Monday morning...

Wanna know why our justice system is totally screwed up -- look here. That's the Herald article explaining that Lyglenson Lemorin , the only Liberty City 7 defendant who was acquitted, has just been ordered deported. So to review -- the other defendants are out on bond waiting for their third trial, while Lemorin -- WHO WAS FOUND NOT GUILTY -- is stuck in an immigration jail waiting to be deported because an immigration judge found that he did the same things for which a jury said no.

Here is the Herald article:

A year after being acquitted on terrorism conspiracy charges in the Liberty City 7 case, a Haitian-born Miami man has been ordered deported by an immigration judge.
Lyglenson Lemorin won acquittal on criminal charges last December after persuading a federal jury that he was only marginally involved in the so-called Liberty City 7, a band of devotees of an inner-city religious group the government contends conspired to blow up the Sears Tower in Chicago and Miami's FBI building in 2006.
Lemorin fled with his family to Atlanta to get away from the group's leaders.
But Kenneth Hurwitz, an immigration judge at the Krome Avenue detention center who conducted a weeklong removal hearing in August, concluded in a 135-page ruling received by Lemorin's attorneys Friday that the Haitian native, a legal U.S. resident, did provide ''material support'' to a group he knew had plans for attacks.
The standard of proof is lower in immigration court, which is not a fully independent tribunal but part of the U.S. Department of Justice.
The material support Hurwitz cites: Lemorin's work for group leader Narseal Batiste's stucco business. His ruling concedes Lemorin did not participate in the main activities the group undertook in furthering alleged plans for attacks -- including surveillance photos and videos of potential targets or the alleged ''kidnapping'' of a pair of government informants who infiltrated the group.
But Hurwitz said Lemorin's knowledge of the surveillance, along with his pledging a contested ''oath'' to al Qaeda administered by one of the informants, was sufficient to classify him as a terrorist supporter, even though the judge concluded Lemorin was ''technically'' not a member or supporter of al Qaeda.
Lemorin testified he did not understand the oath and believed Batiste was, in the judge's words, ''talking crap'' about attacks to draw money from the FBI informants.
But, Hurwitz wrote, ``It does not matter if he believed that the organization was not going to commit terrorist acts. The court also does not believe that he did not understand what he was doing when he took an oath to support an organization that has forcibly opposed the United States.''
It's unlikely that Lemorin -- who has been held in immigration detention since his acquittal -- will be deported anytime soon.
His Atlanta attorney, Charles Kuck, said he will argue to Hurwitz that Lemorin should be allowed to remain in the United States because he could be tortured or mistreated if returned to Haiti. Kuck said he will appeal Hurwitz's decision if necessary.
That could take months. In the meantime, he expects Lemorin, who is being held in rural Georgia, to remain in detention and separated from his children and his ill wife, who are in Miami.
Four of Lemorin's co-defendants are free on bond following two mistrials. Batiste and the other five defendants are set for a third trial in January.

Someone explain to me how this is just.

In related news, Joel DeFabio was a finalist for most effective criminal justice lawyer in 2008 for his representation of Lemorin in the criminal trial. The most effective lawyers were Stephen Carlton, John Kastrenakes and Antonia Barnes for their prosecution of Palm Beach politicians. Other finalists were: Richard Lubin, Michael Metz, Douglas Hartman & Bruce Reinhart (for their successful health care fraud defense); and Ken Swartz, Marc Seitles & Steve Amster (for their successul drug trafficking and money laundering defense). Congrats to all of the winners and finalists for great results, especially my office-mate Marc, but how doesn't DeFabio win this one hands down? The other winners & finalists are here.

And finally while we are on the Review, John Pacenti covers Judge Peter Fay's speech from the Bench & Bar conference. He covers the portion dealing with judicial pay and Fay explains that district judges should get a raise from $169,000 to $342,000. I agree that $169K is way too low. First year associates in New York make more. So dear readers -- what are your thoughts? How much should district judges be making?

Lyglenson Lemorin speaks...

...from his immigration prison in Georgia. This is the acquitted defendant from the Liberty City 7 case who remains detained on the same allegations for which he was acquitted. Apparently, the immigration judge told him that there is a difference between being innocent and being acquitted.

It's a brave new world; Why have jury trials at all? It's all over the press -- The Herald, the AP, The Sun-Sentinel.

Here's part from Mike Mayo's blog:

Lemorin had a preliminary hearing before U.S. Immigration Judge William A. Cassidy on Thursday. Cassidy was in Atlanta; Lemorin appeared by video from Lumpkin.According to Lemorin, Cassidy said, "There's a difference between being acquitted and being innocent.""That was very strange to me," Lemorin said. "I always heard that you were innocent until proven guilty, and I'd been found not guilty by a jury of my peers. I asked somebody if he could explain that, but he moved on to something else. It was weird.... There are a lot of things I don't understand."Immigration hearings have a lower burden of proof than criminal trials. Government documents filed last week claimed that Lemorin was a member of a terrorist group and he was likely to get involved in terrorism if he stayed in the country."I'm not a threat to the United States of America," Lemorin said. "I love this country. My son and daughter are here, so this will always be my country."Lemorin's immigration attorney, Charles Kuck, said the full immigration hearing is tentatively set for late May. He requested bond and a change of venue to Miami."You have the government getting a second bite of the apple because of the way immigration law is set up," Kuck said. He said the case should be a wake-up call for legal permanent residents to get their full citizenship. "Anybody who's not a citizen should be very, very concerned."Said Lemorin: "The same thing could happen to anybody."

Mayo concludes:

Lemorin and his family moved to Atlanta before the government made the highly publicized arrests. ... Because of a continuing gag order, Lemorin could not discuss specifics of his cases, including the concluded criminal trial.The whole thing seems astounding.An acquitted man might not truly be free until he gets shipped off to Haiti.

Acquitted Lyglenson Lemorin to be deported?

This blog has covered the horrible saga of Mr. Lemorin before. He was the one defendant in the Liberty City 7 case that was acquitted. But no matter, says an immigration judge. He sits in jail, awaiting deportation to Haiti.

This is really an outrage.

The fight is still going on, but it's not looking so good for Lemorin. From the Herald:

Lyglenson Lemorin was acquitted of all charges in the Liberty City Seven terrorism trial three years ago. But he soon faces deportation to earthquake-ravaged Haiti by immigration authorities who still consider him a terrorist sympathizer and threat to national security.

Lemorin's lawyer on Wednesday filed an emergency petition to stop the legal American resident's removal from the United States. The odds are stacked against him, however, because the federal appeals court reviewing his case rarely grants such relief.

``It's a complete tragedy, a complete disregard for human life,'' said Lemorin's immigration attorney, Charles Kuck. ``Haiti is still an unmitigated disaster.''

In court filings, Justice Department lawyers responded that they oppose the emergency petition, saying only that Lemorin won't be deported before Jan. 12.

Haitian-born Lemorin, 35, grew up in Miami. He has been jailed in Georgia, Florida and now Louisiana and could be deported as soon as January. That's when U.S. Immigration and Customs Enforcement resumes deportations of Haitian nationals convicted of crimes in this country. Although Lemorin has no conviction, he is being lumped together with those who do, his lawyer said.

Lyglenson Lemorin still sits in immigration jail

From Jay Weaver's article in today's Miami Herald:

A Tampa engineering student acquitted of terrorism-related charges walked out of an immigration court a free man earlier this month, after a judge rejected the U.S. government's bid to deport him to his native Egypt on identical charges.
Yet the same immigration judge sided with Department of Homeland Security lawyers last year when he ordered the removal of a Miami man to his native Haiti after he had been acquitted of terror-conspiracy charges.
Why did the immigration judge, Kenneth Hurewitz, grant the release of Youssef Megahed yet order the deportation of Lyglenson Lemorin? The lawyer who represented both men says it's because the evidence was stronger in the Lemorin case, though he disputes it was enough to deport him.
``The government's lawyers misunderstood that every case is different and you must plead what you're going to prove,'' Charles Kuck, an Atlanta attorney, said of the Megahed case. ``They failed to do that.''
Kuck said he believes Lemorin -- one of the so-called Liberty City Seven defendants -- has a good shot at his appeal, which will be considered this fall. Lemorin, 34, remains in custody.
Both Megahed and Lemorin are legal U.S. residents with no criminal histories who have lived in this country for years. Both also experienced a rare kind of ``double jeopardy'' -- being charged a second time in immigration court following acquittals in federal court.
Megahed, a 23-year-old former student at the University of South Florida, was arrested on a 2007 road trip in South Carolina along with a fellow classmate, Ahmed Mohamed. Both were charged with transporting explosives after police found model rocket propellants in the car's trunk.
Mohamed was also charged with providing ``material support'' for terrorism, because he created a You Tube video that showed how to convert a remote control toy vehicle into a bomb. He pleaded guilty to that charge last spring.
In early April, Megahed was acquitted in Tampa federal court on the explosives charges after his defense attorney argued that the materials found in the trunk -- PVC pipe and chemicals -- were homemade fireworks.
But a few days later, Megahed, while leaving a Wal-Mart store with his father, was arrested by Immigration and Customs Enforcement agents. He was charged again with the same terrorism-related explosives offense, only this time in immigration court, which is part of the Justice Department and has a lower standard of proof.
Megahed, who has lived in the United States since he was 11, faced deportation. His family, the Muslim community and others -- including four jurors in his criminal case -- expressed outrage.

They should be outraged. I'm sorry but if you are acquitted in federal court, immigration shouldn't be able to recharge you with the same conduct and be able to deport you based on a lower standard of proof. My prior coverage on this issue is here.

Gag order lifted in part

Judge Lenard held a hearing today on my motion in the Liberty City Seven case regarding the gag order that extended to acquitted defendant Lyglenson Lemorin, his lawyer Joel DeFabio, and DeFabio's agents (me).

On January 12, we filed a motion for clarification of her order, asking how far the gag order reached and who was covered. Then on January 24, Scott Srebnick and I filed a writ of mandamus with the Eleventh Circuit attacking the gag order.

Today, Judge Lenard clarified the earlier gag orders. Lemorin's wife is now free to speak. And all of us can speak about Lemorin's immigration case, so long as we don't touch on the facts of underlying criminal case. Query how we will do that since the immigration case is based on the same facts. We still cannot discuss the facts of the first trial that led to Lemorin's acquittal. Accordingly, we will proceed with our appeal in the 11th Circuit.

Judge Lenard indicated she will be writing an order to memorialize her oral findings today, which I will post.

What struck me most about the hearing was the Government's repeated discussion about trying to protect the rights of the six men still on trial. As Srebnick and I argued in court today, none of those charged men objected to Lemorin speaking to the press. Lemorin has been detained for almost 19 months since the Government issued a press release calling him an agent of al Qaeda who wanted to blow up buildings. He should be permitted to respond to those false allegations in the media to restore his reputation and to shine light on the allegations in his immigration case.

I generally do not blog about cases with which I'm involved, but this is an exception because the gag order affected the blog. So I feel that it's okay to discuss these issues here.

Here's an article from the DBR in today's paper setting out what had occurred up till today. They'll be a bunch more in the paper tomorrow, which I will post.

UPDATE -- here are articles from the DBR, Herald, Sun-Sentinel and the AP about yesterday's proceeding.

Where in the world is Lyglenson Lemorin?

Check out this AP story, by Curt Anderson, about the one defendant who was acquitted in the Liberty City 7 case. Even when you win, you lose....

A U.S. jury did not think Lyglenson Lemorin was involved in a terrorism conspiracy to topple Chicago's Sears Tower and bomb FBI offices, but he did not walk out of court a free man.
Instead, federal agents took the legal U.S. resident to Georgia, where he remained Wednesday facing possible deportation to his native Haiti, his attorneys said. And Lemorin could be forced to return to court early next year in Miami to testify in the retrial of his co-defendants in the so-called "Liberty City Seven" case.
Lemorin's treatment has led people involved in the case to question the government's motives, especially if he is charged with largely identical terrorism-related offenses in deportation proceedings.

We also haven't had a Go Dore Go segment in a while, but the article quotes blog favorite Dore Louis:

His lawyers didn't know where he was until Monday, and Lemorin told them he feared he would be taken to the U.S. terrorist detention center at Guantanamo Bay, Cuba. A Miami lawyer who represents a co-defendant in the Jose Padilla terrorism case said Lemorin was afraid for good reason.
"This is a category of individuals who are subjected to different rules," said attorney Marshall Dore Louis, who is not involved in the Liberty City Seven case. "I think anybody who is in that system should be terrified about what the government is going to do."

"Two words, your honor,Not guilty."

That was Charles Kuck said in his opening statement to Immigration Judge Kenneth Hurewitz for his client Lyglenson Lemorin. You remember Lemorin -- he was the one defendant who was acquitted from the Liberty City 7 trial (Joel DeFabio was his lawyer). The others have had two hung juries. But no matter for the government -- it is seeking to deport Lemorin saying he was actually guilty.

I'm sorry, but this is outrageous. Why have a jury system if the government can just say it doesn't matter? While the other defendants from the case are out on bond, Lemorin has been in an immigration cell waiting to yet again prove his innocence.

Here's Vanessa Blum's article on the case. It's time for Lemorin, a 20-year resident with no prior convictions, to go home to his family.

Gagged?

Unfortunately, I will not be blogging about the Liberty City 7 case any more until the following issue is cleared up:

As regular readers know, Judge Lenard gagged the defendants for the retrial. She also gagged acquitted defendant Lyglenson Lemorin and his lawyer Joel DeFabio. I recently filed a notice of appearance for Mr. DeFabio to litigate the gag order, and Judge Lenard issued the following order:

"[T]he gag order previously issued by the Court on December 13, 2007 applies to Lyglenson Lemorin, who is now a witness for the defense in this case (see D.E. 772), and his agents, as well as to Joel DeFabio, Esq., who has been appointed by the Court to represent Mr. Lemorin as a witness associated with the defense in this case, and TO MR. DEFABIO'S AGENTS as well. . . " (emphasis added)

Because I am now one of DeFabio's agents, I take it that I cannot speak about the case. I filed a motion to clarify that today, but until that is ruled on, I don't think I will be posting about the case.

"Absolved of terrorism, Haitian still in limbo"

Jay Weaver's article on Lyglenson Lemorin's plight can be read here. Lemorin is the acquitted defendant from the Liberty City 7 case who remains jailed by imimgration authorities based on the same conduct even though he is a lawful permanent resident with no prior convictions.

Should an acquitted defendant, his wife and his lawyer be gagged

That's the issue raised in this morning's article by Vanessa Blum:

A federal judge who declared a mistrial last month for six South Florida men charged with conspiring to support al-Qaida is taking aggressive steps to limit publicity related to the case, including silencing lawyers for a man the jury found not guilty.With a sweeping gag order imposed Dec. 13, U.S. District Judge Joan Lenard cited the need to damp down media coverage that could complicate efforts starting Jan. 7 to find impartial jurors to rehear the case.

Her order at the close of the first trial prohibits the defendants, their lawyers, prosecutors, and others, such as agents, investigators and witnesses, from talking to reporters, raising issues for defenders of free speech and drawing a challenge from one of the lawyers covered by the order.

Lenard extended the same restrictions to Lyglenson Lemorin, who was acquitted, and his criminal defense lawyer, as well as an attorney representing the Haitian national in immigration proceedings.The gag order is so broad that federal prosecutors preparing to retry the case contend it applies to Lemorin's wife, who was once listed as a potential defense witness.

I give my opinion in the article, which is that an acquitted defendant and his family should be permitted to speak.

Liberty City 7 update

Judge Lenard has ordered an anonymous jury in the next Liberty City 7 trial. (via Miami Herald). Very bad news for the defense.

Here's the intro to the article:

A federal judge on Friday aired concerns about the possibility of jury tampering in the upcoming retrial of an alleged homegrown terrorism group and ordered that Miami-Dade jurors be selected anonymously for the high-profile proceeding.U.S. District Judge Joan Lenard cited numerous reasons for her order -- including a jury list handed by one defense lawyer to his client's mother so she could pray for an acquittal during first trial deliberations last week. Lenard noted that it was a ''pristine list'' with all 12 of the jurors' names and ''X'' marks next to six of them.''At this point, it's unclear to the court what that list was about,'' she said.Her order -- an edict normally seen in organized crime or major drug cases -- means that potentially hundreds of Miami-Dade voters who receive jury summonses for the retrial in January will be referred to by number, not by name. The judge also ordered the U.S. Marshals to provide criminal background checks on all prospective jurors for both sides.***''I do find there is strong reason to believe the jury needs protection,'' Lenard said. ``Here we have defendants accused of being members of a terrorist cell.''

On the other hand, Judge Lenard ordered the government to keep Lyglenson Lemorin here in the United States because he may be needed for the next trial. (via Sun-Sentinel). From the article:

U.S. District Judge Joan Lenard cautioned the government against moving ahead "with lightning speed so that he would not be available to testify.""I don't know if it's on a fast track or not on a fast track," Lenard said. "I have to protect the rights of these defendants and I intend to do so."

So, do we start calling the case the Liberty City 6 now?

Three Liberty City 7 jurors dismissed

From the Sun-Sentiel:

U.S. District Judge Joan Lenard ruled after spending hours questioning jurors about a pamphlet on terrorism found in the jury room Monday. Miami police officers handed out the pamphlets last week at Metrorail stations, and the jurors who were dismissed said they had read or skimmed it.

One of the dismissed jurors said he considered it an "interesting coincidence" that he was handed a pamphlet about terrorism at the Government Center Metrorail Station as he made his way to court for a terrorism trial. The man said he brought the flier into the jury room after receiving it.

The pamphlet's cover features a police shield and the word "terrorism" in bold, capital letters. A police representative said the distribution, part of a program to alert the public to terrorist threats, was unrelated to the trial.

All but two of the 12 jurors and six alternates said they had seen a copy in the jury room and noticed it pertained to terrorism. To defense lawyers, that alone was enough to warrant a mistrial.

"To have that in the jury room in this type of trial, I think it's outrageous," said Roderick Vereen, who represents Stanley Phanor, 32.

Other defense lawyers weren't so happy with the jurors being dismissed:

Lawyers for every defendant but Batiste requested a mistrial based on the pamphlet, which includes a watch list of seven "signs of terrorism" and descriptions of deadly materials that could be used by terrorists.

Lenard denied the mistrial motions. However, she excused the three members of the jury panel who said they had read the brochure, explaining she was acting in "an abundance of caution."

Ana Jhones, who represents Batiste, protested Lenard's decision, saying her client had never complained about the pamphlet. "He is now faced with the consequences that he is not going to have the jury he has selected," she said.

Albert Levin, Abraham's attorney, and Joel DeFabio, Lemorin's attorney, also opposed dismissing the jurors.

Ah, the joys of trial. Crazy things always happen, don't they?

Another mistrial?

The Liberty City 6 case looks like it's on the way to another mistrial...

UPDATE -- 4PM -- Judge Lenard dismissed the sick juror. She is hearing arguments about replacing that juror with an alternate. Here's the Herald article.

Original post from this morning addressing the problem:

Here's the Herald article:

Jury deliberations in the third terrorism trial of a group of inner-city Miami men accused of collaborating with al Qaeda were delayed Thursday because a juror has fallen ill and cannot return until next week.
Prosecutors argued that the remaining 11 members of the jury should continue to deliberate without the 12th juror, but defense lawyers opposed that recommendation. Instead, they argued that the judge replace the 12th member with an alternate juror, stressing that the panel had only started its deliberations on Monday.

Why would the government want to proceed with 11? Read on...

Defense lawyers seemed especially concerned about the potential loss of the one juror because he is a black man who they believe might be sympathetic to the six defendants, who are also mostly black. They even asked the judge to suspend the deliberations until the 12th juror, whose illness was not disclosed, could return next Wednesday, as recommended by his doctor. ''He's a black juror,'' defense attorney Louis Casuso said. ``He's one of the very few that has no problems.''
U.S. District Judge Joan Lenard rejected suspending deliberations, saying they must continue because of the length of the trial. ''It's really not an issue of race; it's an issue of illness,'' she told the defense team.

What about adding the alternate:

Lenard told both sides to return later Thursday to argue further over adding an alternate as the 12th juror for deliberations, instead of going forward with the 11 existing members. If the judge decides to add an alternate juror, it would be an Hispanic woman.
The judge would then tell the jury to begin its deliberations anew.
The racially mixed, 12-member jury started deliberations on Monday after a two-month trial, but the one juror fell ill early on Wednesday.
They are deciding whether the defendants, dubbed the Liberty City 6, are guilty of conspiring with the global terrorist group, al Qaeda, to blow up the Sears Tower in Chicago along with major federal buildings in Miami and other cities.
The first two trials ended with hung juries and the acquittal of one defendant, a lawful U.S. resident named Lyglenson Lemorin who is facing deportation to his native Haiti.
Prosecutors tried to portray the group's ringleader, Narseal Batiste, as a militant figure who used his Moorish religious organization to recruit followers to destroy the United States. They accused Batiste and his followers of taking an oath to al Qaeda and shooting photographs of target sites in Miami to prepare for their destructive mission.
Defense attorneys attacked the prosecution's case as a setup led by an FBI informant who posed as an al Qaeda representative to lure the men into a fictitious terrorism conspiracy. They said that the men were struggling construction workers trying to help their poor community by establishing the religious group in a Liberty City warehouse.
Awaiting verdicts again on four terror-related conspiracy counts are: Batiste, 35; Patrick Abraham, 29; Stanley Grant Phanor, 33; Rotschild Augustine, 25; Burson Augustin, 24; and Naudimar Herrera, 25. The first two defendants are being held at the Federal Detention Center. The latter four were released on bond after the second mistrial last year.
If convicted on all four charges, including conspiring to provide material support for al Qaeda, each defendant could face up to 70 years in prison.

Hung

The liberty city 7 jury hung today as to 6 defendants and acquitted defendant Lemorin. A huge victory for the defense. More to follow.
--David Oscar Markus
www.markuslaw.com
305-379-6667