Jose Padilla - Terrorist or Thug?

By Marc David Seitles

Interesting article in the Miami New Times about Jose Padilla. Author Trevor Aaronson gathered the information for this story from the federal courthouse in Miami, the Broward State Attorney’s Office, and through conducting witness interviews. He concedes, however, that much of the federal government’s evidence against the alleged terrorist remains under seal.

Aaronson basically concludes that “[i]n portraying Padilla as an evil mastermind behind a plot to kill thousands, the federal government forgot one thing: He’s just a punk. Federal and state court records prove that much.” The article details Padilla’s past criminal history in Chicago, his marriage, his conversion to Islam, and his alleged travels to the Middle East.

Probably the most interesting part of the article is the section related to Padilla’s detention by the FBI in 2002 while leaving Chicago’s O’Hare International Airport, and thereafter being declared “a continuing, present, and grave danger to the national security of the United States” by President George Bush.

While the article does not interview any of Padilla’s current lawyers, the author interviews Stephen Vladeck, who worked on the amicus brief that questioned the legality of Padilla’s detention at a navy brig. Mr. Vladeck claims that the government’s story has changed many times regarding Padilla’s role in this alleged terrorist conspiracy and he profoundly adds that “[w]hether Padilla is who the government says he is this time, whether he did what he’s charged with doing or not, there are scary ramifications for the American justice system.”

With very fine lawyers for both the government and the defense, it should be one heck of a trial.

"Cult leader Yahweh Ben Yahweh says he wants to die with dignity"

Curt Anderson has this interesting story about Mr. Yahweh's recent request to get off of supervision because he is dying. The case falls to Judge Marcia Cooke.

Jose Padilla on the offensive

The Federal Defender's Office has filed a number of motions on Jose Padilla's behalf, including a motion to dismiss for pre-indictment delay, a motion to dismiss for a violation of Padilla's speedy trial rights, and a motion to dismiss for outrageous government conduct. The motions have some extreme allegations, including saying the Padilla was tortured for three years because he was held in complete isolation. More to come after I've read them all.

Judge Prior says judiciary's independence not under attack

Despite the general agreement that our judiciary is under attack more than ever, Judge William Prior (on the 11th Circuit) wrote an op-ed, which starts out like this:

Recently some leaders of the bench and bar -- including, on this page last week, retired Justice Sandra Day O'Connor -- have decried what they describe as unprecedented threats to the independence of the judiciary. I respectfully disagree.

You can read the whole thing here.

Huh?

Posted by NOT SCALIA:

Prosecutors in the case of Ze'ev Rosenstein want Israeli undercover agents testifying at his Miami trial to wear disguises and use numbers instead of names to protect their identities. Apparently, this is how the agents would testify in Israel.

I guess that this would be a persuasive argument if the trial proceeded in Tel Aviv. Because the government extradited Rosenstein from Israel to the United States to be prosecuted under our Nation's laws, shouldn't the agents testify without disguises and under their real names?

Read Vanessa Blum's article in the Sun-Sentinel here.

Federal Court filings to be suspended

Ahhh, how technology continues to help us....

Julie Kay reports today that because of the new e-filing system that will be going into effect, the court has to suspend *all* filings (unless it's an emergency or indictment or some other exception) starting tomorrow thru October 12. Here's the Review's summary:

Lawyers who practice in the Southern District of Florida will get a one-week vacation, courtesy of U.S. District Court as it prepares to implement a new, long-awaited electronic case-filing system. No motions or pleadings will be accepted between the close of business Thursday and 9 a.m. on Oct. 12 as the court adopts its new CM/ECF case filing system. Exceptions will be granted for emergencies, such as jurisdictional deadlines for filing an appeal or a statute of limitations deadline. In those cases, motions must be brought by hard copy to the appropriate clerk of the court’s office in Miami, Fort Lauderdale, Fort Pierce and Key West. The court will automatically add five business days to filing and service deadlines that occur during the shutdown period, so no lawyer will be penalized for a delay. Chief Judge William Zloch ordered the shutdown and exceptions in an administrative order posted on the court’s Web site, stating that “a failure to take action may result in a miscarriage of justice.” “The hiatus is necessary,” said Thomas Meeks, chairman of the local rules committee for the Southern District of Florida. “They have to switch everything over.” On Oct. 12, the district will officially switch to the new, nationwide paperless filing system, becoming one of the last federal court districts in the country to do so. At that time, e-filing and hard copy filing will no longer be permitted and attorneys will have to file all motions and pleadings via computer to the Southern District of Florida’s Web site. They’ll be able to do so 24 hours a day, from any location. The only exceptions to electronic filing will be for: • Documents filed under seal • Documents related to habeas cases and Social Security cases • Civil complaints • Civil documents not requiring a filing fee, such as recovery of student loan, bankruptcy appeal, bankruptcy withdrawal, recovery of veteran’s benefits and appointment of a receiver • Criminal complaints, indictments, criminal information and plea agreements • Emergency motions and requests for emergency hearings • Summons • Surety bonds • Proposed trial exhibits The office of clerk of the court Clarence Maddox has been training the estimated 4,000 South Florida lawyers who practice before the court, as well as judges. David Markus, president of the Miami chapter of the Florida Association of Criminal Defense Lawyers, welcomed the court-imposed vacation. “You’ll never find a lawyer who will complain about getting a few extra days to file something,” he said. Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.

Acosta names new execs

Jeffrey Sloman is the new first assistant.
Matt Menchel is chief of criminal.
Karen Gilbert is chief of major crimes.
Robert Senior is the deputy chief of national security, public corruption, and civil rights.

Federal Courthouses open

In an odd break from both the State courthouses and the Supreme Court of the United States, our federal courthouses will be open Monday on Yom Kippur.

Federal Bar dinner

The local Federal Bar Association had its annual installation dinner at the Biltmore on Friday night. Congrats to Jackie Becerra, our incoming President.

''My main concern is, there comes a time when people have to pay the piper, so to speak. I think that time has come.''

So said Judge Huck after the government and defense asked for another delay in Jack Abramoff's case. Read here.

Ted Klein's funeral

For those that weren't there today, the services were very nice. Judge Klein's brother, Hank, spoke, as did Judge Martinez. Almost all of the federal judges were in attendance and many state judges appeared as well. Ted was loved by the community as was shown by the very large turnout from the U.S. Attorney's office, Public Defender's office, and lawyers from around town.

Theodore Klein

It is with great sadness that I report that U.S. Magistrate Ted Klein has passed away today. He was a gem of a person and a judge, and our community has suffered a great loss. He loved being a Magistrate Judge, loved being at the courthouse everyday, and loved working in this District. What a huge loss.

UPDATE: Here is Jay Weaver's very nice and lengthy obit:

Federal Magistrate Ted Klein dies at age 66
U.S. Magistrate Judge Theodore Klein, recognized as one of the sharpest legal minds in South Florida during a storied career as both a defense lawyer and federal prosecutor, died this afternoon of a lung disease.
Klein, 66, passed away at South Miami Hospital after battling a mysterious lung ailment that family members say may have been caused by exposure to mold spores in his home. Klein, appointed as a federal magistrate nearly three years ago, fell ill in December 2005 and had been hospitalized since June.
His brother, Hank Klein, said Ted's illness came as a shock to family, friends and others who knew him because he exercised regularly, ate healthy foods and never smoked.
''We don't know what caused this disease,'' said Klein, vice chairman of Codina Realty Services. ``He didn't smoke. He skied several times during the winter. He hiked during the summer. He jogged all the time. He was in excellent shape for a man of 66. That's why it comes as such a surprise to everyone.
``It's damn bad luck.''
Ted Klein was born in Czechoslovakia in 1940 during the Nazi occupation. His father, Rabbi Maurice Klein, escaped from a forced labor camp run by the Hungarian army and persuaded his wife, Sara, that they had to leave their homeland to survive.
They fled with the young Klein, then 9 months old, and his sister, Miriam, then 4. The family left Lisbon by ship on May 15, 1941, and immigrated to the United States, settling later with friends in the Cleveland area.
His parents eventually relocated the family to Miami in 1957. Klein enrolled at the University of Miami, where he studied finance. He was known as a bookworm and served as treasurer of the student body. He later graduated from UM law school, where he held the prestigious post as associate editor of the Law Review.
''He was the book guy and the nerd,'' said U.S. District Judge Jose Martinez, a UM schoolmate. ``I was the sports guy and the president of my fraternity.''
''He got the top grades in his class,'' said Donald Bierman, another UM law alumnus, adding that Klein was a ``compulsive preparer.''
After finishing at UM, Klein earned a master's degree in law at Yale University. Then he began making his mark in Miami's legal community.
In the late 1960s, Klein became a prosecutor with the U.S. attorney's office. Among Klein's peers: Martinez and Bierman, a future law partner.
Martinez said they would regularly go out for lunch at a local Cuban restaurant and talk about their cases -- and anything else that struck their interest.
''One time we were talking about mosquitoes of all things,'' said Martinez, who credited Klein with helping him get hired by the U.S. attorney's office after a stint in the Navy. ``Ted went to the library and memorized the names of about 650 mosquitoes.''
During that period, Klein and his wife, Leslie, started a family. The couple, who later divorced, had two children, Jennifer and Andrew, who grew up to become a Yale University history professor and a Miami psychologist, respectively.
Andrew Klein said his father -- along with his mother -- guided him through life's ups and downs.
''I've always been so proud of him and what he's done,'' said Andrew Klein. ``I've always looked up to him for everything. He had such a great sense of humor and was always able to give the support and guidance I needed to find my own direction.''
He said his father had that kind of impact on a lot of people in the community, noting, for example, that he taught countless students about trial law as a UM adjunct professor for nearly 30 years.
Jennifer Klein praised both her parents in the acknowledgment of her recent book, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State.
''They really were a model for me of political courage, integrity and humanism,'' she said. ``I always saw my father as a person who stood up for what was right.''
As an example, she said her father resigned from the Dade Heritage Trust, a historic preservation group, because it held its annual meeting in 1984 at Miami Beach's long-restrictive Bath Club.
She also said her father devoted most of his career to representing defendants because he viewed their right to counsel as vital to a functioning democracy.
''He was committed to the notion that a democratic society had to have a strong defense bar,'' she said, citing her father's narrow 1983 U.S. Supreme Court victory in an unreasonable search and seizure case on police profiling of drug suspects at airports.
Ted Klein spent most of his career at the prestigious Miami law firm, Fine Jacobson Schwartz Nash Block & England. He earned a reputation as formidable defense lawyer in white-collar, health-care and financial-fraud cases over more than two decades. Klein, listed in The Best Lawyers in America and a former member of the Florida Bar board of governors, almost became a federal judge after President Clinton nominated him.
''When I saw that Ted applied in 1993, I wrote a letter to [then-Florida Sen.] Bob Graham,'' said Martinez, who had applied a year earlier for another opening on the federal bench. ``I said as much as I would like to be a federal judge, the most qualified person was Ted Klein. I wanted it, but not at the expense of Ted Klein.''
Klein had been granted a hearing before the Senate Judiciary Committee in late 1993, but politics -- including a Republican takeover of Congress -- delayed a vote on his confirmation.
In early 1995, he said in letter to Clinton that the breakup of his old law firm, Fine Jacobson, ''has had devastating financial consequences for me,'' and that he has decided to form a new law firm in Miami with a couple of longtime friends, Bierman and Ed Shohat.
In one of Klein's more memorable criminal cases, he teamed up with Bierman to defend former Miami-Dade County seaport director Carmen Lunetta. Lunetta was indicted along with two port businessmen of stealing up to $1.5 million in public money and diverting it for illegal campaign donations and personal uses.
After government prosecutors rested, U.S. District Judge Donald Middlebrooks expressed dismay over ''substantial evidence of greed and public corruption.'' But he directed a verdict of acquittal for Lunetta and the co-defendants, saying they couldn't have stolen the money because it didn't belong to the county -- it belonged to the private firm that operated the port's huge gantry cranes.
In 2003, when there was an opening for a magistrate judge in Miami, Klein's name was at the top of the list. Sworn in that fall, Klein presided over arraignments, bond hearings and pretrial motions -- including a complex case involving Cali cartel founders Gilberto and Miguel Rodriguez-Orejuela.
Klein was respected by both prosecutors and defense lawyers, who remembered him as a persuasive advocate and fair judge.
''As a defense lawyer and magistrate, he was always a pleasure to deal with and he did it with a smile,'' said veteran federal prosecutor Dick Gregorie.
Klein was also known for his quick wit.
When a longtime fugitive who had been living the high life in suburban Pinecrest appeared before Klein on drug charges, the defendant's attorney said his client, Rafael Franco, had an alias.
''He was running around with a driver's license in the name Jorge Alonso,'' Klein noted.
''This is Miami,'' attorney Frank Quintero quipped, speculating Franco could have had a secret girlfriend.
''The rules are different here,'' said Klein, parroting a legendary tourism tag line.
The courtroom erupted in laughter.
Klein's brother, Hank, said that was his favorite place: ``He just loved his work and had a love for the law.''
In addition to his mother, son, daughter, brother and former wife, Klein is survived by his fiancée, Donna Syrop, and a sister, Miriam Klein Kassenoff, a Holocaust educator in the Miami-Dade public school system.
A funeral service is planned for 10 a.m. Friday at Temple Beth Am, 5950 N. Kendall Dr., in Pinecrest.
A scholarship has been established in Klein's name at UM law school. Donations may be made to the University of Miami School of Law, Alumni and Development Office, P.O. Box 248087, Coral Gables, FL.

Rodriguez Brothers plead

Since I'm involved in this case, I'm not going to blog extensively about it. You can read the coverage here, here, and here. Today's blog post is dedicated to Gilberto and Miguel, and their families.

Back to work

I'm back from a wonderful week in Colorado. We got to see fall and winter weather (from one day to the next there was 7 inches of snow).
















Also, thanks to the guest bloggers during the past week -- Marcos Jimenez, Brian Tannebaum, and "Not Scalia".

Unfortunately, it wasn't a complete break for me.... Next time, I'm leaving the blackberry at home.

DNA Evidence Frees a Man Imprisoned for Half His Life

This is an incredibly tragic story from the New York Times. Sixteen years ago, Jeffrey Deskovic was convicted of raping, beating and strangling a high school classmate in a jealous fit of rage. DNA evidence presented at his trial showed that semen in the victim's body was not his, but the police testified that he had confessed.

Yesterday, he walked out of the courthouse a free man after the DNA from the crime scene was run through a national database and matched that of a man who is serving time for another local murder. This man now has confessed to the murder.

The case against Mr. Deskovic hinged largely on a confession he made after six hours of questioning in a small interrogation room where two detectives took him for a polygraph test. At the time, Mr. Deskovic was 16 years old.

At his trial, investigators said they grew suspicious of Mr. Deskovic because he was late for school the day after the murder and seemed overly distraught about the death of a girl who was not his close friend.

Jeanine Pirro, the former district attorney, who took office after his trial refused to review the case. Ms. Pirro's successor, Janet DiFiore, agreed to run the evidence through a national DNA databank after she was approached in June by Barry Scheck, a director of the Innocence Project, which works to free the wrongly convicted.

New disclosure requirements for federal judges

The New York Times reports today about the new disclosure rules for federal judges. Judges will be prohibited from accepting reimbursement for attending a private seminar unless its sponsor has filed a public disclosure statement on the content of the program and all sources of financing. Judges will have 30 days to report their attendance at such seminars, and both the judges and the seminars reports will be available on judicial Web sites.

These new disclosure requirements have been adopted by the Judicial Conference, in part, because of complaints that two organizations that have provided free trips to hundreds of federal judges received large contributions from tobacco, oil and other corporate interests. An article about these complaints can be found here.

Despite my blog name I agree with Justice Scalia that "if it is reasonable to think that a [judge] can be bought so cheap, the nation is in deeper trouble than I had imagined." Notwithstanding, transparency is a good thing and Chief Justice Roberts should be applauded for his role in this development. Of course, these new rules do not apply to members of the Supreme Court who have no written ethical rules.

Federal Indictments, Federal Elected Officials

The Miami Herald has two stories today on new Southern District indictments where the defendants, or their conduct, are linked to U.S. Senator Mel Martinez, and U.S. Representative Ileana Ros-Lehtinen.

1. Three employees of the engineering firm PBS&J are charged with a $36 million dollar embezzlement scheme and a contribution of $11,000 to Senator Martinez. The contribution is the reason this story makes the front page of the main section of the Herald. The story is here.

2. A 36-count indictment was returned against a 14-year aide to Representative Ros-Lehtinen charging insurance fraud related to billing for HGH. Because the indictment is unrelated to any conduct of Ros-Lehtinen, it falls to page 6, of the local section. The story is here

Condolences

Paul H. Roney, former Chief Judge of the Eleventh Circuit passed away yesterday.

The Tampa Tribune published this obituary and the St. Petersburg Times published this article.

Money and Movies

Two articles in the Review today that you should check out.

The first concerns the highest billing rates charged by the South Florida legal elite. Eugene Stearns earns first prize with a jaw dropping $700 per hour. I guess you can charge this rate when you win a $1.1 billion verdict against arguably the most powerful corporation in the country.

In the second article, John Pacenti reports on a crazy federal kidnapping case before Judge Huck. The case began with a $7.4 million heist from a Lufthansa Airlines flight at MIA. The case apparently involved both a real kidnapping and a fake one as everyone scrambled for their share of the loot. $5 million from the score has not been recovered. Judge Huck told the lawyers that Hollywood producers should be contacted.

If David were here I am sure he would have a poll on who would play the participants:
Judge Huck
U.S. Attorney Alex Acosta
Defense lawyer Alex Michaels

Any suggestions?

The true "Miami Mafia"

Fidel and Raul call the Cuban-American exile community the "Miami Mafia," and some criminal case defendants in town are referred to as members of an actual Miami mafia, but the true "Miami Mafia" is located at the Department of Justice in Washington, D.C. These former colleagues from the US Attorney's Office in Miami have carried that moniker for years and risen to top posts, prompting Abbe Lowell to joke at last week's NACDL white collar crime conference in Washington that the Miami Mafia has taken over the department. It may appear that way, as, among others, Ed Nucci is Acting Chief of the Public Integrity Section, Mike Mullaney is Acting Chief of the Counterterrorism Section, Paul Pelletier is Acting Chief of the Fraud Section, Barry Sabin is one of the Deputy Assistant Attorney Generals for the Criminal Division, Andrew Oosterbaan is Chief of the Child Exploitation and Obscenity Section, Ken Blanco is Chief of the Narcotic and Dangerous Drug Section, Steve Tyrrell did important work as Deputy Chief of the Counterterrorism Section, and Mary Butler is doing a great job in the Abramoff corruption probe (you can read her plea agreement in the Bob Ney case here). My apologies to those I missed. Congratulations to these fine public servants, and remember them when you need to grovel up at DOJ for any of your clients. Your new guest blogger (blame Markus), Marcos Daniel Jimenez

Rock, Paper, Scissors, Lunch

I didn't want to forget to thank David for allowing me to guest blog this week while he's away. Thanks David. Enjoy Aspen.

Remember the Order requiring two civil lawyers to play rock, paper, scissors?

In the continuing efforts to show civil lawyers how to get along, here's an order requiring a lunch date between a plaintiff and defense lawyer.

"To take this right away, is to reduce a man to slavery."

by Not Scalia

Judge Patricia Seitz began her Order finding Florida's Third-Party Voter Registration Law unconstitutional with this quote from Thomas Paine. Because this law chilled the rights of third-party groups to register voters, Judge Seitz' decision is a victory for democracy and should be applauded.

You can find the Order here.

Phineas Paist

by Brian Tannebaum

As we prepare for the opening of the new federal courthouse (anyone know the opening date?), now is as good a time as any to learn about Phineas Paist, the architect of many of Miami's most famous landmarks, including the old Miami Federal Courthouse.

Interesting guy, died in 1937, in Miami.

Here's an excerpt from the site about his life:

Around 1920 in Miami Phineas will evolve from his association at the Deering estate [Vizcaya] to become a city planner and lord of architecture for The Coral Gables Plantation heir George Merrick.

Phineas Paists contributions of the Douglas entrance, the Police and Fire Station bldg. and the new Miami Federal Courthouse
will prove to be a unique collection of buildings in the Beaux Arts Style,

Vacation time...

I'm going to be on vacation so I've invited a couple guest-bloggers and have asked prior posters to pitch in while I'm away. I've also asked them to identify themselves at the top of the post so you know who the author is. You can also check at the bottom of the post where the blogger template inserts their name. Enjoy!

In the meantime, here is an interesting article by Vanessa Blum about the Padilla hearings yesterday in which I am quoted.

News and notes

1. Judge Cooke has denied the Government's motion to reconsider dismissal of Count I in the Padilla case.

2. Sun-Sentinel: "Pompano man gets 37 months in prison for plot to hire out illegal workers."

3. Miami Herald: "Lawsuit claims young boys were forced to ride camels." Read the lawsuit here.

The Scalia of the 11th Circuit...

Lawyers who practice in the 11th Circuit like to compare Judge Ed Carnes to Justice Scalia. Here's the opening paragraph of Carnes' most recent opinion addressing whether a district court can dismiss a civil case with prejudice because the plaintiff had filed his complaint and litigated the case up to trial using a false name:

If, as the Bible says, "[a]n honest answer is like a kiss on the lips," Proverbs 24:26 (N.I.V.), a pleading founded on a lie is like a kick in the gut. The question this appeal presents is whether a district court can dismiss a case with prejudice because the plaintiff filed and litigated his complaint under a false name.

Carnes answers yes. Scalia-like? Hat Tip to Orin Kerr.

Santiago Alvarez and Osvaldo Mitat to plead guilty

Cuban exiles Santiago Alvarez and Osvaldo Mitat cut plea deals on one count of conspiring to possess illegal weapons, which carries a five-year maximum prison penalty. The men, who remain in custody, face sentencing Nov. 14. Jay Weaver's article here. The following interesting note from Vanessa Blum's article:

Before his arrest, Alvarez was best known for his support of Cuban militant Luis Posada Carilles. Cuban and Venezuelan authorities accuse Posada of orchestrating the bombing of a Cuban airliner in 1976 that killed 73 people.When Posada mysteriously arrived in Miami in 2005 after years in hiding, Alvarez acted as his chief spokesman and defender. Posada is in federal custody in El Paso, Texas, where he has been held since his arrest on immigration charges.Last year, an immigration judge ruled Posada should be deported but said he could not be sent to Cuba or Venezuela.On Monday, U.S. Magistrate Judge Norbert Garney ruled Posada should be set free while he waits to be deported, according to Posada's El Paso attorney, Felipe D.J. Millan. If a federal district judge upholds the ruling, Posada could be released in about 30 days, Millan said.

"‘Biz op’ scams a quick way to get fleeced"

That's the headline of John Pacenti's DBR article this morning. Looks like the U.S. Attorney's office is doing its best to get some favorable press these days. Here's the intro of the article:

In the world of South Florida schemes and cons, there is always a new way to dress up the same old pig. These days it’s peddling “business opportunity investments” in DVD vending machines, dial-up ATMs, mobile check-cashing units and Internet kiosks to those susceptible to the get-rich-quick American myth. The scam artists have been keeping the U.S. attorney’s office for the Southern District of Florida busy. Federal prosecutors nickname these types of crimes “biz op” — short for business opportunity fraud. U.S. Attorney Alex Acosta said his office is cracking down on scams that have robbed millions of dollars from thousands of victims. Since February 2005, the USAO’s Economic and Environmental Crimes division estimates it has filed charges against about 40 people involved with about a dozen companies. They promised people a way to earn big-time income with relatively little effort in mostly turnkey businesses. Federal prosecutors say members of the public are targeted when they bite on advertisements — television, Internet or others — for a generalized business opportunity. These leads are then passed on to boiler rooms, where skilled phone sales staff peddle the “once-in-a-lifetime” opportunity. The technique has been working for decades. Prosecutors say the companies have defrauded more than 4,000 victims of $60 million.

What struck me about the article was not so much the words, but Alex Acosta's picture... Check out how mean he's looking above:

Remembering 9/11

I was actually in trial on 9/11 -- a false passport case in front of Judge Ungaro. I vividly remember the courtroom deputy handing the Judge a note. We didn't stop at that point but I could see something was wrong. I didn't have a cellphone on, but I did have a beeper (does anyone have beepers anymore) which started to buzz and buzz. Then a second note. This time, Judge Ungaro said we would be taking a recess. I looked at my beeper. I was getting 911 beeps from my wife. I left the building, turned on my cellphone, and called my wife. She told me what was going on and to leave the building because the news was reporting that Miami might be a target. I ended up watching the towers come down in a little pawn shop on North Miami Avenue. It was completely surreal, standing there on the street watching all of this unfold. It's still hard to believe. When the courthouses reopened the following week, Judge Ungaro declared a mistrial...

Please share where you were on 9/11.

Magistrate recommends that Padilla motions be denied

Magistate Judge Stephen Brown has recommended that Jose Padilla's motions to suppress be denied. Here's the AP article about the rulings. The defense will now appeal to the District Judge, Marcia Cooke. Here's a snippet from the article:

Brown found that Padilla had not been placed immediately under arrest by the FBI when he arrived at Chicago's O'Hare International Airport in May 2002. Since he was not in official custody, Brown said it was not required for the agents to read him his Miranda constitutional rights before interrogating him.

''Defendant was not restrained at any time, by handcuffs or otherwise. Every effort was made for defendant to be made comfortable, in a non-threatening setting,'' Brown said in his ruling released Friday. ``He was never told that he was not free to go.''

Brown also denied Padilla's motion to suppress evidence seized at the airport, rejecting arguments that the material witness warrant eventually used to arrest him was based on statements from one source who claims he was tortured and another who was heavily medicated.

Padilla's attorneys identified one of the sources as Abu Zubayda, a top al-Qaida leader recently transferred from a secret CIA prison overseas to the U.S. detention center at Guantánamo Bay, Cuba. The other source was named as Binyam Ahmed Muhammad, who is also at Guantánamo and claims he was tortured after his arrest in Pakistan in April 2002.

Judges citing blogs

According to the National Law Journal:

Judges have discovered the Internet's 600 legal blogs, citing them at least 32 times in 27 decisions over the last two years. A blog, short for Web log, is a Web page that acts as a continuous journal of the writer's commentary, news and links to related sites. Blogs began, often as personal diaries, in the 1990s but came into their own in recent years among lawyers who use them to share with peers the latest developments in legal specialties. The ability to burrow deeply into a specialized area of the law with continuous updates has an undeniable appeal to practitioners. This phenomenon was not lost on Ian Best, a 36-year-old law school graduate who began a blog, "3L Epiphany," as an independent study project for academic credit at Ohio State University's Michael E. Moritz College of Law. It is a taxonomy of legal blogs. Best counted them, classified them and tracked their development. "The most significant development is judges citing blogs," said Best, who lives in Columbus, Ohio, and is awaiting his bar exam results.

For those of you who are interested, the list is here.

Elections vs. Appointments

There is always debate in Miami about whether judges should be appointed or elected. I find it one of the toughest questions to answer and I go back and forth as to how I feel. But, the voters have spoken. New state judges can be found here. Also, Rumpole -- who looks like he has had a very busy night -- has all the commentary.

"Let me explain the government to you. There’s God, then there’s the president and then there’s my father.”

— Jack Roberts, 6-year-old son of Chief Justice John Roberts, overheard speaking to one of his young peers on the last day of summer camp.

Welcome back

UPDATED
Hope you all had a nice holiday weekend. The Marlins are over .500. The Canes are playing (update -- ugh, they lost). One week till the Dolphins. All is good. (Except that the Crocodile Hunter died). (update -- and except that it is pouring rain on election day. For all your state court judicial election updates, check out Rumpole).

A couple notes...

1) Starting salaries for new associates are up, at least in NY, to $145,000. Any news on Miami salaries?

2) "A former law student has filed a federal class action against St. Thomas University School of Law of Miami, claiming that it is illegally accepting and then expelling more than 25 percent of its first-year class to boost its flagging bar pass rates." Here's the Complaint.

3) According to the Washington Post, terrorism prosecutions are down. "In 2002, federal prosecutors filed charges against 355 defendants in international terrorism cases, the study said. By last year, that number had dropped to 46, fewer than in 2001. Just 19 such cases have been prosecuted so far this year, the study said." Here's the report.

Updated Monday morning:

4) Pictures from the NACDL seminar in Miami.

5) Hunton & Williams in trouble due to defections? Julie Kay's article suggests yes.

Here's a quiz for you:

Which of the following (inconsistent) positions is correct?

A. Defendants accused of being spies for the Cuban government can get a fair trial in Miami despite the anti-Fidel/Cuban sentiment.

B. A Defendant (an immigration agent) accused of civil rights violations in the Elian Gonzalez case could not get a fair trial in Miami because of anti-Fidel/Cuban sentiment.

C. Defendants (anti-Castro activists) accused of weapons offenses are brought to trial in Ft. Lauderdale because they'll be viewed as "terrorists [instead of] heroes." (no fair trial in Miami because of the anti-Fidel/Cuban sentiment).

D. All of the above.

The U.S. Government chose D -- sometimes Miami is a fair venue for trial; sometimes not. Read Jay Weaver's article here.

Another new gossip blog

There's a new legal gossip blog out there -- Above the law -- written by David Lat, the original anonymous blogger (apologies to Rumpole -- Miami's anonymous legal blogger).

Lat plans on doing all kinds of funny stuff. Here's a good example: "Lawyer of the Day" -- showing the court proceeding of a defense lawyer who shows up drunk to court. You can watch the video below:


Drunk Vegas Lawyer causes mistrial Part 2!




Lat also plans on following lawyer weddings, lawyer houses, lawyer hotties, and so on. Here's his latest on weddings, tracking announcements in the NY Times. There was nothing like this when my wedding announcement came out.

Judging the judges

There's a new website out there, The Robing Room, which is rating the federal judges. Here's the Southern District page. Go vote.

Courts closed

All Southern District courthouses are closed tomorrow and Wednesday. Good luck.

Ernesto

Chief Judge Zloch has closed the Key West couthouse today. All other courthouses are open. More updates on the District courthouses here. And you can track the storm here.

News and Notes

The weekend is almost over... some news and notes to begin the week while we wait to see what Ernesto is going to do.

1. The Padilla prosecutors have filed a motion to reconsider with Judge Cooke, asking the judge to reverse herself on the dismissal of count I and on the decision to force the government to elect on count II. Initial coverage of the order here. Nine times out of ten, these sorts of motions are denied. Still no notice of appeal filed.

2. Julie Kay has a very negative article coming out on Monday about how Judge Highsmith handled a situation in which one of his employee's daughters was (apparently) being scammed by some downtown store. It's very difficult to figure out from the article exactly what happened to the daughter, but it's hard to really blame Judge Highsmith for trying to help her if he thought she was really in danger. Still, Professor Jarvis -- without knowing the facts -- jumps all over the Judge and the Marshal.

DBR on Brian Andrews

Julie Kay covers the Brian Andrews story in today's DBR. Here's a snippet:

Prosecutors asked a Miami federal judge Thursday to investigate how a South Florida television station obtained a government video of an alleged ringleader of the “Miami Seven” discussing possible terrorist attacks on high-profile buildings. The government made its request one day after U.S. District Judge Joan Lenard refused a defense attorney’s attempt to block WFOR-TV from broadcasting portions of the video for a news story late Wednesday. In court papers, Assistant U.S. Attorneys Jacqueline M. Arango and Richard E. Getchell said the videos were supposed to be part of a sealed record. They asked the judge to conduct a hearing to determine whether a sealing violation had occurred. ***

After learning of the television station’s plans to air portions of the videos Wednesday night, Batiste’s attorney, Ana Jhones of Miami, filed a request for a temporary injunction to prevent the broadcast. “The extent of the discovery obtained is unknown; however, undersigned counsel learned that CBS News obtained all of the video and perhaps some of the audio that have been generated by the government in this case,” Jhones said in her motion. “Undersigned counsel is unsure as to how CBS News obtained this discovery, which is not a matter of public record.” Jhones did not return calls seeking comment before deadline Thursday. None of the other defense attorneys joined in Jhones’ request. Miami criminal defense attorney Gregory Prebish declined to say whether Jhones asked him to join the request to keep the video off the air. Prebish, who represents Augustin, said he is angry that the TV station aired the tapes, particularly since he says the defense attorneys haven’t received all the tapes and discovery yet. The reason: The lawyers, all government-appointed, have not gotten approval to buy the tapes and cannot afford them. “We don’t even have these tapes yet, due to budgetary problems,” said Prebish. “The costs of the tapes are exorbitant.” He declined to state the exact cost. Brian Andrews, a reporter for the station, obtained dozens of discs which contain surveillance video made by federal undercover agents during their investigations.

Leaking...

Narseal Batiste's new appointed lawyer, Ana Jones, came out swinging today -- filing an emergency motion to keep Channel 4 from running a story about the video and audio clips from the discovery in the Miami 7 "terrorism" case. Reporter Brian Andrews, during the story, says that Channel 4 obtained over 20 CDs containing the video, audio, and still pictures. The story doesn't say how he got this material, but this (copying numerous CDs) is usually the way the Government discloses discovery to the defense. I can't imagine the defense gave these materials to the press, so I leave it to you to figure out who did.

I haven't seen Jones' motion, so I don't know the grounds she alleged to keep the news from running a story, but Judge Lenard denied the motion from the bench and the story ran tonight on Channel 4. Here it is. The video is on the right side of the page. Or click here.

UPDATE -- perhaps I spoke too soon. After this report aired, the Government filed a motion asking Judge Lenard to conduct an inquiry as to who on the defense leaked the discovery. The motion says that it did not leak and that the copy service has only released the discovery to the defense lawyers... I still say no way the defense leaked. So based on the Government motion, I predict the copy service, despite its protestations, made a mistake and distributed it.

No appeal yet

As far as I can tell, the Government has not yet filed an appeal from the Padilla order. I thought that it would happen immediately, as happened in the NSA case where the Government filed a notice of appeal the very next day.

Nothing really new to report in the District. If you have any news or topics you want discussed, please email me.

In the meantime, back to a sentencing memo I have to write...

Count I dismissed in the Jose Padilla case

BREAKING NEWS:

Judge Marcia Cooke has dismissed Count I of the indictment against Jose Padilla because it is multiplicitous. In other words, Count I represents the same offense that is also charged in Counts II and III. An indictment is multiplicitous when it charges a single offense multiple times, in separate counts. There are 2 reasons that multiplicitous counts may be prejudicial to a defendant: 1) the defendant may be sentenced twice for only one crime; and 2) multiplicitous counts may improperly prejudice a jury be suggesting that a defendant has committed several crimes, not one. Judge Cooke explained that because "in Counts I, II, and III, the government alleged one and only one conspiracy, with one and only one purpose and object for each of the conspiracy counts," Count I is multiplicitous and must be dismissed. (emphasis in original).

The government, of course, is still free to proceed with its case on Counts II and III. I would guess, however, that the government is going to appeal -- and quickly. Count I -- conspiracy to murder, kidnap, and maim persons in a foreign county, in violation of 18 U.S.C. 956(a)(1) -- is by far the most serious count, carrying a life maximum. Counts II and III carry far less serious maximum penalties (I believe each has a 10 year max on each, although I will check this). An appeal will delay indefinitely the current trial setting in January, so Mr. Padilla will have to spend more time in solitary confinement.

This was a very courageous order by Judge Cooke. The government for far too long has been charging the same crime many different ways for tactical reasons. The more counts in an indictment, the greater the chance a jury will find a defendant guilty of one of the counts. And under the sentencing guidelines, even if there is only a conviction of a single count, the judge can then consider all of the counts and allegations (even acquitted conduct) in calculating a guideline range. Perhaps this order, if affirmed by the Eleventh Circuit, will begin pushing back against this tactic.

In addition to dismissing Count I, Judge Cooke also found that Count II was duplicitious. A charge is duplicitous if it alleges two or more separate and distinct crimes in a single count. The dangers posed by a duplicitous counts in an indictment are three-fold: 1) a jury may convict a defendant without unanimously agreeing on the same offense; 2) a defendant may be prejudiced in a subsequent double jeopardy defense; and 3) a court may have difficult determining the admissibility of evidence. Although the Court made this finding on Count II, it was not dismissed. Instead, the government has until Friday to decide which of the two crimes charged (either the general conspiracy statute under section 371 or the terrorism statute, section 2339) to pursue. Obviously, the government will elect the more serious terrorism section. This decision will also, I'm sure, be appealed.

Most people will announce surprise at these rulings for one of two reasons -- first that Judge Cooke is a Bush appointee or second that counts are almost never dismissed on these grounds. As I have explained before, Judge Cooke is as fair a judge as there is. Judges cannot comment on their opinions. They cannot defend their opinions in the press. I hope that the bar stands up for Judge Cooke and explains these technical aspects of the law to the press. As for the second ground, simply because it does not happen a lot doesn't mean that it shouldn't or that it wasn't correct in this case. It would have been very easy to deny the motion. Judge Cooke should be applauded for doing what she believes is just and right, and compelled by the law, in a very difficult case with lots of political and media pressures. Now we'll get a definitive answer from the 11th as to whether prosecutors will be able to charge one crime as many ways as they can come up with...

UPDATE -- first article on the board goes to Jay Weaver, here.

Here is the Order.

Here is the CNN article.

"5 charged with organizing Cuban migrant smuggling trips"

Read the Herald AP article here.

I'm out -- have a nice weekend.

Bankest Verdicts

After almost a half a year in trial and 4 weeks of deliberations, the Bankest jury returned guilty verdicts against all defendants, who were taken into custody after the verdicts were read. Now the question is whether the Orlanskys will be punished more harshly for exercising their right to trial. This particular bank fraud trial has been dubbed the biggest in Miami's history. Here's the intro to the Herald article:

Eduardo and Hector Orlansky, the top officers of E.S. Bankest, each face up
to a maximum of 30 years in prison and substantial restitution for conspiring to defraud Espirito Santo Bank of Florida of some $170 million. The Orlanskys and E.S. Bankest manager R. Peter Stanham were taken into federal custody following the verdict Wednesday. The government argued they were potential flight risks because of their ties to other countries. The Orlanskys are from Argentina. Ariadna Puerto, another E.S. Bankest officer, was given home detention. U.S. District Judge Adalberto Jordan set sentencing for Nov. 17. Eduardo Orlansky stared straight ahead and showed no emotion as the jury foreman read the verdict before a packed courtroom. Hector Orlansky shook his head as the guilty counts against his brother were recited. Puerto cried as the counts against her were read. Stanham also teared up as he said his goodbyes to family members before being taken into custody.

Snow White's dwarfs more famous than US judges: poll

Here's a great article that I came across (hat tip: ScotusBlog) about Americans' knowledge of the Supreme Court and government in general. Here are some tidbits:

• Three quarters of Americans can correctly identify two of Snow White's seven dwarfs while only a quarter can name two Supreme Court Justices, according to a poll on pop culture released on Monday.
• Twice as many people (23 percent) were able to identify the most recent winner of the television talent show "American Idol," Taylor Hicks, as were able to name the Supreme Court Justice confirmed in January 2006, Samuel Alito (11 percent).
• Respondents were far more familiar with the Three Stooges — Larry, Curly and Moe — than the three branches of the U.S. government — judicial, executive and legislative. Seventy-four percent identified the former, 42 percent the latter.

What do you think the results in Miami would be if we asked about local judges? I'm afraid to ask...

Janet Reno's speech at NACDL

The National Assocation of Criminal Defense Lawyers recently had its annual meeting in Miami Beach, Florida. Janet Reno spoke. Here is her speech, with an intro from Neal Sonnett.

NG NOTB

Not Guilty North of the Border. What a relief! I'm still convinced there is no better feeling than hearing those two words...

I'll be back in the office today trying to get the computer back in order, catching up on stuff, and then finally getting back to the blog.

Profiling Prosecutors and Public Defenders

This morning's Daily Business Review profiles prosecutors and PDs. AUSAs Ed Nucci, Caroline Heck Miller, and Richard Gregorie are discussed as well as AFPD Faith Mesnekoff. There is also a long story about why public servants join these offices and why many must leave.

Crash

So we didn't finish the North of the Border Trial today as I had hoped. Summations will be Monday, which means a stressful weekend. Even worse, my Microsoft Exchange Server crashed at the office today, and my tech guy tells me that I've probably lost all my data. I thought this stuff never disappears... So do I start from scratch, hire a data recovery team, or try to recreate what I can from different places? UGH!!!!!