Public Defender elections

Florida is one of the few states that elects its Public Defenders. It's very strange. What platform do you run on for Public Defender? Tough on crime? Save the taxpayer money? Mostly, we've been lucky not to have anything crazy like this happen... But here's a story out of Jacksonville, where the newly elected PD, supported by the Fraternal Order of Police, fired all the top lawyers at the office. I kid you not:

Ten attorneys and three administrators found themselves suddenly out of a job, sacked Friday by the newly elected Public Defender Matt Shirk.
At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.
The firings came on the eighth anniversary of one of the office's most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.
***
McGuiness said they expected some people to lose their jobs when the new boss came in, but he said they didn’t expect the cuts to go so deep.
"Well, Mr. Shirk had not yet reached pre-K when many of these attorneys were trying cases already. I think he is uneasy around those with skill and experience," said McGuiness.
Shirk let 10 prominent attorneys and three administrators in the office know that in January they will be out of work.
"There are very few people who would have acted as divisively as Mr. Shirk in term of ridding the office of skill and experience without interviewing a single attorney or looking at a single personnel file," McGuiness said.
The mass firing occurred eight years to the day of when Butler was found not guilty after McGuiness and other attorneys who were recently fired proved the sheriff's department bungled the case.
McGuiness said the firings are payback.
"Mr. Shirk was supported by the Fraternal Order of Police and made certain representations to them, as I understand, that there would not be questions raised about integrity of policemen," McGuiness said.

Hat Tip: BT

Help

One of my favorite readers forwarded me this NPR quiz and I can't figure it out:

Name a type of lawbreaker that starts with the letter S, and which, upon removing the S as well as one other letter, becomes another type of lawbreaker.

UPDATE -- a friend just emailed me the answer. I will post it in the comments section so I won't spoil it for you if you want to figure it out.

Happy Thanksgiving

We have a lot to be thankful for in this District... Discuss in the comments.

See you all Monday.

In the meantime, check out this story on the Broward Blog about Debbie Wasserman Schultz as the foreperson on this not guilty state court jury. (Hat Tip: Rumpole).

Ben Kuehne Motions Hearing before Judge Cooke

On behalf of the National Association of Criminal Defense Lawyers, I attended the hearing before Judge Cooke today dealing with the motion to dismiss Count I of the indictment, the conspiracy to violate the "criminally derived property" statute, 18 U.S.C. section 1957. Here's a brief synopsis of what occurred (and yes, I am obviously biased as NACDL filed a brief in support of the motion to dismiss).


The issue on Count I is whether an attorney (Ben Kuehne) can be prosecuted under 1957 for receiving legal fees in light of 1957(f)(1)'s exception for "transaction[s] necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution."

Judge Cooke started the hearing by asking the prosecutor to present his argument on the defense motion to dismiss because she wanted to know if he was really taking the position that 1957(f) was meaningless. The prosecutor answered YES! The prosecutor took the position that as a matter of law the motion should be denied because 1957(f) does not afford any protection to lawyers. He then argued that as a matter of fact, Kuehne's actions were not "necessary" to represent Ochoa and therefore not covered by the statute. And finally, he argued that if the judge disagreed with 1 & 2, she should at least present the question to a jury because 1956(f) is an affirmative defense.


John Nields then argued for Ben Kuehne. Nields argued that the statutory text is clear and that it must have meaning. He explained that the government could forfeit an attorney's fee if it was tainted, but it could not prosecute him under 1957. Judge Cooke asked what would happen if a defense lawyer participated in a drug transaction and then took a fee to represent the drug dealer. Nields argued that the defense lawyer could be prosecuted for lots of things under that hypo, but not 1957.

Judge Cooke questioned both the prosecution and the defense about the bright-line rule they were proposing. She tested the government theory that 1957(f) offers no protection vs. the defense's position that it affords an attorney absolute protection in a criminal case under 1957 for receiving a legal fee (it does not, for example, protect against forfeiture or a prosecution under a different statute).

Ultimately, the defense position is much more persuasive. Section 1957(f) cannot be meaningless as the prosecution suggests. The prosecution's reading of the statute is an assault on the Sixth Amendment, an assault on criminal defendants, and an assault on criminal defense lawyers. It seeks to chill lawyers from taking legal fees in criminal cases. The prosecution's arguments that (1) it will only prosecute the egregious cases and (2) if it doesn't, a jury will protect the defense bar, offers no comfort. Criminal defense lawyers will be chilled into refusing any fee for the fear of prosecution itself, even if they would likely be acquitted. Kuehne's reputation and standing in the community has suffered by the mere prosecution. He has had to raise money for the defense. He has been indicted in a serious federal case. Criminal defense lawyers shouldn't have to rely on the good graces of the government or a jury to make the right decision because Congress has spoken very clearly on this issue -- defense lawyers shall not be prosecuted for accepting a legal fee. Period.

Roy Black's firm did more in this case to vet the fee than any case in the history of the law -- it spent over $200,000 because it wanted to make sure that it was doing everything correctly. And Black hired the most ethical lawyer in the community to do the vetting, Ben Kuehne.

Count I should be dismissed.

There were lots of other motions being argued, but this is the one of most interest. I hope this post generates some discussion.

A few news and notes

1. Ben Kuehne's motions hearing is this afternoon at 1:30.

2. The Pine Crest swim coach didn't get bond.

3. A federal agent was indicted for taking kickbacks.

4. Drew Brees won me my fantasy football game last night and looks like he is going to break Dan Marino's record. He does have a pretty tough schedule the rest of the way though.

5. Dancing with the Stars has jumped the shark.

Bench & Bar pictures

Judge Jordan and Judge Cooke

Judge Dimitrouleas and Judge Cohn

The dining room

A blurry picture of the criminal law magistrate panel

Judge Moreno (my phone's zoom isn't so powerful).

Live blogging the federal bench and bar conference

Most of you won't be reading this right now because you all are here at the Hollywood Diplomat. This isn't the most exciting way to spend my birthday, but what are you gonna do?

All the judges and magistrates are here. And there are over 500 lawyers here. Pretty unbelievable.

The morning panels were interesting. I was only at the criminal law panels, which were lively and engaging. I hear the civil panels were also good.

Judge Fay is about to do the lunchtime talk. More soon.
Sent via BlackBerry by AT&T

Ben Kuehne event

Just a quick post about the Ben Kuehne fundraiser tonight at Christabelle's Quarter in the Grove. It was extremely well-attended -- of course there were many criminal defense lawyers there, but there were also many civil lawyers and even lawyers from out-of-town, from as far as Pennsylvania. It was packed and it was a nice tribute to Ben. The buzz: will the new administration dump this ridiculous case?

(Full disclosure -- I filed the NACDL amicus brief in favor of the motion to dismiss the case)