"The lash is about to fall on all"

That was Judge Cooke today during the motion for a rule to show cause in the Jose Padilla case. Judge Cooke showed why she is such a great judge during the hearing -- she took appropriate action for the leak to the NY Times but did not go overboard and order an evidentiary hearing or sanctions.

The government's main argument for going forward with an evidentiary hearing was to make sure that those who were responsible for trying to "taint the jury pool" were exposed and punished. But if the defense lawyers were truly interested in tainting the jury pool, why leak to the NY Times? Why not leak to television reporters (as was done in this case) or at least the local reporters (who covered the action today here, here, and here). Although Judge Cooke apparently has a subscription, how many Miami jurors actually read the NY Times?

In the end, Judge Cooke took the defense lawyers at their word that "this was a simple misunderstanding, an honest mistake, and it has been rectified. Your honor can rest assured that this matter is at an end. There have been no further disclosures.''

"Panama's Noriega set to be released"

"This year, Panama's ex-leader Manuel Noriega may leave a South Miami-Dade prison where he's been since 1990." In today's Miami Herald, by Gerardo Reyes and Jay Weaver

No Pinch Hitters?

Julie Kay has an article in today's DBR about the Gus Dominguez trial. Judge Moore had refused to grant a continuance in the past. This time, he granted the government's request for a continuance, but he was not happy about it. Apparently the government threatened to dismiss the entire indictment if the continuance wasn't granted. Both sides have reason to be upset -- the defense prepared for trial, made reservations for hotels in the Keys, flew in witnesses and so on because this was a firm trial date. The prosecution is rightfully upset because the lead prosecutor has been ill and in the hospital, which is, of course, good cause to continue the case. What a mess....

Response to Cully Stimson

I wrote this letter to the editor, which was published in today's Herald:

Following 9/11, we gave extraordinary and unprecedented powers to the government's executive branch to fight terror. Therefore, it is critical that we ensure that our civil liberties are protected. Unfortunately, Cully Stimson, deputy assistant secretary of defense for detainee affairs, attacked the lawyers who strive to protect our civil liberties. [He later apologized.]
Still, in a recent radio interview, Stimson called it ''shocking'' that some of the most prestigious law firms in the country were providing pro bono representation to detainees at Guantánamo Bay. Stimson has gone so far as to try to rally American corporations to stop doing business with these law firms.
Stimson blindly attacked those who selflessly volunteered to perform the highest calling of the legal profession, defending those who cannot defend themselves against the unfettered power of government. He also insulted CEOs who understand how important it is to protect our rights and the Constitution.
These lawyers, true patriots, are following in the proud tradition of John Adams who represented British soldiers tried in American courts. Instead of being attacked, the defenders of our Constitution and our country's integrity deserve our thanks.
DAVID OSCAR MARKUS, president,
Florida Association of Criminal Defense Lawyers, Miami chapter, Miami

The editor correctly pointed out in brackets that Stimson has since apologized. But that has been criticized as well.

Any word...

... on who has put their name in for Magistrate Judge in Ft. Lauderdale?

"As rare as four-leaf clovers"

Mike Tein was referring to binding 11(e) pleas in this Sun-Sentinel article about Ze'ev Rosenstein (in which the parties agreed to a 144 month sentence -- see post below). I loved the quote, and I agree with Mike that you rarely see these sorts of deals in federal court where the parties agree on a particular sentence. The judge either accepts the deal and is then bound by the agreement or rejects it. It seems to me that both sides would want to do this more often. It gives everyone certainty, avoids litigation, and avoids appeals... Why don't we see more of these binding deals?

Ze'ev Rosenstein pleads guilty...

...and is sentenced to 144 months (that's 12 years for the math challenged; Update -- My math is actually incorrect. After he is extradited, Rosenstein will have 5 years 4 months to go which will be served in Israel where the pending Israeli case against him, conspiracy to commit murder, will be concurrent and no further prosecutions here or there.)

You remember this case -- the one where prosecutors wanted the witnesses to testify in "light disguise." Previous blog coverage on this case here and here. The AP is reporting on the plea here; Herald here.

Judge Dimitrouleas presided.

Cert from SDFLA

Our appellate correspondent, Richard Rosenthal, writes in:


On Friday the U.S. Supreme Court granted cert on a fascinating case that originated right here in S.D. Fla. Without delving too much into details -- those interested can go to Wyner v. Struhs, 254 F. Supp. 2d 1297 (S.D. Fla. 2003) -- Judge Middlebrooks awarded "prevailing party" attorneys' fees to the ACLU of Florida after it successfully obtained a preliminary injunction that allowed a nude anti-war protest in a public park. But the catch is that after "winning" the preliminary injunction, the ACLU "lost" its request for a permanent injunction because the protest was was one-time deal, rather than a recurring performance. The Eleventh Circuit -- in an unsigned, unpublished opinion -- affirmed Judge Middlebrooks's award of attorneys' fees. Wyner v. Struhs, 179 Fed. Appx. 566 (11th Cir. 2006). Although that unpublished affirmance is not even binding precent within the Eleventh Circuit, it nevertheless conflicted with a Fourth Circuit ruling (Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002)), and the Supreme Court has now stepped in to resolve the conflict. After the Supreme Court's virtual elimination of attorneys' fees under the "catalyst theory," a Supreme Court ruling in this case could deliver yet another serious blow to civil rights organizations and other "do-gooder" litigants. Stay tuned.....