructive device or bomb and/or c) the murder of another human being and/or d) the commission of a felony that is an act of terrorism or is in furtherance of an act of terrorism, all of which are forcible felonies pursuant to §776.08. 2. §790.161: Making, possessing or throwing projectile. Placing, or discharging any destructive device or attempt so to do, a forcible felony pursuant to §776.08. 3. §790.162: Threat to throw, project, place, or discharge any destructive device, a forcible felony pursuant to §776.08. 4. §790.163: False report about planting bomb, explosive, or weapon of mass destruction. 5. §775.30: Terrorism, a forcible felony pursuant to §776.08. Thus, under §901.1505 the air marshals could make a warrantless arrest of Mr. Alpizar because they reasonably believed he was committing, our would commit, multiple felonies involving violence in their presence. As such, they could use the force they thought necessary to defend themselves and others from bodily harm while making the arrest or in preventing Mr. Alpizar from fleeing because he reasonably appeared to pose a threat of death or serious physical harm to the marshals and others. In addition, under Florida Statute §776.012 Use of Force in Defense of Others, the air marshals could stand their ground and use deadly force because Mr. Alpizar’s actions reasonably conveyed a threat of imminent death or great bodily harm to themselves and others and served to prevent said harm or the imminent commission of a forcible felony as enumerated above. It is factually and legally irrelevant that some passengers did not hear Mr. Alpizar say anything about a bomb. It is clear that those persons toward the front of the aircraft did, as illustrated below. Mr. Alpizar Heard “bomb” Did not hear “bomb” Most notably, the person with the least motive to fabricate, Mr. Alpizar’s wife, admits that her husband said he had a bomb. She also affirmed that her husband failed to comply with F.A.M. 1’s and 2’s repeated commands. Furthermore, it is factually and legally irrelevant whether Mr. Alpizar actually had a bomb. The presence of a bomb would not convert an unjustified shooting into a justified one. Likewise, the absence of a bomb cannot convert a justified shooting into one that is unjustified. Under the same rationale, it is factually and legally irrelevant whether Mr. Alpizar actually suffered from a mental illness or whether he was suffering from an episode of said illness at the time of the shooting. It is factually and legally irrelevant that the air marshals could assume that Transportation Safety Administration personnel cleared Mr. Alpizar to enter the subject concourse, and, thus, posed no threat to persons or aircraft. The air marshal service exists as a contingency in tacit acknowledgement that those with lethal contraband and/or illegal purpose and intent may succeed in boarding an airliner. It is factually and legally irrelevant that Mr. Alpizar’s wife expressed aloud that her husband was sick. There is no evidence that the air marshals ever heard this statement. In fact, those passengers that did hear such comments agree that she made these comments near where she and Mr. Alpizar were seated and/or only after the shooting, but never near the air marshals. Even if the air marshals did, or should have heard, her statements, it would not alleviate the responsibility of the air marshals to deal quickly and decisively with the issue presented. In a post-September 11th and Madrid bombing world, the air marshals were faced with a man on an American Airlines flight clutching a backpack on his chest, claiming to have a bomb and threatening to detonate it while heading back toward the aircraft. Under these circumstances, there simply is no room for delay for the purposes of conducting the type of investigation that hindsight offers. Additionally, the statements by Mr. Alpizar’s wife, if heard by the marshals, are also subject to various interpretations. “He’s sick” is certainly not the type of statement that the ordinary person, given the circumstances, would automatically assume meant that Mr. Alpizar suffered from a mental illness. Furthermore, the air marshals could have interpreted the situation to be that the woman was acting in concert with the man to create the delay and indecisiveness necessary to accomplish their task. It is factually and legally irrelevant whether F.A.M.s 1 and 2 complied with their department’s policies and procedures. Whether the air marshals actions are justified or not in the State of Florida is independent of whether they abided by rules set by a federal agency. For this reason, the department’s policies and procedures, if any, were not evaluated.