You gotta know when to hold em...

They say that the best trial lawyers are good gamblers.

Well, Bill Barzee and Joel Denaro took a huge gamble today, which almost paid off big. After a week of trial before Judge Jordan, the jury was deadlocked. Barzee and Denaro decided to ask for a majority-wins verdict. Jordan said that if the prosecutor, Frank Tamen, would agree the Court would accept the non-unanimous decision. Tamen said no. So mistrial.

What was the vote, you ask.

7-5 for acquittal...

Conventional wisdom from the defense bar is to always require a unanimous verdict; never agree to majority wins. Typically, it's the government, not the defense, that requests such a jury decision.

Dear readers, what do you think about the conventional wisdom? About the Barzee/Denaro gambit? Better to live to fight another day? Or take the verdict with the first trial, your best shot at victory?

Here's some of the Herald article on the case:

Federal prosecutors in Miami have failed to secure a conviction of a man who -- according to his own lawyers -- smuggled enormous amounts of cocaine into the United States from Colombia.
The reason: The feds were unable to prove to the jurors' satisfaction that the crimes of Hernan Prada occurred within the statute of limitations.
As a result, jurors split 7-5 on Tueday in favor of acquittal, forcing U.S. District Judge Adalberto Jordan to declare a mistrial in the trial of Hernan Prada.
Prosecutors are expected to retry Prada, who authorities said once ran an international enterprise that pulled in hundreds of millions of dollars a year, as soon as next month.
During the seven-day trial, it was never in dispute that Prada at one time oversaw shipments of cocaine from Colombia to the United States. Even his lawyers conceded that point.
However, that was not enough for a conviction. The underlying issue of the case was this: Did the alleged Colombian drug-cartel kingpin plan or execute any deals after July 2, 1999, when the statute of limitations in his case would have expired?
When it became clear that a unanimous verdict was unlikely, the defense took an enormous chance.
At Prada's urging, attorneys William Barzee, Joel Denaro and Jelani Davis petitioned the court for a rarely used provision: a non-unanimous verdict. At the time of the proposal, it was not known which side had the most jurors in its corner.
All that was needed to declare guilt or innocence in such a case was a simple majority.
Jordan considered the proposal. Assistant U.S. attorney Frank Tamen dismissed it immediately. Later, it became clear that Prada would have walked if the prosecution had agreed.
''Our instinct was right,'' Denaro said. ``It would have been spectacular if they had agreed. It was really intense.''

News and Notes

1. Congrats to my friend, Jonathan Kasen, on his victory today in federal court before Judge Ungaro in his first federal trial.

2. Justice Building to 1000 posts.

3. Interesting post here about probation and PSI's. Isn't it time that someone filed a motion about the probation office practicing law without a license?

4. Go see the Dark Knight. Loved it.

5. Vanessa Blum is all over the federal courts.

6. Above the Law Idol, trying to find a new David Lat. Good luck with that.

7. No more Scabulous on Facebook. How depressing.

8. Cocaine Cowboys II came out. My copy just arrived in the mail. Can't wait to watch it.

The DBR's new blog

is here. Looks like it should be pretty good.

Should I take it personally that they don't link to me even though I'm a "DBR affiliated blog"?

Is it me...

...or is summer flying by?

Life for Archer...

Kirby Archer pleaded guilty today, agreeing to life in prison for his role in the Joe Cool murders.

Guillermo Zarabozo is proceeding to trial. The government announced that the death penalty is also off the table for Zarabozo. When Judge Huck heard this, he moved the trial date up to August, and discharged the court-appointed death penalty lawyer, Bill Matthewman.

Here's the Sun-Sentinel coverage, the AP's and the Herald's.

"Suit: Contractors caused mold that killed magistrate Klein"

That's the headline for the DBR article here.

"The son and daughter of the late U.S. Magistrate Judge Theodore Klein have filed a wrongful death suit against contractors who handled projects at the courthouse where he worked alleging they created the conditions that killed him."

"These individuals had it all--success, money, and the admiration of their community."

"But they have tarnished their good names and reputations because they wanted even more than they already had, and they wanted it the quick and easy way."

That's Alex Acosta discussing Carlos de Cespedes, 58, and Jorge de Cespedes, 55, co-owners of Pharmed Group Corp.

The brothers were charged by way of two separate informations (read them here and here).The tax case went to Judge Jordan and the health care fraud case went to Judge Altonaga. Usually when individuals are charged by information that means that they have already worked out deals. I wonder why they did two separate cases though....

From the Herald article:

In a Tuesday afternoon court appearance, the brothers pleaded not guilty, and a federal magistrate ordered their release on $250,000 personal surety bonds.
Their attorneys, Alan Ross and Dennis Kainen, dodged questions about how the brothers ultimately would resolve the case. ''Carlos and Jorge, who are both honorable and charitable men, will be resolving these charges with the same commitment and enthusiasm'' they have shown in this community for many years, the attorneys said in a joint statement.

***

Tuesday's charges signify a huge fall for the brothers, who in 2003 earned a profit of $48 million. They often showed up in matching Bentleys at Chispa, their restaurant in Coral Gables, which is now closed. They went to basketball games at the Pharmed Arena on the campus of Florida International University. The Pharmed name has since been removed.

The Sun-Sentinel coverage is here. Credit to the Miami Herald for the photo above.

Former U.S. Attorney: Terror Watch List is Absurd

Former U.S. Attorney Marcos Jimenez (and friend of the blog), whose priority while he was the U.S. Attorney was terrorism, is complaining about the terror watch list. Vanessa Blum has the story here:

As a former federal prosecutor with a top national security clearance, Marcos Jimenez would seem an unlikely terror suspect.Yet when he travels, the former U.S. attorney for South Florida endures delays, searches and other inconveniences, because someone with his name appears on the government watch list airlines use to identify possible terrorists.It happened most recently Thursday, as security personnel at Fort Lauderdale-Hollywood International Airport pulled aside Jimenez, once the region's top federal law enforcement official, for an intrusive physical pat down."They put you off to the side like an animal in a little pen. They wand you. They grab you everywhere," Jimenez said. "To go through this hassle and inconvenience every time you get on a plane is just extremely frustrating."

An animal in a little pen..... Nice imagery. So what does our former U.S. Attorney do to get around this:

Even more absurd, Jimenez says, he can avoid the hassle simply by traveling under his middle name."If I use Marcos Jimenez, I get just short of strip-searched. If I go as Daniel Jimenez, I go right through," he said. "If this is really, truly an important terrorist prevention technique, it's not working because I can avoid it extremely well."

He makes a good point. But I just wonder what would have happened if some newbie major crimes prosecutor got a call from TSA about someone going thr0ugh security with his middle name. They would call it attempted boarding of an airplane with an alias or some such nonsense and chalk up the case as a terrorism stat...

In other news, congrats to my office-mate Marc Seitles (and the co-defendants' lawyers Ken Swartz, Steve Amster, and Lisa Colon) on his not guilty before Judge Altonaga in the last trial in the Tower Building. Judge Altonaga and Judge Cooke are moving to the new building this week, the last judges to do so.

As long as we are on my office-mates, Bill Barzee (and Joel Denaro) start trial Monday morning in front of Judge Jordan defending Hernan Prada, who the government says was one of the kingpins in Medellin who took over for Pablo Escobar. The case is being prosecuted by Frank Tamen.