President Obama's Legal Team Wants to Expand Wiretapping?

The Raw Story is reporting today that the Obamarama Administration is doing a legal dance in court to expand the rights of the government to wiretap. Are you listening, John Howes?

In a legal filing on Friday, Obama lawyers claimed the government is shielded from lawsuits by a 'sovereign immunity' clause in the Patriot Act.

http://www.alternet.org/rights/135605/obama_administration_quietly_expands_bush%27s_legal_defense_of_warrantless_wire_tapping/

For the first time, the Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of U.S. law. They maintain that the government can only be sued if the wiretaps involve "willful disclosure" -- a higher legal bar.

Will have to look into this later. Not very impressive though. What was impressive was the holding by the 4th DCA rejecting the State Attorney's appeal in State vs. Martinez. Congrats to the legal team from the BACDL, including John Howes, who fought the winning battle.

SFL Reports Ripple Effect of Markus Trial Misconduct

Off the South Floriduh Lawyers' Blog today:

'Two federal prosecutors in Miami are being reassigned for their roles in the secret tape recording of a defense attorney and his investigator in a criminal case.

Court documents show that prosecutor Karen Gilbert voluntarily stepped down as chief of the Miami U.S. attorney's narcotics section. Prosecutor Sean Cronin asked to be transferred from the criminal division.

The U.S. attorney's office acknowledges serious mistakes in a decision to have witnesses tape conversations with defense lawyer David O. Markus and investigator Michael Graff. Markus wants a federal judge to order the government to pay his fees and costs because of the misconduct.

That's refreshing, huh?- SFL writes- We've had way too few of these moments from our federal government over the last few years. We could use some more.'

It would be nice. It would be nice.

Howes Rebukes State Re-Hash Omelette in Martinez Case

The State of Florida has filed a motion for rehearing in the lawyer eavesdropping case of State vs. Martinez, but attorney John Howes wil not abide by it. He says reports of the 4th amendment's death is premature.

As you may remember, this is the newsworthy case involving misconduct on the part of the State of Florida for violations of the attorney-client privilege when the Assistant State Attorneys sought copies of a defendant’s telephone calls with his attorney.

Judge Susan Lebow threw the entire staff of the state attorney off the case when she discovered that its staff had not only listened to the calls despite specific assertions of the attorney-client privilege, but then shared the contents with other lawyers in the office.

Here are the links to our previous blogitorial and articles about the dispute.

http://browardlawblog.blogspot.com/search/label/Judge%20Lebow

Howes claims in his reply brief opposing a rehearing that the State is trying to simply rehash its rejected arguments on one hand, and not owning up to the gravity of their violation in the other:
“What the State still fails to grasp is the seriousness of its misconduct and the fact that it has been sanctioned for its illegal actions.”

And you do have to wonder where the State is going with this appeal. I think nowhere. Howes note in his argument that in its finding, the DCA concluded that Judge Lebow entered a “thoughtful” and well-founded order,” and that it was “solely the egregious misconduct of the state which brought upon the sanctions.”

As a matter of fact the State Attorney should not be appealing this case. His office should be apologizing for it, and simultaneously issuing a statement that no such further transgressions will ever again occur in the future.

Now Dade: Feds Accused of Listening in on Attorney Conversations

Shades of State vs. Martinez, here in Broward County.

Jay Weaver is reporting in today's Miami Herald that defense lawyers representing an accused physician are seeking a dismissal of his charges, alleging that the government illegally and secretly authorized witnesses to record phone calls -- but didn't tell the defense lawyer before trial.

Defense lawyer David O. Markus -- representing Dr. Ali Shaygan -- said he only learned about the questionable phone recordings after cross-examining one of the government witnesses during trial last month. Markus found out he was recorded in two phone conversations. David publishes the well respected Dade County Justice Blog.

''Dr. Shaygan respectfully submits that the government's conduct in this case is so outrageous and was undertaken with such flagrant disregard for Dr. Shaygan's constitutional rights that dismissal is the appropriate remedy,'' Markus and his trial partner, Marc Seitles, wrote in a motion filed Monday and reported in the Herald this morning.

They filed it with U.S. District Judge Alan Gold, who is presiding over the Shaygan trial, now in its third week.

At issue is not only an apparent violation of policy in the U.S. attorney's office, but, more significant, possible breaches of attorney-client privilege under the Constitution's Sixth Amendment.

Gold has the authority to dismiss the indictment, declare a mistrial or allow the trial to be completed.

The U.S. attorney's office admitted it made a ''mistake'' by failing to follow policy. The case supervisor should have sought approval from senior officials to have two government witnesses place recording devices on their phones.

''We regret the policy was not followed,'' said U.S. Attorney R. Alexander Acosta, indicating the matter was referred to the Office of Professional Responsibility in his office.

Faced with a similar fact situation in Broward County, Judge Susan Lebow recused the Broward County State Attorney's office but declined to dismiss the case. The Fourth District Court of Appeals affirmed her ruling, and though one is a state court, and another federal, it provides some guidance on what the courts might do here. Dismissal of all charges, of course, is the most serious sanction, and would be a tremendous victory for defense attorneys everywhere.

See also:

http://browardlawblog.blogspot.com/search/label/Judge%20Lebow

Here is the body of the Herald article:
http://www.miamiherald.com/news/miami-dade/story/929644.html