Judge Slams Bureau for Inmate's Solitary Lockup, Daily Business Review, 2010
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JUSTICE WATCH John Pacenti JUDGE SLAMS BUREAU FOR INMATE'S SOLITARY LOCKUP N icole Defontes pulled her life back together in dramatic fashion after serving 41/2 years in federal prison for participating in a cocaine deal with her then-boyfriend. But if it weren't for the work of some determined Miami criminal defense attorneys and for a federal judge who was willing to listen, Defontes would be behind bars, unable to defend herself or present evidence to prove her innocence, and wrongly incarcerated for eating a poppy-seed bagel that produced a false positive on a drug test. When her case landed before U.S. District Judge Marcia Cooke on a habeas corpus petition to remove Defontes from the clutches of the U.S. Bureau of Prisons, the jurist appointed by President George W. I just kept on Bush was outraged. "When this happens in other saying: Am I in America?" countries, we call up Amnesty International," Cooke said at a NICOLE DEFONTES hearing a year ago. "But for the FORMER INMATE fact of this defendant having resources, she would be in the FDC [federal detention center] supervised release gulag." She ordered Defontes released from the Miami prison Oct. 7, 2009. Cooke followed up last month with an order castigating the prison agency for illegally imprisoning Defontes for two months. BOP officials were determined to send her back to prison to complete her original 75-month sentence that ran through January 2011. "I sought to prevent continued or repeated violations to her constitutional rights, whether due to negligence or retaliation," the judge wrote m the Sept- 30 order. Prison officials and the head of a halfway house where Defontes tested positive refused to comment on the case, which isn't quite over. Her attorneys are SEE JUSTICE WATCH, PAGE A4 A4 dailybusinessreview.com MONDAY.00TOBER 18,2010 MILYMISNESS WNW An ALM Publication FROM PAGE A3 JUSTICEWATCH: Official says supervised release difficult would tell her why. "I kept asking for my lawyer," Detentes said. "I couldn't believe it. 'tarp 1 was totally overwhelmed." When a guard TIME FOR A TALK up Arnne told her she had Detentes was a ational. failed a drug test, model inmate after she was imprisDefontes asked to or the fa oned for intent to see the results and defend fora hair test — distribute narcotvi g resource she ics. the most reliable drug test — at her She graduated he FDC supervised from high school own expense. She ulag." figured a poppyand college in prison and qualiseed bagel she ARCIA COOKE fied for an excluhad eaten before a U.S. DISTRICT JUDGE sive drug rehaJuly drug test may bilitation program have been the culmonitored by the prit. Opiates, such Bureau of Prisons, The program offered as heroin. are derived from the poppy a full year off her time in prison and the flower. ability to spend the last six months in Instead, she claimed the Bureau of home confinement. Prisons retaliated by putting her in soliShe was hired at a West Palm Beach tary confinement for 17 days after her drug rehabilitation center and moved up attorney contacted officials at the FDC. quickly from laundry detail to an adminDefontes ended up being tried twice in administrative hearings, once in istrative position. The Bureau of Prisons summoned absentia and both times without repreDetentes to a halfway house Aug. 10, sentation, Cooke found. Officials were determined she go back to prison for 21/2 2009, and invited her in the back "for a talk." A law enforcement officer lunged more years. from behind a door and arrested her. "I kept on saying, 'Am I in America?: " She found herself at the FDC, but no one the Stuart woman said. "I had a car, a seeking $300,000 in fees and plan to file a federal Tort Claims Act complaint against the bureau. HistoryMianu s 11th Judicial Circuit Historic presents the 2010 Legal Legends November 20, 2010 7 PM Epic Hotel, 270 Biscayne Boulevard Way, Downtown Miami Hon. Irving Cypen Aaron S. Podhurst Hon. Mattie Belle Davis Hon. Patricia A. Seitz Martin "Marty" Fine Stephen N. Zack Hon. Beth Bloom - Silverman Award George F Knox V +sic wwv,.hiscory am .org/legallegends for more information. Sponsorship, underwrithsg and membership opportunities now availabla, wli Cristina Blanco at 305-375-1615 or 11JCHSIIThiatoryroiami.onj HISTORYMIAMI WIC wan '‘‘6'11 seek nee:. d PR nice job, a place to live. And then suddenly I disappeared. Nobody knew where I was." 'INMATES HAVE NO RIGHTS' Defontes said she wouldn't have jeopardized her freedom doing drugs again. Just getting into the early release program in prison was hard enough. "You have to live in a special unit. If you do one thing out of order, like if you don't have your shoes shined, then you are kicked out," she said. "It's like going to boot camp. It was a big privilege, and I made it through nine months of complete agony." The drug rehabilitation center where she worked contacted Holland & Knight to support Defontes once it learned she had been arrested for a dirty urine test. Holland partner Daniel Fridman and David 0. Markus of Markus & Markus in Miami took up Defontes' cause, filing the habeas petition seeking her release. "It's very rare that the Bureau of Prisons gets called out on anything," Fridman said. "Looking at the big picture of this case, inmates have no rights to I ALBERT DIAZ challenge the way the BOP handles their Holland & Knight partner Daniel Fridman said sentences." Nicole Defontes' case shows inmates have The habeas petition names FCS warlimited rights to challenge the way the Bureau den John T. Rathman; Carlos Rodriguez, of Prisons handles their sentences. BOP's community corrections manager was jailed due to the drug test results. who ran the halfway houses; and BOP Fridman said the FDC never offered director Harley Lippin as defendants. those sessions. Fridman said the halfway house Cooke determined Defontes didn't test where she tested positive had a history positive under BOP policies. She tested of irregular testing. •0.1 ruicrogarus per milliliter, but a posiThe U.S. attorney's office, which tive drug test for opiates for initiates is represented BOP, would not turn over 0.3 mpin or above. the lab report, forcing litigation. "They "The BOP person in charge of the basically told us, 'You have to sue us. " early-release program didn't even know Fridman said. about the cutoff," Fridman said. "Luckily, Nicole. had the resources Still BOP officials were determined to to tight the Bureau of Prisons and their re-Incarcerate a woman who had been a army of lawyers and double-speak." stellar inmate. Markus said. "She was also extremely The BOP was looking for an excuse to lucky to have a smart federal judge who drag her back in, Defontes said. was willing to listen. Ninety-nine out of Fridman noted drug rehabilitation 100 times, someone in Nicole's shoes programs — from halfway houses to would have been stuck in jail with no drug counselors to drug-testing facilities recourse." — make money off the system. Cooke wondered how many more in"We do see drug tests being used to mates might be imprisoned under simiput people back to prisons," said Tracy lar circumstances. Velazquez, executive director of the "What really concerns me more Justice Policy Institute, a Washington rethan Ms. Defontes — because obviously search organization. people care about her and those people Parole and probation officers often who care about her have a checkbook are so overwhelmed with work that they — (is) how many of those people over don't hesitate to get a client off the books, there don't," the judge said at a hearing she said. last year. "Are conditions of supervised release making it almost impossible to suc'A NORMAL LIFE' ceed? By and large, the answer is yes," Even with the money to marshal a Velazquez said. defense, it wasn't easy for Defontes to Cooke concluded Defontes was not take on the Bureau of Prisons. Fridman, a former federal prosecutor, claimed BOP the "typical" habeas corpus case. She required her to finish a 12-week federal officials were vindictive when Defontes drug counseling program but removed tried to exercise her constitutional right her curfew. to defend herself. "At this point Nicole can lead a nor"BOP tried to send Nicole out of state right after we filed the lawsuit We had to mal life. She can work and come and go get a court order to make them keep her as she pleases," Fridman said. "Nicole has a great attitude, and she has learned there. She was about to board the bus," her lessons and turned her life around. Fridman said. I know she won't have any problems in Fridman said he was astonished the future." by one claim lodged by the Bureau of Prisons — she had not attended four John Pacenti can be reached at jpacenti@ alm.com or at (305) 347-6638. drug counseling sessions while she Postmaster. Send address changes to Daily Business Review, PO Box 010589, Miami, FL 33101. 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