Archive | March 2013

Alison Frankel On the Case – Until proven guilty? Freeing seized assets via pretrial hearing


When a former Johnson & Johnson pharmaceutical sales representative and her husband found out in 2005 that a federal grand jury was investigating them for reselling prescription medical devices, they did a smart thing and hired lawyers. Kerri and Brian Kaley were informed that it would cost $500,000 to defend them through trial, so they took out a home equity line of credit on their house and purchased a certificate of deposit with the proceeds. They later added about $63,000 from other sources to the CD.

The Kaleys were indicted in 2007 for transporting stolen medical devices and money laundering. Prosecutors claimed that their house and the rest of their money were the spoils of their crime and moved to freeze their assets. The Kaleys challenged the seizure, arguing that it violated their Sixth Amendment right to counsel of their choice. The trial judge, U.S. District Judge Kenneth Marra of West Palm Beach, Florida, freed up the $63,000, but twice found that the government was justified in restraining the Kaleys’ assets. On the Kaleys’ first trip to the 11th Circuit Court of Appeals, they won an interlocutory ruling that essentially directed Marra to grant them an evidentiary hearing on the seizure. But Marra subsequently found that the only issue before him was whether the frozen assets were traceable to the crime alleged in the indictment – not whether the grand jury improperly found probable cause for the indictment in the first place. A three-judge 11th Circuit panel laterupheld the trial court’s determination.

On Monday, the U.S. Supreme Court granted the Kaleys’ request to review the 11th Circuit holding that defendants whose assets have been frozen aren’t entitled to an evidentiary hearing on the strength of the indictment against them. That question has split the federal appellate courts, as even the Justice Department conceded in its brief in response to the cert petition. The 2nd, 9th and District of Columbia Circuits have all held that defendants must be permitted to argue that the government had no probable cause to justify asset forfeiture. The 10th and 11th Circuits have ruled otherwise. The Justice Department joined the Kaleys in calling on the Supreme Court to resolve the split, although the department argued that the 10th and 11th Circuits have ruled correctly; the Kaleys and their counsel at Black, Srebnick, Komspan & Stumpf obviously contend that appeals courts on the other side of the divide got it right.

The Kaley case is procedurally complicated, since their probable cause argument is predicated on the acquittal of a co-defendant whose assets were not seized, but the principles at stake are not. The Supreme Court has held in Caplin & Drysdale v. United States and United States v. Monsanto that attorneys’ fees are not exempt from forfeiture – but in both of those cases defendants had already been determined to be guilty. Here, by contrast, the Kaleys have not been adjudicated and have insisted for eight years that the medical devices they resold were not stolen but given to them by hospitals. Do they and other criminal defendants have the pretrial right to convince courts that the seizure of their assets was improper? Otherwise, they argue, they’re being deprived of their Fifth and Sixth Amendment rights. As the National Association of Criminal Defense Attorneys put the matter in an amicus brief in support of the Kaleys’ cert petition, “Because this issue implicates a structural right critical to the nation’s adversarial system of criminal justice, this court should clarify that a grand jury’s probable cause determination does not relieve the government of any of its usual burden, when it seeks to restrain or seize property, of showing at a prompt, adversarial hearing that it has good cause to do so.”

In a way, of course, the Kaleys are lucky, at least in the universe of people facing federal criminal charges. The NACDL amicus brief notes that few defendants enjoy the “uncommon level of advocacy” that the Kaleys’ private attorneys have displayed through the long and complex history of this case. (I called lead defense counsel Howard Srebnick, partly because I was wondering if the firm is now representing the Kaleys without pay, but I didn’t hear back.) Exceedingly few defendants burdened with what the NACDL calls “the millstone of a pretrial restraint on assets” make it to the Supreme Court.

For that matter, exceedingly few criminal defendants at all attract the attention of the court. It’s probably an accident of timing that the court granted cert in the Kaley case on the 50th anniversary of its landmark ruling in Gideon v. Wainwright that all criminal defendants are entitled to counsel even if they can’t afford to pay. That right is increasingly endangered, according to a National Law Journal examination of three jurisdictions struggling to provide counsel for indigent defendants. Here’s hoping that the justices use the opportunity of the Kaley case to reaffirm that whether you can pay or not, you have the right to a lawyer who will stand up and say you’re not guilty.

(Reporting by Alison Frankel)

Until proven guilty? Freeing seized assets via pretrial hearing

A Focus on 3 Encounters in a Stop-and-Frisk Trial

March 18, 2013

The first time the police stopped and then frisked him on his block in the Bronx, David Floyd remembered wanting only “to get home” and “be in my own space.” The second time it happened, Mr. Floyd testified, he was left with the impression that “I needed to stay in my place, and my place was in my home.”

Mr. Floyd’s testimony on Monday in Federal District Court in Manhattan about his encounters with the police, in 2007 and 2008, came during the first day of a trial in a class-action lawsuit over whether the New York Police Department has been unconstitutionally stopping hundreds of thousands, or even millions, of black and Hispanic men and boys in the street.

While the judge deciding the case, Shira A. Scheindlin, will consider the significance of the soaring number of recorded street stops by the police over the last decade, the testimony on Monday focused on just three specific encounters. Two were police stops of Mr. Floyd, now a 33-year-old medical student in Havana, and the third was a stop of a Manhattan teenager, Devin Almonor, who testified that the police stopped, frisked and ultimately arrested him when he was 13, as he walked home in Hamilton Heights.

Both Mr. Floyd and Mr. Almonor are black, and Mr. Almonor, now 16, testified that he could think of “no other reason” besides race that police officers would have stopped him on that March night in 2010. A lawyer for the city, Suzanna Publicker, suggested that the cellphone Mr. Almonor had in his front pocket might have “created a bulge,” hinting that it might have resembled a concealed weapon to a police officer.

None of the officers involved in the stops testified on Monday.

The trial, which is expected to last six weeks, is one of the most significant courtroom tests of a crucial Bloomberg administration policy, and the stakes are high for the city. Lawyers for the plaintiffs are asking Judge Scheindlin to create “a process for obtaining community input” to influence the Police Department’s stop-and-frisk practices and also to appoint a monitor to ensure that the department’s policies comply with the United States Constitution.

During opening arguments on Monday, a lawyer for the city, Heidi Grossman, said that plaintiffs sought “to divest the N.Y.P.D. of control over how the N.Y.P.D. investigates crime.”

While acknowledging that “errors and mistakes may happen in the area of stops and frisks,” Ms. Grossman said there was no evidence of a “constitutional deficiency” or a “widespread pattern of illegal stops.”

The reason the stops overwhelmingly involved black and Hispanic men was not the practice of racial profiling, she said, but the department’s use of “a disproportionate share of resources on minority neighborhoods, where crime is highest.”

That, Ms. Grossman said, “is the nature of hot-spot policing.” As crime across much of the city has drastically receded over the last two decades, Ms. Grossman said, the department has dispatched officers to places where crime stubbornly persists.

But a lawyer for the plaintiffs, Darius Charney of the Center for Constitutional Rights, said police officers were stopping people without any legitimate grounds for suspecting them of criminal behavior.

“What the N.Y.P.D. calls proactive, the black and Hispanic residents of this city have experienced as arbitrary, unnecessary and unconstitutional harassment,” Mr. Charney said.

Mr. Almonor said he had been stopped after spending the day riding a bike and playing video games with a friend. After walking the friend to his bus stop and waiting with him there, Mr. Almonor headed home, pausing for a time in front of a bodega after running into friends.

As Mr. Almonor continued on his way, two plainclothes officers emerged from a car to question him.

“I told them I was 13,” Mr. Almonor said. “After they patted me down, they pushed me up against the car.”

He added that the officers then handcuffed him. “I was crying,” he said.

The situation escalated, and both of Mr. Almonor’s parents were later arrested at the 30th Precinct house in East Harlem, where they had gone to demand the release of their son, though that was not discussed in court on Monday. Mr. Almonor’s father, a retired officer, was subsequently tried and acquitted on charges of punching a female police officer during the confrontation over his son’s arrest.

Chief Justice Roy Moore warns more employees could lose jobs unless courts receive more funding

By Ed Enoch | 
March 18, 2013 at 5:57 PM

MONTGOMERY, Alabama – The chief justice of the Alabama Supreme Court predicts the state judicial system could be forced to lay off as many as 300 employees unless it receives approximately $13.5 million more in funding during fiscal year 2014.”Unless we get some help, we are going to get hurt, and I’m afraid it is going to affect the public,” Chief Justice Roy Moore said during comments to the Montgomery Rotary Club on Monday.

Currently, the judicial system is expected to get approximately $103.4 million based on a general fund budget proposal passed by the Alabama Senate last week. The budget proposal has been sent to the House.

“We are not asking for anything extra next year,” said Administrative Director of Courts Rich Hobson, who attended the rotary lunch with Moore. “Just enough to keep the doors open.”

Moore said the 300 would join 498 court jobs lost since 2001.

“This is not a new problem, but it has just gotten worse,” Moore said.Moore said the state judiciary was underfunded during his first term as chief justice in 2001 but was in worse condition now, adding courts were operating with approximately $38 million less 12 years later.

More argued the state should consider more equitable cuts among the branches of government, saying the judiciary had taken the most severe cuts so far.

Moore said he was opposed to further increases to court fees or taxes to offset the losses, adding money in the budget should be reprioritized.

“We have got to take some priority to some things that they are giving money to,” Moore said.

As an example of the problems facing courts statewide, Moore read letters from circuit court clerks in Montgomery, Shelby and Jefferson counties who said their offices were undermanned and their remaining staff overworked.

“I could go on,” Moore said. “We have got tons of these from our different circuit clerks.”

Moore noted clerks across the state help collect revenue for the state and local governments. He said further cuts to staff could affect collections.

The judiciary would continue to do what is necessary to keep courts open, Moore said.

“We will do what we have to do,” Moore said.

Fielding a question from the audience, Moore said he believed the state should enforce gambling laws statewide, whether at Indian-owned casinos or facilities such as VictoryLand.

“The solution is to enforce the law fairly across the state,” Moore said, calling it a matter of equality.

Moore acknowledged gambling has been an ongoing debate in the state and any discussion of Indian casinos must consider federal law. Moore said he supported attempts by Alabama Attorney General Luther Strange to enforce state laws.

“He is doing right by starting and bringing up the subject,” Moore said.

Reporter Mike Cason contributed to this report.

Chief Justice Roy Moore warns more employees could lose jobs unless courts receive more funding

Kagan says poor defendants are entitled to a ‘Ford Taurus’ defense


By Andrew Ramonas

Indigent defendants aren’t entitled to “the best defense money can buy,” U.S. Supreme Court Justice Elena Kagan said on Friday at a U.S. Justice Department event marking the 50th anniversary of the high court’s landmark Gideon v. Wainwright decision, which guaranteed that people accused of crimes have the right to a lawyer even if they can’t pay.

Speaking before a standing-room only crowd in DOJ’s Great Hall with U.S. Attorney General Eric Holder Jr. and former Vice President Walter Mondale, Kagan said the provision of a “Cadillac” lawyer isn’t a right for poor defendants. But they should at least have a “Ford Taurus” defense, complete with a lawyer who has the skills, resources and competence necessary to thoroughly advise a client.

“We don’t have the resources to make [a Cadillac defense] happen,” Kagan said. “And I’m not sure if we did have the resources that that’s exactly what we should want.”

But even a Taurus defense is hard to come by, she said. In the five decades since the March 18, 1963, decision, states have faced challenges adhering to the high court’s unanimous decision that found that “lawyers in criminal courts are necessities, not luxuries.” If a person facing a felony charge is too poor to hire a lawyer, the court ruled, the government is obligated to provide one for free. Subsequent decisions expanded the right to juvenile proceedings and certain misdemeanors.The National Law Journal today highlights three jurisdictionsthat have struggled with Gideon: Wisconsin, Maryland and Louisville, Ky. In Wisconsin, private lawyers who are hired to represent indigent defendants are paid $40 an hour—unchanged since 1978. As for Maryland, a state court of appeals last year ruled defendants are entitled to counsel at bail hearings—but rather than coming up with $28 million to pay for it, the state legislature repealed the law instead. And in Louisville, public defenders are each assigned nearly 500 cases a year.

“I think there’s a lot we still need to do,” Kagan said.

During the event, Holder announced $1.8 million in new resources to support criminal legal defense. Indigent defense is in a “state of crisis,” said Holder, who in 2010 launched the Access to Justice Initiative in an effort to make legal services accessible and affordable to all Americans.

“Despite half a century of progress even today, in 2013, far too many Americans struggle to gain access to the legal assistance that they need,” Holder said. “And far too many children and adults routinely enter our juvenile and criminal justice systems with little understanding of the rights to which they’re entitled, the charges against them or the potential sentences they may face.”

Mondale, who as Minnesota’s attorney general in 1963 brought together 21 state attorneys general in an amicus curiae brief in support of indigent defendant Clarence Gideon, said he was “a little naïve” that solid legal help would come automatically to needy people after the Gideon decision.

“I think it’s unquestionably a strong, powerful decision that’s been very important to the cause of justice in America, and I don’t want to be misunderstood,” said Mondale, who is now a Dorsey & Whitney senior counsel in Minneapolis. “But it’s been a troubled history.”

Kagan, Holder Address the Five Decades Since Historic Gideon Decision

Judge Helen Shores Lee on growing up on ‘Dynamite Hill,’ her ‘journey to equality’

By Ana Rodriguez | 
on March 12, 2013 at 3:41 PM

 — Judge Helen Shores Lee took to the microphone at 12:30 p.m. this afternoon at the Vestavia Hills Chamber of Commerce Luncheon to discuss her childhood in Birmingham, growing up not only as an African-American during the tumultuous 50s and 60s, but also as the daughter of famed Birmingham lawyer and Civil Rights leader, Arthur Shores.

“I’m here to talk about what I call my journey to equality,” said Shores Lee, before reminding the audience that 50 years ago, the diversity of the faces in the crowd would not have been the same.

Despite the progress, she said, there is still more that should be accomplished.

“Our journey to equality is not yet complete,” said Shores Lee.

The progress made is in fact, “warmed by the sunshine of freedom,” but remains “plagued,” by continued racism and inequality.

Shores Lee, once the Director of Clinical Outreach Services with the Jefferson County Department of Health, then went on to share intimate details of her life, stirring up laughter in the crowd as she spoke of her “fiery nature,” her outspoken antics in direct rebellion to segregation that was once protected by law.

“Segregation wasn’t funny,” said Shores Lee, reminding the audience that although now, her antics might inspire laughter, her actions were bold for the time, the acts of a child confused about the inequalities of the land.

“It brought out that hot temper of mine,” she said.

There were quiet acts of rebellion–drinking from a “whites only” water fountain, moving the “blacks only” board a couple of rows forward on the bus so that her mother could take a seat–but there were also some that spoke to the innocence of her nature because of their boldness and inherent danger.

Once, she said, she tried to fire a gun at a car full of white me who had been driving back and forth down her street hurling insults at her family.

“My father deflected the gun,” said Shores Lee, lowering her voice.

She was 13-years-old then.

Today, the practicing judge and recent author of “The Gentle Giant of Dynamite Hill: The Untold Story of Arthur Shores and His Family’s Fight for Civil Rights,” closed her speech with a lesson.

“It’s impossible to embrace the future unless we know the direction we came from,” she said.

And with that, she asked the following four questions:

“Are you willing to take an active stand when you see racism?
“Will you stand up for what is right in the face of opposition?
“Will you reach out and help others in their time of need?
“Are you going to walk through life passively or try to make a difference?”

Answering yes, she said, makes you a certain kind of someone.

“You are the kind of person who can change the world,” said Shores Lee, mirroring the words of Frederick Douglass.

“Unless we learn to see each other through the eyes of God,” she added, “we will never be able to see each other without fear or prejudice.”

Be sure to visit this week for a more in-depth article on the stories shared by Judge Helen Shores Lee.

Judge Helen Shores Lee on growing up on ‘Dynamite Hill,’ her ‘journey to equality’

Ponytailed, AR-15 toting robbery suspect needed cash to post boyfriend’s bond, authorities said

By Carol Robinson | 
March 13, 2013 at 10:36 AM

SPRINGVILLE, Alabama – A blonde, ponytailed woman who police say robbed a Springville Dollar General earlier this week told authorities she needed the cash to spring her boyfriend from jail.

Kimberly Nicole Ford, 31, did post her boyfriend’s bail just hours after the Monday robbery, Springville Police Chief Bill Lyle said today. The pair was headed to Mississippi, but instead was captured at a Livingston motel . “I can’t make this up,” Lyle said.

The robbery happened about 8:12 a.m. as the store was opening. Authorities said she was wearing overalls with black suspenders and a red top underneath. Though her hair was blonde, her roots were dark.

She looked around the store for a few minutes, and then told the cashier she had to go to her car to get her cell phone to make sure the part she wanted to buy for the phone was compatible with what she had. When she returned, the cashier was in the business office getting the money drawers to open the registers.

The robber went back to the business office, having added a black jacket to her outfit. She pulled the AR-15 from her pants and took hold of some cash drawers. She then forced the cashier to the register area, where she cleaned out the safes located there. About $550 was taken in the robbery.

When she fled the store, she took with her the business’s cordless telephone, apparently the only phone in the entire shop, the police chief said. The cashier locked the door behind her and saw her flee in a white SUV-type vehicle.

Lyle said police quickly got tips on the woman’s identity. “Early Tuesday, we got a pretty good lead on who it may be. We checked her pictures against some of our information,” he said. The Dollar General cashier easily picked out Ford in a photo lineup, and a warrant was issued.

Investigators learned Ford was at a Livingston motel. St. Clair County sheriff’s officials contacted Sumter County sheriff’s deputies who took Ford into custody

Springville police detectives interviewed Ford in Livingston, and returned her to St. Clair County about 11 p.m. Tuesday. Lyle said Ford and her boyfriend had stopped at the motel en route to Mississippi. “They ran out of money, or they got tired. She really couldn’t say,” Lyle said. “Actually, they were working at the motel that morning to make some money.”

Lyle said the boyfriend was returned to jail in Guntersville after it was determined his bond was made with stolen money.

“It worked out well,” Lyle said. “We’re tickled.”


Birmingham attorney appointed to Supreme Court of Palau, an island nation in Pacific Ocean

By Kelsey Stein | 
March 03, 2013 at 2:09 PM

palau 9.jpg
View full size Birmingham attorney Ashby Pate was appointed to the Supreme Court in the nation of Palau, made up of 250 islands in the Pacific Ocean. He, his wife Christine Caiola and their daughter Oa are moving to Palau in April. (Photo courtesy of Ashby Pate)

BIRMINGHAM, Alabama – Two months ago, Birmingham attorney Ashby Pate accepted a new job, but instead of moving across town, his family will be moving to an island nation half a world away.

In January, Pate accepted an appointment as a Supreme Court justice in the Republic of Palau, a nation comprised of 250 islands east of the Philippines in the Pacific Ocean.

The republic has about 21,000 citizens – roughly as many as Mountain Brook – but they are spread throughout an area larger than the city of Birmingham.

Pate, his wife Christine Caiola and their daughter Oa are preparing for what he described as a “tornadic” transition. They will be moving 9,000 miles away shortly after Oa’s first birthday in mid-April.

“I am unbelievably humbled, and cannot wait to serve,” Pate said. “I think the country, the president and the court have placed a tremendous amount of trust in me, and, as I said in my letter accepting it, I will work hard every day to continue to earn that trust.”

The Supreme Court is based in the state of Koror, where more than 70 percent of the republic’s population lives.

For court business, language won’t be an adjustment because court proceedings are conducted in English, one of the republic’s two official languages along with Palauan.

Pate will join three other justices on the republic’s Supreme Court.

After graduating from Samford’s Cumberland School of Law in 2007, Pate worked as a clerk for U.S. District Judge U.W. Clemon. He then earned his master’s degree in international law at the University of East Anglia’s Norwich Law School in England.

For several years, Pate has worked for the Birmingham law firm Lightfoot, Franklin & White, handling a general litigation practice.

“I accepted a job with Lightfoot in August 2006, and I didn’t darken their door until November 2010,” he said. “They have always shown unbelievable support.”

He will be 35 when he takes the bench in Palau, making him one of the youngest justices in the nation’s history.

“I hope that, although I’m a young lawyer, my experience both nationally and internationally is unique enough that I’m not going in there as inexperienced as my age might suggest,” he said.

Pate said that his father, who has been a trial lawyer in Birmingham for nearly 40 years, once advised him to take his job seriously, but not to take himself seriously.

“When I think about it, every person I’ve ever wanted to spend any time with, professionally or personally, has managed to embody this advice,” he said.

Pate’s past experience in Palau

Pate’s appointment wasn’t out of the blue. In 2009 and 2010, he worked as senior court counsel for the republic and helped draft legislation that eventually established Palau’s first jury trial system, after the Palauan people voted to do so.

“It was as happy of an accident for me to be involved in that as I can ever imagine. It was a privilege,” Pate said.

As he started his clerkship, the first project that came across his desk was helping to establish the foundation for the system. His responsibilities ranged from drafting jury trial rules and procedures to discussing the best placement of the jury box in a courtroom.

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View full size While serving as a judicial clerk in Palau several years ago, Birmingham attorney Ashby Pate worked with many others to establish the foundation for the nation’s first jury trial system. (Photo courtesy of Ashby Pate)

“I do not take full credit at all. I was very lucky to be a part of it,” said Pate, lauding the input offered by several judges from Jefferson County , California and elsewhere.

Several justices traveled to Palau to offer training. They explained the jury trial process, from educating clerks and judges on their roles to discussing jury selection procedure and outlining how to issue juror summonses.

“My experience was not dominated by the jury trial thing, but in retrospect it seemed like the thing I did there that had the most gravity to it,” Pate said.

After years of preparations, Palau’s first jury trial began in September and lasted about six weeks.

‘One of the last Edens left’

According to the U.S. Department of the Interior, the Republic of Palau became a sovereign country in 1994 and soon after entered into a 50-year compact of free association with the U.S.

The agreement, which Pate describes as “an arms-length relationship,” enables the U.S. to offer Palau economic and financial assistance, according to the DOI website.

Palau’s rich history includes occupation by the Spanish, the Germans and the Japanese before playing host to one of the bloodiest battles of World War II.

Pate said that during his clerkship in 2009, he and Christine fell in love with Palau because of the welcoming, friendly nature of the nation and its citizens.

“Palau is a beautiful place,” Pate said. “It really, to me, is one of the last Edens left. There are parts of Palau that truly feel like they are unspoiled.

Caiola, who works as a yoga instructor, plans to continue teaching after the move.

Much emphasis is placed on outdoor activities such as scuba diving, fishing and sports. Noticeably lacking are movie theaters, book stores, and Starbucks and McDonald’s franchises.

Power outages occur frequently, dial-up internet is standard and rates for international calling are some of the most expensive in the world.

“What you find yourself doing is what I think is becoming far too scarce these days, which is spending time with people and not cyber-loafing all day on someone’s newsfeed,” Pate said. “Your days can be bookended by sunrises and sunsets. I don’t want to romanticize island life. Especially remote island living, it tends to – for better or worse – simplify your existence. You’re not as inundated with information, internet, phone – if you embrace it, it can be a very rich and rewarding way to live.”

Pate said he looks forward to watching Oa grow up in Palau, joking that she might be surfing before she can walk.