Judge Ignores First Amendment; Silences Blogging Attorney (MORE, CLICK HERE)

Blogging lawyer silenced as judge expands gag order in Liberty City 7 case
By Vanessa Blum - January 12, 2008 - South Florida Sun-Sentinel.com

A prominent South Florida criminal defense lawyer who writes online commentary about federal court cases can no longer opine on the so-called Liberty City 7 terror case because the judge has expanded a sweeping gag order.

David O. Markus, an affable attorney who is often critical of prosecutors, gave a forlorn sign-off Friday explaining how he had agreed to challenge the gag order on behalf of a defense lawyer in the case, only to find himself silenced.

"Gagged?" Markus wrote on the Southern District of Florida Blog at http://sdfla.blogspot.com, saying he would fight the order through legal channels. Markus represents attorney Joel DeFabio, who in turn represents acquitted defendant Lyglenson Lemorin. Since the jury's verdict Dec. 13, DeFabio has been protesting the gag order, which prevents his client, the defendants, their lawyers, witnesses and others connected to the case from speaking with reporters.

On Thursday, U.S. District Judge Joan Lenard extended the order to include DeFabio's "agents"— a reference Markus took to mean himself. Taking aggressive steps to limit publicity related to the case, Lenard had previously applied the order to attorneys representing Lemorin in deportation proceedings.

Attorney Floyd Abrams, a free speech advocate, called the gag order "unusual" because it affects people not involved in the criminal case.

"Judges have considerable, but not unlimited, power to limit the speech of those before them," Abrams said in a telephone interview from his office in New York.

Lemorin, a possible defense witness when the terror case is retried, is in immigration custody. The Department of Homeland Security is trying to deport Lemorin to his native Haiti based on terrorism allegations, although the jury in the case found him not guilty and he is a legal U.S. resident.

In court papers, Markus argued Lenard must allow Lemorin and his attorneys to exercise their First Amendment rights.

"He should be permitted to speak about the first trial, his acquittal, his immigration case, and anything else unrelated to his potential testimony in the second trial," the brief states.

A retrial for Lemorin's co-defendants is set to begin later this month. The first jury could not agree on charges the men tried to join forces with al-Qaida in plots to bomb Chicago's Sears Tower and the Miami FBI building.