Sunday, March 29, 2015


The NY Times Magazine had a very informative article on the Colorado SuperMax prison and what solitary confinement does to an individual (it makes them go crazy). We strongly suggest you read it. 

The NY Times here also ponders the question of whether Dzhohkar Tsarnaev's attorneys will put him on the witness stand in the Boston Bomber trial? 

We have a new poll up. Lawyers are divided on this question of whether to put a client on the stand. Obviously, in federal court, the decision is more perilous because of the obstruction of justice enhancement. (For those of you who stay put in state court, as hard as it is to believe, the feds punish you even more for testifying and losing because they view it as an automatic proof of perjury). 

While we try to keep an open mind as we approach each trial, our view is that if we cannot be in a position to win with our cross of the prosecution witnesses and the use of defense witnesses, then we shouldn't be proceeding to trial. Put another way, we don't want a trial to rest on the testimony of our client. 

Putting a client on the witness stand changes the dynamic of the trial, mostly in favor of the prosecution. Our view is that no matter how weak the prosecution's case is, the jury will disregard the reasonable doubt instruction and focus on the defendant's testimony. A bad performance by the defendant can save the prosecution's case. A good performance by the defendant can weaken the prosecution's case. But it takes a stellar performance by the defendant to win a case, and most defendants don't have that in them. 

Yes, we know that you have to put the client on in a self defense case. This is not about those specialized cases. This is about your average criminal prosecution in Florida. 

We say the safer course is to handle the matter in voire dire. Get the jury to affirmatively buy in to the proposition that a client doesn't have to testify and they won't consider it if the client doesn't. Then, if the case is going well, keep the client safely seated next to you. 

What say you? 

See You In Court. 

Friday, March 27, 2015


The Sixth Seal – Signs In The Heavens
“I watched as He opened the sixth seal. There was a great Earthquake. The sun turned black like sackcloth made of goat hair, the whole moon turned blood red, and the stars in the sky fell to earth, as late figs drop from a fig tree when shaken by a strong wind. The sky receded like a scroll, rolling up, and every mountain and island was removed from its place. Then the kings of the earth, the princes, the generals, the rich, the mighty, and every slave and every free man hid in caves and among the rocks of the mountains. They called to the mountains and the rocks, “Fall on us and hide us from The Face of Him who sits on the throne and from the wrath of The Lamb! For the great day of Their wrath has come, and who can stand?” (Revelation 6:12-17)
A few Miami Dade Corrections busses got into a fender-bender on the way to court today. About 80 defendants missed their court dates. Corrections motto: "Neither rain nor sleet nor snow nor gloom of night shall stay these officers from the swift completion of their appointed rounds. But 836 might."

Miami Federal Judges are very hard working. As per Southern District Blog. Writing "denied" over and over is hard but fulfilling work if you can get it. 

Ultra is a back. 

Wicked is playing in a local theater. 

The Heat Stink. 

Passover is next week. We offer great blog props to the first lawyer who appears in court next week and tells the judge "let my people go." 

A tender religious moment? Or battery with a religious artifact (which is an enhancement)?

We leave you for this glorious spring weekend with the thought that for some of us, the weekend is just another work day: 
Tomorrow my staff will be at nner City Youth Enrichment Camp 2nd Annual STOP THE VIOLENCE & BRING PEACE Basketball Tournament @ Olinda Park.

(note the key words "my staff")

Thursday, March 26, 2015


The blog is doomed.

From our friends at South Florida Lawyers comes this distressing news out of Tallahassee:

A dangerously misguided Florida bill would forbid websites from operating anonymously just because they meet a vague definition of disseminating “commercial recordings”—and it's headed for a vote this week

What would we do?

Putting aside for the moment the judges and lawyers we have unintentionally offended ("What do you call a thousand lawyers at the bottom of the ocean? A good start." ) there would be the plethora of bar complaints and the resulting grudges from judges, prosecutors and even our brethren defense counsel, so that we could never be sure if the decision to seek life in prison on the resisting arrest without violence case was a reaction to our running a mirthless and destructive blog, or an informed legal decision.

We couldn't risk it. We would have to shut the blog down. The great OZ cannot emerge from behind the curtain (you would all be so terribly disappointed).

The end is near. What a long, strange trip it has been.

Meanwhile, you can check out the ESPN website and your brackets,  ruefully peruse Mr. Markus's blog and read about the 1987 committee notes on the hearing to amend the federal rules of evidence on mandatory judicial notice. Plus all those nice pictures of judges at federal events.  And there are  Mr. Ovalle's tweets @davidovalle305 to keep you entertained:
"found a nice hotspot in the courthouse!"; "waiting for the judge, time for more black coffee";  and "the Padres lost again, time to watch the walking dead"

We're doomed.

See you in court.

Tuesday, March 24, 2015


The Wall Street Journal reported today that in surprising testimony yesterday before a House sub-committee, Justices Kennedy and Breyer spoke out against the state of affairs in the American criminal justice system.  Claiming that is was too harsh and that it locks up too many people, for too long.

Referring to our justice policy as being one of "total incarceration", Kennedy, usually a member of the court's law and order wing, stated that he believes that this policy is more harmful to public safety, than it is protective.  Kennedy stated he believed that other forms of community control would serve the public better.  For all the money we spend on prisons, we could provide more probation officers and programs to rehabilitate many offenders.  "Total incarceration just isn't working", Kennedy said.

Breyer added his two cents by coming out against minimum mandatories as being "a terrible idea."  The Republican chair of the sub-committee opened the door to this discussion during a routine budget hearing.

Wouldn't you like to have been a fly on the wall when these two arrived at the Supreme Court Building, and had to face Scalia and Roberts before oral argument this morning?  These two were sent to discuss budgets, not philosophy of sentencing.  

In my last post I discussed the effect of the recent decisions of the Florida Supreme Court in regard to severe sentencing of juvenile offenders.  Is this just one more step in the idea that we begin to rethink our justice systems need for incarceration?  Is it time to start thinking of alternatives?  Are we on our way back to rehabilitation as a goal?  If Kennedy is on board, then maybe . . . 

Monday, March 23, 2015


California has long had a system in their criminal and civil courts that has fascinated us. When a case is assigned to a judge, a party (the prosecution-plaintiff or the defense) can file a motion to disqualify the judge pursuant to section 170.6 of the code of civil procedure. The lawyer must file an attestation that they or their client has reason to believe the judge would not be fair to their client. The case is then blind filed again. Each party can do this one time, and they do not need to provide any evidence to support their view and their motion cannot be challenged by the other party. 

This is a fascinating way of regulating judges.  Judges develop reputations. Some bad judges go out of their way to cultivate a reputation of being tough on crime. We can think of one judge within the last two decades who would brag in their chambers that they wanted to be known as "maximum _____" for the lengthy sentences they handed down. 

If Florida had this system, lawyers' opinions of judges would be evident in the statistics of disqualification. Some judges would have very few disqualifications (albeit high case loads). These would be the judges that the "market" deemed fair. 
Other judges would have high disqualification rates. These judges would be deemed unfair by the "market". 

It's almost a self regulating procedure. It might well influence judges to give the appearance of fairness (instead of the judge who recently tossed our motion to the suppress back to the clerk with disdain and √©lan while sneering "denied" ). 

What say you? 

Follow @davidovalle305 as he covers closing arguments in a murder case. Ed O'Donnell for the defense. Michael Von Zamft for the state. 
After short deliberations, jury will return Tuesday to deliberate fate of teen in Miami Gardens carjack double murde


See you in court, where we wish we had one free bite at the apple of judicial disqualification. 

Sunday, March 22, 2015


"Danger invites rescue"  Justice Cardozo famously wrote in 1926 in Wagner v. International Railway.
And while Cardozo's words were most likely not cited in the discussions, the Dade State Attorneys Office, in a display of Equine Equanimity, decided not to file charges against Aventura resident  Adam Kuferschmied, who seeing danger, rescued Cowboy, a runaway horse, who was espied galloping through Avetura, fleeing the confines of the nearby racetrack, several police cars in hot pursuit.  Kuferschmied, a lifetime horse lover-nee whisperer- interceded  and calmed down the nervous nellie. While Cowboy was returned safely to his stall,   Kuferschmied spent the night at the Dade County Jail, where undoubtedly, his meal was worse than Cowboy's oats and hay. The charges: some nonsense about interfering with the police, ignoring orders of the police, etc. A bunch of horse-feathers if you ask us. 

Enter famed Miami Criminal Defense Attorney Kenneth "Tex" Weisman,  known to favor the fillies, a friend of animals in need, defender of the wrongfully accused.  Weisman didn't horse around. He took his case to the state, which, as David Ovalle in the Herald gleefully reported here, said "neigh" to filing charges.  

The facts were a horse-of-a-different color, all agreed.  "The case was a late scratch, it never made it to the starting gate" Weisman cracked to Ovalle. The odds were long that the prosecution would get a conviction, others whispered. "The case was a mudder" sneered one prosecutor not involved in the decision.  "Weisman was chalk all the way" said one criminal defense attorney in the know. 

And so we leave you, with Cowboy, Kuferschmied and Weisman all galloping off happily into the sunset, the charges dropped, alls well that ends well. 

Friday, March 20, 2015


In four separate unanimous opinions, issued yesterday, the Florida Supreme Court has addressed issues relating to the United States Supreme Court's decisions in  Miller v. Alabama, 132 S.Ct. 2455 (2012) and Graham v. Florida, 560 U.S. 28 (2010).  In the face of questions relating to retroactivity of SCOTUS' rulings that trial courts may not impose life sentences upon juveniles, and many trial court's circumventing that decision by sentencing juveniles to terms of years which are tantamount to life sentences, our Supreme Court handed down decisions relating with separate, but uniquely important issues.  The principal theory behind each of these cases is that to deny a juvenile a "meaningful opportunity at release" is a violation of the 8th Amendment prohibition against "cruel and unusual punishment."

In Falcon v. State, Case No. SC130865, the Court decided that the Miller decision was in fact applicable to juvenile offenders whose convictions and sentences were already final at the time Miller was decided, reversing the 1st DCA opinion in Falcon's case to the contrary.  Justice Pariente, writing for the Court, determined that Miller constituted a development of fundamental significance and a change which places beyond the authority of the state the power to regulate certain conduct or impose certain penalties.  Miller having satisfied all known tests for retroactivity, Miller applies retroactively.

In Horsely v. State, Case No. SC13-1938, Pariente and the Court double-downed on Falcon.  Eschewing the state's theory of statutory revival of the prior statute of life with parole after 25 years, the Court ordered that Chapter 2014-220 Laws of Florida, passed by the legislature in response to Miller, also has to be applied retroactively.

Henry v. State, Case No. SC12-578, the juvenile defendant was sentenced to 90 years for multiple non-homicide offenses.  The Court recognized that juveniles are a "special class of offenders" that require a mechanism for evaluating for demonstrable maturity and reform in the future because any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.  Resultantly, Mr. Henry's sentence violate GrahamMiller, and the 8th Amendment.   Thus Henry was entitled to a full sentencing hearing and sentence in accord with Graham and Miller. The author of Henry, was Justice Perry.

Lastly, Gardine v. Florida, Case No. SC12-1223, also written by Justice Perry, applied this retroactivity to a trial court's attempt to circumvent Graham, a juvenile defendant charged with, and convicted of, Armed Robbery and Attempted 1st Degree Murder (the trial court interpreted Attempted 1st Degree Murder as a "homicide offense") and was given a 70 year sentence in a clear and unequivocal challenge to Graham's prohibition against life sentences.  The Court first called out the trial judge by applying prior decisions that Attempted 1st Degree Murder is not a homicide offense since no one died.  The Court then reversed the sentence because the sentence did not give the Defendant a "meaningful opportunity at release".

Henry relied upon Horsely.  Gardine relied upon Henry.

The appropriate remedy is for all effected juveniles to seek relief under Rule 3.850.  The remedy is to include a full sentencing hearing before the trial court, and to be sentenced in accord with decisions handed down with Falcon.  You can be sure that this means a lot of work for our judges, many of whom are not guilty of imposing these illegal sentences, but are now charged with applying the remedy.  To be sure, some will try hard to avoid the tough calls that need be made, and our DCA's will be busy correcting those attempts, but in the end they will get it right.

These are significant victories for the offices of the Public Defenders who fought so hard and valiantly to gain hope and justice for these, and all juveniles, in our prison system, who have been sentenced to life or  long terms of incarceration tantamount to life terms.  Maybe the idea of warehousing another whole generation of youthful offenders, a large majority of which are of color, has ended, and the ideal of rehabilitation may yet see a revival.