Alberto Gonzalez in town

Julie Kay covers Alberto Gonzalez's talk yesterday in Miami:

U.S. Attorney General Alberto Gonzales came to Miami Monday to talk about the threat of nuclear terrorism worldwide — but ducked questions about whether he will keep his job and about a new immigration judge scandal involving his Department of Justice.

"Ducked"? More like a sitting duck...

Gonzales was the luncheon keynote speaker at the Global Initiative Nuclear Terrorism Law Enforcement Conference in Miami. Law enforcement officials from 36 countries are attending the weeklong conference, featuring speakers including FBI Director Robert Mueller and New York Police Commissioner Raymond Kelly. After his speech about how countries must work together to intercept and foil plots by terrorists to acquire nuclear weapons, Gonzales fended off questions from reporters at a brief news conference. His demeanor was calm, even bemused. He didn’t seem ruffled, as he frequently was during his recent testimony before the Senate Judiciary Committee investigating the alleged political firing of eight U.S. attorneys.

Why be upset? Why get ruffled? He works for the Decider!

When asked how he can be effective while facing an unusual no-confidence vote in the Senate Gonzales said: “I’m not focusing on what the Senate is doing, I’m focusing on my job. That’s what the American people expect. I serve at the pleasure of the president.” By deadline Monday afternoon, the Senate had not yet voted on the non-binding resolution. When asked about an editorial in the New York Times Monday calling for his ouster, Gonzales laughed and said, “I haven’t read it.” Like President Bush, he said, “I remain focused on sprinting to the finish line. The issues we’re working on are too darned important. That’s why I’m here today talking about global terrorism. That’s why I was in Mexico recently talking about violent crime.” When asked by a reporter if he could still be effective in his job, he answered: “I’m still meeting with my counterparts and they’re interested in meeting with me.” Gonzales also was asked about a report in Monday’s Washington Post that the Bush administration and the Justice Department emphasized Republican Party loyalty over expertise in selecting immigration judges.

Read a newspaper?! Ha! No need to read newspapers! Let's go sprinting.

Gonzales declined to comment on the Post report except to say, “I don’t approve of practices that are not permitted by law.” He also deflected questions about why Jose Padilla, currently standing trial in Miami with several co-defendants for allegedly plotting acts of terrorism, was never indicted or charged with plotting to detonate a radioactive dirty bomb, as the Justice Department originally accused him. “He’s currently on trial and it would not be appropriate for me to comment,” he said. But he’s not standing trial for the dirty bomb charge, a reporter countered. “I will not comment on any activities involving Mr. Padilla that are not in the indictment,” Gonzales responded.

Yes, he left that to his predecessor John Aschcroft.

There's a new warden in town

The current warden of the Federal Detention Center in Miami, Florida -- Loren Grayer -- is moving. No word yet on the new warden.

Maybe I'm a sucker, but...

... I feel bad for Paris Hilton.

If she wasn't a celebrity, she wouldn't be treated this way. She'd be on house arrest right now and that would be it. She probably wouldn't have even gotten the 45 day sentence in the first place (for driving with a suspended license).

I actually think the fight between the judge and the jail as to who controls release dates and other prison decisions is very interesting. Most would think that of course the judge trumps the jail, but criminal practitioners know that judges oftentimes defer to jailors and marshals even though I believe that judges would and should win if a true showdown occurred.

Here's a prior post about a judge not backing down to the jail in a case that I was involved with.

11th Circuit quote

A tipster emails me:

Oral argument in the 11th Circuit on Thursday in a sexual harassment case where the defense was, apparently, that the sexual gestures/advances were welcomed by the receiver.

Judge Wilson made the point that, even if there was no sexual harassment at the outset, it at least became a jury question by the end, when defendant allegedly had opened his pants to the plaintiff in the workplace and exposed his genitalia to her, to which defendant's counsel replied, as best I recall:"I cannot leave the inflammatory comments from Judge Wilson hanging out there." Not the best choice of metaphor . . .

Judge Cooke keeps jurors happy...

... according to the NY Times:

The trial is expected to last months, and Judge Cooke has taken pains to keep jurors happy — letting them take Monday off, for example, because one is getting married over the weekend and wants a break.

The tapes have been playing and there has been lots of dispute as to what an FBI agent could "translate":

The intercepted calls, many in Arabic, are crucial to the government’s case. But on the surface, they seem to have nothing to do with terrorism — one caller, for example, tells Mr. Hassoun of plans to go on a picnic and smell fresh air.
All week, defense lawyers fiercely protested the government’s plan to let an F.B.I. agent who led the investigation tell jurors his interpretation of such words, so-called code for terrorist activities. The agent, John T. Kavanaugh Jr., testified that the defendants spoke in code because they suspected their calls were being monitored.
Judge Marcia G. Cooke responded to the defense by limiting what Mr. Kavanaugh could say about the conversations and telling the jurors his interpretations were nonexpert opinions.

Friday, jurors heard Jose Padilla's voice for the first time:

Mr. Padilla mumbled and chuckled throughout the conversation played Friday, sometimes calling Mr. Hassoun “bro.” Mr. Hassoun appeared impatient, asking Mr. Padilla if he was “ready.”
“Inshallah, brother,” Mr. Padilla replied, using the Arabic for “God willing” and urging Mr. Hassoun to have patience. “You know, it’s going to happen.”

Trial resumes Tuesday.

Juror didn't follow Court's instructions

This particular (alternate) juror in the Wilk case got caught not following the Court's instructions. I wonder how often stuff like this happens.... Check out this Sun-Sentinel article about a juror who was posting comments on web about the case:

For six weeks, jurors in the trial of Kenneth Wilk sat in court and heard a lot of evidence about how easily people can get tripped up by their online comments.On Wednesday, an alternate juror got kicked off the jury after she admitted posting a comment online about the case during the trial. The woman was not one of the 12 jurors who convicted Wilk on Tuesday for the murder of Broward Sheriff's Deputy Todd Fatta, but she had been scheduled to return to court today for the death penalty phase of the trial.
Kimberly Ann Martin told the trial judge she posted a comment on the Internet because she was upset by other readers' remarks attached to a news article. She did not identify which Web site she visited or when but said she wrote that nobody, other than Wilk and police, knows what happened in Wilk's Fort Lauderdale home .U.S. District Judge James Cohn had warned the jurors and alternates every day of the trial that they were not to get any information about the case, other than evidence presented in the court. They were not to discuss the case with anyone, they were not to read about it in newspapers, watch anything about it on TV, and they were not to get any facts about it online.Cohn was clearly displeased by the juror's answers and said she had a somewhat "cavalier attitude" but told her he would not punish her because he could not say she intentionally violated his orders. She could have been called on to decide Wilk's fate if one of the 12 jurors is unavailable. Only one alternate juror remains.Martin said she did not read the news report but clicked on a link at the bottom of the article, read other readers' comments and added her own."I didn't think I was really violating [the order] by reading the comments," she told the judge. "I didn't think it was facts, I thought it was opinions... I also thought I didn't discuss the case."Martin's actions came to light because the judge and attorneys on the case were trying to find the identity of a person who posted another online comment to a Sun-Sentinel.com report, claiming to have been a juror who was excused from the case during trial. "Burrowingowl" predicted on May 24 that Wilk would get life in prison because there are "a few jurors I can't see going along with the death penalty." The person, who has not been found, knew other details that indicated he or she was in court.

The death penalty phase is coming up. Although many death penalty advocates will point to this case as the prototypical case for death (the admitted shooting of a cop), I'd be surprised if Wilk gets sentenced to death. The federal death penalty is an almost extinct dinosaur. The standards for being qualified to do a federal death penalty case are so high that the lawyering is always at a very high level, as it was in this case. Thoughts?

Vamos a Cuba

Remember the book controversy over "Vamos a Cuba"? A year ago Judge Gold ruled that the School Board violated the First Amendment in banning the book. The Eleventh Circuit heard argument. From the AP:

In the hearing on Wednesday, Senior Circuit Judge Donald Walter, outlining a hypothetical situation, asked ACLU attorney JoNel Newman whether it would be acceptable to remove a book about Adolph Hitler that failed to mention the Holocaust.
"The political reality in Cuba is not what the book is about," Newman said, arguing the book about Cuba focused on daily life on the island, not Castro. "The school board can't remove it because it wishes to inject a political message into it."
Overruling the decision of two academic advisory committees and the county school superintendent, board members voted last year to remove the book after a parent who spent time as political prisoner in Cuba complained. Critics of the book say it does not mention Cuba's alleged lack of civil liberties, the political indoctrination of public school children, food rationing and forced child labor.
"These books are rife with factual omissions, misrepresentations and inaccuracies," said Richard Ovelmen, the school board's attorney.
The move was contested in federal court, with the judge ruling last summer that the board's opposition was political, and the issue would best be addressed by expanding the collection instead of removing books espousing views with which the board did not agree.
Circuit Judge Ed Carnes noted that "there's a difference in enormity" between the Holocaust and actions by Castro's government, but that Walter's hypothetical addressed the "omission of facts."
The 2001 book by Alta Schreier contains images of smiling children wearing uniforms of Cuba's communist youth group and celebrating the country's 1959 revolution. In discussing the daily life of Cuban children, the book says they work, study and play the same way children in other countries do.
Walter and Carnes both took issue with that premise.
"That's simply not true," Carnes said.
Carnes also presented his own hypothetical, asking Newman if a book about North Korea could be pulled from shelves because it failed to mention problems in that communist government.
Newman said such political discussions should not be required for books for elementary students.
The court did not indicate when it would rule.

"The value of freedom is found not only in the larger issues of life but also in the fanciful and strange."

So said Judge Middlebrooks about a naked protester in a case that went all the way to the Supreme Court.

The case involved what it means to be the prevailing party in a civil rights case. Here's David Savage, from the LA Times on the case:

The Supreme Court's first ruling on an Iraq war protest is not likely to be remembered as a landmark in the law. In a 9-0 ruling, the justices rejected a claim for legal fees filed on behalf of a Florida nudist who wanted to form a peace symbol out of naked bodies on a state beach.Toni Anne Wyner's planned demonstration ran afoul of the state's Bathing Suit Rule, which, as its name suggests, requires beachgoers to cover up. In February 2003, she went to court to challenge this rule as a violation of her 1st Amendment right to free expression. In the past, the Supreme Court has said that nudity and nude dancing can be a form of expressive conduct, though it can be regulated. At first, a judge saw merit to her complaint and allowed the nude protest to take place — but behind a screen, to shield other beach patrons at John D. MacArthur Beach State Park in Palm Beach County. "The value of freedom is found not only in the larger issues of life but also in the fanciful and strange," said U.S. District Judge Donald Middlebrooks. He continued: "Protesting a potential war through naked protest seems a bit quixotic, but it is also part of the freedom that both those supporting the war and those who oppose it seek to protect."After forming their peace symbol behind the screen, the nudists went into the water naked. When Wyner went back to court seeking a permanent order allowing such protests, the judge refused and ruled for the state. However, he said that the civil liberties lawyers who represented Wyner were entitled to be paid because they had won at least one round of the litigation. The Supreme Court reversed that decision Monday in Sole vs. Wyner. Federal law entitles the "prevailing party" in a civil rights or civil liberties case to obtain legal fees from the government. "Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral," Justice Ruth Bader Ginsburg wrote for the court. A plaintiff who wins a preliminary injunction, then loses on the merits, wins a battle but loses a war, Ginsburg wrote.