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

Wednesday, January 20, 2021

BIDEN ADMINISTRATION WHAT IS IN WHAT IS OUT

UPDATE: We are live tweeting the inauguration of the 46th President of the United States @justicebuilding

First, some trivia. Inauguration day starts a string of palindromic dates that will end with 1-29-21.  However, the next January 20 inauguration day that will be palindromic will be in one thousand years 1-20-3021. Unfortunately most of you will not be around to read our post on that day. And prediction wise, we make this prognostication- the election and inauguration  of the semi-human, semi-robot- Ivanka Clinton-Bush. And the slogan? Make the United States of Apple-Tesla Great Again. MUSATGA! 

IN Science, Dr. Fauci, Masks, Global Warming. Paris Climate Accords. 

OUT: Fossil fuels, fake news. America First idiocy on global warming. 

IN : CNN AND MSNBC.

OUT: Fox news. 

IN: The Oval Office.

OUT: Being fired via Twitter. 

IN: THE DOJ, An independent AG, The Cole Memo, Cannabis. 

OUT: Indicting defendants for the highest possible crimes. 

IN: Criminal Justice Reform.

OUT: Pardons. 

IN: NATO, Germany,  England, France,  China,  Mexico,  Muslim Countries, Immigration,  Dreamers.

OUT: The Wall.

IN: Rescue Cats and Dogs.

OUT: Diet Coke in the Oval Office.

IN: Pelotons.

OUT: Sloth, Golf.

IN: LGBT (Dr. Rachel Levine is the first transgender person to hold a senate confirmed office- Assistant Health Secretary).

OUT: Old white men (except that the President is the oldest white male to hold the office).

IN: Professional Diplomacy.

OUT: Lunacy.

IN:  Trains (although the Secret Service put the kibosh on Biden taking Amtrak to DC). 

OUT: Complaints about not being treated fairly. 

IN: Daily White House Press Conferences.

OUT: Nasty White House staff who think their poop doesn't smell. 

IN: Economic Stimulus and Higher Taxes and Republicans suddenly discovering the deficit again.

OUT: Tax reform for the rich.

IN: America. 

OUT: This 1,461 day nightmare. Call it the end of an Error. 

TRIVIA: President Biden shares a name with an (in)famous Miami Judge. Name the name and the Judge. 

POP QUIZ:

Which did NOT occur in the last 1,461 days?

A) The President tried to buy Greenland using Puerto Rico as payment;

B) The President canceled a trip to Denmark when it refused to sell Greenland to the US;

C) The President suggested ingesting bleach to combat Covid19;

D) The President led a Boy Scout Jamboree in a chant of "Lock her up" aimed at Hillary Clinton;

E) The President used a sharpie to alter a map after incorrectly stating that a hurricane was about to hit Alabama;

F) The President wondered why nuclear weapons could not be used to break-up hurricanes;

G) The President sent real troops to the Texas-Mexican border to defend against an imagined invasion of a caravan of illegal immigrants set to invade the US to disrupt the 2018 mid-term elections;

H) Mexico did not pay for a border wall;

I)  The President called white-supremacists in Charlottesville, North Carolina, "decent people". 

J) The President won the states of Georgia, Pennsylvania, Arizona, and Nevada? 

K)  All of the above occurred. It has been a looooooong four years. 

Tuesday, January 19, 2021

REMAIN CALM

Wednesday is the inauguration of Joseph Biden. It will not be Donald Trump. Thus, there are rumblings of civil unrest. It is mostly untrue despite an unexplained stoppage of ATT cell phone service last week for an hour or so. But although there is nothing to worry about on Wednesday- repeat- nothing to worry about, the Judges have received a gentle suggestion to end their work for the day Wednesday morning. 

Are you kidding us? There are no trials. So without this encouragement to -Gerry Klein like- (a rapidly becoming obscure REGJB reference) to knock off by noon- criminal court judges would be labouring doing the people's business until 5 pm. Really? What are they otherwise doing in the afternoon in the REGJB? Counting those lighted squares behind  the bench in the older, larger courtrooms? 

Here is the email from the Chief Judge of the REGJB (and soon to be chief of more? Perhaps, but that is a post for another day), and again, there is nothing to worry about. 

Good afternoon, All.  I hope that this email finds you all healthy & well.
As you know, Wednesday, January 20th is inauguration day.  Notwithstanding concerns about violent protests around the country, there are currently no concerns related to Miami or the REG.  We are in regular contact with MDPD and DHS and they will alert us if they anticipate any issues.

To the extent possible, please try and have your calendars completed in the AM.  Just to be safe it would be ideal to have all court calendars completed as soon as the PM bond hearings are done.  Again – there is currently not even the hint of a threat for us, but better to be safe.  

Please contact me if you have any questions or concerns. 

Remain calm. All is well. 


PODEN US

 PODS have been explained. They caused us confusion a few posts ago when we posted the zoom numbers for Judges. Judges also have Pods. We could not understand why. Then  a long time reader filled us in. It is really poddenly simple, poden the pun. 

Pods are for in custody defendants. Apparently the jails only have so many zoom outlets and therefore to close out a case with an in-custody defendant a Judge needs to use a Pod. 

Pod explained. They could have called it "in custody zoom hearings" but the self explanatory nature of the nomenclature (say that five times fast) is too simple for use. 


At 45 seconds: "They're like huge sea pods" 

Invasion of the Body Snatchers. 1956. 


Monday, January 18, 2021

IN PRAISE OF TRUMP'S PARDONS

 The media is up in arms. Liberals are seething (the last days pardons of Bill Clinton a distant memory). "Pay for play" is all the rage in being criticized. The ability of rich and wealthy people who can buy influence is being decried. So be it. 

But as a reader of this humble blog, you know you expect us to look deeper. And so we shall. 

As a young lad of a lawyer in the 1970s it was not uncommon to see a woman in a courtroom. Her eyes blackened. Perhaps her jaw or nose broken. The case would be called. The defense attorney would inform the judge the victim was married to the defendant, and the case would be dismissed. Then the pendulum swung the other way. Federal funding for domestic violence caused prosecutors to form specialized units. Judges were trained. And as the pendulum swung we now have situations where it is easier to post bond for a client stopped with a kilo of cocaine than it is for a defendant charged with throwing a marshmallow in anger at their domestic partner. 

The same is true for white collar crime. In the past, as people of color were locked up for violent street crimes, white collar crimes were pooh-poohed. No one was hurt. The defendant was not a danger to others. Probation was sufficient. Then the odious sentencing guidelines took hold. The amount of loss drove a prison sentence. And loss was defined as either actual or intended. Medical fraud cases where the defendant billed ten million dollars and received ten thousand dollars were treated as a loss of ten million. Now we see white collar crime sentences where the guidelines are more severe then a terrorist act or sexual assault. Fifty year old business owners are the new recipients of the "lock em up and throw away the key" philosophy.  Appeals are routinely denied in circuits (other than the Ninth) where the term "reversed and remanded for discharge" is as archaic as the term "your obt' svt". 

So defendants and families are desperate. A court system that is uncaring and rigged against a defendant. A gulag of prisons swallowing up white collars fraud cases and spitting out broken old men. Enter President Trump. The DOJs Office of Pardons and Commutations is broken. There is a 15,000 plus back log. Prosecutors are making recommendations about whether defendants should have their sentence commuted or pardoned.  President Trump did not care about convention or prior practice. He was available to right a wrong. 

Right here in the SDFLA, about 18 months ago  a man who was the father of five children, whose wife was dying of cancer, and was slammed with a twenty year trial tax was sentenced to 20 years for an analogue marijuana drug case. His sentence was rightfully commuted after two. 

Is the ability to buy influence for a personal issue odious and wrong? Sure it is. But it happens every day with every administration. That is not the story here. The story is about a broken court system that imposes trial taxes, that is uncaring and driven by a broken and outdated sentencing guidelines system. 

Item: The sophisticated means enhancement of two points was created at a time when computers and cell phones were still novelties in our society.  The enhancement is routinely applied in almost every case (so we hear- we don't proceed to sentencings often for reasons you fully understand). One judge recently commented that imposing a sophisticated means enhancement these days was like fining someone for speeding, and then doubling the fine for speeding while using a car. 

The story here is not desperate and wealthy people trying to get a pardon or commutation. The deeper story is why? The answer is that because the system is broken. It sends people to prison because that is what it knows how to do. That their money and take their liberty and tell them "don't do it again" when you get out in wheelchair -if you get out at all. 

If Joe Biden wants to do things different than Trump then he should start by doing what Trump started- criminal justice reform. The First Step Act was a good first step. But more is needed. The Guidelines need to be fixed. Just like the crack/power dispute created disparate sentences during the war on drugs, the "intended loss" language of 2B1.1 of the sentencing guidelines needs to be repaired because it is broken and it is allowing prosecutors to seek multiple decade sentences where there was no loss. 

How about the fact that there is no expungement of a federal conviction? People with federal marijuana convictions from the 1970s still cannot get good jobs or loans. A federal conviction is like a nasty case of herpes- or that "1-800-cars for kids" song- it never goes away. A pardon is the only way a person get out from under a mistake made 20, 30, 40 years ago. The system, for many reasons, is broken. 

So while we are no fan of the current President,  we hope he empties the federal prisons. Pardon hundreds of people serving long minimum mandatory sentences who were drug mules like Alice Johnson  who he pardoned at the beginning of his term. Pardon all white collar fraud cases with sentences over ten years where there was no real loss and no victim suffered (so not Madoff). Pardon or commute em all we say. 

 Make the criminal justice system great again. MTCJSGA just doesn't roll off the tongue. 



Sunday, January 17, 2021

NFL DIVISIONAL PLAYOFFS 2021

 We keep getting thrown off and miss the Saturday playoff games because of our Saturday activities. Yesterday we hiked for about 24 kilometers and did not see a soul. It was a good day. Is there anything better than a peanut butter and jelly sandwich and thermos of coffee when on a long, cold hike? BTW, the Apple watch is a must have for hikers. You can time your trek out, which allows you to know how far and long the hike back is. The compass app also helps. 

Browns at Chiefs. Whos doesn't love these upstart Browns? They are too young to know they should be afraid. And as we have continually said, a pounding running game is a valuable weapon come January. With a small lead in the fourth quarter, a quality back can seal the win. Alas, the Browns won't be within shouting distance of KC when there is fifteen minutes left in the game. KC-50 or whatever the line is. Give the points. 

Bradys at Saints. While we think old Drew Brees will beat Old Tom Cheater by more than three (which is the line and our pick). However poetry and what awaits next week, on the frozen tundra of Green Bay Wisconsin and another old QB playing in his first home NFC championship game makes the future for either QB and their team not pretty. One can imagine carpetbagger/cheater Brady thinking this: "I know that I shall meet my fate, somewhere among the field with snow from above. Those I fight I do not hate, those I play for I do not love."  Which of course are lines from one of our favourite poems by William Butler Yeats- An Irish Airman Foresees his Death:


I know that I shall meet my fate
Somewhere among the clouds above;
Those that I fight I do not hate,
Those that I guard I do not love;
My country is Kiltartan Cross,
My countrymen Kiltartan’s poor,
No likely end could bring them loss
Or leave them happier than before.
Nor law, nor duty bade me fight,
Nor public men, nor cheering crowds,
A lonely impulse of delight
Drove to this tumult in the clouds;
I balanced all, brought all to mind,
The years to come seemed waste of breath,
A waste of breath the years behind
In balance with this life, this death.


Saturday, January 16, 2021

REGJB CRIMINAL COURT ASSIGNMENTS 2021

 Here is your new and updated 2021 judicial assignments for our beloved, yet empty, REGJB. This chart has the all important Zoom numbers, without which, you cannot appear and function as an advocate. You used to need your REGJB Id before starting the day so you could skip the line and be admitted to the courthouse. Now you need your Zoom numbers. Life marches on. 

2021 Felony Division Zoom Directory PDF by HR on Scribd

  

We also have a "POD" schedule. Now, as readers of this blog know, we are a polymath. If you want to know why Eisenhower chose North Africa as the first place to start America's involvement in WWII, we can speak on the subject for hours, and give you detailed reasons for the failed battle at the Kasserine Pass. If you want to know why NASA chose lunar orbit rendezvous as the strategy to land on the Moon, we can delve into the details, and update you on Buzz Aldrin's doctoral paper at MIT on orbital mechanics. The plots of Shakespeare tragedies roll off our tongue almost unconsciously, and we can quote Romeo and Juliet from nearly beginning to end. If the origins of the universe intrigue you, cosmology is our hobby. Should you wish to debate the merits (there are none) of the designated hitter rule in baseball, pull up a chair and pop open a can of your favourite micro brew and lets begin. Longtime and careful readers of the blog know this about your humble blogger. 

However, when stymied, we fully admit the limits of our (vast) knowledge. We do not understand the appeal of Instagram, or Keeping up with the Kardashians, or how to snapchat. We can find the leakage in a stock's options pricing and sometimes exploit that for personal gain, but we do not understand much about television streaming services. 

Which brings us to this: PODS. We also present to you a POD schedule. However we are admittedly confused about the need and use of said POD. Do not Judges have Zoom in their courtroom? Then why a POD? What exactly is a POD? Has the REGJB been reconfigured? Are there White-House like situation rooms now sprinkled throughout the building? Is special attire required when entering a POD? If we have a case set for court, how do we know whether to use the Zoom ID or somehow gain access to a POD? The micro-seconds after the big bang can be explained with mathematics within our grasp. The expansion of energy was a once-in-a-universe's-lifetime-event. We know why the universe did not expand evenly and we (sadly) understand why it will continue to slowly expand until our sky is a dark vast void. But we do not understand PODs. 

Here is the POD document. Do with it what you wish. 


Pod Schedule 2021 by HR on Scribd

Friday, January 15, 2021

JURY TRIALS SUSPENDED UNTIL MARCH 1

 There is not much more to say.  

CJ Soto suspended jury trials in Miami-Dade County state court until March 1, 2021. 

Stay safe. Wear masks. Practice social distancing. Don't raid the Capitol. Things like that. Common sense. 


Thursday, January 14, 2021

JUDGE WILKIE D FERGUSON, Jr.

 There is a remarkable concurrence that was written by Judge Logue in this case published this week in the Third District Court of Appeals. 

The issue for the court, sitting en banc, happens to be one we have a hobbyist interest in: the legal interpretation of section in 11 U.S.C.  362(a)(1) of the United States Bankruptcy Code and whether the automatic stay provision in inapplicable where the debtor has filed for federal bankruptcy protection.  As we have long said, it is past time for the oft and long criticized opinion in  Shop in the Grove, Ltd. v. Union Federal Savings & Loan Ass’n of Miami, 425 So. 2d 1138 (Fla. 3d DCA 1982), to be discarded to the ash heap of wrongly decided cases. And while the en banc opinion finally, and admirably did just that, Judge Logue wrote about the Judge who was forty years ahead of his time. It is a wonderful concurrence and deserves to be posted here in full. And so we shall. 

LOGUE, J. (concurring). I concur in the majority opinion receding from Shop in the Grove, Ltd. v. Union Fed. Sav. & Loan Ass’n of Miami, 425 So. 2d 1138 (Fla. 3d DCA 1982). I write only to point out that we are adopting almost word-for-word the legal interpretation of section 362(a)(1) of the United States Bankruptcy Code put forward some forty years ago by Judge Wilkie D. Ferguson, Jr. of our Court in his dissent. Shop in the Grove concerned the issue of whether an appeal by a debtor of an adverse judgment qualified as a “continuation . . . of a judicial . . . proceeding against the debtor” under the Bankruptcy Code and therefore automatically stayed. The majority in Shop in the Grove held it was not. Judge Ferguson dissented, writing: . . . The requirement imposed upon an appellant-debtor by the majority to “fish or cut bait” translates into a Hobson’s choice between waiver of bankruptcy for the purpose of an appeal from the adverse judgment or conceding the contested debt in order to seek relief in the bankruptcy court. I am aware of no rule of bankruptcy law or federal procedure that would require such an election. In my opinion the appeal by the appellant-debtor from a judgment against it is a continuation of the judicial proceeding against debtor, clearly within the purview of the Act’s automatic stay provision. Id. at 1140 (Ferguson, J. dissenting). When Judge Ferguson issued his dissent in 1982, the “new” form of the Bankruptcy Code was only four years old. Over the ensuing decades, as the majority points out, every state and federal court that considered the issue reached the interpretation first put forward by Judge Ferguson. The judgment of this soft spoken, scholarly, and insightful jurist has stood the test of time on this highly technical issue of commercial law, as it has in so many matters reaching to civil rights and constitutional law.

Although known for his gracious good will and punctilious courtesy, Judge Ferguson did not hesitate to chide lawyers and even colleagues for indulging in cant or legal obscurities.  

[Rumpole notes we will not again make such a mistake when referring to Due Process]:  See, e.g., Cramer, 33 F. Supp. 2d at 1352, n.4 (“In discussing the notice issue the parties have used the term ‘procedural due process’ which I shun because it is, as one commentator observed, redundant. John Hart Ely, Democracy and Distrust 18 (1980). The word following ‘Due’ in the Fourteenth Amendment is ‘Process’ the writer notes, which is the same as procedure. Process is defined as a ‘normal course of procedure.’ Black’s Law Dictionary 1205 (6th Ed. 1992). By the same token, he continues, ‘substantive due process’ is a contradiction in terms. A right in the constitutional sense, generally, is either substantive or procedural. Writers who use substantive or procedural to describe due process appear trapped and the work product may lack clarity. There is no doubt that this discourse on advance notice and opportunity to be heard is about procedural fairness. Saying it twice is unnecessary.”).

Judge Ferguson was born in 1938 to Bahamian immigrants and was raised in Miami’s Liberty Square public housing project. He joined the U.S. Army and rose to the rank of captain. He obtained his B.A. from Florida A&M University and his J.D. from Howard University School of Law. He served on this Court from 1980 to 1993 until he was appointed to the federal district court for the Southern District of Florida where he served with distinction until shortly before his death in 2003. The Congress of the United States named the federal courthouse in Miami in his honor. As this case comes full circle, and we adopt the position first advocated by Judge Ferguson almost forty years ago, I think it is fit and proper to bear in mind we are following in the footsteps of this distinguished, past member of our conference.

Well said Judge Logue. And thank you.