Monday, November 24, 2014


UPDATE: Our two remaining survivor pool players live another week, as both took the 49'ers who eked out a win over Washington. 

AHEM…..by INVITATION only. (If you're indicted, you're invited.)

Item: The new judicial assignments for 2015 are out.

Scene: A criminal defense law firm. A few lawyers sitting around the table dividing cases and coverage for Monday.

Dramatis Persona: Attorneys
Judges: Hirsch, Hersch, Schwartz, Schwartz, Swartz, Thomas, Thomas,

Attorney Thomas: Whose's covering Hirsch?
Attorney Schwartz:  I got Hirsch but not Hersch.
Thomas: You got Hirsch?
Schwartz: Sure.
Thomas: But not Hersch?
Schwartz: Right.
Thomas: That's what I am asking you. You have Hirsch?
Schwartz: Yes.
Thomas: Who's got Schwartz?
Schwartz: I got Schwartz, but not Swartz.
Thomas: What?
Schwartz: And you got Thomas and Hersch and Schwartz.
Thomas: Wait.
Schwartz. It's easy.
Thomas. So you have Hirsch, but not Hersch. Schwartz but not Swartz, and Thomas but not Thomas.
Schwartz. Exactly.
Thomas. I don't even know what I just said!!
Schwartz: It's really not complicated.
Thomas. Take it slow.
Schwartz. I got Hirsch. You should take Hersch. I got Schwartz and you can cover Swartz. And you go to Thomas and I go to Thomas.
Thomas: Aye Dios Mio.
Schwartz: Huh? Did you say De La O? That case got continued.

Sunday, November 23, 2014


We roar into Week 12 of the 2014 NFL season with our Fantasy Football league very competitive, our two remaining survivor pool players in a death grip struggle for the title, and with football set for Sunday, Sunday night, two games Monday and then the traditional Thanksgiving day games. Is there any better week for football? With a cold front expected to hit our fair town Wednesday, its shaping up to be a great holiday week. 

Need some flow for Black Friday?  Try out these money makers. 

The Broncos had their let down game last week. So this is the week Peyton and company bounce back against our Dolphins. It's going to be warm, if not downright sticky, and Peyton does much better in warm weather than cold. Petyon has a palatial condo on the tip of  South Beach, so maybe he's had some home cooking and this isn't as much a road trip for him as say Buffalo. 
 But we like the Dolphins to keep it close. They have been playing well, are well rested, and can compete. Take the 7 points for the hometown Fins and head on out to the stadium and cheer your cash home. 

The Bears came though for us last week, and we like the Bruins at home again, -5, against the Bucs. 

The Cowpokes on the road against the woeful Giants in New Jersey.  The Gints are getting 4 at home, while the pokes are coming off a bye week after a game in our favourite city in the world: London. We were initially thinking the Giants would keep it close against a rival. But on further review,  we like the under 48. 

Love the Saints at home Monday night against the Ravens -3. Can't see the Saints losing three in a row at home. 

Updated: Like the Texans over the visiting Bengals, even with RB Arian Foster out.  Take the Lone Star State boys with their new QB over the up and down Bengals. This is the cats third road trip in a row, and after a blow out by the Pack, an upset over the Saints, they are due to revert to their mean, and lose in Texas. Texans -2 over the Bungles. 

Also like the Bills in Detroit over the Jets. There's something about adversity that makes a team concentrate and perform.  Take the boys from snow-land giving up a pedestrian -2.5 over the hapless J..E…T…S

"With the first pick in the 2015 NFL draft the Oakland Raiders trade their first round pick to the NY Jets for the Jets first round picks in 2015, 2016, and 2017. The New York Jets are on the clock. 

With the first round pick in the 2015 draft, the New Jets select Jameis Winston, quarterback, Florida State." 

Thursday, November 20, 2014


Amidst the insanity and horrible treatment of clients and attorneys alike in Broward County, stood one lawyer, a criminal defense attorney to his core, who never blinked, never wavered in the zealous defense of his clients, and quite frankly just never gave a damn what any prosecutor did or any judge said. His name was Kayo Morgan, and word reached us today that he passed away from cancer at age 62. 

Was there ever a better name for a trial lawyer than "Kayo"? Because many times that's what he did to his opponent's case at trial. 

The stories about Kayo are legendary, and a few must be told here, starting with the infamous Monkey.

Kayo had a pet monkey, that's just the type of guy he was. And as the Monkey got older, he developed some medical conditions, like we all do as we age. Kayo was set for trial in the Keys, his Monkey was ill and needed constant medical attention, so he filed a motion to continue, which the judge denied. So Kayo, being Kayo, showed up to try the case, with the Monkey as co-counsel! 

Kayo's Monkey Smooch, during a break in the proceedings. Really. 

The judge was not amused, and held Kayo in contempt. So guess what Kayo did? From the Sun Sentinel Article:

Morgan propped the monkey on his shoulder while questioning a witness at the contempt hearing.

That alone gets Kayo immediate entry to the trial lawyer hall of fame. 

We did an entire post on Kayo and the Monkey, here. 

But don't think that Kayo was a fool or a buffoon. Nothing could be further from the truth. He was a hell-of-a trial lawyer who took on the most difficult cases, and won more than his share of them. 

We first came across Kayo when we were in Judge Sepe's courtroom waiting to call a case, and this somewhat scruffy, unshaven man in jeans, cowboy boots, and a string-bolo tie, approached the podium, announced his appearance, and called a case for trial. 

As Sepe was inquiring whether he was an attorney, Kayo reached into his file and pulled out a crumpled piece of paper that was either an appellate opinion, a bar opinion, or an AG opinion, stating that he could not be required to wear a suit and tie while trying a case. Sepe was momentarily flummoxed, and then allowed  the case to go forward. The next day we were  present for the verdict: not guilty. 

Kayo Morgan was sui generis. He was one of a kind. Rest in peace. 


The 3rd DCA reversed Judge Milt Hirsch this week in a case in which Judge Hirsch suppressed DNA obtained via consent for one case, but in which the DNA was matched to another crime in the database. 

We don't have Judge Hirsch's order granting the defense's motion to suppress but what we can glean from the decision  is that the privacy concerns and the issues of governmental intrusion into our genetic code fueled the order- along with Judge Alex Kozinsky's powerful dissent in U.S. v. Kincade, 379 F.3d 813, 870  (9th Cir. 2014). 

Here is the link to the 3rd's opinion. State v. Gibson.  (If this was in Broward you might have to pay to read it, but no one has ever mistaken this venue for Broward). 

If we didn't have intelligent and thoughtful and courageous Judges who are willing to look at cases and issues from outside the box and from different angles, then we would just have a rubber-stamp judiciary (11th Cir anyone?) in which cases and defendants are transported into the maw of the criminal justice system and come out the backend broken and incarcerated with their convictions routinely affirmed (11th Cir anyone?).  

Thankfully we have some judges who don't run in that hamster wheel that the government tries to force them into. 

BTW: It's National Peanut Butter Fudge Day. The resolution approving the day cleared the senate last year 51-49 and President Obama signed the bill into law. 

See you in court. 

Monday, November 17, 2014


"I'm sorry…so sorry….that I was such a fool"

David Ovalle and the Herald have the article:

Miami-Dade Judge Jacqueline Schwartz is apologizing after ranklingCuban-American lawyers with her election-night comments about beating a "nondescript Hispanic."
"I fully understand my comments could readily been seen as offensive to the community, something I never intended and that pains me greatly," Schwartz wrote Saturday in a letter to the Cuban American Bar Association (CABA).
"I should have never issued the post-election statement that has, understandably, caused do much concern. I retract the statement completely."
The judge also said she will ask the courts to "participate" in judicial diversity training.

Scene: Inner sanctum of power. Chambers of Chief Judge Bertie Soto:
Dramatis Personae: Judge Soto, judicial assistant. 

Judge Soto: "…and in conclusion, while I appreciate your desire for a larger courtroom and chambers, may I remind you that you are one of more than two hundred judges, and the assignment of chambers is based solely on seniority, and due to the fact that you were just elected to the county court and have not yet even been sworn in, the large courtroom on the 4th floor of the justice building, currently being used by Chief Administrative Judge Safyie, will not be available for your misdemeanor calendar. 
Yours, blah blah blah…you got that?'

JA: "Yes boss."

JS: Anything else?
JA: More complaints about the civil courthouse. Apparently a bird flew into an open window and grabbed a piece of paper off a desk and flew out. The attorney wants to sue. 
JS: We'll handle it tomorrow. 
JA: And Judge Schwartz is calling for courts to participate in judicial diversity training. 
JS: What the hell does that mean? Courts participating? Courts are inanimate objects. She wants Judges to get diversity training? 
JA: Apparently so. 
JS: So she insults the hispanic population of Miami, and feels that because of that, every judge has the problem she has?
JA: Yup. 
JS: They don't pay me enough for this job. 
JA: Should I send a reply?
JS: Yes. Tell her to take a flying ….nah. I will address it tomorrow. 
JA: Good night. 
JS: Good night. 

See You In Court, unless it is canceled due to diversity training. 

dream sequence…the page gets all funny and weird before becoming clear and we see President Obama standing in the Rose Garden in 2015. 

Obama: And I want to thank Justice Ginsberg for her many years of dedicated service to the court and this country. And I am proud to announce her replacement will be a distinguished jurist, a jurist who forever changed the landscape of American jurisprudence by coming up with the startlingly original and amazing idea of requiring all judges to undergo judicial diversity training. Now, I know in 2015 this seems standard practice, but I  take you back to that now famous letter, sent to the Cuban American Bar association in Miami, a letter which has since been safely ensconced with our most treasured letters of the republic in the federal archives, and a letter that set the tone and standard for the judiciary.  It is therefore with an enormous amount of pride that I nominate as the next Justice of the United States Supreme Court, J….


"Hi and uhhh… welcome to the inaugural meeting of Insensitives Anonymous.  A world wide fellowship of men and women who help each other stop being insensitive. This is a closed meeting, and you are welcome to stay if you have a desire to stop being insensitive. If you have been insensitive in the last twenty-four hours, we ask only that you stay and listen. So, I will begin. My name is Jackie, and I am a judge, and I am insensitive to hispanics

Everyone in the audience: "Hi Jackie!"

Read more here: http://miamiherald.typepad.com/nakedpolitics/2014/11/miami-dade-judge-apologizes-for-saying-she-defeated-nondescript-hispanic.html#storylink=cpy


Ken Anderson was a prosecutor in Texas (motto: "execute em all and let the good lord sort it out") who intentionally withheld exculpatory evidence and sent Michael Morton to jail in 1987 for a murder he didn't commit. 

In 2011 Morton was freed and exonerated after DNA conclusively proved he didn't beat his wife to death. In the same courthouse where Anderson wrecked Morton's life, and the life of Morton's young son who saw his father wrongfully convicted for killing his mom, Anderson accepted a plea offer to ten days jail and a $500.00 fine. 

That's what sending a man to prison for twenty-five years for a crime he didn't commit is worth in Texas. Not even one day for every agonizing year Morton served.  And a fine of twenty bucks a year. That's it. Yes Anderson was disbarred, but the price he paid for his criminal conduct is outrageously beyond the pale. Not even a year of probation. Anderson will be done with his sentence before Thanksgiving. 

In a state that likes, no make that loves, to send a message about getting tough on crime, what message does this send to lawyers who believe they are above the law? 

Don't mess with Texas? Ha! Go right ahead and mess with Texas, as long as you are a lawyer sending criminals- real or imagined- to prison. 

Longtime and careful readers of our blog know that in our view, it's hard to distinguish who we have less respect for: the hardworking jurist who puts in three tough hours denying motions before getting some lunch, hitting the golf course or the nail salon (or both) or the civil suits, creeping around, filing summary judgment motions, billing by the second,  and generally being a pimple on the butt of a civilized society. 
We were wrong. 
Civil lawyers can do some good. They can see a problem, a group of poor and innocent individuals being taken advantage of by a large and unfeeling corporation, and they can swoop in and put an end to this injustice. 

Like the class action case against RCI Hospitality Holdings, which happens to own Rick's Cabaret in NYC. The dancer/entertainers were not being paid as employees, but as independent contractors, who were forced to split their tips with the house, and other employees of the house, and after a hard night of dancing and being leered at by unattractive and impaired middle-aged men caught in a mid-life crisis, sometimes actually owed the house money. 

Good for them! RCI got hit with a sweet ten million for the dancers. 
Admittedly, we are not entirely familiar with this premise of an establishment where nubile young women dance for men. Must be a NYC thing. We are not as worldly as we sometimes appear to be. 

But this seems like the type of case, purely because of the underdog nature of the plaintiffs, that given the opportunity, we might have enjoyed working on, despite the civil nature of the proceedings. 

There's aways next time. 

Enjoy the week. See You In Court. 

Sunday, November 16, 2014


Ten days ago the Bengals lost to the Browns and Cat QB Andy Dalton had a 2.0 QB rating. Could it be any worse? 
We don't like to go against teams coming off a bye, but the Bengals have peaked. The Saints are coming off a tough OT loss and we like good teams to bounce back. 
Saints at home -7, which is a big number, but it's the way to go. 

And here's a shocker....the Bears stink, the Bears are coming apart, they have no D, their QB is awful, and they will beat the Vikes at home today giving 2.5. 

Speaking of dysfunctional,  look in the dictionary and see a picture of the 2014 Redskins. They are in disarray, a part of the team supports QB Colt McCoy and a part supports RGIII. But they are a better team than the visiting Bucs, who picked a coach- Lovie Smith, who will never make a team a real winner. He is a very good Def Co-ordinator, and just out of his league as a HC.  Skins are -7 at home and in some places -7.5. It's a big line and we like under 46 but are also giving the TD. 

Would you ever give points against the Seahawks? Maybe Denver or the Cheaters, but the Chiefs are at home favored by 1.5. Give the points; take the Chiefs; leave the cannoli. 

SURVIVOR SCANDAL!!! We still have 4  TWO great players alive in the survivor pool at week 11: Plea D and Dustin Tischler.  An independent commission headed by Ken Starr reviewed the results and confirmed that we missed Fake Alex Michaels losing in week seven with the Chargers and Grieco losing in week eight with the cowpokes. You're out- it's not personal, it's strictly business. 

The match-ups are tough this week. In our big (2k buy in) Survivor pool in Vegas, we are seriously considering the Bears, the Redskins, but will probably go with the Saints.  Update: our partner convinced us to take the Bears. Wheew. Dodged a bullet. 

Both Tischler and Plead D took the Steelers so we will have to wait until Monday night to see. 

Friday, November 14, 2014


Broward charges for accessing it's clerk's website, unless you use the terminals inside the courthouse. 

It's a money grab pure and simple despite the fact that the Florida Constitution guarantees unfettered access to public records.

Broward claimed they had the first drug court in the nation, until our Captain straightened them out on his blog post Thursday.  Miami-Dade Drug court was the first in the nation. The court was set up through the cooperation and foresight of Janet Reno, Bennett Brummer, and the late Judge Stanley Goldstein who was a gem of a man. 

Broward arrests people for feeding the homeless. 

Have an innocent client in Broward? Their State Attorney (unwritten) policy is to "let the jury decide". 

You couldn't pay us enough to live and work in that insane asylum. It's pure madness, with a nasty, evil bent. 

DOM is covering a big federal trial, with snitches, and drugs, and former cops and a defense attorney doing a "My Cousin Vinny" take off. We need more humor in Federal Court. 

DOM also had a post on the lack of transparency of Supreme Court Justices. They exempted themselves from the rules that cover the rest of the federal judiciary, and they don't have to explain why they recuse themselves from cases. The article seeks more transparency from the court and the justices. 

We say there should be less transparency
The justices should sit behind a screen and ask questions, ala "The Dating Game."
Their opinions, when issued, should be encoded and the lawyers should have to scramble to get the code key to find out who won. 

Court should be held in "undisclosed locations" ala Dick Cheney circa 2001. 

In sum: Bring a little Broweird to the Supreme Court. 

And finally, if you're planning on traveling to the City of Lights, which we do frequently, there is a tiger on the loose in Paris! And it's not the golfer, but the big cat. ABC reports here. 

We are imagining walking down the street in our favourite arrondissement,  a cup of coffee in one hand, a loaf of bread and Le Monde in the other, and trying to explain in our limited French that we just saw a Tiger stalking around.  Maybe we'll just stay at the Grosvenor  House in London until the big cat is caught. 

Enjoy the weekend. 

Thursday, November 13, 2014


There are some relationships, and the inevitable break-up, that have become part of our popular culture and consciousness. For those old enough to remember a world without Starbucks and texting, Elizabeth  Taylor and Richard Burton is the seminal relationship-breakup-remarriage event of the last century. 

Katie Holmes left weirdo Tom Cruise. Jennifer Aniston and Brad Pitt never made it.  Elin Nordegren threw out Tiger, and he hasn't been the same since. 

But in our humble opinion, the most culturally significant break up of our time,  occurred today, November 13, year unknown, when "Felix Unger was asked to remove himself from his place of residence...and that request came from his wife."  Thus was born one of the best sitcoms ever, and dozens of philosophical gems, as well as some of the best lawyering you will ever see. Observe below:

Best cross examination: "When you ASSUME... you make an ASS out of U and ME" It starts at 3:17 of the clip. Plus, it always pays to bow to the court. And the actual "assume" incident is at 4:20. We've been waiting 30 years to use this. And of course there is the valuable lesson all of us always need to keep in mind: calling one witness too many, and asking one question too many. This should be required viewing in every law school. 

Best way to end a cross? "Get off the stand, you make me sick!
The cross of the stooge of management, corporate puppet, the nameless, faceless little gray men trying to claw their way to the top, begins at 3:15. 



IT'S A SAD, SAD, SAD, SAD, WORLD .........

Just over three years ago, in July of 2011, the fate of two people, who did not know each other, collided at the intersection of Lejeune Road and Aledo Avenue, in Coral Gables, at 4 o'clock in the morning.  The results were nothing short of catastrophic.

Ace reporter David O'Valle, (who recently hit the 5,000 mark for twitter followers), covers the story in the Miami Herald here. 

Peter Munoz, 27, was a police officer employed by the Coral Spring PD.  By all accounts he was a good cop with a great career ahead of him.

Jenny Gutierrez, 23, was a single mother of a three year old girl.  She was employed as a paralegal and she was also enrolled in school at Miami-Dade College.  By all accounts she was a good person, a great mother, and she was working hard to provide for a better life for herself and her young child.

Munoz was traveling Southbound on Lejeune.  According to the accident reconstruction investigation, he was driving his vehicle at a maximum speed of 56 mph in a 40 mph zone.  He was also under the influence of a large quantity of alcohol.  His blood, taken after the crash, showed a BAC of .229, nearly three times the legal limit.

Gutierrez was traveling Eastbound on Aledo.  She entered the intersection immediately in front of the path of Munoz.  She violated his right of way.  She was also operating her vehicle with a suspended license.  Toxicology results performed by the MEs office indicated positive for both Xanax and Cocaine.

The investigation also showed that there was a 6 to 8 foot hedge that likely obstructed the sight of Gutierrez's vehicle as she was pulling into the intersection to turn left and head Northbound on Lejeune.

Munoz was fired shortly after his arrest.
Gutierrez was pronounced dead at the Ryder Trauma center two hours after the crash.  Her daughter is being raised by Gutierrez' mother.

In 2012, defense attorney Alan Ross filed a Motion to Suppress the Blood.  Judge Murphy, after hearing testimony that the first officer on the scene did not detect any signs of impairment, that the THI did not believe he had PC for the search warrant when he submitted it to the judge, and after finding that the warrant, (which was the basis for the collection of the blood evidence) lacked key essential facts, granted the Motion to Suppress.  The State dropped the DUI Manslaughter charge.

This week, the state dropped the remaining charge of Vehicular Manslaughter.  The speed, by itself, was not enough to establish the element of recklessness necessary to obtain a conviction.  (See Luzano v. State, 3D13-1678, Oct. 1, 2014).

We have been quoted in the press on more than a few cases as saying that "there are no winners in this case".  It appears that that statement certain would apply here.

It's a sad, sad, sad, sad, world.


Crack reporter for the DBR, Julie Kay, wrote a great story about 3rd year law student Shayna Finkelstein, who recently was in Miami with her University of Florida mock trial team.  The team won first place in an ABA southeast regional mock trial competition.  The younger Finkelstein, daughter of famed Help Me Howard Broward PD Finkelstein hopes to follow in her father's footsteps some day and says she will be applying for a job as a PD in Miami and Palm Beach County.

But, here's the problem with Kay's article.  In it, she states that Finkelstein "was instrumental in forming Florida's first drug court ... in Broward County".

Veterans' of the Metro Justice Building (MJB), (yes, that was the name of the building from it's opening in 1962 until it was renamed in 1992 after six term State Attorney Richard E. Gerstein, who served as the elected chief prosecutor from 1956-1977), know that the "first" Drug Court in Florida, and in the United States, opened in the MJB in 1989.   It wasn't until two years later that Broward followed suit; (Las Vegas had the second ever drug court, with Broward's coming next after that).  In the past 25 years, the overwhelmingly successful Miami-Dade Drug Court has had only four judges including Judges Stanley Goldstein, Jeffrey Rosinek, Deborah Labora-White, and current Drug Court Judge Jeri Beth Cohen. 

Julie's a great reporter, but she needs to get her facts straight.   Credit goes out to Chief Judge Gerald Wetherington, Admin. Judge of the Criminal Division Herb Klein, Public Defender Bennett Brummer, and State Attorney Janet Reno for having the vision to create the ground-breaking program 25 years ago.  Their slogan is appropriate: "Miami's Drug Court - saving lives, one addict at a time".  Happy Birthday Miami-Dade Drug Court - you've come a long way.

CAPTAIN OUT .........