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CIVIL RIGHTS LAWSUIT FILED BY LUIS DIAZ-MARTINEZ FOR 26 YEARS OF ILLEGAL INCARCERATION

FOR IMMEDIATE RELEASE

Contact Person: Marvin Kurzban, Esq. 786-401-4706

On Wednesday March 21, 2007 a Complaint will be filed by Luis Diaz-Martinez, the man who was wrongfully accused, prosecuted, and convicted for a series of rapes which occurred during the late 1970s. At the time, these rapes were attributed to one individual that came to be known by the media and the public at large as "THE BIRD ROAD RAPIST."

Mr. Luis Diaz-Martinez, a native Cuban, came to the United States seeking freedom and justice. He found neither. Instead he lost more than two and a half decades of his life to a wrongful conviction for assaults and rapes he did not commit. Mr. Diaz-Martinez has always maintained his innocence however he remained wrongfully incarcerated for more than twenty six years. It was not until a combination of recanted testimony, and DNA evidence came to light which conclusively exonerated Mr. Diaz-Martinez that he was finally released.

This lawsuit is being filed to restore the civil rights which were stolen from Mr. Diaz-Martinez by Miami-Dade County, and the police officers who engaged in a campaign of evidence fabrication that ensured Mr. Diaz-Martinez was convicted for crimes he did not commit. The details and extent of the county's and individual police officers intentional misdeeds are well documented and constitute a perversion of our criminal justice system.

MR. DIAZ-MARTINEZ WILL BE AT A PRESS CONFERENCE WITH HIS LAWYERS, MARVIN KURZBAN, SENIOR PARTNER AT KURZBAN KURZBAN WEINGER & TETZELI, P.A. & BARRY SCHECK, OF THE INNOCENCE PROJECT. THE PRESS CONFERENCE WILL BE HELD AT THE OFFICES OF KURZBAN KURZBAN WEINGER & TETZELI, P.A. AT 2650 S.W. 27TH AVENUE, 2nd Floor, MIAMI, FLORIDA 33133 ON WEDNESDAY MARCH 21, 2007 AT 1:00PM

By ERIC RIEDER
Herald Staff Writer

A Dade Circuit Court jury has convicted former trustees of Miami's Ironworkers Union of fraud and ordered them to pay nearly $1.2 million to their union's severance-pay fund.

Jurors returned the verdicts in a civil suit brought by current officials of the union against their predecessors and former union insurance consultant Louis Ostrer.

The jury decision marks the culmination of a seven-year effort by union officials to get back money they charged had been squandered, much of it on excessive payments to Ostrer.

"We've now recovered every quarter these trustees illegally spent," said lawyer Steve Weinger, who with Marvin Kurzban represented the current trustees of ironworkers Local 272.

The verdicts, returned Saturday night after a two-week trial before Judge Lenore Nesbitt, were filed in court Monday.

Defendants in the suit included seven former trustees of the severance-pay fund and Ostrer, their consultant. All except former trustee John Nord, who was cleared, were found guilty of both fraud and negligence.

In addition to returning the bilked money to the severance-pay fund, the total award of $1,195,000 includes $110,000 in punitive damages.

The key figure in the lawsuit was Ostrer, who is in federal prison in Danbury, Conn., and did not appear at the trial. Ostrer was insurance consultant to the fund from 1972 through 1974.

During that time, the plaintiffs charged, the severance-pay fund overpaid for life insurance policies from an agency controlled by Ostrer's sister.

Ostrer remained as adviser to the fund, jointly administered by representatives of labor and management, even after trustees learned he had been convicted of grand larceny in New York.

Trustees found guilty of fraud and negligence by the jury, along with Ostrer, are Michael Burke, Michael Famigliatti, Thomas Kilgellon, Eugene Bowen, Martin Bessell and Charles Baker.

By JAY DUCASSI
Herald Staff Writer

A Miami jury came back with a $7.2 million award in a malpractice case Thursday -- but the victim's family will only get the $3.3 million it settle for while the jurors were out deliberation.

The award, the largest malpractice verdict in Dade County history according to lawyers, goes to the parents of Rene Hernandez, a 24-year-old man who suffered brain damage during a leg operation 17 months ago.

Lawyer Marvin Kurzban, who represented Maria and Rena Hernandez Sr., said they decided to settle to avoid having to wait for the money if the defendants decided to appeal. The decision cost the plaintiffs $3.9 million, had the jury award been upheld.

"They just couldn't afford to wait" Kurzban said. "They have a son that needs help. They have no way to pay off the bills. They needed money today.

"I'm sure we would have faced years of appeal. I had to let the parents make the decision. I can't gamble with a child's future."

Insurance payments for Hernandez' treatment stopped Dec. 31, the father said, and the family has no money to pay for the round-the-clock care that his son needs. Kurzban said nursing bills since January have run about $25,000 a month.

On Oct 11, 1982, young Hernandez underwent an operation to remove dead tissue from one of his legs, injured when he had been hit by a car on a Fort Lauderdale street three months earlier.

According to court records, his blood pressure dropped suddenly, then his heart stopped. Kurzban argues that Hernandez was given too much anesthesia, and that doctors then delayed in giving emergency treatment. Mercy Hospital disputes both claims.

"He was in the best place in the world to be if he had a respiratory or circulatory failure, and he came out brain-damaged," Kurzban said.

Kurzban told the jury the delay occurred when anesthesiologist John Gomez assumed Hernandez' blood-pressure monitoring machine was malfunctioning, and waited for another one to be brought into surgery before beginning emergency treatment.

"While they were getting that machine, his brain is dying," Kurzban said.

By the time a Second anesthesiologist began to give Hernandez cardio-pulmonary resuscitation, his brain had gone without oxygen for several minutes, Kurzban said.

The family sued the hospital, Gomez and the two surgeons who were operating on Hernandez when his heart stopped, John Nordt and Leonard Roudner.

During the seven hours the jury deliberated, the family settled with Gornez for $l million. Later, just an hour before the verdict was announced, they settled with the hospital for $2.3 million. The family did not reach an agreement with the two surgeons.

The jury, unaware of the settlements, returned with a verdict that held Gomez liable for the damages. It also decided that he acted as an "agent" of the hospital, making Mercy liable as well.

The two surgeons were cleared.

Had they been found liable, they would have had to pay the rest of the $7.2 million not covered by the $3.3 million settlement, according to Acting Circuit Judge Milton Friedman, who tried the case.

Miami lawyer Stuart Grossman, who has won several million-dollar-plus malpractice cases, said he believes the $7.2 million is the largest jury award in a Dad malpractice case.

"Offhand I can't think of any larger in Dade County," agreed Stephen F. Rossman, a former president of the Dade County Trail Lawyers Association and a malpractice specialist.

In the largest malpractice award ever in Florida, a Broward County jury awarded $12.47 million to the family of Susan Ann Von Stetina in March 1982. She was left comatose after a respirator malfunctioned in the Florida Medical Center in Lauderdale Lakes.

The attorneys for the two surgeons will ask to be paid out of the settlement since state law requires losing parties to pay their opponent's legal costs. Roudner's lawyer Miles McGrane estimated the fee for him and Nordt's attorney will run about $100,000 each.

Kurzban's fees will be determined by a probate judge, and will come out of the $3.3 million, said his partner Steven M. Weinger.

Rene Hernandez Sr. said the family is satisfied with the settlement and was not upset that the jury came back with an award larger than the settlement.

He said his son remains essentially in a "vegetative" state. He lives at home with 24-hour nursing care and two hours of daily physical therapy.

"He recognizes me when I go near him," said his father. "But the only thing he can say is 'Mama' and make noises."

Doctors who testified in the trial said Hernandez, a former loan officer at Biscayne Federal Savings and Loan who wrote poems to his girlfriend, has very little chance of recovering.

Nevertheless, his parents say they try to "reactivate" his sensing during a daily 12-hour program designed by the International Coma Recovery Institute in New York. The program includes making Hernandez smell strong-scented substances such as tobacco, vanilla, ammonia and perfume.

"I don't feel total justice was done," said Kurzban, who added that he regretted the jury had not found the Two surgeons liable also. "But I think the parents did the right thing to protect their child."

Writer unknown
Herald Staff Writer

A Dade County jury on Monday awarded $3.6 million to the family of an Orlando man who was killed when a Department of Transportation truck ran him over outside a South Dade automobile dealership in1989.

The case involved the death of insurance agent Edward Boyle, who was run over by a 2-ton DOT truck as he stood outside Dadeland Dodge on the South Dixie Highway.

Because of the state's sovereign immunity law, the judgment may ultimately be cut back to $200,000.

The law places a cap of $100,000 on the judgment if there is a single survivor 3 and $200,000 if there were multiple survivors. Boyle was survived by a wife and two children. Any payment above those guidelines requires legislative approval.

"The cap is so low and there's such little chance of success that state agencies basically have no accountability," said Marvin Kurzban, the lawyer for Boyle's family.

Kurzban, unhappy the state was unwilling to settle out of court, said that he plans to ask the Legislature to approve the full $3.6 million judgment.

"After a year, they proceeded to admit liability," Kurzban said. "Then they went to trial for damages. There was no need for them to spend all that money, and put the family through the expense and aggravation."

By JOHN H. CUSHMAN Jr.
Special to the New York Times

WASHINGTON, Sept. 20 — To the dismay of Haiti's exiled President, the Clinton Administration insisted that American forces would not act as Haiti's police, despite the military leaders' repressive tactics against pro-democracy demonstrators.

The last-minute accord negotiated by Jimmy Carter, which left the Haitian military in place for the time being, forced the Pentagon to rewrite its mission and put American troops in the odd position of cooperating with the very Haitian forces they bad been planning to fight

The exiled President, the Rev. Jean-Bertrand Aristide, told the White House today that the United States should disarm Haitian forces, who are endangering his supporters and American troops, Father Aristide's aides said.

Mr. Aristide's general counsel, Ira Kurzban, said there was a risk that "we in the United States become and occupying army supporting the Haitian military, rather than a multinational force designed to assist in creating democracy."

The violence on the streets and diplomatic wrangling between Father Aristide and the White House show the fragility of the arrangements in Haiti and the continuing risks even as American troops continue to pour ashore unopposed.

Despite the increasing concern over the possible repercussions, President Clinton said today that he was pleased with the way things were going.

"This is a very different and much better day than it would have been had we not been able to successfully combine the credible threat of force with diplomacy," he said in introducing a White House briefing. "Our troops are working with full cooperation with the Haitian military. We should recognize that we are in a much stronger and safer position to achieve our goals in Haiti today."

In the face of brutal crowd-control tactics by Haitian police officers, Pentagon officials said that under the accord they had no choice but to tolerate such behavior, at least until they could co-opt the officers, paying some to stay on the job and paying others to turn in their weapons.

"The task of keeping law and order in Haiti is the responsibility of the Haitian police force and the Haitian military," Gen. John M. D. Shalikashvili, chairman of the Joint Chiefs of Staff, said at the briefing.

"We are not in a business of doing day-to-day law and order, for that matter resolving or quelling any demonstrations, unless these demonstrations or this level of violence becomes so great that it threatens overall stability and the security of our multinational forces, and then we will intercede.

Dee Dee Myers, the White Mouse spokeswoman, said today; "Nobody in this Government is comfortable with demonstrations that turn violent or nasty. But we cannot solve every problem in Haiti overnight. We are going down there not as a police force, but to guarantee civic order and guard against threats to the constitutional Government.

At the Pentagon, a senior officer expressed concern that the Administration might give in to political pressures to take on police duties.

"The only institution in Haiti that works is the military," the officer said in briefing reporters. "Essentially civil order has always been maintained by a system of intimidation, and clearly the only way it was, is, you thumped people."

In separate comments, a senior White House official said aides to Mr. Clinton were urgently seeking ways to cope with a sense that there were no good answers.

"If the mission bleeds into policing, people say you've gone beyond your mandate," the official said.

"But if you stand back and watch they say how can you do that?"

Government officials said today that during the negotiations over the weekend, President Clinton decided that the danger of a power vacuum made it preferable that Lieut. Gene. Raoul Cedras and his Army chief of staff, Brig. Gen. Philippe Biamby, stay on for a short period rather than step down immediately, as Mr. Clinton had demanded.

American generals, lest their cooperation with Haitian police be viewed as collaboration, are taking pains to describe the relationship as "cooperation from a position of strength." And they justify the cooperation by pointing out that it has enabled them to increase their force quickly without suffering or causing casualties.

American forces had been prepared for two options: Either they would forcibly eject Haiti's military leaders or the junta would agree to leave and the Americans would quickly turn over police functions to international troops.

But those plans were changed hours before the troops began to land. That left the Pentagon struggling with the question of whether the troops would be viewed as allies of repressive regime, and not Father Aristide. Intervening on the side of demonstrators might please the pro-Aristide side but it would alienate the Haitian police.

The American military is not supposed to intervene in the kind of street battles that occurred Monday and today in Port-au-Prince unless they are directly threatened or unless "essential civil order" is disrupted, according to the Pentagon.

As Pentagon leaders described it, their mission is not to protect Haitians from a repressive regime, but to help stabilize the country to permit the elected Government to retake power in the next few weeks -- and to do so with the full cooperation of the very forces that seized power after the Sept. 30, 1991, coup.

Under the new orders, only a select group of pro-Aristide Haitians — mostly prominent people like Robert Malval, the former pro-Aristide Prime Minister — are supposed to be protected.

Lieut. Gen. John J. Sheehan, director of operations at the Pentagon, said in an interview today that the rules governing the use of force were changed just before the occupation began on Monday, after commanders reviewed the agreement negotiated by the delegation led by Mr. Carter.

Once it became clear that the junta would not depart immediately, the mission had to be redrawn to reflect the temporary compact with the Haitian military.

"It was the cooperation words that we had reinterpret," said General Sheehan. The new rules were approved by Defense Secretary William J. Perry, he said.

General Sheehan conceded that agreement was "vague in terms of specificity." But he said Gen. Colin L. Powell, the former chairman of the Joint Chiefs of Staff, who worked with Mr. Carter in Haiti, had advised the Pentagon to "get on the ground" first, saying "don't worry about the details."

But Senator Richard Lugar, Republican of Indiana, said today, "The fact is the President has impossibly complicated the situation" by permitting General Cedras to remain.

Still, some Pentagon officials seemed to shrug off the behavior of the Haitian police.

"The normal idea of Haitian policemen of getting a crowd's attention was to fire two rounds in the air," said one senior Pentagon official at a briefing on Monday, described one confrontation when a crowd surged out of control. "So, I mean, this is not directed activity; this is just a Haitian policeman responding as he was trained."

But General Shalikashvili and General Sheehan both cautioned that from the very outset, violence among Haitians had been viewed as the most likely danger.

"Nothing that we have seen so far removes my concern about that," said General Shalikashvili, "because these are the sort of explosive situations that can come up at any given moment, and our soldiers have to be prepared for it physically and mentally, we have to have given them the rules of engagement to handle themselves in these kind of situations."