Should Judge Hoeveler recuse in the rock-mining case?

Judge Hoeveler says he doesn't "consider [himself] biased" in the rock-mining case in which he was just reversed. (Read the 2-1 opinion here). Although the 11th Circuit did not remove "the respected" Judge Hoeveler from the case, it did say that he had "predetermined" to ban the practice at issue. And as John Pacenti points out in his Daily Business Review article, the Judge has had his issues with environmental cases before.
So should he recuse? Or do we give him the benefit of the doubt? The appellate court did not take Judge Hoeveler off the case, so unless he thinks he should recuse, he will continue to be the judge.

The Herald had on op-ed yesterday saying that Judge Hoeveler has the opportunity to strengthen his opinion:

In lifting an injunction banning three rock mining permits in Northwest Miami-Dade County and remanding the case back to U.S. District Judge William Hoeveler for reconsideration, an appellate panel left the door open for the judge to review and strengthen his decision. A three-judge panel of the U.S. 11th Circuit Court of Appeals found that Judge Hoeveler didn't show proper deference to the U.S. Army Corps of Engineers' decisions to issue more rock-mining permits in a case pitting rock miners against environmental groups.


Here's the rest of the op-ed, which gets a couple facts wrong (including that it was a 3-2 decision instead of a 2-1 decision) but it provides an interesting argument nonetheless:

In July, Judge Hoeveler issued an injunction against permits requested by three of nine mining companies. The Corps hadn't given enough consideration to the proximity of mining activities to Miami-Dade's drinking-water wellfield, the judge said. He wanted a new environmental study, which the Corps agreed to conduct. But the miners appealed, and in doing so launched personal attacks against the judge, perhaps hoping that he would be removed from the case.
The 11th Circuit panel wisely kept Judge Hoeveler on the case. After reading the ruling, our advice to both sides: Don't pop the Champagne corks just yet. The 3-2 appellate-court majority said Judge Hoeveler appeared to have made up his mind, regardless of the evidence, in finding that rock mining in Miami-Dade's Lake Belt ''is a bad thing.'' The judges also said that he misread the scope of the National Environmental Policy Act and how the Corps interpreted it in permitting more mining in the Lake Belt. NEPA, said the panel, allows the Corps to determine that, even though an activity like mining may damage or even destroy an environment, economic value can outweigh environmental concerns.
That said, the appellate judges took pains to make it clear that Judge Hoeveler had not erred in his ruling. In fact, the panel's third judge, Phyllis Kravitch, dissented, writing that Judge Hoeveler's ban on mining in the Lake Belt to protect the water supply was justified under the Clean Water Act.
Which will it be, NEPA or the Clean Water Act? In addition to its concerns for wellfield protection, the U.S. Fish and Wildlife Service had questions regarding the endangered wood stork during the permitting process. There were other issues about wetlands destruction, too. Ultimately, the Corps shortened the lifetime of the permits and required mitigation via wetlands acquisition by the miners.
Judge Hoeveler nevertheless found reason to want more information on what threat mining could pose for wellfield contamination. We don't find that unreasonable, nor for that matter, did the appellate panel. The appellate court said that Judge Hoeveler would have to find firmer ground upon which to uphold a ban on the three permits. That's fair to both sides.

Here's the original Herald article explaining the 11th Circuit's opinion in more detail.

New Building

STOP THE PRESSES! There have been court proceedings in the new building. Some of the judges have moved in, others are moving this week, and the most junior judges.... well.... it's still going to be a while. But progress is progress. Here's a picture of the inside.

So, who's going to have the first trial?

And a reminder: Judge Gold will be speaking this Wednesday at the Federal Bar Association luncheon at the Banker's Club at noon. RSVP to Lourdes_Fernandez@flsd.uscourts.gov

Uma

I'm always fascinated by reports on deliberations. In the recent high-profile trial of the Uma Thurman stalker, a Wall Street Journal reporter was on the jury. Here is her description of the trial and deliberations.

In local news, Jose Padilla co-defendant isn't happy with the jail he's been assigned to. From Curt Anderson's article:

A man convicted along with one-time "dirty bomb" suspect Jose Padilla of supporting al-Qaida wants a federal judge to block the government from sending him to a prison unit where his telephone calls, mail and visitors would be closely monitored.
A lawyer for Kifah Wael Jayyousi, 46, claims that the Communications Management Unit at the federal prison in Terre Haute, Indiana, amounts to "cruel and unusual punishment" and that his inclusion in that unit is discriminatory because it is based partly on his Muslim faith and Arab ethnicity.
Jayyousi is "due to be transferred at any time to this unlawful place of confinement, where he will suffer irreparable harm," attorney William Swor said in court documents filed this week.
Bureau of Prisons spokeswoman Traci Billingsley said Thursday that Jayyousi's religion or ethnicity have nothing to do with the designation at the unit that currently houses 46 inmates. Having all the inmates in one unit ensures that no communication is slipped out by a prisoner not subject to the restrictions.
"They are placed in the unit because their communications need to be closely monitored," Billingsley said.

U.S. District Judge Marcia Cooke, who presided over the trial last year of Padilla, Jayyousi and Adham Amin Hassoun, issued an order Tuesday temporarily preventing the U.S. Bureau of Prisons from transferring Jayyousi from Miami. Cooke scheduled a hearing May 22 on the matter.

"If there is a verdict for her and she is ordered to be released, how can the verdict be changed so suddenly!!!!!!!!!"

That was the defendant's mom after Judge Cohn sentenced Shahrazad Mir Gholikhan to 29 months a week after sentencing her to credit time served. I've tried not to blog about the case because I was involved for a brief time early on in the litigation. Here is the intro from Vanessa Blum's article:

Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family.The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months.Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."


Gholikhan's lawyer Bill Barzee had this to say:

William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran."I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.

And a sentencing professor commented:

Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider."I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."

It's a valid point. If a sentence of credit time served is reasonable, how can a sentence of 29 months be reasonable the next day -- especially when the prosecutor had agreed to credit time served. If the situation was reversed -- and the defendant didn't like her sentence -- would a judge allow her to come back to court?

Ethics

Here's a little ethics question for my SDFLA readers on Monday morning:

Should the attorney-client privilege survive a client's death when revealing that client's statements (that he was the murderer and not the guy on death row) would save a man from death row or from life imprisonment (or any imprisonment)?

Those are the questions Adam Liptak examines in this NY Times article from a real life example. It's pretty dramatic that the judge is threatening the lawyer for revealing his dead client's statements:

STAPLES HUGHES, a North Carolina lawyer, was on the witness stand and about to disclose a secret he believed would free an innocent man from prison. But the judge told Mr. Hughes to stop.

“If you testify,” Judge Jack A. Thompson said at a hearing last year on the prisoner’s request for a new trial, “I will be compelled to report you to the state bar. Do you understand that?”
But Mr. Hughes continued. Twenty-two years before, he said, a client, now dead, confessed that he had acted alone in committing a double murder for which another man was also serving life. After his own imprisoned client died, Mr. Hughes recalled last week, “it seemed to me at that point ethically permissible and morally imperative that I spill the beans.”
Judge Thompson, of the Cumberland County Superior Court in Fayetteville, did not see it that way, and some experts in legal ethics agree with him. The obligation to keep a client’s secrets is so important, they say, that it survives death and may not be violated even to cure a grave injustice — for example, the imprisonment for 26 years of another man, in Illinois, who was freed just last month.


This is a classic law school hypo, and it's interesting to see how it is playing out in the real world. Monroe Freedman, the ethics guru, is quoted a bunch in the article. He would draw the line at saving someone from death row, but not life imprisonment:

Most experts in legal ethics agree that lawyers should be allowed to violate a living client’s confidences to save an innocent man from execution, but not to free someone serving a prison term, however long.
“I prefer to draw the line at the life-and-death situation,” said Monroe Freedman, who teaches legal ethics at Hofstra. “That situation is sufficiently rare that is doesn’t present a systemic threat. If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.”
The questions get more complicated when the client has died.

So, SDFLA readers, what do you think?

And have a happy Cinco de Mayo!

Joe Cool defendant passes polygraph

Assistant Public Defenders Anthony Natale and Brian Stekloff, along with co-counsel Bill Matthewman, who represent Joe Cool defendant Guillermo Zarabozo, filed a motion yesterday to admit polygraph evidence. Here's the intro:

Mr. Zarabozo has passed scientifically valid polygraph examinations conducted by two separate, leading experts in the field of polygraph examination. Both experts have determined that Mr. Zarabozo truthfully answered questions that demonstrate he did not: (1) commit premeditated murder, i.e., shoot anyone; (2) conspire to commit murder; or (3) commit felony murder. The Eleventh Circuit has held that polygraph evidence is admissible to corroborate the testimony of a witness at trial–here, Mr. Zarabozo. See United States v. Piccinonna, 885 F.2d 1529, 1536-37 (11th Cir. 1989). Moreover, for the reasons discussed in detail below, the science of polygraph examination has evolved to a point where it clearly satisfies the requirements of Daubert. As Justice Potter Stewart stated, “Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.” Hawkins v. United States, 358 U.S. 74, 81 (1958) (Stewart, J., concurring). Any effort to deprive a jury from hearing the results of Mr. Zarabozo’s polygraph examinations would run contrary to Justice Stewart’s admonition and would impede justice in this case.

Apparently Zarabozo passed two different polygraph examinations. Here are the questions from the first polygraph:

“1. While on the Joe Cool, did you shoot anyone? Answer – No.
2. Before hearing the first gunshot, had you talked with Kirby Archer
about shooting anyone on board the Joe Cool? Answer – No.
3. Before hearing the first gunshot, had you talked with Kirby Archer
about stealing the Joe Cool? Answer – No.”

And from the second:

“Q1: Regarding what you knew before that charter boat the ‘Joe Cool’ crew was killed and
the boat hijacked last September 22, 2007: Do you intend to answer truthfully each
question about that” A1: Yes.
Q2: Other than what you now know: At any time before the crew members of the Joe
Cool were shot: For any reason did you really know that was going to happen? A2:
No.
Q3: When you said that before the shooting occurred on that boat the Joe Cool; that the
only reason you were on board, was to travel to Bimini and participate in pre-planned
security job with Kirby Archer, did you lie about that? A3: No.
Q4: When you said that you expected to participate in a future CIA assignment with
Kirby Archer either in Cuba or Venezuela after the Bimini security job was done: Did
you lie about that? A4: No.
Q5: When you said that you brought your handgun for use on the Bimini security job and
that it was never intended to be used by you or Kirby Archer to hijack that boat the
Joe Cool: Did you lie about that? A5: No.”

Looks like it was a busy day...

...in mag court.

Judge Gold to speak May 14

This should be a great talk. May 14th at the Banker's Club at noon. Cost is $35. RSVP to Lourdes Fernandez at Lourdes_Fernandez@flsd.uscourts.gov