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Monday, June 6
CONTENTS
1. A terrorist or scholar? Time for jury to decide
2. Judges Are Seeking Cover on The Bench
3. On the Trail of the Latest High Court Contender
4. No More Instant Plea Deals, Says Public Defender
5. Terror tie doesn't fit suburban Boca doctor's reputation
1. A terrorist or scholar? Time for jury to decide
The trial of the former USF professor starts Monday, but the case is more than a decade in the making.
By Meg Laughlin
St. Petersburg Times
Sunday, June 5, 2005
TAMPA - In late December 1993, seven federal judges from around the country met in a windowless room on the seventh floor of a government building in Washington, D.C. From the lead-insulated vault, this lofty panel gave the go-ahead to secretly tape the phone conversations and faxes of a man in Tampa.
The reason: FBI agents wanted to see exactly where money, being raised and moved by Sami Al-Arian, a USF computer engineering professor, was going.
Was he raising and transferring money abroad for a violent arm of Palestinian Islamic Jihad, which claimed responsibility for suicide bombings in Israel? Or was the money going to a charitable arm of the PIJ to help needy Palestinians get clothes, educational materials and housing?
To find out, a phone company employee in Tampa, where Al-Arian lived, entered an inconspicuous blockhouse full of circuits and wires and flipped a switch. With this gesture, years of secret taping began.
When the wiretap was shut off six years later, 21,000 hours of conversations and faxes had accumulated. The defense and prosecution have culled through about 800 hours of the records, those deemed relevant to the case by the government.
Each side has picked from it passages and records it thinks are significant. Those conversations and faxes are now at the center of a huge federal trial scheduled to begin in Tampa on Monday - a trial that promises to garner huge international attention and high emotions because of its subject.
To prepare for it, the U.S. Marshals Service has categorized the trial as "high threat" and taken special precautions. Friday, security officers set up thick plastic barricades in the street around the courthouse, to block off the lane of traffic closest to the building. They have also installed additional metal detectors and increased the number of security officers on duty. In anticipation of crowds, they have set aside overflow rooms with TV monitors for watching the proceedings. The courtroom on the 13th floor holds about 35 spectators.
The government indicted nine people, including Al-Arian, accusing them of conspiring to financially support the violent acts of a terrorist organization in Israel. But only four will be in court. The rest, not in the U.S., are not being extradited and are not in custody.
Defendants who will be present: Al-Arian, Sameeh Hammoudeh, Ghassan Zayed Ballut and Hatem Naji Fariz.
What jurors decide about their innocence or guilt will depend, to a large part, upon the details in the voluminous stacks of tapes, stored on CDs.
The evidence will show the men "were a little group of highly educated people trying to convince people to kill themselves on their behalf," federal prosecutor Terry Furr told the judge last week.
"There are over 50 witnesses on the (government's) witness list from Israel. None is testifying that the PIJ is responsible for deaths or that the four defendants are responsible," countered assistant federal public defender Allison Gugliardo. "It's hearsay."
Presiding U.S. District Judge James S. Moody has ruled that it is not enough to show that the defendants raised money for the PIJ. They must show that the defendants intended that money to go "for a bad purpose."
Moody said prosecutors have to do more than show the defendants contributed money knowing of previous PIJ violence. Instead, they must convince jurors that the money was intended to support new acts of violence. But that intent can be demonstrated through circumstantial evidence, he ruled.
Prosecutors will try to build a slow, meticulous case against the defendants that connects A to B to C - from the horrors of PIJ suicide bombings in Israel to the defendants' financial work for the PIJ to that money supporting new acts of violence.
Defense attorneys will constantly question the reliability of the government's information and whether the links from A to B to C are there. They will point out that knowledge or verbal support of past violence is not enough, that the link between the money and violent acts must be made.
What jurors will be weighing is whether those conversations and faxes indicate the defendants raised money knowing it would contribute to the purchase of weapons or recruitment of suicide bombers for the PIJ.
If the tapes show that defendants intended to financially help the families of dead suicide bombers, jurors will have to decide if helping these families, after the fact, encouraged violence. And, that the defendants knew this.
To make decisions about the tapes, jurors will wade through multiple phone conversations and faxes, mostly translated from Arabic. They will listen to prosecutors and defense attorneys debate connotation and idiom in the translations, argue identities of speakers and sources of information. They will listen to disagreements over what is relevant, what links do and don't exist and what goes to the heart of the case.
Here are some examples of information in the tapes that jurors will be listening to and forming opinions about, according to the 53-count indictment:
--A March9, 1994, conversation between Al-Arian and PIJ treasurer Muhammad Khatib, also indicted, over a PIJ split and who should control the finances of the organization.
Jurors will have to decide, once they learn about the split, if Al-Arian and the other defendants want money to go to the charitable faction or the violent faction of the PIJ. They will also have to decide Al-Arian's role in the management of the organization.
--An April11, 1994, fax from the head of the PIJ to Al-Arian saying that he, Fathi Shiqaqi, and another PIJ leader had frozen funds because of problems with how money was being spent. Jurors will have to decide if these problems have to do with defendants' siding with violent activities of the PIJ.
--A Sept.6, 1994, fax sent to Al-Arian of a PIJ report critical of the Palestinian Authority (Yasser Arafat's group). According to the indictment, the fax says the PIJ will continue activity despite the peace initiative.
The fax also includes a list of PIJ associates arrested as suspects in an April6, 1994, car bombing that killed nine near the Gaza Strip.
Jurors will have to decide if simply receiving the fax meant Al-Arian supported violence and helped fund it. They will also have to decide if he was privy to inside information about the arrests and, if so, what this means.
--A Feb.10, 1995, fax of U.S. Senate Resolution 69, sent to Al-Arian. It condemns the PIJ for a suicide bombing that killed 22, 18 days earlier at Beit Lid, Israel.
Jurors will have to decide if getting this information meant Al-Arian knew that funds he raised were contributing to violence.
--An Aug.8, 2000, conversation between Al-Arian and an unnamed man in which Al-Arian tells him to deposit "10 shirts" in the account of a third party. Jurors will have to decide if language in the taped phone conversations is coded and, if so, what the codes mean.
The prosecution will present these letters and conversations in the broader context of meetings, speeches and trips of Al-Arian and others in an effort to show that they were intentionally backing terrorist acts.
The weight given to the words and actions of Al-Arian and his co-defendants could also turn on whether they occurred before or after Jan.23, 1995, when President Bill Clinton issued an executive order declaring PIJ a terrorist organization. That came the day after the suicide bombing in Beit Lid.
The prosecution has one piece of evidence in which that bombing figures prominently. A letter to a man in Kuwait was found in Al-Arian's home in November 1995. According to the indictment, it was dated Feb.10, 1995, and in it Al-Arian "bragged about the Jan.22, 1995, Beit Lid bombing" and asked for money for more such actions. However, it is not clear from the indictment if the letter was ever mailed.
The inquiry dragged on for eight more years before Al-Arian and his co-defendants were arrested.
The judge estimates that laying the evidence out will take from six to nine months. Prosecutors and defense attorneys estimate that opening arguments will take about eight hours. The trial begins at 9 a.m. Monday, with the courthouse opening an hour and a half earlier to let people in. Courthouse security officers expect a line.
--Times researcher Catherine Wos contributed to this report.
2. Judges Are Seeking Cover on The Bench
Safety Is Top Concern After Recent Attacks
By David Finkel
The Washington Post
Sunday, June 5, 2005
DANVILLE, Ky. -- An unprotected head, an exposed neck and the top few inches of a judicial robe: That's all that can be seen of Judge Bruce Petrie as he bunkered down on his bullet-resistant judge's bench, panic button within reach, armed bailiffs nearby, taking on the first case of the day.
Two sisters had gotten in a fight, first with words, then with punches.
"Do you believe this is a fair and accurate representation of the injuries you sustained?" Petrie asked one of the sisters as he studied a photograph of some bruises.
It was an utterly routine question -- except this is the year that being a judge has been anything but ordinary. The number of reported threats against judges has been increasing. So have verbal and physical attacks against judges and other court officials, in courthouses and elsewhere. A judge in Atlanta was gunned down in his courtroom. In Florida, the state court judge in the Terri Schiavo right-to-die case had to be put under protective guard. In Chicago, the husband and mother of a federal judge were gunned down by a man who had broken into the judge's home to kill her.
"The madness in the shadows of modern life," is how that judge, Joan H. Lefkow, described these times in a recent congressional hearing about judicial safety.
Six months ago, Petrie's little courtroom in the center of this pretty town, on the top floor of a courthouse with a gazebo in its lawn, was as it always had been. "You would have walked in, taken the elevator to the third floor and walked into the courtroom and not seen any law enforcement until the bailiff came in and said, 'All rise,' " Petrie said.
Then came the arrest of a man who is now charged with Petrie's attempted murder, the day the shadows extended into Kentucky. According to authorities, the man was on his way to a hearing in Petrie's courtroom with an accordion file stuffed with papers, and that the papers had been hollowed out to conceal two clips of ammunition and a gun.
"It was just another case to me," Petrie said of the case he was to hear that day. It was a case about a restraining order, just like the case this day involving the two sisters, which is why, after asking a routine question of a woman who has been glaring at her sister, Petrie is watching carefully as she swivels her head toward him.
"Do what ?" she said, seething.
Petrie, 39, is a judge in Family Court, also known by those who work in it as Hate Court, and Demonic Relations. The court for divorces and domestic violence cases, it is a funneling point for such rawness and heartbreak that when Petrie became a judge, he used part of his acceptance speech to acknowledge the tenderness of those he would be judging, saying with sympathy, "There is a lot of sadness that comes through our courts."
Now, thousands of cases later, he would add anger, a litany of it as the morning goes on:
"Nobody makes me angry and gets away with it."
"He does have a temper."
"I was gonna fistfight him."
"I was done dirty."
Case after case -- 729 times last year alone -- Petrie is the one to make a decision that inevitably leaves someone upset. And although that has always been part of being a judge, the increase in hostile responses is changing the very nature of American courtrooms. Once universally accessible, the modern courthouse now features not just the Kevlar-reinforced benches and panic buttons, but camera monitors, walk-through magnetometers, X-ray scanners and, just in case all of those measures fail, "safe" rooms and detailed evacuation plans.
There are guides to making courthouses safer ("Are spectator seats solidly built and fastened to the floor?" asks one checklist. "Are public restrooms routinely searched?"), and there are measures to make judges feel safer, including a recent $12 million congressional appropriation for federal judges to install alarm systems in their homes.
"Obviously, had the Lefkow family had such a system at home, this horror could have been avoided," Joan Lefkow told the Senate Judiciary Committee when she testified in May. "We judges are grateful beyond words to this committee and the Congress for authorizing this appropriation so quickly after this latest tragedy."
In Danville, though, and in versions of Danville in every state, many courtrooms remain as open and accessible -- and unprotected -- as ever. Kentucky is not the richest of states, and Boyle County, where Danville is located and where the unemployment rate is 6.6 percent, is not the richest of counties.
It is instead a place with a courthouse built in 1862 that has county offices as well as court facilities inside, and multiple unguarded entrances. In that entrance? That's the sheriff, LeeRoy Hardin, who said, "Well if they'd give me a plate of money, we could solve the problem, but that ain't gonna happen."
In that entrance? That's the county executive, Tony Wilder, who said that he's reluctant to turn the courthouse into "a fortress" because the voters of Boyle County prefer "that small-town atmosphere when they come to the courthouse" -- even though one of those voters once mailed him his picture, cut from the newspaper, with a bullet hole in his forehead.
Six months after Petrie was targeted, there are still no magnetometers at the entrances, no scanners, no security cameras and no equivalent of the U.S. Marshals, only a sign inside the main entrance that says, "The possession of concealed weapons, even with proper permit, prohibited on this property."
"Literally, you could walk into this courthouse with a MAC-10 under your coat, and no one would know it until you pulled it out," said Circuit Court Judge Darren Peckler, whose courtroom and chambers are on the second floor.
Like Petrie, Peckler has a panic button within reach. "But the sheriff's office is only open till 4," he said, "so if you panic, panic before 4 o'clock."
"That's exactly right," Sheriff Hardin said.
Peckler has an application on his desk for a concealed weapons permit that would allow him to bring a gun into the courthouse, which he is wondering whether to submit.
"I'm not opposed to guns. I own guns. But there's something about carrying a gun into churches and courtrooms," he said. "I don't want to give into that mentality. But I guess I'd be a fool not to consider it."
Thirty-five miles north of Danville, in the chambers of U.S. District Court Chief Judge Joseph Hood in Lexington, there's no such hesitation.
"It's with me whenever I move," Hood said after reaching into his briefcase and pulling out a semiautomatic pistol that he is holding in the air. "There are people out there wrapped not too tight. Their bubble is off-center, if you know what I mean."
He added, "These Glocks are good pieces of equipment."
Over in Frankfort, in his office on the second floor of the state Capitol, Kentucky Supreme Court Chief Justice Joseph Lambert said he also has considered getting a gun. "Have I done it? No. But I have thought about it," he said. "I can anticipate a situation in which I might be faced with a threat and might need a weapon."
As chief justice, Lambert is also chief executive of the Kentucky court system, overseeing 267 judges, 3,400 employees and courthouses in 120 counties. He said that most of those courthouses have "excellent" security, but he also said, "We're seeing behavior today in court that absolutely would have been unheard of a generation ago. People talk back. Yell back. There's a greater degree of anger.
"I think Family Court is probably the very worst," he added. "Because people are crying to their core."
Back in Danville, the crying core of a 57-year-old man named Ronnie Gay Cornett was revealed in a note he wrote that authorities say was intended to be his eulogy, to be read aloud after he killed himself, his ex-wife, her attorney and Petrie, who had been the judge in his divorce. "Thank you all for coming," is how the handwritten note began. "I would hope everyone would remember me for any other reason than the actions that brought us here. The simple fact is everyone regardless of how strong an individual they are has a breaking point!!!"
The eulogy was just one piece of paper that authorities say Cornett left with a friend. There also were burial instructions, ("Pall bearers no suits"), financial instructions ("I don't reckon I owe anyone else other than what Petrie ordered but argue since we're both dead that goes away"), and an admonition to "Read the 31st psalm" -- a psalm, Petrie said as he sat in his office with a Bible one day recently, "about David being persecuted and his enemies are all around him."
Petrie is an elder in his Presbyterian church. He is also a husband, a father of two young children and lead singer in a classic rock band that practices in the backroom of a cellular phone store, which is where he was when he first heard of the threat against his life.
"Where are you?" he remembered a state police detective saying in a phone call. It was late at night, the hours when Petrie is called several times a week for an emergency protective order.
Petrie explained he was practicing with his band.
"No, I mean where are you? Right now?" the detective interrupted and told Petrie about the eulogy, the instructions and the threat, and that the police didn't know where Ronnie Cornett was.
Cornett, who has pleaded not guilty to three counts of attempted murder, has yet to go on trial. Because of that, Petrie doesn't want to talk specifically about the case. Instead he defers to authorities, who say they learned about the threat from a tip from a friend of Cornett's, and to a court file. In it is Petrie's divorce ruling, in which Cornett's wife got the Cadillac, the boat, the jewelry, the artwork and the house, and Cornett got the farm, the truck, the knives, the gun safe and the guns.
It also includes the results of a search warrant executed on a "gray hard Samsonite briefcase with the initials R.C. with a combination lock with three numbers to open (326)," inside of which police say they found $10,000 and 13 Imodium A-D caplets.
And the results of another search warrant, this one on a 2003 Chevy Tahoe, in which they found the accordion file, the hollowed-out packet of papers, a Colt .45, two seven-round magazines filled with bullets, and a 15th bullet in the Colt .45's chamber.
What's not in the court file is any sense of the eight hours between the detective's phone call and Cornett's arrest. "I remember feeling sick to my stomach, feeling like I was going to throw up," said Petrie's wife, Lesli. Petrie said he was up all night, in his den, lights down and drapes drawn, waiting for the next call from police.
At 5:30 a.m. it came: Stay away from work, they told him, and keep the children home from school.
Then came another call just before 7 a.m. saying that Cornett had been taken into custody, and soon after that, after talking things over with his wife and waking his children, Petrie decided to go to the courthouse. He walked in the unguarded entrance. He made his way to the unguarded third floor. He went into his unguarded courtroom, gaveled another session of Hate Court into order and methodically began working his way through the day's docket -- just as he is doing this day, six months later.
In the intervening months, there have been some changes. One involves an alarm system at Petrie's home; another involves an unmarked parking space at the courthouse; another involves deputies with handheld metal detectors who now wand anyone going into the courtroom. Petrie said he is also considering the answer he got from the state police when he asked them what he could do for protection, and they answered, "Buy a gun."
What hasn't changed: the cases themselves, which remain as sad and angry as ever.
"I just don't want me and her to get into it anymore," one of the sisters is now saying quietly, head bowed, no longer glaring, and that's how that case ends, not with a restraining order but with two sisters walking out into the hallway.
Onto the next case: a woman who said her husband twisted her arm, threw her to the ground and threw a remote control at her head.
Voices rise. Bailiffs, tense, watch. Petrie puts his head in his hands, even more of him disappearing from sight. Two days from now he will be taking a class to get his concealed weapons permit, but for now he's a judge not with a gun, but a question.
"And then what happened?" he asked.
3. On the Trail of the Latest High Court Contender
By Tony Mauro
The Legal Times
Monday, June 6, 2005
He's the latest flavor of the week on the rapidly changing menu of potential Supreme Court nominees: Michael McConnell, a mild-mannered yet controversial judge from Utah who skis and hikes and last year taught a course on Plato's "Republic."
But as scrutiny of his record intensifies, it's hard for many to decide exactly what McConnell is: conservative, liberal, or a perplexing blend of both.
Capitol Hill sources and other players in the increasingly frenzied Supreme Court sweepstakes place McConnell, a judge on the 10th U.S. Circuit Court of Appeals, at or near the top of the short list of possible picks for the high court if a vacancy occurs later this month.
And while some liberals like McConnell, others are gearing up for a battle royal against him, especially over his sharp opposition to abortion rights and his deep support for school vouchers and for aid to parochial schools.
"He is very troubling, and very likely," says Barry Lynn, executive director of Americans United for Separation of Church and State.
Yet if President George W. Bush appoints McConnell, 50, it appears he will have at least some support from liberal academics, as he did when more than 300 law professors supported him for the appeals court judgeship in 2002. "He has integrity, smarts, and is more open to a range of views than others we might get," says one liberal law school ally of McConnell who did not want his name revealed before a vacancy materializes.
Admirers also describe McConnell as devoted to his family, stepping back from his prestigious University of Chicago Law School professorship and declining an offer from Harvard Law School in order to teach at the University of Utah S.J. Quinney College of Law, where he still teaches one course a semester.
McConnell and his wife moved from Chicago because they thought their three children should be raised in a more tranquil setting, though his detractors think it didn't hurt his judicial aspirations for him to become a constituent of powerful Sen. Orrin Hatch, R-Utah, now a big fan.
On and off the bench, McConnell is exceptionally gentle and soft-spoken with an academic air, leading some to wonder if McConnell will bond with President George W. Bush if the time comes for a final job interview. McConnell declined to comment for this article.
But if he is nominated, it will be McConnell's extensive paper trail that matters most. It's a drawer full of writing from two decades of teaching at Chicago and Utah and then on the 10th Circuit, a body of work that offers everyone something to like -- or shoot at.
BOTH SIDES OF THE STREET
The McConnell who pleases liberals is the one who clerked for the late Justice William Brennan Jr., criticized the Court's 2000 decision in Bush v. Gore, and, before that, questioned whether President Clinton should be impeached.
He opposes the constitutional amendment against flag-burning and is against school prayer in coercive settings. McConnell has fought on and off the bench in favor of non-mainstream religions; he and Justice Antonin Scalia have dueled in print over McConnell's sharp criticism of Employment Division v. Smith, in which Scalia applied drug laws against a sect that used peyote in its ceremonies.
In a case now pending before the Supreme Court, the Bush administration is trying to overturn a 10th Circuit ruling in which McConnell wrote in a concurrence that the government had "utterly failed" to show why a small New Mexico sect should be barred from using hallucinogenic tea for its rituals.
In a criminal law case, McConnell dissented last year in United States v. Abdenbi, a Fourth Amendment search-and-seizure case. He decried the "brazen tactics" of federal law enforcement officers who made a predawn raid on three apartment mates.
On the other hand, McConnell's portfolio bristles with conservative views that might fit better on The Wall Street Journal editorial page. In fact, they sometimes have, as in a 1998 Journal op-ed column calling Roe v. Wade "an embarrassment to those who take constitutional law seriously." He also once criticized a Supreme Court ruling that stripped Bob Jones University of its tax-exempt status because of its racially discriminatory policies, and he argued that the Boy Scouts should not be compelled to keep a scoutmaster who is gay.
And from his view of the history of the Constitution, McConnell takes a hard line against any government action that slights religion. In an American Enterprise Institute speech in 1992, he called the Supreme Court's decisions against aid to parochial schools "the most serious blow to freedom of religion that the United States has ever seen," and he wondered aloud why religious parents should have to "pay [parochial school] tuition on top of property taxes" to support nonreligious children's secular education.
McConnell, a skilled Supreme Court advocate, argued successfully in favor of public financial support for religious publications in Rosenberger v. University of Virginia and in favor of supplying federally funded school equipment to parochial schools in Mitchell v. Helms.
"Michael McConnell would be my choice," said Jay Sekulow, chief counsel of the American Center for Law and Justice, an influential leader of the Christian right. Sekulow hastens to add that others deserving equal attention include D.C. Circuit Judge John Roberts Jr. and 4th Circuit Judge J. Michael Luttig. Even though McConnell, as an academic, parted company with Christian groups over prayer at graduation ceremonies, as a justice, "he is more likely to be with us than against us," Sekulow says. "We tend to share his views."
Sekulow's endorsement points to what troubles some liberals about McConnell. As a law professor, a provocative mix of views is encouraged; as an appeals court judge, McConnell has been constrained by precedent. But if he becomes a Supreme Court justice -- or chief justice -- he'll be making and upsetting precedent, not just following it, and some suspect his conservative side will step to the fore.
That prospect gives University of Texas law professor Douglas Laycock pause. Laycock, who describes himself as a "moderate-to-liberal Democrat," is, like McConnell, a pre-eminent church-state scholar. They've known each other since McConnell was a student of Laycock's at Chicago nearly 30 years ago, but they disagree on some religious freedom issues.
Nonetheless, when Bush nominated McConnell to the appeals court in 2001, Laycock went to bat for him.
Laycock wrote a paper debunking the "false attacks" on McConnell as an extremist, which he let the Justice Department post on its official Web site. In a 2002 New York Times op-ed as McConnell's confirmation hearings began, Laycock described McConnell as "plainly a moderate" who would follow the law no matter what his personal views are. McConnell was confirmed by voice vote on Nov. 15, 2002.
DIVERGENT VIEWS
But now, with McConnell possibly on the verge of being elevated to the Supreme Court, Laycock's fervor has cooled.
Pointing to McConnell's strong opposition to abortion rights and his equally strong support for government aid to parochial schools, Laycock said, "I didn't have any trouble getting past that when he was up for the appeals court. But it's a tougher question at the Supreme Court. The Supreme Court is a lot more important." Laycock still thinks McConnell has an open mind and an independent streak that could give conservatives heartburn at times, but not on abortion or school vouchers, "the issues that count the most to them."
At a personal level, Laycock says McConnell is "a very decent human being" with an integrity that sometimes makes him hard to collaborate with. "It has to be exactly right, or he won't sign it."
How would McConnell get along with Bush? "He's a true intellectual in every sense of the word," says Laycock. "Not Bush's style."
Bush, if he delves into the issues, may also be surprised at a key way in which McConnell differs from Chief Justice William Rehnquist, according to Marci Hamilton, another noted church-state scholar who teaches at Cardozo School of Law in New York. Hamilton, who is critical of McConnell in her new book "God vs. The Gavel," points to McConnell's reaction to the 1997 decision in City of Boerne v. Flores.
The majority in that case, joined by Rehnquist, struck down the Religious Freedom Restoration Act -- the legislative response to the Court's decision in Employment Division v. Smith -- on the grounds that Congress had gone beyond its civil rights enforcement powers under the 14th Amendment and had intruded on the powers of the judiciary and the states.
In his critique of the Boerne decision, McConnell articulated a broader view of congressional power under the 14th Amendment -- at least when it comes to enforcing religious liberties. His view leads some to think McConnell is less likely than the Court's current conservative majority to strike down acts of Congress and is somewhat less deferential to states. "He's the opposite of Rehnquist in some ways," says Hamilton.
On the other hand, Hamilton worries about McConnell's view, which he argued unsuccessfully before the high court in the late 1980s, that religious groups should be exempted from generally applicable laws like sales tax and wage-and-hours laws. "He would be in a position to return us to a different era. It would make him popular with a lot of religious groups, though," he says.
Even though McConnell is best-known and most-vilified for his views on the First Amendment's religion clauses, there is a whole other side to his résumé -- a full-blown commercial law practice.
Before he became a judge, McConnell was a special counsel at the firm now known as Mayer, Brown, Rowe & Maw. Like the late Paul Bator, his predecessor at the firm, McConnell had recently come from the solicitor general's office.
"He was one of the best commercial appellate litigators I ever worked with," recalls partner Stephen Shapiro in Mayer, Brown's Chicago office. "Clients were dazzled by him. He had enormous command of antitrust, regulatory law, telecommunications, you name it." He was the "go-to guy" for the Baby Bell companies, Shapiro says, and was a quick study on even the densest matters of communications law. "He'd be in his office all night reading."
A fellow judge on the 10th Circuit, who insisted on anonymity, sees these qualities now on the bench years later.
"He's been a terrific generalist judge, without any agenda at all," this McConnell colleague said. "He works like crazy and writes beautifully. And he's the nicest guy in the world."
4. No More Instant Plea Deals, Says Public Defender
By Dan Christensen
Daily Business Review
Monday, June 6, 2005
In a move that's upsetting some judges, the Broward County, Fla., public defender has forbidden his attorneys from advising indigent criminal defendants to plead guilty at arraignment unless they've had "meaningful contact" with their clients in advance.
Public Defender Howard Finkelstein, who was elected without opposition last year, announced the policy change, effective immediately, in a memo to each of Broward's 29 circuit and county court criminal division judges on Friday afternoon.
Finkelstein told the judges that pleading a client "guilty or no contest" without establishing an attorney-client relationship and investigating the circumstances of the case violates Sixth Amendment protections.
"We will make every effort to meet with clients prior to any court hearings," the memo says. "However, if such a meeting has not taken place, we are legally and ethically constrained from recommending any plea to a client."
Too often, he said in an interview, public defenders are ill-informed about their clients' cases and circumstances before advising them to take pleas offered by prosecutors at arraignment, which is when charges are formally presented. "It's not fair to make life-altering decisions while handcuffed to a chair with 50 people standing around," Finkelstein told the Daily Business Review
According to Finkelstein and his staff, about 80 percent of all criminal defendants -- and 40 percent of all accused felons -- plead guilty at arraignment in Broward. Many of them are represented by one of his 128 assistant public defenders.
"They meet with an attorney for 60 seconds, then they plead guilty and surrender their rights," Finkelstein said. "That's going to stop."
Chief Broward Circuit Judge Dale Ross did not return calls seeking comment. Judge Charles M. Greene, administrative judge for the criminal division, declined comment.
But one Broward criminal court judge acknowledged that judges are concerned about the new policy. "Judges may be upset that their dockets will be clogged by cases that would otherwise be resolved at arraignment," said the judge, who did not want to be identified. "Everyone is concerned about their case numbers."
The judge also warned that the move could hurt Finkelstein's clients. "Prosecutors may say we aren't offering pleas at arraignment anymore," the judge said. "The people that would penalize are the clients. The best plea you get is at arraignment."
"I suspect a lot of judges will be upset by it," Finkelstein acknowledged. "But this is a very important thing. We are not doing this to be obstreperous or obstructionist or cantankerous."
Broward County State Attorney Michael Satz is backing Finkelstein. "We're supportive of anything that makes the criminal justice system better," said Satz spokesman Ron Ishoy. "The new public defender has identified a problem on the defense side and has set out to fix it. We'll do our part to help make it work."
Anthony V. Alfieri, the director of the University of Miami law school's Center for Ethics and Public Service, called Finkelstein's initiative a "very important" step toward securing competent representation for low-income defendants in Broward.
"The old process is not consistent with the proper discharge of criminal defense lawyers' duties and responsibilities," Alfieri said.
MEET, GREET AND PLEAD
Finkelstein's policy change is his latest move away from the policies of Al Schreiber, his politically powerful predecessor who chose not to run for re-election last year after nearly 30 years in office.
Finkelstein runs an office with a $15 million budget. But he's best known for his long-running "Help Me Howard" consumer advice segment on WSVN-Channel 7. His office handles about 60,000 defendants a year, including about 18,000 charged with felonies.
In January, Finkelstein told his staff to contact any defendants who haven't gotten out of jail within 48 hours. He also created an early representation unit, and staffed it with three lawyers and four interviewers.
"In the past, we did nothing until the time of arraignment, and that's 4 1/2 to six weeks after arrest," Finkelstein said. In that time, perishable evidence can be lost, witnesses can disappear and lives can fall apart. "You can lose your job, your apartment, even your family," he noted.
The second part of Finkelstein's initiative is to end the practice at arraignment of "meet, greet and plead." Typically, those deals help defendants get out of jail immediately but stain them with a felony conviction and set them up for consequences if they have future encounters with law enforcement.
Palm Beach County Public Defender Carey Haughwout said his office and that of the Miami-Dade public defender also frown on the practice of meeting and pleading clients guilty.
"Pleading guilty is something that will be with clients forever because withholding adjudication or sealing records doesn't matter anymore in the computer age," Haughwout said. "So clients need to be aware of consequences and options, and lawyers can't advise them simply by looking at a [probable cause] sheet at arraignment."
Finkelstein acknowledged that such a large system could bog down if there's any significant slowdown in pleas. But any effect wouldn't last long, he argued. Besides, early intervention will allow public defenders to analyze cases quicker, resolve them sooner and move them through the system faster.
"If that's done before arraignment, there will be no prohibition on entering a plea," Finkelstein said. The public defender said he has no problem with the general idea of entering pleas at arraignment, but rather with having clients do so without first having a proper consultation with their lawyer. "Just because you are poor, it doesn't mean you are entitled to a lesser-quality of lawyer," he said.
Under Finkelstein's new policy, public defenders would remain ethically obliged to tell their clients about any plea offers from prosecutors, at arraignment or otherwise. But without their lawyer's recommendation that they accept the offer, most defendants likely would refuse it.
SIXTH AMENDMENT PROBLEM
Pleas at arraignment began to occur about 20 years ago in Broward in response to jail overcrowding and federal court mandates to reduce the number of inmates, said Chief Assistant Broward Public Defender Bob Wills. "What started as a system issue has snowballed into a case management issue," he said. "It shouldn't be that way."
But the desire of judges to move cases expeditiously is now at odds with the Sixth Amendment right to the effective assistance of counsel. The first rule of the American Bar Association's model rules of professional conduct says "competent representation" requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
"You can't give advice sufficient for your client to make an informed decision if you don't know what's in the background of your client or the case," said Randolph Braccialarghe, a Nova Southeastern University law professor and former Broward prosecutor.
In the end, Finkelstein said, the righteousness of the change likely will win over critics.
"People will bristle and everyone will think the sky's falling, but in a short period of time the system will adapt," he said. "This really serves everybody. You don't want people in the community thinking there is one kind of justice for the rich and one kind for the poor."
5. Terror tie doesn't fit suburban Boca doctor's reputation
By Antigone Barton and Jane Musgrave
Palm Beach Post
Sunday, June 5, 2005
NEW YORK — The people who knew Rafiq Sabir as a standout medical student, a hard-working doctor and a devoted family man say they can't picture him throwing away what ambition and long hours had brought him.
But by the time the suburban Boca Raton doctor was arrested on a terrorism conspiracy charge May 28, just days before he was to travel to Saudi Arabia, he may have grown used to seeing his plans derailed.
From an unsettled childhood, to an Ivy League education, to a stately Long Island home where he lived near a close-knit Muslim community, the rewards for his sacrifices had long seemed just around the next corner.
Instead, though, as he headed for South Florida, he left in New York a trail of debts, questions and people who noted that alongside his talents lay an ability to sabotage his own success.
None, however, saw signs that the busy doctor who never discussed politics would pledge loyalty to terrorists, as federal agents have charged.
The aims of Al-Qaeda, to which federal agents claim the doctor joined a flamboyant friend to offer his services, had little in common with the direction of the nearly half-century of his life so far, acquaintances said.
"He was a down-the-middle, hard-working guy who worked long hours to keep up his profession and expenses," said Dr. Faroque Kahn, a lung specialist who knew Sabir in New York. "I can't imagine him getting involved in chaos and destruction."
Sabir's father, Norman Wright, left the family, and his overwhelmed mother put him in a group home, according to news reports. But Sabir went on to attend City College of New York and Columbia University. Along the way, he converted from his family's Catholic faith to Islam and changed his name to Rafiq Sabir.
The 80-hour workweeks of his medical education were behind Sabir when he abruptly left his residency at New York's Harlem Hospital in June 1984, two weeks before completing its requirements.
He had a conflict with a supervisor that may have started because he missed shifts he was scheduled to work, according to other residents and staff members.
"I don't know if he jumped or was pushed," said one person who worked with him then.
Whatever the reason, the move cost him the chance to get his board certification as a doctor of internal medicine.
It also limited his ability to pay for the living expenses and tuition racked up during his years of schooling. Some medical students who landed at Harlem Hospital in the early 1980s had those costs paid by the National Health Service in exchange for work in under-served communities after graduating.
Budget cuts in the mid-'80s, though, slashed the numbers of approved locations. Those who didn't do the promised work were saddled with a debt three times the cost of their medical schooling. That appears to have happened to Sabir, who over the years amassed more than $400,000 in debts, including liens filed by universities, collection agencies and the Internal Revenue Service, according to court records.
He told the woman who bought his Long Island home in the mid-1990s that he had to move to Florida to work so the government would cover the cost of his education. And for five months, from August 2003 to January 2004, he worked as an emergency-room doctor at Glades General Hospital in impoverished Belle Glade.
Old friends team up
In the years immediately after his break with Harlem Hospital, he and his wife bought a building a few blocks away on busy Adam Clayton Powell Boulevard where he ran a medical practice above a hardware store and a coin laundry. His friend Tariq Shah, a lively local celebrity who played bass guitar with jazz bands, also taught martial arts in the building.
Nearly 20 years later, according to federal investigators, Shah offered a similar teaming — this time with a dark twist — to an undercover agent posing as an Al-Qaeda operative: Shah would teach terrorists to fight a jihad, and the doctor would heal them when they were wounded.
The building in Harlem was far behind Sabir by then. Lenders foreclosed on it in 1998. It now houses a mosque.
By the time he lost the building, his marriage, which had produced a son and a daughter, also was behind him.
Sabir moved to Long Island, where he worked as an emergency-room physician at Mercy Hospital from 1994 to 2000 and at Hempstead General, a hospital for the indigent that went bankrupt.
He married Arlene Morgan, and under her name, the couple bought an elegant and roomy Colonial-style house in an affluent part of Westbury called The Hedges. They had two children.
During that period, he also found time to visit his father in Georgia. His stepmother remembers the visit and thinks Norman Wright, now dead, called his son "Rafael."
In the late '90s, Sabir met Dr. Khan, prominent in both the medical and Islamic communities on Long Island.
Khan was impressed that Sabir was willing to undertake the last year of residency at Nassau County Medical Center to finish earning his credentials at a sacrifice of time and money. Khan was his supervisor at the medical center.
"He was making a nice living working in emergency rooms. He could have gone on doing that easily," said Khan, who is now president of the Islamic Center of Long Island, where Sabir came for prayers. "He returned to training. That said a lot about him."
That Sabir was arrested at the end of a two-year federal investigation doesn't change Khan's mind about him. "There's a track record of many cases that our government has made high-profile cases when there was nothing there," he said.
Unpaid bills, marital discord
Christine Bauer, a chiropractor who bought the house Sabir and his wife sold before moving to Florida several years ago, wasn't as impressed with the doctor. But she said she sensed nothing sinister about him, even as she gathered that he was leaving "in a hurry."
"We knew something was up, but nothing to do with terrorism," Bauer said. "Something to do with character."
In addition to delinquent tax and water bills, the Sabirs left a line of irate creditors who came in person to collect, she said. He even stiffed the broker who handled the house sale. "Why would anybody do that?" she said.
Bauer said she also found letters addressed to Sabir's wife from a woman claiming to be the doctor's mistress.
Sabir's family moved in briefly with Morgan's father and stepmother, who said she has heard little from the couple since they moved to Florida.
Marital discord apparently followed Sabir to Palm Beach County. On Oct. 7, Sabir filed a petition seeking a restraining order against his wife, claiming she frequently took his keys and "locked him out for days and sometimes a week or more."
He wrote that his wife also had threatened to take the children to Egypt so he couldn't see them.
Judge denies petition
His petition, however, didn't persuade Palm Beach County Judge Gary Vonhof that Sabir was in any danger. Vonhof denied it the same day it was filed. In bright blue marker, Vonhof wrote: "The petition is insufficient. NOTHING violent alleged." NOTHING was underlined three times.
The Sabirs' new neighbors speculated that the couple had problems because Sabir was gone for six months at a time, working in Saudi Arabia.
Dan McBride, who became friends with Sabir at the Islamic Center of Boca Raton, said the doctor worked in Saudi Arabia to expose his children to a different culture. Others have said medical practice paid well there, where U.S.-trained doctors are in demand.
The neighbors were not the only ones remarking on the quiet doctor's travels. For at least the past month, some said as long as three months, FBI agents became regular visitors to the middle-class Villa San Remo gated community where Sabir lived, residents said.
Neighbors were awakened about 5 a.m. May 28, when FBI agents came to arrest Sabir. The next day, his 39-year-old wife calmly explained to a neighbor that her husband's arrest was a mistake. Arlene Morgan and her sons, Isa, 6, and Amir, 4, disappeared the next day. Alberto Montes, who lived next door to the Sabirs, said he never could figure out why, if Sabir was a doctor and his wife worked as a nurse at West Boca Medical Center, they rented a house, euphemistically called an "attached villa," in the neighborhood, which is pleasant but far from upscale.
The furnishings were as modest as the home itself, Montes said. In retrospect, he said, only one of their belongings stands out: a framed copy of a letter to their young son, congratulating him for doing so well in school. It was signed by President Bush.
Sting set in the Bronx
Montes said he didn't know Sabir had older children; neither Morgan nor Sabir ever mentioned them.
Yet, on the day Sabir was arrested, they were visiting for the first time after a long estrangement from their father. They returned from the visit traumatized, their mother said in an early interview.
A few days after her return, Sabir's daughter Safiya answered the door of the family's fifth-floor apartment on a tree-shaded street in Harlem and politely said she couldn't talk about what had happened.
A little more than a mile away, over the bridge into the Bronx, Tariq Shah's wife stood on stoop of the apartment building where she lives and where federal agents set the final trap for Shah and Sabir.
Zakkiyyah Shah wore a bright, tie-dyed head scarf and robe and an amused smile. Her eyes looked haunted, though, and she said she was devastated.
Pleasantly, she said her lawyers have asked her not to comment and that she feels she has to heed their advice: "Because I've never been in a situation like this."
With children laughing and shouting from the public-school playground across the street, it seems an unlikely setting for a terrorist plot.
But, according to the federal complaint charging Shah and Sabir with conspiring to support a terrorist organization, this is where the two men pledged to wage a holy war.
Shah, 42, went first, the complaint says: "Shah indicated that he understood the oath and agreed that he would obey the guardians of the oath, namely Sheikh Usama Bin Laden."
When Sabir's turn came, he ruminated on the step he was about to take, according to the report.
Agents reported he said words to the effect that, "We have a saying that you should be careful what you ask for because you might get it; I cannot complain."
Then, their complaint says, the 50-year-old doctor pledged his loyalty to Al-Qaeda.
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Larry Helm Spalding
ACLU Legislative Counsel
Tallahassee, Florida
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