Miami-Dade school employees arrested for oxycontin

For those wondering who Alex Acosta is, he's our new U.S. Attorney, and he's started with a bang: 29 people -- mostly Miami-Dade school employees -- were arrested today in an oxycontin ring: "Of those charged in an 84-count federal grand jury indictment unsealed Thursday, five are Miami-Dade school bus drivers, 13 are school bus attendants and one is a former school bus driver now driving a city bus. Two school custodians, a cook and a cashier were also charged, along with a Miami doctor and five other people." Read more in this Sun-Sentinel article. The article says more arrests are coming and Acosta stated, "We felt it prudent and necessary to take action with the information we already had.'' Although no teachers have been arrested, this will be an interesting story to follow and I'm sure the teacher blogs (like South Florida Educators) will be discussing it...

No more Steel Hector?

Steel Hector & Davis has always been known as a huge Southern District powerhouse. But it looks like it won't be around for long. According to today's Business Review, Steel "is close to finalizing a deal to merge with Cleveland-based Squire Sanders & Dempsey." According to the article, Steel is going to be "gobbled up" because it has "suffered financial setbacks recently and has been plagued by partner defections amid much speculation about its ability to stay afloat."

Crystalizing the DeFede debate and a SDFLA mention

Jessica M. Walker of the Miami Daily Business Review wrote a nice piece (you need a password to access) this morning exploring the legality of the DeFede/Teele tapes. And I'm not just saying that because she mentioned this blog and my debate with Prof. Froomkin:

The 1981 act has now become scrutinized in the media, on the Internet and among attorneys in the wake of Teele’s suicide and DeFede’s almost instantaneous firing. Froomkin and Miami criminal defense attorney David Oscar Markus have been debating the legal points of the issue on their Web logs, with Markus arguing that the taping was legal. Froomkin insists that it wasn’t. . . .

Markus ag[ued] that DeFede lacked any criminal intent. “There is a well carved out exception in the law that if you do something out of necessity, you are not criminally liable for doing so,” Markus said. He cited the example of a driver exceeding the speed limit so he could quickly deliver a heart attack victim to the hospital. “If DeFede was taping for some better good, then I think he was doing the right thing and there was no criminal intent,” Markus said.

Very cool that the blog was cited! The rest of the article is excellent, citing Dan Gelber (DeFede's lawyer), Bruce Rogow, Michael Froomkin, and Thomas Julin.

Who is Alex Acosta?

So wonders the Daily Business Review this morning in a piece (you need a password to access) about the new acting U.S. Attorney in the Southern District, R. Alexander Acosta:

"Who is Alex Acosta? That’s the question South Florida attorneys are asking about the new acting U.S. attorney for the Southern District of Florida.

“No one knows anything about him,” said Brian Tannebaum, president of the Miami chapter of the Florida Association of Criminal Defense Attorneys.

“I haven’t met him yet.” Kathleen Williams, the top federal public defender in South Florida, said, “I have never met the U.S. attorney. He has not practiced in the area, so none of us knows him.” . . .

But what South Florida attorneys do know is causing them some concern — namely that Acosta has never tried a case and has little experience in criminal law. “The word on the street is that he has no criminal law experience,” Tannebaum said. “I would like a U.S. attorney who has experience in criminal justice … who has some working knowledge of criminal justice."

If you know anything about him, please use the notes to fill us in (you can even be anonymous if you'd like).

South Florida investor sues Nasdaq over $600,000 loss

Steven Weissman, a Cooper City lawyer, is representing himself in an unusual suit claiming that advertisements by Nasdaq influenced his decision to purchase more than $600,000 of stock in WorldCom Inc., mostly in early 2002, just before the telecom giant filed for the biggest bankruptcy in U.S. history. According to this Sun-Sentinel article: "Weissman feels emboldened by the federal court system, which he sees as an equalizer, the rare place where 'a single solitary citizen can get a fair shot taking on the titans,' he says." The case is being heard by Chief Judge Zloch.

Response to Prof. Froomkin

I know we are straying a bit from the purpose of this blog, but as I mentioned below, Prof. Froomkin and I have agreed to debate the legality of DeFede's taping of Arthur Teele. You can read Froomkin's argument here. Fortunately for Mr. DeFede, the good Professor is wrong.

For DeFede to have committed a felony under Fla. Stat. § 934.03, the State must prove beyond a reasonable doubt:

1. DeFede recorded Teele's calls, without Teele's consent.
2. DeFede did so for an illegal purpose or for commercial gain.
3. Teele had a reasonable expectation of privacy in the calls.

I don't believe the State can prove any of these elements.

First, there is no question that DeFede recorded Teele's calls, but how can the State prove that it was without Teele's consent? Perhaps when Teele started to deteriorate on the telephone, DeFede asked him if he could record the conversation. Who knows. In the typical case, the State would call the "victim" to the stand and ask whether the calls were recorded with his consent. Obviously (and unfortunately) that cannot happen in this case; the point is that the State has no way to prove lack of consent.

Second, DeFede did not record the calls for any illegal purpose or for any commercial gain. In fact, he immediately turned the tape over and explained that he recorded Teele because he was truly concerned for the man as he spoke with him throughout the day. Certainly speeding is illegal, but if the purpose of driving in excess of the speed limit was to get someone who just suffered a heart attack to the hospital, then would anyone seriously argue that you had committedd a crime? Here, DeFede panicked and hit record. The State will not be able to prove that he taped the call for some illegal purpose or for commercial gain.

Third, it would be difficult for the State to prove that Teele had a reasonable expectation of privacy in the calls. If Teele placed the call from a public place where others could hear what he was saying, then there is no question that he had no reasonable expectation of privacy. Again (and unfortunately) we just don't know and the State will be unable to satisfy its burden here. More importantly, Teele was talking to a reporter who had written about him for the past 15 years. It would be a stretch to say that he had an expectation of privacy in those calls.

In addition, DeFede could assert an affirmative defense that he was recording the calls in the ordinary course of business. For reasons Prof. Froomkin points out, this isn't the strongest of arguments, but there is some support for it. See here.

Whether DeFede committed a misdemeanor violation of the statute is less clear, but for many of the same reasons outlined above, the State will have a tough time going forward.

UPDATE -- Prof. Froomkin replies here.

Is DeFede a criminal?

Yes, according to Professor Michael Froomkin at the University of Miami School of Law. He explains here at his blog, Discourse. Professor Froomkin and I have agreed to debate the issue and I'll try to post a response -- demonstrating that DeFede did not commit a crime -- by the end of the weekend.

Journalists for DeFede

Peter Wallsten and Charlie Savage have started a blog called Journalists for DeFede. It's an open letter now signed by a number of Herald employees and others journalists asking for the Herald to reinstate DeFede. The letter argues that the taping may not have even been a violation of law, citing to this post. Any thoughts? I've written a little about DeFede's firing here.

UPDATE -- According to this Herald report, DeFede met with the State Attorney's Office today. More from the Sun-Sentinel.