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Judge Slams Bureau for Inmate's Solitary Lockup, Daily Business Review, 2010

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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
hearing a year ago. "But for the
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
"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
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

A4 MONDAY.00TOBER 18,2010



ALM Publication


JUSTICEWATCH: Official says supervised release difficult
would tell her why.
"I kept asking
for my lawyer,"
Detentes said. "I
couldn't believe it.
1 was totally overwhelmed."
When a guard
told her she had
Detentes was a
failed a drug test,
model inmate after
she was imprisDefontes asked to
or the fa
oned for intent to
see the results and
fora hair test —
distribute narcotvi g resource she
the most reliable
drug test — at her
She graduated
he FDC supervised
from high school
own expense. She
figured a poppyand college in
prison and qualiseed bagel she
fied for an excluhad eaten before a
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
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

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nice job, a place to live. And then suddenly I disappeared. Nobody knew
where I was."

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
challenge the way the BOP handles their Holland & Knight partner Daniel Fridman said
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
— 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@ or at (305) 347-6638.
drug counseling sessions while she

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