Judge Hellerstein to Preside over KSM Trial?

...to 911Blogger, with no mention of course of Hellerstein.

http://www.911blogger.com/node/21846

Kristen Breitweiser: "there is no better place than the Southern District of New York" for 9/11 trial

 sadsda

Obama: Alleged 9/11 leader will be executed
In NBC interview, he then backs off by saying he doesn't mean to prejudge
NBC, msnbc.com and news services
updated 2:32 p.m. CT, Wed., Nov . 18, 2009

WASHINGTON - President Barack Obama on Wednesday predicted that professed Sept. 11 mastermind Khalid Sheikh Mohammed will be convicted and executed, as U.S. Attorney General Eric Holder testified in the Senate to defend the strategy of civilian trials for the alleged Sept. 11 plotters.

In an interview with NBC News, Obama said those offended by the legal privileges given to Mohammed by virtue of getting a civilian trial rather than a military tribunal won't find it "offensive at all when he's convicted and when the death penalty is applied to him."

Obama quickly added that he did not mean to suggest he was prejudging the outcome of Mohammed's trial. "I'm not going to be in that courtroom," he said. "That's the job of the prosecutors, the judge and the jury."

Responding to concerns from some Republicans, Obama added that that the U.S. criminal court system will be able to handle the trials.

"(What) I think we have to break is this fearful notion that somehow our justice system can't handle these guys," Obama said.

Mohammed and his accused co-conspirators are to be moved to New York for trial in a court near the World Trade Center site. They are now at the U.S. military prison at Guantanamo Bay, Cuba.

Obama has promised to close the Guantanamo prison by Jan. 22, arguing it has served as a recruiting tool for anti-American militants and has hurt U.S. standing abroad.

But few expect him to reach that deadline because of political and legal hurdles, and in a separate interview Wednesday Obama would not talk about a specific day, instead saying he expected the closure sometime in 2010.

Holder testifies in Senate
Attorney General Holder has admitted the Jan. 22 deadline will be difficult to meet, particularly because it has been tough finding countries to take the 90 or so detainees who have been cleared of wrongdoing and are eligible for transfer.

In remarks to the Senate Judiciary Committee on Wednesday, Holder defended his decision to try Mohammed and the others in criminal courts and said classified material will also be protected during the trials.

"We know that we can prosecute terrorists in our federal courts safely and securely because we have been doing it for years," he said. "And at the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is in federal court."

Asked what might happen if the suspects are acquitted, Holder replied: "Failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result."

Seeking to allay acquittal concerns, Holder insisted the suspects will be convicted, but even if one isn't, "that doesn't mean that person would be released into our country."

Critics of Holder's decision — mostly Republicans — have argued the trial will give Mohammed a world stage to spout hateful rhetoric.

Holder said such concerns are misplaced, because judges can control unruly defendants and any pronouncements by Mohammed would only make him look worse.

"I have every confidence that the nation and the world will see him for the coward that he is," Holder told the committee. "I'm not scared of what Khalid Sheik Mohammed has to say at trial — and no one else needs to be either."

Holder said the public and the nation's intelligence secrets can be protected during a public trial in civilian court.

"We need not cower in the face of this enemy," Holder says. "Our institutions are strong, our infrastructure is sturdy, our resolve is firm, and our people are ready."

New York Democratic Senator Charles Schumer said initial cost estimates he had seen to secure the trials in lower Manhattan would be $75 million a year plus costs for added security around the city and additional police personnel.

Tense exchange
Republicans have been divided on bringing the terrorism suspects to U.S. soil for trial. Many have argued they should be tried in military courts at Guantanamo because they believe criminal courts are not suited for such trials and they worry that the U.S. trial sites could become targets for attacks.

Tempers flared when Sen. Jon Kyl, R-Ariz., challenged Holder to say how a civilian trial could be better, since Mohammed has sought to plead guilty to a military commission.

"How could he be more likely to get a conviction than that?" pressed Kyl, to applause from some in the hearing room.

The attorney general said his decision is not based "on the whims or the desires of Khalid Sheikh Mohammed ... He will not select the prosecution venue, I will. And I have."

Geraldine Davie, whose 23-year-old daughter died at the World Trade Center's Tower One, attended the hearing as a spectator, and said she wants Mohammed to stay in the military system. "He's not a U.S. citizen, why should he have those rights? My daughter didn't have those rights," said Davie, who lives in Springfield, Va.

Opponents of the plan, including Holder's predecessor Michael Mukasey, have accused him of adopting a "pre-9/11" approach to terrorism.

Holder emphatically denied that.

"We are at war, and we will use every instrument of national power — civilian, military, law enforcement, intelligence, diplomatic and others — to win," Holder said.

Illinois prison for Gitmo detainees?
Officials are eyeing a prison in rural Illinois to house some of the remaining 215 detainees still at Guantanamo.

Other prominent Republicans said the security risks were being blown out of proportion and that the U.S. court system could handle the terrorism trials, a sentiment shared by Obama's fellow Democrats.

Holder also announced last week that five other detainees at Guantanamo, including the accused mastermind of the 2000 bombing of the USS Cole warship in Yemen, will be tried in revamped military commissions.

NBC's Chuck Todd, Reuters and The Associated Press contributed to this report.

URL: http://www.msnbc.msn.com/id/34015727/ns/us_news-security/

"One of the most interesting aspects of the Ghailani case involves the judge hearing it, Lewis A. Kaplan. Judge Kaplan is the most recent judge assigned to the long and complex series of Qaeda cases in the federal courthouse, and he could wind up presiding over any prosecution of Mr. Mohammed."

http://www.nytimes.com/2009/11/23/nyregion/23ghailani.html?hp

Most of the more recent stories about Kaplan seem to have him presiding over a fraud trial against KPMG, in which he seems to have helped a bunch of people evade justice...

"On 17 July 2007, Judge Kaplan dismissed charges against 13 former KPMG employees, ruling that he had no alternative because the government had strong-armed KPMG into not paying the legal fees of defendants and had violated their rights.[10] "This indictment charges serious crimes. They should have been decided on the merits as to every defendant," Kaplan wrote. "But there are limits on the permissible actions of even the best prosecutors." Barring KPMG from paying its former employees' legal bills "foreclosed these defendants from presenting the defenses they wished to present, and, in some cases, even deprived them of the counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice," Kaplan wrote in his ruling. Kaplan's decision did not affect the prosecution of R.J. Ruble, a former law partner at Sidley Austin LLP, and three former KPMG partners, including David Greenberg, who worked in the firm's Orange County office and released KPMG from any obligation to him when he left its employ. John Larson and Robert Pfaff, the other two former partners still facing charges, left KPMG eight years before the criminal action was filed and did not initially seek to have the accounting firm pay their legal bills.

On 20 August 2007, the prosecutors announced that one of the aiders and abetters of tax fraud, David Amir Makov, agreed to plead guilty and cooperate with prosecution of his former colleagues.[11] In the preceding week, the federal court in Manhattan received $150,000 from Mr. Makov as part of a bail modification agreement that allows him to travel to Israel. Because Makov never worked for KPMG, he was unaffected by Judge Kaplan’s dismissal of charges against 13 of his codefendants.

On 10 September 2007, Makov entered a guilty plea to one information count of conspiracy. He agreed to pay a $10 million penalty and provided new details on those involved. Makov gave a brief explanation on the workings of BLIPS, or Bond Linked Issue Premium Structure, which he said he helped create. In previous hearings, Judge Kaplan had chastised prosecutors for failing to explain clearly how BLIPS worked. According to Makov's testimony, the BLIPS shelters were created to generate artificial losses that were then used by wealthy investors to offset gains in legitimate income. The shelter involved a purported investment component as well as banks, extending purported loans to investors. According to prosecutors, BLIPS were marketed and sold around 1999 and 2000 to at least 186 wealthy investors and generated at least $5.1 billion in phony tax losses. The Presidio entities that Makov formed, owned, and operated with co-defendants Robert Pfaff and John Larson, both former KPMG employees, made at least $134 million selling BLIPS. The IRS regards a tax shelter as abusive if it has no legitimate business purpose or genuine economic substance, in contrast to real loans, with money at risk, or real investments. According to Makov, although BLIPS were created on paper to look like seven-year investments, they involved neither real loans nor real investment components. "There was no economic substance," Makov testified. "Instead, we created the appearance of economic substance, rather than the reality." Makov claimed that although he initially thought that BLIPS were legitimate, "as part of the deception" he was eventually "asked by representatives of Bank A," among others, "to come up with an investment rationale." He added that he was "clearly told by Bank A, KPMG" and others "that the loan was not at risk." According to The New York Times, people close to the case have identified “Bank A” as Deutsche Bank AG. The bank has not been charged, but is expected to reach a settlement with the government. A graduate of the Harvard Business School and a one-time employee of Long-Term Capital Management, prior to founding Presidio around 1999, Makov worked at Deutsche Morgan Grenfell, an investment banking arm of Deutsche Bank AG. Makov was originally charged with dozens of counts of fraud, tax evasion and conspiracy, with each count carrying five years in jail. Prosecutors are expected to drop all of the other charges if he cooperates throughout the trial."

http://en.wikipedia.org/wiki/KPMG_tax_shelter_fraud

And an older story has him helping another fraudster evade justice...

Judge Has His Own Take On Sentencing Formulas
By BENJAMIN WEISER
Published: Sunday, September 14, 1997

It was one day last spring that Solomon Halberstam, the Grand Rabbi of the Bobov Hasidim, made an emotional appeal to a Federal judge in Manhattan on behalf of an Orthodox Jew about to be sentenced in an insurance fraud case.

Rabbi Halberstam asked Judge Lewis A. Kaplan not to impose a severe penalty on Solomon Sprei because fathers in the Bobov community, like Mr. Sprei, were responsible for finding their children's marriage partners. If Mr. Sprei was imprisoned for too long, ''his children of marriageable age will not be able to find spouses for themselves,'' Rabbi Halberstam said. ''They will be as 'living orphans.' Heaven forbid.''

Under the rigid rules that dictate sentencing in the Federal district courts, Mr. Sprei was supposed to receive three to four years in prison. But Judge Kaplan said he was persuaded, by the rabbi's letter, that ''a lengthy term of imprisonment would have dramatic adverse consequences for at least two and probably three of the children.'' Also citing Mr. Sprei's generous deeds in the community, he sentenced him to only 18 months and ordered him to pay $1.8 million in restitution.

The case, which was appealed by the Government and is pending before the Federal appeals court in Manhattan, has spawned an intense legal and philosophical debate that pits an 89-year-old rabbi and his community's ancient customs against the court's own arcane practice of slotting defendants into formulas and charts to determine appropriate punishments.

The rules, from which a judge can deviate only in extreme cases, were devised in the 1980's to make Federal sentencing more consistent and to take into account a defendant's record and the seriousness of a crime. In this case, the Government contends that the disruption of family life is inherent in the punishment of criminal behavior. It argues in its appeal that Judge Kaplan improperly cited religious factors that could open the door to ''whole classes of people'' making similar demands -- a view echoed by legal experts.

''I am very surprised that a judge really bought the argument, because once you begin taking these things into consideration then everybody can come in,'' said J. David Bleich, professor of law and ethics at Cardozo School of Law at Yeshiva University in New York.

But other experts said the case symbolized the struggle of judges who believe they have been stripped of their discretion by the sentencing formulas.

''I'd have a lot of sympathy for a conscientious Federal judge who did not consider himself bound by them and wanted to substitute his or her own reasoned judgment about what punishment fits what crime,'' said Michael J. Sandel, a government professor at Harvard University who teaches the popular course called Justice.

Indeed, Judge Kaplan deviated from the sentencing guidelines in one previous case and has said that he would in another. In both cases, he wanted more severe penalties because he felt the formulas did not reflect the seriousness of the crimes.

Court records describe Mr. Sprei, 42, as an unemployed father of six, who was educated at Yeshivas and had no higher education. His family resides in the Borough Park section of Brooklyn with the other Bobov Hasidim, who trace their roots back to the Polish town of Bobov.

In January 1996, prosecutors charged him with 21 counts in a fraud scheme that resulted in losses to insurance companies of about $17 million. Last October, he agreed to plead guilty to two counts, and his defense lawyer and the prosecutor agreed to seek a sentence, as computed under the guidelines, of roughly three to four years.

But on March 13, one day before the sentencing, a lawyer, Andrew J. Levander, claiming to represent Rabbi Halberstam ''and the worldwide Bobov Community that Rabbi Halberstam leads,'' sent the judge Rabbi Halberstam's letter and letters from 36 other family members and friends in the Bobov sect.

They pleaded with the judge to allow Mr. Sprei to avoid a prison sentence, citing his charity to others, his ailing father, and the impact on his children.

''You probably are not familiar with the marriage practices in our community,'' Mr. Sprei's wife, Sara, wrote.

She described their 18-year-old son's predicament: he was ready for marriage but was suffering from the stigma of his father's arrest. If the judge incarcerated Mr. Sprei, she said, ''it will destroy my son's chances for a decent match.''

In court the next day, a Government prosecutor, George S. Canellos, said Mr. Sprei's sentence ''should reflect the absolute massiveness'' of the fraud, according to a court transcript.

But Judge Kaplan said he was concerned that the Government commission that wrote the sentencing rules had not foreseen such a case. ''I am persuaded,'' he said, ''that to incarcerate Mr. Sprei for a lengthy period would wreak extraordinary destruction of a kind that never dawned on the Sentencing Commission on a number of these children.''

The judge also cited Mr. Sprei's selfless contributions to his community, as laid out in the letters that he said he had read and found ''quite moving.''

Mr. Sprei apologized for his crime and asked the judge ''to find in your heart some way to allow me to stay with my family.''

Judge Kaplan said the fraud was too great to allow Mr. Sprei to walk out of court a free man, but he said, ''the period of incarceration ought to be related to the ages of the children, whose interests play such an important role in my thinking.''

In deciding on a sentence of 18 months, he said he realized that the 18-year-old son would still be adversely affected but perhaps his other children would benefit.

''I selected 18 months with a view to the fact that the next oldest child is 16,'' the judge explained, ''and it is my hope to avoid a serious adverse impact with the respect to the next child.''

Mr. Sprei, who is currently serving his prison sentence, could not be reached for comment.