"Feds say agent smuggled baseball stars into U.S."

Here is Julie Kay's article in the Review. Free access today. Woohoo.
Ben Daniel is prosecuting this case. Susan Dmitrovsky and Abe Bailey are defending.

Ellis Rubin RIP

Icon Ellis Rubin has died.
Love him or hate him, he is a legend in this community... Way ahead of his time and a true trial lawyer. Rumpole has this to say:

Mr. Rubin was a throwback to the days when the solitary defense attorney rode into town to defend the person no one else would defend.Did Mr. Rubin like a case in the news? Sure. But don't let his cases in the press mask the underlying talent of an excellent trial lawyer. He should not be remembered for that one case everyone mentions (TV intoxication). He should be remembered for being a fighter, an innovator, a man who cared about his clients, and man who went to jail for his beliefs.
We proudly admit we bought and read his book "Get Me Ellis Rubin". One comment always stuck with us, and only a real trial lawyer would be able to write about it. Mr. Rubin wrote that he always enjoyed trying cases against a prosecutor who had a reputation for never losing. Because when he managed to cause them enough problems in trial, he knew they were in unfamiliar territory and he had the advantage. Only a lawyer who tries a lot of cases knows that feeling. From the outside looking in, we think his was a life well lived. We celebrate his memory.

Report from Court Administator

Clarence Maddox writes in to correct our previous post:
I think that it is important for me to note that as judges and staff continue to relocate to the WPB courthouse and get resettled this week, we are not open for business in the usual sense. In that respect the DBR was not accurate. I anticipate resumption of normal Court activities by Monday, December 18th. Clarence Maddox, Court Administrator, SDFL.
We stand corrected!

In other news, Judge Cecilia Altonaga found South Florida water managers in violation of U.S. water quality standards for pumping billions of gallons of polluted runoff from sugar farms into Lake Okeechobee without a federal permit. The Judge rejected an array of defense arguments from the South Florida Water Management District, including that a permit wasn't needed because the state agency wasn't the source of the tainted water, but was simply moving it between two similar places -- the giant lake and the drainage canals crisscrossing the vast farming area to the southeast. Here is the 100+ page ruling.

West Palm open

According to this morning's DBR, the Federal Courthouse in West Palm is open for business. Also of note, Judge Kenneth Marra will be moving from Ft. Lauderdale to the renovated courthouse.

News and Notes

1. Another first of its kind prosecution in Miami. A federal grand jury in Miami Wednesday indicted the son of former Liberian President Charles Taylor on torture charges in the first U.S. criminal case of its kind. Charles Taylor Jr., 29, accused of committing atrocities in Liberia as the former head of a paramilitary unit in his father's government, is in custody at the Federal Detention Center in Miami. He faces sentencing today on a separate passport-fraud conviction. The three-count indictment returned by a federal grand jury in Miami accuses the defendant, also known as Charles McArthur Emmanuel, a U.S. citizen, of burning his victim's flesh with a hot iron, forcing the victim at gunpoint to hold scalding water and shocking the victim's genitalia. Here is the Herald article and the Sun-Sentinel article. Here is the indictment. The case has been assigned to Judge Altonaga and is being prosecuted by Karen Rochlin.

2. "Gravely ill, Miami lawyer Ellis Rubin says goodbye. As he prepares for death, Miami lawyer Ellis Rubin says he is proud of his storied career." (Miami Herald)

3. "Case of the Dwindling Docket Mystifies the Supreme Court." (NY Times)

4. "Crumbling Dream: Jesus Palencia is likely to be taken from his family and deported. Did he place too much trust in the U.S. Court system?" (DBR)

Padilla replies to torture

We broke the Jose Padilla motions to dismiss based on torture and the Government's response. Padilla has now replied. I don't know how to link to stuff that I scan into my computer. Does anyone know how to do this? UPDATE -- Thanks to a helpful reader, HERE ARE ALL THE PLEADINGS. In any event, here is a synopsis of the evidence Padilla plans on presenting at the hearing on the motion (the Government opposes a hearing):
UPDATE -- Here is a NY Times article on the allegations and a picture of how Padilla was moved around while at the brig. And here is the AP article written by Curt Anderson in the Washington Post.

Although Mr. Padilla’s allegations, with nothing more, should merit an evidentiary hearing, Mr. Padilla does not anticipate reliance on merely his word in meeting his burden of persuasion in this motion. Attached as Exhibit “A” is an affidavit from Mr. Padilla affirming that all the factual allegations in his motion to dismiss the indictment for outrageous government conduct are true. Attached as Exhibit “B” is an affidavit from Dr. Angela Hegarty who has evaluated Mr. Padilla and concludes, to a reasonable degree of medical certainty, that Mr. Padilla was tortured during his detention as an enemy combatant and suffers from post-traumatic stress disorder as a result of the conditions of his confinement. Attached as Exhibit “C” is a memorandum from Dr. Stuart Grassian, a renowned expert on the deleterious effect of isolation, explaining the mental and physical problems that arise from prolonged isolation and sensory and sleep depravation. Attached as Exhibit “D” is a declaration from Andrew Patel, Esq., regarding his knowledge of Mr. Padilla’s conditions of confinement and the adverse reactions Mr. Padilla has suffered due to the conditions of his confinement, including an inability to assist counsel. Attached as Exhibit “E” are still frames from an unclassified video of Mr. Padilla being transported from his cell to other parts of the facility where he was confined. These still frames show Mr. Padilla being brought out of his cell with a mask and earmuffs and all manner of restraints. One of the stills provides a partial vantage of Mr. Padilla’s cell. In addition to the attached affidavits, Mr. Padilla will separately file a request for a § 5(a) filing pursuant to the Classified Information Procedures Act, 18 U.S.C. App. III, supporting the allegations made by his motion. Also, undersigned counsel have made a specific discovery request for information pertinent to Mr. Padilla’s conditions of confinement, including Mr. Padilla’s interrogation plan, all orders authorizing interrogation techniques employed against Mr. Padilla, and the identities of all persons who conducted interrogations of Mr. Padilla or were responsible for making determinations on Mr. Padilla’s condition of confinement. Finally, Mr. Padilla has also reiterated his demand that the government fully comply with this Court’s Order, DE 572, compelling the government to turn over records generated during Mr. Padilla’s confinement. This Court ordered the government’s compliance within thirty days of September 14, 2006. Id. As of this filing, almost eighty days have elapsed since September 14 and the government still has not fully complied with this Court’s Order.

Sal Magluta resentenced

Sal Magluta was resented yesterday to 195 years in prison. The case was set for resentencing becasue the 11th Circuit had reversed one of his counts of conviction. Magluta had asked for a de novo sentencing hearing, which the judge denied. There were also some late fireworks as Magluta's lawyers filed a motion to recuse the night before sentencing, which was also denied. Here is the Herald article about the sentencing.

This decision will certainly be appealed. It will be interesting to see how the 11th Circuit deals with the Booker issues on appeal where Willie Falcon, Magluta's partner, was sentenced to 20 years as part of a deal and Magluta got 195 years for proceeding to trial. Is this reasonable?

Here is an op-ed that Milton Hirsch and I wrote, which was published in the Herald, after Magluta's first sentencing hearing -- but before the Supreme Court breathed life back into the 6th Amendment in Blakely and Booker:

Miami's last cocaine cowboy rode into the sunset last week. Salvador Magluta, considered one of Miami's most notorious narcotics dealers, was prosecuted in federal court for having witnesses murdered and for laundering millions of dollars in drug proceeds. A federal judge then punished Magluta with a 205-year sentence. Magluta, 48, will live in prison till the day he dies. But Magluta was never convicted of the homicides for which he was sentenced. A jury of his peers found Magluta not guilty of the murders, and guilty only of the nonviolent money-laundering charges -- crimes that carry a maximum sentence of 20 years.

The jury's verdict notwithstanding, the judge decided that Magluta was responsible for the homicides and sentenced him accordingly. In a watershed 1997 opinion, the U.S. Supreme Court ruled that federal judges, in imposing sentence, may ignore jury verdicts of acquittal and determine whether defendants have done wrong. The Herald applauded the punishment, and the new U.S. attorney claimed that such a sentence sends a message about justice. It does indeed: The message is that prosecutors can lose and still win, that a jury no longer stands between an accused American and a life sentence.

The jury is a special American institution and has been, until recently, the heart and soul of our criminal-justice system. The jury stands between arbitrary rule and the citizenry, and is a shield against overzealous government. Our Founding Fathers recognized that even an independent judiciary was not enough to protect us against abuses of power. They didn't trust judges to mete out justice on questions of guilt or innocence. To determine the answers to these questions, the Founders wanted the commonsense judgment of citizens. Acting upon the court's 1997 ruling, prosecutors and judges have found ways to end-run jury verdicts and the jury system itself. Judges sentence defendants convicted of lesser charges as though they had committed other, more-serious crimes, even in the face of a not-guilty verdict by a jury. Based on inconclusive evidence, or even rejected evidence, a judge is free to send a man to jail for life. Not guilty doesn't mean anything anymore. Conviction is optional. It is the jury verdict that separates America's legal system from that of so many other nations. All countries, even the worst, have laws, judges, lawyers. Most have trials -- or what are called trials -- and many even have juries. But in too many of those countries a verdict is a foregone conclusion: the prosecution having indicted, the jury is simply a rubber stamp. In Magluta's case the jury's verdict was treated as irrelevant, and because it was Magluta no one cared.

As Justice Felix Frankfurter famously warned: ``It is easy to make light of insistence of scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.''

Back to work

Welcome back to work after the long weekend!
Not much going on in the Southern District of Florida. If you have any news, please email me: domarkus -- at -- hotmail dot com.
In the meantime, here's an interesting article from the weekend about Justice Scalia, "the civil libertarian" by Scott Turow. One of the money lines: "Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases."
Will Alito and Roberts follow suit?