More news and notes

1. A former federal prosecutor, Ilona M. Holmes, turned state court judge does *not* like cell phones in her courtroom. ASA Imabel Ocasio gets 10 hours of community service for her phone going off. Ouch. Here's the Sun-Sentinel story.

2. Snitch testimony outside the presence of the jury in the Jose Padilla case. Why is the government calling these types of witnesses? Here's the LA Times on how it went for prosecutors:

In testimony that appeared to backfire for the prosecution, an ex-convict who attended the same mosque as terrorism suspect Jose Padilla testified Thursday that he himself had considered going abroad for training to become an Islamic holy warrior, as Padilla allegedly did.Herbert Atwell, 38, was the second prosecution witness to characterize the alleged actions of Padilla and two codefendants not as terrorism but as acts of altruism in helping Muslims under siege in foreign countries.
***
Inarticulate and at times surly under questioning by defense lawyers, Atwell conceded that he offered to testify against Padilla and Hassoun in hopes of getting out of prison. He said he was never promised any special consideration in return for supplying the government with accounts of what occurred at the Sunrise mosque, which he said he attended most evenings in the late 1990s."He was asking for money and for the brothers to be mujahedin fighters," Atwell recalled of Hassoun. "On several occasions he always had mujahedin fighters from all over the world — Chechnya, Palestine."The prosecutors seemed surprised when Atwell, under questioning by Baker, said he had considered becoming a holy warrior."I was thinking about going to be a mujahedin fighter myself," he said. "My wife was pregnant. If she wasn't pregnant, I would probably have gone to be a mujahedin fighter too."Asked whether he had wanted to become a terrorist, Atwell vehemently replied no. He said that the media now portrayed mujahedin as terrorists but that at the time they were simply Muslims coming to the aid of fellow believers.Atwell said Padilla "never talked that much" and that he remembered him mostly because of the Spanish-language Koran he would often read. Padilla is a U.S. citizen of Puerto Rican descent.Atwell will be brought back to testify before the jury Monday.But his credibility as a witness is in question. Judge Cooke noted that Atwell adamantly insisted he saw photos of Padilla and Hassoun on an NBC News broadcast in 2002, when Hassoun was not yet charged with a crime and no connection with Padilla had been made."These two things cannot be allowed to exist together in a truthful universe," she said of the witness' statement after he had left the courtroom. She added that she was curious how the prosecution would "deal with his credibility."Atwell reportedly has five felony convictions, including aggravated assault and battery of his now ex-wife. He contradicted himself repeatedly about what he could recall, depending on whether he was answering a question from the defense or prosecution.

Now I wonder whether the defense should have just waited to cross him in front of the jury. Will the government still call this guy?

3. Some advice for Rumpole: Don't blog about your own cases. See here.

News and Notes

1. Mario Claiborne has died, via Scotusblog. This is big news for judges, prosecutors and criminal defense lawyers around the country who have been waiting for the Supreme Court to decide United States v. Claiborne, which was to give us all more guidance on how sentencing hearings should be conducted post-Booker.

UPDATE -- the Supreme Court dismissed the case on June 4.

2. The DBR follows up on the Happy Meal comment to Bankruptcy Judge Laurel Myerson Isicoff that we covered earlier. Now that we are the DBR affiliate blog, we thought that we might get some props along with Abovethelaw, who broke the story...

Classic Miami posts

The boys over at Rakontur (Alfred Spellman and Billy Corbin) have started a series of posts titled Classic Miami. They are fun reading. Here's the latest re Jim Morrison. These are the guys who made the great documentary Cocaine Cowboys. If you want to watch a really interesting, well-done, and thought-provoking film, you have to check out Raw Deal, which is a documentary that Spellman and Corbin did on the "rape" case at the University of Florida. I highly highly recommend it.

Wilk jury out till next week!

I'm sure the prosecutors are not happy about this -- the Kenneth Wilk jury deliberated all day yesterday and then asked to be excused until next week because of various conflicts. They may very well convict, but the prosecutors must be asking themselves what is taking so long...

Shaq sighting

So I was in the federal courthouse this morning when I saw Shaq in an elevator surrounded by a bunch of Marshals. Before I could get my card out, a court security officer told me that he was there to be sworn in as a deputy marshal... Here is a picture of him being sworn in as a police officer.

Weekend reading...

Hope everyone had a nice holiday weekend.


The Wilk jury continues its deliberations tomorrow. The prosecution cannot be happy that they are still out and that they didn't come back quickly. The defense can't be happy that they were home over a long weekend where they would be pressured by family and friends to get it over with and convict. Ahhh, the stresses of having a jury out deliberating. There is nothing worse...

The Christian Science Monitor has been doing a very nice job covering the Padilla trial. Here's an article about the other two defendants in the case, Adham Hassoun and Kifah Jayyousi. And the article covers this fun exchange:


In testimony last week, FBI translator Majed Sam acknowledged that it was up to him to decide which conversations to translate. But he said he pursued no FBI agenda. "My goal is to translate everything in as accurate English as I can," he told the jury.
During cross-examination, Jayyousi defense lawyer Marshall Dore Louis asked Mr. Sam whether he was familiar with the American term "to cherry-pick."
"It means selecting what you want to select," Mr. Louis said.


Yes," Sam agreed.
At the conclusion of his cross-examination, Louis returned to that theme. He asked if Sam was familiar with other American terms: paint with a broad brush, stereotype, prejudice, bigotry.
Sam answered that he was familiar with each term.
The move appeared to be an effort to encourage the jury – made up of three African-Americans, four whites, and five Latinos – to closely scrutinize whether the government was using stereotypes and prejudice against Muslims to try to win convictions.
Later when the jury was excused for the day, Assistant US Attorney Russell Killinger complained to the judge about Louis's questions. "They were totally improper and uncalled for," he told US District Judge Marcia Cooke.
"I was a little surprised myself," the judge said.
Louis said he didn't mean to imply the translator was himself bigoted. His questions were intended to highlight the way the government is presenting its case.
"That's [an] argument" that can be presented later in the trial, the judge told Louis. "This witness didn't deserve those kinds of questions," she said.
Jeanne Baker, a lawyer for Hassoun, disagreed. "There is a right we have to advance our themes," she said.
Judge Cooke said the questions crossed the line into impermissible argument. "Everyone is on notice," she said.

Dore Louis has been no shrinking violet in this trial....

And here's the AP covering Judge Cooke, with only nice things to say of course...

"[You are] a few French Fries short of a Happy Meal."

That's what a lawyer (a partner from McDermott Will & Emery -- Chicago) said to bankruptcy Judge Isicoff here in the SDFLA. Here's the whole story and the transcript from Abovethelaw.com.

Wilk jury deliberating...

The Miami Herald and Sun-Sentinel have stories about the Kenneth Wilk trial going to the jury. Closing arguments were heated... From the Herald:

Wilk's home had been targeted in the past by gay bashers and Wilk had been threatened over the Internet, [Defense lawyer Bill] Matthewman said.
''They're busting into a man's house, his castle, and they know he has hearing loss,'' Matthewman said.
But prosecutors contend Wilk ambushed the officers that morning, saying he was obsessed with police officers and stockpiled guns for just such a day.
Prosecutors have said Wilk repeatedly indicated he wanted to harm police officers for what he saw as unfair child-pornography charges against his partner, Jones.
''No, the defendant didn't know the day they'd come,'' prosecutor Neil Karadbil said during closing arguments. ``No, he didn't know the time, but he was ready when they did.''
Wilk has simply made up excuses for his actions, Karadbil said, criticizing the defense's contention that Wilk suffered from severe hearing loss and AIDS-related dementia.
Wilk suggested Jones use the same defense after Jones' was arrested, Karadbil said.
''He thinks he can explain away everything in the case,'' Karadbil said. ``He thinks he's the smartest man in the room, but what he is, more than anything, is a liar.''
If convicted of the murder charge, Wilk could receive the death penalty.
The panel of eight women and four men began deliberations just after 3:30 p.m. Shortly after, the jurors asked U.S. District Judge James I. Cohn for a transcript of Wilk's testimony. Cohn told jurors there was not a copy of the transcript available for them and to rely on their recollection. The jury will resume deliberations today.

The prosecution got so upset, it made a completely inappropriate remark that will be looked at very carefully by the 11th Circuit if there is a conviction. From the Sun-Sentinel:

One comment the prosecutor made caused the defense to ask for a mistrial.Kastrenakes had ridiculed the defense's experts and remarked about how they were being paid by taxpayers."Where's our tax dollars going -- to pay them?" Kastrenakes asked the jury.The defense objected. Later, when the jury was out of the courtroom, U.S. District Judge James Cohn said jurors could interpret the comment to mean that the defense was wasting jurors' money on Wilk's defense.Kastrenakes said his comment was about the "value we are getting as citizens." The defense noted that taxpayers pay for prosecution witnesses too.The judge said he had to tell jurors to ignore the comment."That is a totally improper argument and you are to disregard it," Cohn told the jury.Wilk has a constitutional right to have the court pay for expert witnesses and the way the money was spent was not an issue in the case, Cohn explained.