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, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Monday, June 18, 2018

SUMMER RULES

Summer is here. And that means gentleman lawyers ….must still wear a coat and tie to court as if it is December in Duluth, North Dakota, although it is 90 degrees out with 144% humidity. Miami court's are still in the 19th century when it comes to dress code. 

A reader writes us this: 

Have you read Lincoln's Last Trial by Dan Abrams? A transcript was recently found by the family of the murder defendant. It was the case that propelled Lincoln to the presidency and the only known transcript of a Lincoln trial to exist. Lincoln was an expert at bonding with a jury and knowing what not to say. The writer of the transcript was the same man who transcribed the Lincoln Douglas debates. 

And Rumpole responds: of course we have. Who do you think runs this blog?  

And a reader who wears a robe wrote us a short email complaining about the Lawyer's Bill of Rights and wants to know why lawyers are late, unprepared, disrespectful, texting in court, talking in court, never ready for trial, and other petty complaints. 

Why indeed? Perhaps our readers will respond. 

The President and Attorney General are separating children from their parents at the boarder and blaming the Truman, Kennedy and Carter administrations. 

From Occupied America, where conservative Republicans are all about family- unless the family has darker skin and is from another country- Fight the Power! 







Friday, June 15, 2018

THUNDER ROAD

Sometimes when the stock market is falling,  the president is doing something moronic again, deadlines to file motions are coming due and past-due, clients are calling and emailing and texting non-stop, and a judge who hasn't read case law since "walkin" Lawton Chiles was governor of Florida denies your motion, you just need a little of The Boss. 

Is there any more poetic rock song than Thunder Road? 

"You can hide 'neath your covers and study your pain
make crosses from your lovers, throw roses in the rain
Waste your summer praying in vain 
for a savior to rise from these streets
Well now I'm no hero, that's understood
All the redemption I can offer, girl, is beneath this dirty hood
With a chance to make it good somehow
Hey what else can we do now? 
Except roll down the window and let the wind blow back you hair...

From. Thunder Road, Bruce Springsteen and The E Street Band.

Tuesday, June 12, 2018

TRIAL LAWYERS BILL OF RIGHTS V3.0

This will be the third time we have reprinted this post. 
It is just as relevant today, with summer vacations approaching (see right #2) this is just as relevant today as it was twelve years ago. It's one of our favourite posts. 

Originally posted January 1, 2006, but just as relevant today.

TRIAL LAWYERS' BILL OF RIGHTS.


The Trial Lawyer needs protection from their biggest enemy.
The one entity that can with a wave of the hand completely screw up years of hard work and preparation. We are speaking of course of the Judiciary, some of whom are our wonderful Robed Readers.

Herewith [ and we strongly invite submissions] is our Trial Lawyers Bill of Rights:


A TRIAL LAWYER SHALL HAVE THE RIGHT

1) TO BE FREE FROM BEING EMBARRASSED AND CHEWED OUT IN FRONT OF OUR CLIENT.
We know we say and do stupid things from time to time. But Judges have chambers- and there’s sidebar. We have enough troubles with our clients without having to deal with them after a Judge has just dressed us down for something in court. [ Half the time the judge is upset because we’re late. Well, usually we’re late because we just spent 45 minutes doing an arraignment in front of the Governor's latest new nominee to the bench. ] 

2) TO AT LEAST ONE WEEK AFTER RETURNING FROM VACATION BEFORE STARTING TRIAL.
This one really frosts our ass a little bit. (Hat-tip to the late, great Neil Rogers on the frost-our-ass- phrase). 
We have an important trial. And when the Judge suggests a date, we tell the Judge we have an FACDL Ski trip for that week. So the Judge gives us a big smile and tells us that sure, she’ll accommodate our vacation, “after all , lawyers are entitled to a vacation as well.
And then she sets the trial for the Monday after we return that Sunday.

Hey- wake up!
Do  you know what’s involved in a trial? Do  you realize that no matter how well an attorney plans and prepares that there are literally dozens of last minute problems that spring up in the weeks and days before a trial? 

No. We can’t fly across the country Sunday night, stagger home at 1:00 am and be fresh as a daisy and ready to go to trial Monday morning dodging the multiple minimum mandatory sentences the prosecution is hurling at us.

 If Judges don’t want us to believe that the reason the majority of them became Judges is because they couldn’t try a case, then show some common sense and give us at least a week when retuning from a trip before trial. This may surprise some of you future Supreme Court nominees, but other than the really successful or truly awful lawyers, the rest of us have more cases than the one case clogging up your precious docket. We have clients that want to see us, employees that need guidance and your equally dense colleagues who want us to try a case in their division on the day we return from vacation.

Sometimes, and we really mean this, we wonder how some of you even got into law school.


3) THE RIGHT TO AS MUCH TIME AS WE NEED IN VOIR DIRE.

First of all, many lawyers who get stuck in a trial don’t try a lot of cases and couldn’t conduct a good voir dire with  Gerry Spence sitting with them as second chair. So you needn’t worry about them taking too much time. They ask a few moronic questions about which section of the Herald the juror’s husband reads and if they will follow the law, and then they stagger back to their table sweating bullets and grab their law school text on opening statements to see what to do next. For the rest of us, the ones who devote time and energy to our craft, a good voir dire is crucial. It is the most important part of the trial. We are not asking you to give us a long leash. Keep the leash short. But as long as we’re asking the right types of questions, then our clients (be it a defendant or the people of the state of Florida) are getting their moneys worth from the advocate they hired. Just leave us alone and let us do our job. Surprisingly, when that happens, the Jury system works just fine.

You want a short voir dire? Get an appointment to the Federal Bench.


4) THE RIGHT TO BEGIN AND END THE TRIAL AT A DECENT HOUR:
We see this with a lot of new Judges, especially in County Court. Trying to establish some sort of macho reputation, they work until 11 PM and then send the jury out at midnight to deliberate. 

What are you people thinking? 

Would you want the most important day of your life in the hands of someone who has been in the Justice Building since 8 AM? Do you really think jurors will make the "wise and legal decision" that the jury instructions tell you to tell jurors we are depending on them to make after they have been in the REGJB for 16 hours later? What is  so difficult about coming back the next day?

The first step to being a good judge is giving everyone, including jurors, the time necessary to perform their part in the machinery of justice. 

That’s a good start. We have cast our bread upon the waters. Lets see what readers contribute.


2018 Edition: THE TRIAL TAX
It's not really a bill of rights issue, but have you (as a judge) ever considered the terrible price on our justice system a "trial tax" exacts? "What's a trial tax?" you say quizzically. For that .00000000001% of judges who don't know that the rest of your colleagues routinely impose stiffer sentences on a defendant who proceeds to trial and loses, a trial tax saps the life out of the justice system. And just as insidious as the trial tax, is that "innocent" little you speech you all give defendants before the trial begins in which you "innocently" inquire as to whether the defendant knows that the current probation offer could become forty years in prison if they lose. As if you all are shocked! Shocked to learn that a defendant who is told by a judge that if they lose they "could" receive a 40 year prison sentence (although you earnestly assure them you have not in any way made up your mind since you don't know the facts of the case) actually has a coercive effect on the defendant's decision to proceed to trial. 
Really. Just stop the charade. You know the facts. And we all know what you are doing. And it stinks. You want to be a judge that subverts justice and threatens defendants? Go put on a robe in Broward. For the rest of you, totaling the maximum possible prison sentence does not a judge make. A five year old with a calculator could do that. 
Ok. Now we feel a little better after that rant. Of course, it rarely applies to us, as we rarely lose. 

Monday, June 11, 2018

ONE TIN PRESIDENT

The President of the United States is in Singapore meeting with the leader of North Korea for the purposes of negotiating relations between the two countries. 

Perhaps this is as good a time as any to review certain matters:


Friday, June 08, 2018

BAD DAY FOR JUDGE MILLAN AND JUDGE ORITZ; GOOD DAY FOR JUDGE FAJARDO ORSHAN .....


THE CAPTAIN REPORTS:

BREAKING NEWS ..... AND IT'S NOT GOOD NEWS FOR EITHER JUDGE STEPHEN MILLAN NOR JUDGE MARIA ORTIZ

The Florida Supreme Court does not take Friday's off.  Today they issued two rulings, one each affecting the future of Judge Millan and Judge Ortiz.  For very different reasons each judge has faced an Investigative Panel of the JQC.  Both judges woes have been well documented on this Blog, on Ortiz here, and on Millan here and here.

JUDGE STEPHEN MILLAN:

The Florida Supreme Court issued an Order today rejecting the proposed Sanctions against Judge Stephen Millan.

On May 21, 2018, Judge Krista Marx, on behalf of the Investigative Panel of the JQC, issued the following recommendation:

"... the Investigative Panel of the Commission recommends to the Court that Judge Millan be suspended without pay for a period of 30-days, that he receive a public reprimand, and that he pay a $5,000 fine, to cover the administrative costs of providing judicial coverage during his suspension."

The Florida Supreme Court weighed in today stating:


"Upon consideration of the Judicial Qualifications Commission’s Findings and Recommendation of Discipline and the parties’ Stipulation, the Court rejects the Stipulation and disapproves the proposed sanctions.

We remand for further proceedings to include a full hearing before the Judicial Qualifications Commission in order to fully develop the facts regarding any misconduct that occurred, so that the Court, in determining the appropriate discipline, will be apprised of all the facts and circumstances bearing on the alleged violations."


JUDGE MARIA ORTIZ:

The Florida Supreme Court issued an Order today rejecting the proposed Sanctions against Judge Maria Ortiz.

On May 4, 2018, Judge Krista Marx, on behalf of the Investigative Panel of the JQC, issued the following recommendation:

"... the Investigative Panel of the Commission submits to the Court, that a public reprimand and a fine of $5,000 are sufficient to address Judge Ortiz’s conduct, and likewise serves as a reminder to all judges about the importance of monitoring their personal finances, and accurate reporting on their financial disclosures."

The Florida Supreme Court weighed in today stating:


"Upon consideration of the Judicial Qualifications Commission’s Findings and Recommendation of Discipline and the parties’ Stipulation, the Court rejects the Stipulation and disapproves the proposed sanctions.

We remand for further proceedings to include a full hearing before the Judicial Qualifications Commission in order to fully develop the facts regarding any misconduct that occurred, so that the Court, in determining the appropriate discipline, will be apprised of all the facts and circumstances bearing on the alleged violations."


IN OTHER NEWS .....

Congratulation to Judge Ariana Fajardo Orshan who got the phone call she had been waiting for.  Pres. Trump yesterday nominated her to become the next U.S. Attorney for the Southern District of Florida.  Judge Fajardo Orshan is a graduate of Nova Law. Directly out of law school in 1996, she became an ASA and worked for KFR for six years before joining a family law firm where she spent the next nine years. In 2012, Gov. Scott appointed her to the Circuit Court. She then won a six year term in 2014 unopposed.  The nomination is subject to Senate confirmation.

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


Thursday, June 07, 2018

3RD DCA TO CSK: "DROP DEAD!"

It is arguably one of the longest titled cases in Florida Appellate history. Twenty seven separate petitions for writs of prohibition filed by Cole Scott And Kissane (Petitioners, challengers, candidate thorns in the side of Judge David Miller).
The 3rd DCA consolidated the Petitions, and succinctly noted that the legal-superstar-genius at CSK who picked Judge Miller out of all the judges and open judicial spots on the ballot .to run against was NOT an attorney in any of the cases before Judge Miller, and then, after some more civil mumbo-jumbo,  DENIED the petition. 
Or as the Daily News noted before the CSK candidate was even born: "Ford to City: DROP DEAD". Said headline capturing the sentiments, if not the actual words of president Gerald R Ford when he  refused to bail out NYC during the nadir of  it's 1970's budget crisis.



In any event, thanks to the putative, pusillanimous petition filed by CSK, we now know that just because a lawyer in a firm files to run against a judge, the firm doesn't get an automatic DQ of the judge on all their other cases. Whew! Glad that burning question has been resolved.  

Wednesday, June 06, 2018

ORDER OF THE DAY

Update: We cannot make this up if we tried. There are multiple stories that smart and talented people are refusing to work for the current administration. This is especially true in the State Department. 
Meet Heather Nauert (R, state of confused).  In commenting on the strong relationship between the US and Germany, the United States State Department Official spokesperson Heather Nauert said this: 

"We have a very strong relationship with the government of Germany," State Department spokeswoman Heather Nauert said during a briefing Tuesday. "Looking back in the history books, today is the 71st anniversary of the speech that announced the Marshall Plan. Tomorrow is the anniversary of the D-Day invasion.”

The Video is here

Rumpole says:  Um.mm... true. June 6 is the anniversary of the D-Day Invasion. But perhaps we need a history lesson. Soldiers from the US, England, Canada, Australia, and Poland invaded France. But we were NOT at war with France. France was occupied by Germany. Germany had invaded France. The soldiers on the beach who were firing at our soldiers were...GERMAN. They were Nazis. 
D-Day is many many things. It may be our finest hour. It is the shining example of what America can do when we all pull together.  But what D-Day is most certainly not is an example of US-German friendship and good relations. 

But just because most junior high-school students know about D-Day doesn't necessarily mean some empty chuckleheaded millennial working for the State Department should know this. I mean, it was like, uh, 74 years ago doncha know?

74 years ago, American democracy, American power, American young men- saved the world.

General Dwight Eisenhower, commander of all allied forces in Europe made perhaps the most momentous decision of the war in deciding on June 5, after prior postponements to issue a go and set into motion an armada of thousands of ships and airplanes and hundreds of thousands of men. 



For those of you who do not work for the State Department and wish to know more about what one general called "the day of days" we recommend the following reading: 
"The Longest Day" by Cornelius Ryan is the seminal book on the subject. However, the book is somewhat dated and Stephen Ambrose book on D-Day contains more updated information based on the release of papers by the Eisenhower library, and declassified information by the DOD. Ambrose's book "Band of Brothers" is also a classic, following Easy Company of the 506 PIR of the 101 Airborne from it's formation in Currahee, Georgia through the jump into Normandy, the jump into Holland, holding the line as a rifle company against panzer divisions  in the brutal winter at Bastonge when surrounded in December, 1944, and the invasion of Germany.  Work your way through those three books and we will be happy to recommend some more. 

Coming soon. More history lessons. Neither Canada nor Ethiopia invaded DC and burned the White House. But this close ally did....