WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, AND THE POPE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Monday, February 18, 2019

PUTIN'S GAME PLAN

First, Pat Caddell, who as a young man fresh out of Harvard where he studied southern politics, and went on to advise an unknown governor from Georgia named James Earl Carter and steered him through the minefield of American politics to the presidency, died at the age of 68 today. 

PUTIN'S GAMEPLAN

For those of us trained in international relations in the 1960's- 1970's where the main adversary of the West was the Soviet Union, Russian President Vladimir Vladimirovich Putin's game plan with a malleable, inexperienced, dimwitted Donald Trump is obvious. 

It is the James Jesus Angleton operation all over again. 

James Jesus Angleton was the legendary CIA counter-intelligence chief from 1954-1975. His main job was to catch Soviet spies, and especially unearth double agents the Soviets had placed in the CIA. In the late 1950's CIA double-agent  Anatoily Golitsyn  (A Soviet spy that the CIA thought it had turned to a CIA spy) began to tell Angleton that the CIA had been compromised by Russian spies. The allegation was more believable based on the recent revelation that the British spy service MI6 had been compromised by Kim Philby, a British agent, and others, who had been turned by the Soviets during WWII. Philby was both a close friend and associate of Angleton, and the revelation he was a Soviet spy rocked Angleton. That set Angleton off on a twenty-five year chase of shadows for the top-level CIA agent who was a Soviet spy. Along the way Angleton ruined the careers of dozens of top level CIA employees that fell (wrongfully) under his suspicion. Without ever having placed a Soviet spy in the CIA, the Soviets were able to cause more damage in the CIA then if they had actually placed a spy. Angleton who was a brilliant analyst, was driven mad by the chase and he retired from the CIA in 1975 a broken man, still firm in his belief that there was a spy he had missed. 

Trump is not a Russian agent. He has not been compromised by the Russians. He does not need to be. All that needs to happen -which has happened- is that the Russians are making the FBI and the CIA THINK that Trump has been compromised. This has caused Trump to lash out at the FBI and CIA. He has wrecked the career of top FBI agents and he is outspoken in his belief that the CIA analysts are wrong about important issues like the effectiveness of North Korean missiles because Putin has told him otherwise. 

Putin is doing to Trump and the United Stated what his predecessors did to James Jesus Angleton and the CIA. And it's working. 

Saturday, February 16, 2019

IN DEFENSE OF PAUL MANAFORT

Paul Manafort is sixty-nine years old. He has no prior record. He worked and created a distinguished career for himself in politics until the last several years when he sold his loyalty and common sense for money. We are no fans of Paul Manafort. He went to work for an incompetent nincompoop only to enrich himself and place himself close to the seat of power. 

Manafort went to trial on his case and lost and because he lost he is facing twenty years in prison. Let's say that slowly. A sixty-nine year old man who was convicted of his first non-violent crime has sentencing guidelines that recommend a judge sentence him to twenty years in prison.

What kind of legal system does that to one of its citizens? 

Lets look at the  3553(a) factors (you state court judges can click on over to the Nickelodeon site now, this is federal legal stuff). 

(1) 
the nature and circumstances of the  offense and the history and characteristics of the defendant;
 
Manafort has no priors.  Let's skip  to the other stuff for a moment, 
(2) the need for the sentence imposed
(A)
to reflect the seriousness of the offense  to promote respect for the law, and to provide just punishment for the offense;
We are a fairly well read and educated blogger. We cannot tell you specifically what Manafort did. He met with some Russians. He got paid some money. He moved it around to hide it (a 1956 or 1957 money laundering count probably). But what specifically did he do? And if we cannot tell you, how can a trucker in Boise, Idaho, be expected to know and be deterred from meeting with Russians to influence American elections? How can the naturalized Mexican/American hotel housekeeper in Las Vegas, who works two jobs and has two kids to support as a single mom be expected not to fly to Paris or Helsinki and meet with Russian diplomats if we aren't sure what Manafort did. In other words, there really is no need for deterrence here. If the Uber driver/school teacher in Baltimore wants to meet with the Russians and launder ten million bucks and influence the next election, he's not going to worry about what Manafort got.  
(B)
to afford adequate deterrence to criminal conduct;
 
See above. 
(C)
to protect the public from further crimes of the defendant; and
 
See above. Is anyone truly worried that if Manafort got a five year sentence he would be up to his old tricks on  Mike Pence or Jenna Bush's 2024 presidential campaign? 
(D)
to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
Admittedly Manafort needs a college level course in ethics and the US Constitution. But he doesn't need it in prison. 
The fact of the matter is that our federal legal system is designed to crush defendants who go to trial and lose. There is no understanding of why the crime was committed. There is no recognition that we do not need to warehouse sixty-nine year old disgraced defendants. There is just the crushing monolith of the US Government steamrolling defendants who aren't wise enough to hire David O Markus and his firm. 
Make no mistake that Manafort's case is another straw on the back of the sixth amendment right to trial. Each defendant who has the audacity to force the crown to prove it's accusations, and each defendant who loses and is given a multi-decades sentence becomes another straw breaking the back of the right to trial. We are rapidly approaching a time where attorneys have more skill and experience arguing the nuances of the enhancements under the guidelines or reasons for a downward variance than have the experience to stare down a federal agent on cross examination because they know they are lying. 

We are going to rue the day. 

Tuesday, February 12, 2019

THE LION ROARS IN WINTER

It was standing room only in the courtroom of  US district court judge(and former REGJB ASA and then state court judge) Bob Scola Tuesday morning as AUSA Elizabeth Young rose and addressed the jurors in USA v. Philip Esformes, who is charged with masterminding and orchestrating a billion dollar nursing home/medical fraud and bribery scheme. 
But it wasn't Ms. Young that dozens of courthouse denizens had packed the courtroom to see. It was to see the lion in winter roar once more. 

And so Roy Black, Esq., counsel for the defendant, walked to address the jury once more, exuding confidence, representing a client against a powerful opponent. 

There was a swagger in his gait, his trademark bonhomie tempered with scorn for the government's case, each word carefully chosen based on decades of experience as to how they would fall upon the ears of the jurors. Each gesture planned and  practiced, the cadence developed from a life time of studying the great orators of history, from General MacArthur to the great litigators of the last century like Lee Bailey and Edward Bennett Williams: "They have stacked their case with con artists, liars, fraudsters...(pause for effect) even drug dealers..." the eyebrow raised, the eyes searching the jurors for the impact of the words. 
This was the master plying his trade. da Vinci pausing before the blank canvas, art waiting to be created. The jurors and the facts, lumps of clay just waiting for the hands of Rodin to mold and sculpt to his will. 

Eight grueling weeks of trial remain on the horizon. Scores of allegations about bribes and false diagnoses, a rogues gallery of cooperating witnesses, and reams of spreadsheets with billings, and profits and losses compiled by a government on the hunt. A defense attorney with his famous "files system" in which each witness, each charge, each issue, gets its own file, into which facts which he will need in the weeks ahead have been carefully stored. No electronic wizardry here. Old school defense at its finest. 

Mr. Black is not alone in his defense. He leads a team of exceptionally talented lawyers, led by the master who humbly told the jury "we will try to expose all that we can."

What wonderful words to say to a jury in opening statement!
 The implication that the government holds all the cards. The use of the word "expose" connoting the idea that the government has hid their dirty deeds and those of their witnesses. 

Take an afternoon off. Go over to the federal courthouse and pay the exorbitant parking fees and watch how a lawyer defends his client. Observe how a lawyer who sees the chessboard a dozen moves in advance ply's his trade. 

The lion roars in winter once more.  


Monday, February 11, 2019

FACDL v RUMPOLE continued (HYMAN ROTH EDITION)

If you attend the super-secretive FACDL Board Meetings that are held "Dick Cheeney-like" at "undisclosed locations" * for security reasons, you would learn that depending upon the individual member- and the nature of our posts that particular month- their list of enemies would be something like  

US Attorneys 
Rumpole
State Attorneys 

Or...

Rumpole 
US Attorneys
State Attorneys

We are an agitator. A stone in the shoe. A flea on the dog. It's the Montagues and the Capulets, but hopefully with a better ending. (If you wear and robe and do not get that reference, please consider quitting immediately). 

But FACDL and your favourite blogger fight the same battles- to have our clients treated with dignity and respect where the playing field is level and judges and prosecutors live up to their obligations to seek justice. 
And where we as a criminal defense attorneys live up to our obligations to collect as many fees as possible. 

Despite our constant snipping, and unneeded sarcasm,  the FACDL serves an important need. They run a listserv that we receive spy reports on. They trash us, but like Neil Rodgers' audience, they cannot stop tuning it. 

And they do a lot of work behind the scenes to assist members of our profession. 
Security passes for attorneys not named Alex Michaels? They got it done. 
Parking at lot 26? They are on it. 
Meetings with the SAO and PDS to discuss problems and coordinate solutions? FACDL is there. A hundred thankless jobs that Miami lawyers donate time they do not have to make our profession easier and better. And what do they get in return? An obnoxious blogger taking potshots. 

So we urge you to support them. And if you want to have something changed, run for their board so you can have a voice. 
(We would do it, but then we realized it would interfere with our Pilates class). 


Dear members,

This is our organization's call for nominations for the FACDL-Miami Awards which are presented each year at our annual banquet.  This year's 56th Annual Awards and Installation Gala will take place on Saturday, May 4, 2019 at the JW Marriot Marquis in Downtown Miami.  Once again, we will gather to celebrate and honor attorneys and judges whose character and work merits recognition from our criminal defense organization. 

Below are brief descriptions of the criteria for each of the FACDL-Miami awards.  If you know a lawyer(s) or judge deserving of one of these honorable distinctions, please forward me your nomination no later than Tuesday,  February 13, 2019.  Please do not respond to the listserve with your nomination. Please also include a statement about why you think your nominee(s) is deserving of the Award and other material you would like the Board to consider.  

  • THE HONORABLE GERALD KOGAN JUDICIAL DISTINCTION AWARD – This award is presented to a Judge in recognition of an extraordinary career contribution and dedicated service to the improvement of the criminal justice system and for the preservation of constitutional rights.
  • THE DANIEL S. PEARSON-HARRY W. PREBISH FOUNDERS AWARD – This award is given, when appropriate, in recognition of a lifetime commitment to preserve the constitutional rights of all citizens and for manifesting the very best principles for which FACDL-Miami stands -- an open-hearted devotion to justice, civility, discretion, courage, respect for human dignity and mercy.
  • THE RODNEY THAXTON “AGAINST ALL ODDS” AWARD – This award is given, when appropriate, to a criminal defense lawyer who having undertaken a particularly difficult or unpopular client or cause, represents the heart and spirit of criminal defense, and who epitomizes the courage of the criminal defense lawyer to stand apart (and often alone) as Liberty’s Last Champion. 
  • THE GREGG WENZEL YOUNG LAWYER’S AWARD - This award is given to a young lawyer who exemplifies hard work in the legal arena and in service to the community.
There will be a vote at our February Board Meeting on February 20, 2019 to decide who will be selected for the awards. The meeting is open to the general membership and any member can nominate someone they think is worthy, speak on behalf of their nominee and vote. This is not a closed meeting (no FACDL-Miami meeting is a closed meeting). The meeting time and location will be announced with the next two weeks.*

(you thought our crack about undisclosed locations was more Rumpolian nonsense, didn't you?)


Thank you.

In all seriousness, if you post a comment on a lawyer who deserves an award, we will post it for a proper discussion. The awards are a moment during the year we pause to recognize our colleagues who have make a difference in the career we have chosen.


Saturday, February 09, 2019

IN PRAISE OF MEDIOCRITY (not)

While the search continues in Virginia for a Caucasian  male over forty who didn't wear black-face while in college, and for a politician in the home of Thomas Jefferson who hasn't sexually assaulted a woman, Rumpole wonders where we draw the line on a person's youthful stupidity? 

First, there is no comparison between the two sexual assault allegations against Virginia's lieutenant Governor and the black-face allegations against Virginia's Governor and Attorney General. There is no forgiveness for sexual assault assuming the multiple allegations are true. 

However, in an age where youthful mistakes are digitally captured and stored forever, where do we draw the line between a successful adult and a stupid act twenty or thirty years ago? 

Rumpole was not raised in the south. The offensive tradition of black-face is foreign to us. But apparently it is common among white Virginia college age men. It appears that the black-face parody is not so much (in current times) overt racism as much as it is stupid insensitivity to the suffering of African Americans for the first two hundred years of our country.  BUT, the Rumpole critic roars in indignation, "if you were Jewish how would you feel about pictures of your Governor partying in college dressed as an SS Trooper?"  "If you were Asian Rumpole, how would you feel about your Governor prancing around at a college party dressed as a Chinese "coolie" yelling "no tickeee-no-laundry"?" 
Very badly, Rumpole admits. 

But can people mature? Can we overlook certain moral failings in leaders who are otherwise historically good? 
Would today's General Eisenhower be removed from command (and banished from public service) for the revelation of an affair with a young woman on his staff? #METOO would roar about the inequities of a young aid submitting to the sexual desires of a powerful older  man who is her supervisor.
And what of General Eisenhower's superior? Would Franklin Roosevelt's presidential campaign have survived the revelation of his long-time affair? 
Would President Johnson have been able as a senator to shepherd the first civil rights bill through the senate if his philandering ways had been revealed? 
Who would have been President in 1962 and have had the courage to stand down his generals who were advocating bombing and invading Cuba- a certain preclude to nuclear war- if candidate John Kennedy's multiple dalliances with young women who clearly were not on equal terms of power with him had been revealed and he was forced to withdraw from the race?

Do we diminish Martin Luther King's accomplishments and moral leadership because he was not faithful to his wife? 
Do we discount our Jeffersonian democracy because Jefferson owned and slept with his slaves? 

In short, if we only accept leaders who are morally perfect in every way, are we defaulting to mediocrity?  This is not to say that we should accept moral failings. This country was founded on the racist idea that certain humans (blacks)  were three fifth's of a person.  Our success is that we confronted our failings and rose above them (although it took way too long). 

Who do you want landing your plane in a storm? A mediocre pilot who is faithful to his wife, or the best damn aviator the airline has who sleeps around on her husband? 
Which surgeon do you want operating on you? The barely competent  one who spent her college years tucked away in her dorm room, or the arrogant college jock who mocked Hispanics but matured into the most talented, kind, and caring surgeon who deeply regrets his actions and donates his time to doctors without borders to atone for his actions in college?  

To put it in our terms, what about the wise judge who twenty years ago as a young lawyer struggled in business and ended up with a tax lien that took a few years to pay off. Should they be disqualified from holding office and instead should we have a wealthy, spoiled, and indifferent judges with no tax liens but also no common sense? 

None of us are perfect.  "Let he who has not sinned cast the first stone." 

What worries us is not so much the leaders who we force to resign, as much as the future President Roosevelts and General Eisenhowers who never choose to serve because there is a picture of them at age 18 or 20 doing something offensive and stupid as 18 and 20 year olds are wont to do. Are we condemning ourselves to a future of mediocre but morally correct leaders? That is the worst tragedy of all. 

Thursday, February 07, 2019

SO, YOU WANT TO BE AN ASSISTANT STATE ATTORNEY/ASSISTANT PUBLIC DEFENDER .....



THE CAPTAIN REPORTS:

TIME TO DISCUSS A REAL PROBLEM IN THE JUSTICE BUILDING .......

(BREAKING - 3rd DCA Grants Writ of Cert in State v. Wong, 3D19-169; issue is - 6 or 12 person jury for capital murder trial before Judge Blumstein. See the Comments Section for more on this story).

An article in the January 11th edition of  THE FLORIDA BAR NEWS addresses a critical problem in our justice system. One in five Assistant State Attorneys and one in five Assistant Public Defenders left their jobs last year.

In Florida, the average starting salary for an ASA or APD is $41,700. By comparison, in neighboring Georgia, the average is $56,286; in North Carolina it’s $53,000; and in California, they start prosecutors and public defenders at a salary of $92,000.

State Attorney Dave Aronberg of the 15th Judicial Circuit (Palm Beach) stated that front line prosecutors and public defenders are leaving government service at such a fast rate that it is becoming an issue of public safety. "Many times, you will have a young prosecutor making $42,000, who is sitting at a table discussing a case with a first-year cop from Boca Raton, who is making $62,000 a year," Aronberg said. "And this is someone with seven years of education and six figures of education debt." The problem is, "once they get to be three- to five-year lawyers, and they’ve had about 50 or more trials, [his ASAs] are very attractive to private law firms who will pay them a lot more."

Buddy Jacobs, from the Florida Prosecuting Attorneys Association, described the situation this way: "There are two kinds of prosecutors in Florida, those leaving . . . and those looking."

Aaronberg suggested that, according to a TaxWatch study, "raising salaries for assistant state attorneys and assistant public defenders would actually save taxpayers money in the long run."

So, what say you, our readers who work in the pits everyday? Is there a problem? What can WE do about it?

IN OTHER NEWS:

SO, YOU WANT TO BE A CIRCUIT COURT JUDGE .....

The 11th Circuit JNC received a total of 22 applications from those wanting to replace Judges Eric Hendon and Bronwyn Miller who both now sit on the 3rd DCA. The Commission narrowed the list to 18 that will be interviewed on February 15th. They include:

9:00 a.m. William I. Altfield
9:10 a.m. Rebecca Valentina Aroca
9:20 a.m. Michelle Alvarez Barakat
9:30 a.m. Jason Bloch
9:40 a.m. Tanya Brinkley
9:50 a.m. Michelle A. Delancy
10:30 a.m. Ivy R. Ginsberg
10:40 a.m. Blanca Torrents Greenwood
10:50 a.m. Peter Heller
11:00 a.m. Scott M. Janowitz
11:10 a.m. Zachary N. James
11:20 a.m. Jeffrey M. Kolokoff
12:00 p.m. Steven Lieberman
12:10 p.m. Joseph J. Mansfield
12:20 p.m. Griska Mena
12:30 p.m. Julie Harris Nelson
12:40 p.m. Kayla A. Riera-Gomez
12:50 p.m. Abbe S. Rifkin

(Those who did not make the cut: Carmen R. Cabarga, Robyn J. Cohen (McCarthy), Tahya Fuenmayor, Gustavo Javier Losa).

SPEAKING OF THE 3RD DCA .....

You still have time to apply to the 3rd DCA JNC if you want to become an appellate court judge. There are two open seats on the 3rd DCA resulting from the elevations of Justice Barbara Lagoa and Justice Robert J. Luck to the Florida Supreme Court.

The deadline to submit your application is Tuesday, February 19, 2019.


CAPTAIN OUT .......
Captain4Justice@gmail.com




Tuesday, February 05, 2019

FACDL V RUMPOLE

Well, we did it again. Incurred the wrath of FACDL (motto: "Dues por favor"). So to be fair, here is how we have been chastised:

FACDL Board Member said...

Rumpole. You are wrong, dead wrong, for publicly airing the private discussions of what takes place on the FACDL List Serv. You used to do it regularly, but have not done so in a long time. You do not have the right to publicly air these issues. That List Serv is a private List Serv for Members Only. The members expect that, whatever they send out to the entire membership, by way of email, will not make its way into the public domain.

And before you tell us that you did not identify the members, you miss the point. It is not only who is doing the emailing, but the content of the conversation as well. You have no right to disseminate that information either.

There are times when a sensitive issue may appear on the List Serv that members would never want aired in a public domain. Let's use an example: what if someone sent an email that said, Members: I am in front of Judge Jacqueline Woodward for the first time, on a DUI trial. How does she handle sentencing if my client is convicted on a first with a refusal. Should I tell my client to bring their toothbrush? And, then ensues a litany of responses from other attorneys' opinions on the topic of discussion.

Not only would none of those attorneys want to be identified by name on a public Blog, but none of them would want the content of the discussion and their responses on the Blog either.

If members see that these discussions end up on the Blog, members are less likely to seek out input from the membership as a whole, and members are less likely to respond to the topic of discussion. The members expect and are entitled to privacy within the private membership of the List Serv.

But, you just don't get that. And please spare us (the readers) of you "pat" response that explains how you are not a member and that someone emailed you the string of emails. Save it for someone like Donald Trump who would be the only one with an IQ so low that they would believe that line from you.

You are wrong for publicly airing these emails and the topic and you are hurting the membership as a whole in other possible future important discussions.

FACDL Board Member
Tuesday, February 05, 2019 2:39:00 PM

And Rumpole, responded thusly: 
Rumpole said...
Well FACDL board member, I see your point. There is NOTHING I see in the emails that contains any warning that the emails are private. I think when you send an email to a listserv you lose the right to complain.
On the other hand you are correct the listserv is apparently used for discussions that are private in which attorneys are seeking advice and that my publication of them could have a chilling effect which is why I do not normally do so, although I am not sparing you by telling you I get at least two emails a week from your members asking me to print some email exchange.

I think what I did here does not have a chilling effect. Your members will find other media outlets if not my blog (The Herald anyone) so I am at a loss here as to what to do.
Tuesday, February 05, 2019 8:07:00 PM
We live in a (semi) democracy. Let's take a vote:

1) The FACDL should hire Robert Muller to investigate Rumpole and establish a link between Russia, Rumpole, Wikipedia, The Tri-lateral Commission, the Infield Fly Rule,  and FACDL emails...

OR

2) Leave Rumpole be! If you write an email to the listserv, and one of your members rats you out, you have no right (write) to complain.

As to the Board member's invective that only POTUS would believe we are not on the listserv, we can find no better authority than Groucho Marx to respond: "We would not care to be a member of any club that would have us." 
So there.
Plus- what about the Sunshine law? What's FACDL hiding? Fake news? Collusion with the PBA?

From Occupied Miami, Fight the Power, and Publish/don't publish the emails? 


LISTSERV UPROAR

The FACDL listserv is the place to be these days. 
It all started when a well-known raconteur and gadfly "Person W" wrote a post commenting on the public bar suspension of "Person M". *

That was like walking into a crowded bar in a Trump hotel and yelling "Clinton!" or "Russia!". 

Dozens of responses ensued. These are actual emails with the names redacted to protect lawyers who will not go on the record about anything. 

Person G: "What's the point of sending this other than to embarrass [person M]? 
Person C: "Well said [person G]."  
Person D: "Gotta agree with [Person W] on this. "She was trying to inform...not embarrass."
Former Judge C: "Does everyone know People Magazine covered my engagement to a Hollywood superstar."
PersonG2: "Is the bar as worried about lawyers who do not fight for their client as lawyers like [Person M] who fight hard for their clients?"
Person B: " A sanction that includes not being able to make a living for any period of time is absolutely out of bounds."
Person R: "[Person M] has won more first degree murder cases than any case most lawyers on here have tried."
Person H: Won Rumpole's heart by quoting Teddy Roosevelt's the Man In The Arena Speech . 
Person C: "I trained [Person M] and he's gone way overboard and even yelled at me but then apologized."
President T: "Fake news. Get me [Person M] he's just what I need at Justice."

And on and on it went and it's still going. 

Coming next: Why the Governor of Virginia should not resign and other tales from history.



* The litigation from the last time Rumpole publicly identified FACDL listserv members and their emails has not yet been concluded. Injunctions and 57.105 motions have been bandied about, and in abundance of caution, something we are not known for, we are not publicly identifying anyone. However, if the members of FACDL want to keep their communications private, they should stop members from sending the entire email chain to yours truly.