Wednesday, April 23, 2014


The lunch time CLE Seminar "Lunch and Learn" will be held this Thursday in courtroom 4-6 at noon.

A Judge will be presenting the topic. We're not making this up: Incompetency. Make of it what you will.

Incompetency means never having to say "I plead guilty".


Thursday: The Captain reports on judicial elections. 

Friday: "Merciless" and "The Perversion of Justice"

Only on the best legal blog in the country. *

* In our opinion. 

Tuesday, April 22, 2014


"Be not deceived." 
That was the  concluding coda to Justice Scalia's first paragraph in his blistering dissent  in Navarette v. California to Justice Thomas's statist opinion upholding a traffic stop in California based solely on an anonymous and uncorroborated tip to 911 that a truck was driving erratically.

Scalia attacks the majority's recitation of the facts (that the tipster knew the truck was driving south on the highway) with a patented Scalia Sneer: "So what?"

The DUI practitioner will love this rant:

What proportion of the hundreds of thousands—perhaps millions—of careless, reckless, or intentional traffic violations committed each day is attributable to drunken drivers? I say 0.1 percent. I have no basis for that except my own guesswork. ...

Consistent with this view, I take it as a fundamental premise of our intoxicated-driving laws that a driver soused enough to swerve once can be expected to swerve again—and soon. If he does not, and if the only evidence of his first episode of irregular driving is a mere inference from an uncorroborated, vague, and nameless tip, then the Fourth Amendment requires that he be left alone.

(There's no doubt the good Justice missed an epic career as a DUI litigator).

To end his dissent, Justice Scalia just can't put down his cocktail:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and
(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either.

Mr. Markus and I are engaged in an on-going debate as to whether Justice Scalia is a "friend" to the criminal defense bar. We concede today (and today only) , point Markus.

Monday, April 21, 2014



The Perlam doctrine;  Fed Rule of Evidence 410; A criminal investigation for sex crimes, a civil lawsuit by the victim; Ipse Dixit, this case has it all!

Look! Up in the sky. It's a bird. It's a plane. It's a decision by Judges Pryor and Martin with special guest judge Charlene Honeywell (MDFL) sitting by designation!

The upshot of lengthy (and pre$umably expensive) litigation is that plea negotiations between the prosecution and the defense are NOT privileged to third parties (the government cannot enter the negotiations into evidence in a criminal case). Read this case, and beware when corresponding with prosecutors, especially pre-indictment when the 6th amendment right to counsel does not attach:

Although plea negotiations are vital to the functioning of
the criminal justice system, a prosecutor and target of a criminal investigation do not enjoy a relationship of confidence and trust when they negotiate.  (Rumpole says: "trust"? Tell us something we don't know. Duh. ) Their adversarial relationship, unlike the confidential relationship of a doctor and patient or attorney and client, warrants no privilege beyond the terms of Rule 410.

You (defense) don't have a "cozy" relationship with the prosecutor. Whatever you discuss, send, email, text, or tweet them, they can disclose to other parties if requested (and approved by Judge Marra.) The only privilege you have is against them entering into evidence in their case in chief against your client. And we're sure government lawyers are hard at work on wiggling around that one. Perhaps the "if we don't admit it we'll lose" doctrine? 


We came across this opinion of Judge Roettger's in U.S. v. Sepe, 1 F. Supp.2d 1372 (S.D., Fla, 1998) and we thought part of it bears repeating:

This court is probably one of the few judges left who served as a U.S. District Judge more years before the sentencing guidelines than with the sentencing guidelines in full force and effect.
These problems frankly never occurred the court's first 15 years on the bench because the government didn't hold all the cards for people under sentence. Now the government holds the Rook Card: The Rule 35 Card. Only the government can file a Rule 35 motion. That Rule 35 option was snatched away from the defendant, and also removed from the jurisdiction of the trial judge.

In any event, in the 10 plus years since the sentencing guidelines went into full force and effect in the federal court system we have come to a situation where the institutions of  the Bureau of Prisons are basically anthills of snitches, each one trying to figure out how to work a deal whereby the government will bestow a “get out of jail early” card upon them in the form of a rule 35 motion.

Judge Roettger was old school. 

See You In Court. 

Sunday, April 20, 2014


Rubin Hurricane Carter, a boxer from Patterson, New Jersey who almost became the middle weight champion of the world, has died in Toronto at age 76. Carter spent 20 years in prison, framed for a triple murder in bar. He was twice tried an twice convicted and twice had the convictions overturned for prosecutorial misconduct. 

Bob Dylan's great song tells you almost all you need to know. 

Denzel Washington played Carter in the movie. There is a scene (which we could not find on You Tube) where the police pull Carter and his friend over and say there has been a murder and they were looking for two black men. And Carter responds something like "and any two black men will do?

Just another story of the "greatest" justice system in the world destroying lives.  Any surprise that as soon as Carter was released from prison he immediately moved out of the United States? 

See you in court tomorrow. Oh yeah: Happy Easter. 

Friday, April 18, 2014


Happy Good Friday this 4-18-14, which if you write today's date backwards, you get...4-18-14. 

"Now there was about this time Jesus, a wise man....He drew over to him both many of the Jews and the Gentiles...and when Pilate, at the suggestion of the principal men amongst us, had condemned him to the cross..."
Josephus, The Antiquity of the Jews (93 AD). 

State courts in Miami are closed. The Feds are open.
The Bronx is up. The battery is down. The people ride in a hole in the ground....

Enjoy your Easter Weekend. It's a fresh ham for us on Sunday, a bottle of wine, and watching the Ten Commandments on TV. 

Thursday, April 17, 2014


Happy belated birthday Nikita Khrushchev (born April 15, 1894).

NHL: You've waited all year for the hockey playoffs, and now they're here!


A quick perusal of the 3rd DCA website reveals that Alex Michaels has filed a motion for a re-hearing.  Alex has Faith in the legal system. He just loooooves Judge Lagoa's dissent. And why shouldn't he?

Mike Royko, the great Chicago columnist wrote:  "The Chicago Clubs, like life itself, are a losing cause. That's why we have cemeteries. And Wrigley Field."
In the last two seasons, the Cubs have lost 197 games.  And yet, something keeps making Judge Milt Hirsch watch, and root. Every spring Hope springs eternal for millions of Cub fans. Then reality sets in.  Like any good Cub fan, you have to admire the Judge's  faith and tenacity.

Faith and Hope. The tenets of our profession.

See You In Court.

Wednesday, April 16, 2014


Caesar Cantu plead guilty to marijuana trafficking and was sentenced to 11.5 years in federal court. Due solely to a scribbners error an additional 42 months was added to his sentence on the judgment and conviction. However, the district court judge was forced to deny his motion to correct his sentence because he filed it untimely. The Judge opined that Cantu's only option was to seek clemency from the President. 

What kind of legal system does this to its citizens? Where was Eric Holder's Justice Department? Why didn't the DOJ just agree to the reduction in sentence? 

As reported by The Hill here, the President did grant Cantu clemency and reduced his sentence to the original and correct time ordered by the Judge. 

But why don't we have a legal system that allows Judges to correct egregious errors? We are so wedded to form over substance and the great writ of Habeas Corpus has been so gutted by Congress that when it was truly needed, it was not available to Mr. Cantu. 

This is a warning sign. A persistent cough in a system that is broken and sick. We ignore it at our own individual peril. 

See you in court, and yes, in Florida, a Rule 3.800 motion to correct a sentence has no time limit. 

PS. Don't- under any circumstances- hire Imer Perez to represent you. Just don't. Herald article here.