"Prosecutors say jailhouse snitches won't be called to testify in Joe Cool case"

That's the headline from Vanessa Blum's article discussing the government's filing today. It makes sense not to call these guys, who would just muddy the case up for the government. Smart move.

From Blum's article:

Two jailhouse snitches who say they heard incriminating statements from a suspect in the Joe Cool murder-at-sea case won't be called to testify at trial, federal prosecutors stated in a motion filed Monday evening.Their announcement came after attorneys for Guillermo Zarabozo sought to have the so-called confession thrown out, claiming it violated Zarabozo's constitutional right to be represented by an attorney during questioning.U.S. District Judge Paul Huck set a hearing for Wednesday to discuss the government's filing. Huck canceled a hearing where the inmates, Antwan Hall and Daniel Noel, were expected to testify about the circumstances of their conversations with Zarabozo in Miami's Federal Detention Center.Zarabozo, 20, of Hialeah and Kirby Archer, 36, of Strawberry, Ark. are charged with murdering Joe Cool captain Jake Branam, 27; his wife, Kelley Branam, 30; his half brother, Scott Gamble, 35; and first-mate Samuel Kairy, 27 on Sept. 22.

***

But the confession posed problems for prosecutors. First, it could not be used against Archer, meaning the government would be forced to try the two defendants separately if it came in as evidence. Secondly, the inmates would have obvious credibility problems as witnesses, because they are convicted felons seeking sentence reductions.Most urgently, Zarabozo's lawyers wanted Huck to rule on claims the confession violated Zarabozo's right to counsel. In a motion filed last week, defense lawyers said prosecutors knew Hall and Noel were government snitches and intentionally placed the men next to Zarabozo to illicit a confession.Federal judges have ruled that informants who have pre-existing agreements to gather information for prosecutors may be considered government agents. That would make a jailhouse interrogation illegal unless the suspect's lawyer was present.Prosecutors disputed that was the case, saying the government had "no agreement or prearrangement" with the men to seek a confession from Zarabozo.Still, prosecutors agreed not to use the confession unless Zarabozo took the stand at trial and told a different story.The men's trial is currently set for early June but could be pushed back if the government opts to seek the death penalty.

Spitzer call girl sues Girls Gone Wild owner...

...here in the Southern District of Florida. Here's the complaint (Ashley Dupre v. Joseph Francis, et al), filed by attorney Richard Wolfe.

Here's some coverage by the Herald:

Five years after Girls Gone Wild filmed the unknown teen cavorting topless in South Beach, the now-notorious Ashley Alexandra Dupré is demanding a cut of the money from the video sales.
Dupré filed a lawsuit Monday in federal court in Miami, claiming Girls Gone Wild founder Joe Francis and his company owe her more than $10 million.
Now 22 (turning 23 Wednesday), Dupré was a few weeks shy of her 18th birthday when she ran into Francis' film crew outside Miami Beach's Chesterfield Hotel in March 2003. They got her drunk and filmed her flashing her breasts in hotel rooms, according to the suit.
Francis, 35, who arrived in Miami on Monday to promote his new Girls Gone Wild magazine, told The Miami Herald he has ''never sold one'' video of Dupré and referred questions to his attorneys.
Francis repackaged the footage last month after Dupré emerged as a central figure in the high-priced prostitution scandal that ensnared New York Gov. Eliot Spitzer, leading to his resignation. Investigators say Spitzer paid big bucks for sexual encounters with Dupré, who worked as an escort named ``Kristen.''

Joe Cool defendant wants to keep supposed statement out

Looks like the Joe Cool case is starting to heat up again...

At a status today, Judge Huck set a hearing on Guillermo Zarabozo's motion to exclude his supposed statement to a jailhouse snitch for next Wed. Here is the intro to Jay Weaver's article:

A Hialeah man charged with another man in the slayings last year of four Miami Beach charter boat crew members is trying to have his alleged ''confession'' to a jailhouse snitch tossed out before trial this summer.
Guillermo Zarabozo has asked a federal judge to suppress testimony by the government's jail ''informant,'' who claims Zarabozo confessed in custody that his co-defendant fatally shot the victims aboard the Joe Cool at sea last fall.
Zarabozo allegedly told the informant in the Federal Detention Center that Kirby Archer, a fugitive from Arkansas, used Zarabozo's gun to shoot the four after Archer argued with the boat captain about taking the vessel to Cuba.
A hearing on Zarabozo's new motion, filed by attorney William Matthewman, is set for Wednesday before U.S. District Judge Paul Huck.
The lawyer claims Zarabozo's right to counsel under the Sixth Amendment would be violated if the informant -- Antwan Hall, a felon serving 30 months for possession of a firearm -- is allowed to testify for the prosecution at trial on June 23.
''All that matters is whether the government informant deliberately used his position to secure incriminating information from . . . [Zarabozo] when counsel was not present,'' according to the motion.
Matthewman said Hall's cellmate, Daniel Noel, also convicted on firearm charges and serving 24 months, might be used as a witness to corroborate Hall's testimony.

How not to do an oral argument

Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. ... She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.

Judge: That’s not much of thing you come in here and tell us, I guess.

Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.

Judge: What do you do about Morgan?

Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.

Judge: You don’t know Morgan?

Phipps: Nope.

Judge: You haven’t read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?

Phipps: They didn’t teach me much, Your Honor.

Judge: At Tulane, is it?

Phipps: Loyola.

Judge: Okay. Well, I must say, that may be an all time first.

Phipps: That’s why I wore a suit today, Your Honor.

Judge: Alright. We’ve got your attitude, anyway.

The Fifth Circuit wasn't too happy. It had this to say in a per curium opinion.

[W]e would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps’ conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client’s interest and for his obligation to the Court was both troubling and disgraceful. [FN4]
Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.

OUCH!

Liberty City to be tried a third time

Trial to be set for the Fall.

Here are the minutes from today's hearing:

Government announced they will proceed with a third trial. Deft. Herrera’s motion for bond is granted; $50k ps co-signed by father; deft Abraham’s moton for bond is denied; Prebish’s m/withdraw granted, the Court to appoint counel w/in 2/3 days, further status set for 4/30/08 @8:30am. Trial expected to start sometime in the fall.

UPDATE -- from Vanessa Blum's article:

"We've worked very hard this past week reviewing everything in this case and considering it very, very seriously," said prosecutor Richard Gregorie. "The United States has decided it's necessary to proceed, your honor, one more time."U.S. District Judge Joan Lenard set a hearing for next week to decide on a new trial date. She said she would likely schedule the trial for late 2008.Acknowledging that two juries have been unable to resolve the case, Gregorie said the U.S. Attorney's Office would agree to the release of four defendants on bond.
Prosecutors oppose bond for the group's purported ringleader Narseal Batiste, 34, and Patrick Abraham, 28, who is an illegal U.S. resident.

Mold findings....

Some more coverage of the Dyer mold problem here and here and here.

From the AP:

Miami's historic downtown federal courthouse suffers from extensive contamination of dangerous types of mold and should have some sections closed for cleaning, according to a new environmental study released Tuesday.

But the analysis by a private firm - hired by the attorney for the family of a judge who died in 2006 of a lung ailment - stops short of recommending that the 75-year-old building be shuttered completely.

The now-sealed courtroom formerly used by the U.S. Magistrate Judge Theodore Klein before his death contained "very heavy growth" of hazardous mold and there are concerns that spores have spread throughout the building through air conditioning systems, said attorney Alan Goldfarb.

Trial stats

The commenters were correct that I posted the wrong link concerning the number of trials in this District. Thanks to a helpful reader, here is the correct link for the total trials in this District and the rest of the country. The conclusion in the prior post -- that we try more cases in this District than any other -- is still correct.

Weekend reading

1. Ben Kuehne. The feds decided to drop the obstruction count, but added a wire fraud count:

Federal prosecutors have added and subtracted charges in the money-laundering indictment brought against prominent Miami attorney Ben Kuehne and two others.
In a superseding indictment filed Friday, the Justice Department added a wire-fraud conspiracy count but dropped an obstruction of justice charge.

2. Trials. in 2007, the SDFLA had 155 trials, more than any other district, followed by SDNY (108), MDFL (108), SDTX(106) and WDTX(105). In fact, we had more trials than the entire 1st Circuit, and almost as many as the 3rd and 10th Circuits.

3. Libery City 7. Vanessa Blum examines why the government is having so much trouble in this case -- perhaps it was because they arrested too early:

The failure of federal prosecutors to convict any members of an alleged South Florida terror cell after two trials highlights the obstacles in a legal strategy of arresting terror suspects before they strike.That approach, known as preemption, has been the Justice Department's mandate since the attacks of Sept. 11, 2001, drove home the potentially lethal consequences of not acting soon enough to stop terrorism.But moving too quickly may have doomed the so-called Liberty City 7 case by leaving prosecutors without sufficient evidence to back up their sensational allegations that the men wanted to launch a ground war against the U.S. government.Violent rhetoric caught on tape from the group's leader and a grainy video of the defendants swearing an oath of allegiance to al-Qaida have not been enough to convince jurors the men were conspiring to join forces with the terror group and not, as defense lawyers argued, simply playing along in a scheme for money.

4. There is a white collar seminar in the Middle District coming up with some impressive speakers.