SYDNEY SMITH HAS PASSED AWAY

Many of you will remember Syd Smith as a lawyer with the Public Defenders office. He then spent some time in private practice before returning to his home in London, England, to battle leukemia. We received word that Syd lost his courageous battle (three rounds of chemo knocked out the cancer but terminally damaged his kidneys and other organs) and has passed away earlier today. 

A reader has had contact with Syd's brother Pete, who has stated that he has plans for a memorial service in Miami in the fall. 

In the meantime we can remember Syd with comments on the blog. 

It hurts when we lose a really good guy who was not only a colleague but a dear friend to many in Miami. 

TECHNICAL DIFFICULTIES

Several long time readers have emailed us that they are experiencing difficulties when viewing the blog. The problem -we think- is that Google is going out of their way not to play nice with browsers by companies they don't like. For instance Google has now made it nearly impossible for us to view pending comments with our IPhone. 

Please let us know if you are experiencing difficulties. In the meantime you can try clearing the history and cache on your internet browser on a regular basis and that should help. 

ANONYMOUS JURORS? 
David Ovalle is one of many media members reporting that the Judge in the George Zimmerman trial is considering keeping the names of jurors anonymous for six months after the conclusion of the trial. 
Scott Ponce of Holland and Knight was up in Sandford on behalf of the Herald arguing against the Judge's decision. Ponce does a lot of the media motions in Florida. 

YOU HAVE THE RIGHT TO REMAIN SILENT....except when you don't. 
In Salinas v. Texas, the Supreme Court held yesterday that silence during a "pre-custodial" interrogation is admissible as evidence of guilt. Justice Scalia, DOM's great friend to the defense joined Justice Thomas in concurring in the result, giving the plurality opinion of Roberts, Alito and Kennedy the gravitas of law. 

In this "up is down, down is up" world of jurisprudence, in order to invoke the protections of the Fifth Amendment, including the right to remain silent, you must speak up:

Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ...Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.


 Justices Breyer, Ginsburg, Kagan and Sotomayor fought the good fight against the evil empire. 
So remember to advise your clients: in order to remain silent....SPEAK UP. 

See You In Court. 

BITE ME

BREAKING: Chad Johnson, who has been jailed since last week for patting his lawyer's butt in court for doing a good job has been released after telling the Broward Judge that he was sorry and did not mean any disrespect. So the Broward Judge got her pound of flesh. Happy? 

The AP writes what we in the criminal defense field have known for some time: Bite mark identification is unreliable (witch craft) nonsense (sorry Dr. Souviron). The article is here.
Bite mark identification evidence first came into the popular conscience with the prosecution of Ted Bundy in Miami and the testimony of Coral Gables Dentist Dr. Richard Souviron:

Bite mark analysis hit the big time at Bundy's 1979 Florida trial.

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

On the night Bundy went on a killing spree that left two young women dead and three others seriously wounded, he savagely bit one of the murder victims, Lisa Levy. A Florida forensic dentist, Dr. Richard Souviron, testified at Bundy's murder trial that his unusual, mangled teeth were a match.

Bundy was found guilty and executed. The bite marks were considered the key piece of physical evidence against him...

Then came DNA testing. Beginning in the early 2000s, new evidence set free men serving prison time or awaiting the death penalty largely because of bite mark testimony that later proved faulty.

We The Journalists:

Ever wonder who that guy in the USC shirt, huddled in the back of Judge Thomas's courtroom sipping black coffee and using the wi-fi is? 

Why it's ace Herald crime reporter David Ovalle, and the Society Of Professional Journalists ("going to jail to protect sources since 1972") did an article on our own REGJB crime reporter here. 

David likes black coffee, golf, California, and long walks on the beach. 

BOT: BOT is a DUI diversion program for first offenders. It was started in Orlando, and has since spread to Miami Dade, and now West Palm Beach. One guess which county isn't even considering it? Hint: about 27 miles north of the REGJB. 

Another long hot week in a long hot summer. Stay cool and we'll See You In Court.

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/06/16/3454249_p2/ap-impact-bites-derided-as-unreliable.html#storylink=cpy

BIG NEWS

By now the Justice Building Football Suicide League is a tradition.   Last year saw a record number of players complete for a title so prized, the mere thought of possessing it is enough to make contestants pour over football schedules for months in advance, searching for the slightest edge. 

Now: BIG NEWS. 

You've talked about it for years. The mere possibility that such a thing would exist has sent football loving blog readers into a frenzy.  The possibility has now become a reality. 

We are ready to announce, in addition to the beloved suicide pool......

Wait. 
We almost forgot. 

HAPPY FATHER'S DAY. 

To all our readers who balance a legal career with the most important job in their life: being a dad, today we salute you. 

It's your job to take your son or daughter fishing.  Show them how to bait a hook, and teach them about catch and release. It's your job to oil their first baseball mitt, and to put an arm around them when they strike out to end the game. It's your job to buy them those comic books you read when you were a kid; to sneak them out of the house for an ice cream sundae before dinner, and to talk them about putting down the Ipad, turning off the TV  and reading a book at night. 

For the ten thousand and one things you will do to make a difference in your child's life: from going to the pharmacy at 3am to buy some more cough medicine, to driving their pals to and from the movies, with a stop at McDonalds on the way home, to the countless times you re-arranged your work schedule so you get to the baseball field or basketball court to coach the team, this is your day. 

Enjoy it. 
Happy Father's Day. 

Our pick to win the US Open? Charl Schwartzel. Who are we rooting for? Our favourite golfer since the Golden Bear. Lefty. Phil Mickelson. 

Oh, as to that big announcement? It can wait. Can't overshadow Father's Day you know. 

DISCOVERY QUIZ

We'll end the week with a little discovery refresher. 
Scenario: You are hired to represent a defendant on a DUI Manslaughter case. You invoke discovery. Which rule have you invoked? A) 3.220  B) 3.xyz C) The Rule against perpetuities.  (Answer below) *

Having invoked reciprocal discovery, you see that there was a blood sample taken from your client. You retain an ex parte expert, ask for some of the blood sample and your expert conducts tests. 

The state:  A) Quickly files a motion to compel the report of your expert; B) admires your hard work and shakes your hand after court; C) Asks whether your firm is hiring. 

Lets assume the answer is A and the court grants the motion and you quickly file a writ of certiorari with the appellate court. The Appellate court A) Denies the writ and writes that when you invoke reciprocal discovery the report of your private experts must be disclosed; B) Laughs at the circuit court and quickly grants the writ and requires the circuit judge to show cause that  s/he has graduated from an accredited law school; C) Discretely inquires during oral argument whether your firm is hiring. 
As astounding as it sounds, and this is a warning bell to us as defense attorneys, the answer is A. 




The reasoning behind the decision is as follows: 
3.220(1)(A) requires the defense to disclose to the prosecution the witnesses who the defense reasonably expects to call at trial. 
3.220(1)(B)(ii) requires the defense to disclose to the prosecution the names of experts and the results of tests. 
Note that the section on experts is separate and distinct from the section that requires the disclosure of witnesses that the defense "reasonably expects to call" and the plain language of the rule doesn't exempt experts that the defense uses but doesn't expect to call. 

The opinion recognizes the Hobson's choice the decision will create for defendants- if you want to use experts to conduct tests, don't invoke reciprocal discovery. The appellate court's response is "tough toenails". And just so you get prepared, here is the quote the state will use in their motions to compel, over and over:

"Ms. Kidder is not constitutionally entitled to a discovery system that operates only to [her] benefit."

Suddenly arraignments became a little more dicey. Now you have some strategic decisions to make. 

Enjoy your U.S. Open weekend and happy father's day. 

See You In Court. 

*If you have to check that the answer is A, it's high time for some CLE. 

MILT HIRSCH, LESLIE ROTHENBERG, AND THE TAPES

Lesson one of legal blogging in Miami: Put Milt Hirsch in a post and the hits on the blog go through the roof.
 
Last we left Milt Hirsch, Miami's own "Bard of the Bench" he  was safely ensconced in his robes. There was just the nagging issue of his former client Sean Casey. To make a very long story short, Casey was charged with DUI Manslaughter. Milt did a spectacular job and got the blood tests suppressed. The 3rd DCA (in what should have been recognized as a precursor of things to come) reversed the trial judge's order. The case was returned for trial and Mr. Casey fled to Chile where he resided for two years until he was apprehended. Upon return to Miami, Casey, with Hirsch as his counsel, entered a plea and was sentenced to prison.
 
Casey filed a post conviction motion to set aside his plea. His main contention was that Hirsch and his therapist (recommended by Hirsch- Dr. Michael Rappaport) advised him to flee once the 3rd DCA reversed the suppression of evidence. Prior to fleeing, Casey and his mother surreptitiously taped Hirsch and Rappaport. "The Hirsch Tapes" as they came to be known, ended up in the possession of the SAO (motto: "The tapes are none of your ^%@!$!$~! business"). David S Markus (NOT the blogger) represented Casey on the motion. The court, at the request of the SAO, SEALED the tapes. Markus didn't get access to the tapes, and the tapes were not admitted into evidence. The court denied the motion for relief. The 3rd DCA, without benefit of the tapes, affirmed the denial. Casey filed a pro se motion alleging  fraud. The State filed a motion to seal. Enter Bruce Brugmann, a San Francisco owner of the San Francisco Guardian. He filed a motion to intervene and oppose the motion to seal. The court denied the motion. Brugmann appealed: From Judge Rothenberg's dissent:

On September 17, 2009, Brugmann filed the instant petition for review of the trial court’s order sealing the judicial record. On April 21, 2010, this Court issued an order denying the petition without a written opinion, and on May 6, 2010, Brugmann filed a motion for rehearing, rehearing en banc, and for a written

opinion. The motion for rehearing was granted, and on April 27, 2012, the panel issued a written opinion denying Brugmann’s petition for review of the order sealing the judicial records. Brugmann v. State, 37 Fla. L. Weekly D1041 (Fla. 3d
DCA Apr. 27, 2012). Upon issuance of the written opinion, Brugmann filed a subsequent motion for rehearing en banc. After review of the motion, this Court again granted rehearing; withdrew the April 27, 2012, panel opinion; and a majority of the voting members of this Court denied Brugmann’s petition without
prejudice to seek relief by other means.

In English: The 3rd DCA will not issue any reason for denying Brugmann's petition.

Enter Judge Leslie Rothenberg, friend of the poor, the weak, the oppressed, and champion of open government. She filed a very lengthy (anything over ten pages and we start skimming) dissent, strongly arguing for the release of the tapes. Judges Salter and Ivan Fernandez concurred with Judge Rothenberg's dissent.

What we have here folks, is a very divided 3rd DCA that cannot agree on much in this case. And ain't that fun?

From the peroration of the dissent:

Some of the evidence the successor judge failed to consider in evaluating whether to seal the Hirsch tape is: (1) whether the tape demonstrates that Hirsch gave perjured testimony at the evidentiary hearing; and (2) whether the tape, when
considered with all of the other evidence, supports Casey’s testimony that Hirsch encouraged him to flee the court’s jurisdiction, thereby committing a fraud upon the court at the evidentiary hearing…

Additionally, when ruling on Casey’s motion for relief of judgment, the trial court should have reviewed the tapes to determine if Hirsch and/or Rappaport counseled Casey to commit a crime; Hirsch and/or Rappaport gave perjured testimony; and Hirsch, Rappaport, or the State committed a fraud upon the Court

by falsely representing what was said on the tapes.

Rumpole says: WOW. It's not often we get to use "peroration".
Disclosure: We like Milt Hirsch. And we do not believe for one moment he committed a crime or counseled his client to flee. His reputation earned over many decades as a pre-eminent attorney entitles him to that presumption. And yet....

There is something about this we cannot just abide. Why not release the tapes? Especially if there isn't anything to hide. There is a young man in prison who claims the tapes contain evidence that support his legal arguments and would thus establish a very serious fraud upon the court. Why the rush to seal them? Why won't the circuit court judges hearing his motion listen to them? It is all very...distasteful. One could imagine, in other circumstances, Milt Hirsch as counsel for the accused, championing the release of the tapes and excoriating the government for secrecy, much like Judge Rothenberg has done. This case is bizarre. Down is up. Up is down. Milt Hirsch is on the side of tapes being sealed and kept from a defendant and Judge Rothenberg (to her everlasting credit) is championing giving the defendant a fair hearing and access to evidence.

Very strange.

THE BEST GIFT I EVER GOT WAS FROM A CONVICTED KILLER

DOM printed part of a remarkable essay from Federal District  Judge Richard Kopf, (Nebraska) who runs a remarkable blog here. 
For us, the more interesting part of the blog post than what DOM ran was Judge Kopf's story of his representation of David Tommy Gene Suggett. After reading about how a convicted killer influenced his sentencing as a federal judge, we have no doubt that Judge Kopf would have never thrown a person in jail for patting his lawyer's butt. Experienced, wise, and temperate judges don't act like publicity seeking spoiled prima donnas. 

The title of Judge Kopf's full blog post is the title to our post as well. 

For my (partial) antidote, I realized that I needed a mental image of a physical object that would evoke a sense of balance.  The image that I settled on derives from a gift given to me by a fellow named David Tommy Gene Suggett.

Tommy Gene got into a bar fight in Cozad, Nebraska when a young Hispanic kid provoked him.  One thing led to another, and Tommy Gene stabbed the kid in the heart about three times.  The young man died, and Tommy Gene was convicted of murder.  Ultimately, he was sentenced to 30 years in prison.

After the trial judge refused to give Tommy Gene relief on the sentencing question, I convinced the Nebraska Supreme Court that the trial judge had been too tough on Tommy Gene when he gave him 30 years in prison.  If you feel the need to read more, see State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (Neb. 1978) (Although sentence of imprisonment of defendant convicted of second-degree murder was required in view of serious nature of crime, where defendant had no significant criminal record, crime was unplanned and provoked by victim, defendant exhibited willingness to work at honest labor, was not addicted to alcohol or narcotic drugs, and his prison record provided evidence that extended period of incarceration was not required to rehabilitate him, term of imprisonment of 30 years was not warranted and would be reduced by Supreme Court to term of 15 years).

When I represented Tommy Gene, I spent a lot of time with him.  I really got to know him.  I learned that he had been born in Arkansas, that his family had abandoned him at a young age, that he spent a lot of nights sleeping in farm wagons filled with cotton, that he had virtually no education, that he had never been in any real trouble, that he had drifted from Arkansas to Nebraska on the hope of farm work, that all the guards and case managers who dealt with him in the prison thought so much of him that they were willing to sign statements for presentation to the judge expressing their view that Tommy Gene ought to be released from prison, and that he really loved my wife’s cooking.

As for the later point, I needed a lot of time with Tommy Gene.  So, I got him moved to the jail in Dawson County.  In that old jail, situated on the second floor of the Sheriff’s office, there were no firm procedures.  A lawyer could see his client about any time the lawyer wanted.  Moreover, the jailer was a nice guy and I got along with him very well.  He allowed me to bring Tommy Gene meals from our home.  I spent numerous evenings sitting on the floor outside of Tommy Gene’s cell while he ate the meal my wife prepared and we talked about his life and his case.

Anyway, I came to really like Tommy Gene.  While there was no question that he had murdered someone, Tommy Gene was not a bad person.  In fact, save for the small matter of stabbing someone three times in the heart, Tommy Gene was a good person.

When I got the decision of the Supreme Court, I called Tommy Gene who by then had been returned to the  prison in Lincoln.  At first, Tommy Gene didn’t understand the good news.  When I finally was able to get through to him that he would be let go soon, he seemed stunned.  Shortly thereafter, and fairly abruptly, Tommy Gene hung up.

As soon as I got a copy of the opinion, I mailed Tommy Gene a copy and told him in a letter to contact me if there was any delay in his parole.  Some months later, I learned that Tommy Gene had been paroled.  With that, Tommy Gene’s case was no longer the compulsive driver it had earlier become.

I never saw him Tommy Gene again.  And except for what I will describe next, I never heard from him again either.

One day a pretty woman walked into our law office and said she would like to speak to me.  I came out to the counter, and she introduced herself as one of Tommy Gene’s friends.  She said she had something for me from Tommy.   With that, she gave me the leather briefcase that is pictured below.  She told me that Tommy Gene had paid one of the other inmates to make the case for me.   She said that Tommy Gene said, “Thanks.”  With that, she left.

The briefcase sits in my office.  I look it at it before I sentence people.  When I do, I hope for balance.  Sometimes it works.

What a remarkable story from a remarkable man. 

We'd like to know from our robed readers, what do you do for balance before you sentence a defendant?

After many years of experience in court we have come to this conclusion: the best way to avoid a bad sentence is not to lose. 

See You In Court. 

WE HAVE A BUTT SLAP

The Judge threw the flag after she caught Chad "ocho cinco" Johnson slapping his lawyer's butt during the plea colloquy. 30 days BCJ. It was Broweird after all.

Chad Johnson -- Ripped By Judge for Slapping Lawyer's Ass - Watch More Celebrity Videos or Subscribe

Here's your slo-mo replay: Ol 85 was taking a plea to a violation of probation. The agreed upon resolution was some additional probation and classes. When the judge asked Johnson if he was happy with his lawyer's services, and Johnson said yes, and the Judge went on to praise Adam Swickle, son of Miami Dade Defense attorney of yesteryear Harvey Swickle, Johnson patted his counsel's derrière.  This pat occurs at 56 seconds of the video. The spectators laughed, the judge threw the flag, and Johnson turned a no-jail plea into 30 days. 

Only in that one county where nothing happens in court with a problem. 
Our view: the judge way overreacted. But then again, she sits in the twilight zone of courts. 

See You in court, where despite their desires, our clients are strictly instructed to keep their hands to themselves. 

GIVE....OR ELSE

Because the Florida Bar mandates generosity:

From Wikipedia:

Altruism is an ethical doctrine  that holds that individuals have a moral obligation to help, serve, or benefit others, if necessary, at the sacrifice of self-interest.