ENJOY YOUR HOLIDAY WEEKEND

We certainly are.

WITHER JUSTICE KENNEDY?

Last year the Supreme Court issued 68 written opinions, 24 decided 5-4, with Justice Kennedy in the majority of all of them. Indeed Kennedy was in the majority of all but two of the opinions issued last year. Quite a batting average.

This year, with 35 written opinions issued so far, there has been one decided 5-4.

While Kennedy has been as dominant as ever, his swing vote on the 5-4 decisions has not been needed.

The NY Times has the article
HERE

The article also has these startling criticisms of the court and the Chief Justice by none other than Conservative Hero (the Times calls him an "Icon") Judge Richard Posner:

"Judge Richard A. Posner, the conservative icon who sits on the federal appeals court in Chicago, offers some pointed and unusually personal criticism of Chief Justice Roberts in his new book, “How Judges Think,” published this year by Harvard University Press. The chief justice’s self-description during his confirmation hearing as a simple baseball umpire might have been a “tactical error” for one who evidently “aspires to remake significant areas of constitutional law,” Judge Posner writes, adding:
“The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”

Stern words indeed.

Meanwhile, ASA David Ranck has some new emails posted on his blog HERE.
In all honesty we couldn't exactly follow the import of the posted documents, but then, we've been known to get an early start on a long weekend before.

So enjoy another Memorial Day long weekend.
And then comes the Tuesday disaster after the long weekend. How well have our chief judges prepared this time? The proof as they say, is in the length of the lines on Tuesday.

See You Tuesday, tanned, rested and ready for another trial.

YOU ASKED FOR IT

Readers have been emailing us and writing comments asking about Judge Dava Tunis, her decision as a Florida Bar Referee in a disciplinary proceeding, and the State Attorney's Office's recent close out memo on the Loyalty Oath fiascoes.

Courtesy of the Daily Business Review, here is the link to the close out memo:
MEMO

Apparently Judges Orlando Prescott, Linda Singer-Stein and Dava Tunis have signatures on their loyalty oaths ("are you now or have you ever been Rumpole?") that were forged.

As the close out memo states, there was no criminal motive for the Judges to execute forged loyalty oaths (other than them being Rumpole), and while it appears that the notary for all three oaths was the same employee in the Court's large bureaucracy, no criminal charges are being brought because of the statute of limitations.

As to Judge Tunis's findings in some obscure Bar disciplinary proceeding, do you really care? Some lawyer did a bunch of stuff he shouldn't have done...blah blah blah...there will be some form of punishment, and life in our humble little courthouse will go on. In the scheme of things, aren't the Marlins and their surprising success this season much more interesting and relevant?

See you in court, where we don't read the reports of bar disciplinary proceedings, but we do peruse the box scores.

PS. If such things interest you and you really have nothing better to do, the sentencing phase of the disciplinary proceeding is on Wednesday June 4, 2008, courtroom 6-3 at 2:00 PM. Tickets on sale at your local Ticketmaster.

A STRANGER IN A STRANGE LAND

UPDATED BELOW!

And Moses was content to dwell with the man : and he gave Moses Zipporah his daughter.And she bare him a son, and he called his name Gershom: for he said, "I have been a stranger in a strange land."
-- Exodus 2: 21-22


We recently received an email from a prominent federal defense attorney who noted his/her travails on a recent Monday morning outing to our humble building.

There was no place to park and after a half an hour of circling they parked in the median on a grass strip several blocks away.

They got to the courtroom only to be told the prosecutor they had a meeting with had decided not to show up for work that day.

A quick trip to the restroom (a clear rookie mistake) produced a few untimely steps in human liquid waste that was on the floor.

And finally, beaten down by the heat, the lines, the smelly and dirty bathrooms not to mention the ridiculous belief that the prosecutor who agreed to meet them in court had any intention of actually showing up, they trudged back to their car, tie askew, bathed in sweat, actually longing for Judge Dimeitrouleas’s rocket docket, or for a quick arraignment and trial before Judge Huck, or a nice friendly sentencing before Judge Zlock.

Query: The door swings both ways on this. State practitioners will occasionally latch onto a federal matter and walk out of court bewildered by the lack of discovery and astounded by pre-sentence reports (ghost written by federal prosecutors, for federal prosecutors, thus ensuring that federal prosecutors will not perish from this earth-or something like that) and confused by a maze of rules and statute numbers (“discovery shall not be provided until the appellate decision is final”), not to mention appellate decisions written by Bush appointees, all designed to ensure that the defendant has a speedy and fair trial, followed by a sentencing usually within a week of arrest.

Have we reached a time of specialization when practitioners of criminal law are better off staying in their own respective ponds?

See you in court, where after all this time in the REGJB, if you haven't latched on to a sympathetic judge who will let you use their bathroom, or figured out the "jury room bathroom trick", then all the knowledge in the world of case law will not save you from yourself.

UPDATE:
How many people does it take to get a man out of a tree?
The Herald has the answer
HERE

The real question is how many civil lawyers will it take to sort out the mess now?

I CAN'T HELP MYSELF

Wasting money on elevators is really bugging me.
My obsession has now spread beyond our own humble building.

ELEVATORS

I obviously need help. Plus, nothing else is going on. But fear not, our collection of robed readers in situ loci and North Of The Border are sure to help out shortly.

PARTY LAST NIGHT?

The Florida Association of Criminal Defense Lawyers - Miami Chapter was founded in 1963 and in 2008 celebrates 45 years as one of the largest voluntary bar associations located in Miami Dade County. This year's Annual Installation & Awards Banquet takes place on Saturday, May 17, 2008 at 6:00 PM at the JW Marriott on Brickell Avenue in Miami. The event is a sellout and 400 lawyers, judges and guests will be attending. To date, we have 65 confirmed judges including one Florida Supreme Court Justice, 6 Federal Court judges, 2 3rd DCA judges, 37 Circuit Court Judges and 19 County Court judges. This year, Bail Bonds.Com and Transitions Recovery Program, have graciously offered to be our two signature underwriters. The evening includes an open bar cocktail hour with hot and cold hor'dourves beginning at 6:00 PM.

The dinner begins at 7:00.

During the evening, the new officers elected for 2008-2009 will be sworn in including President Rick Freedman of the Law Firm of Gordon & Doner. Also, Vice-president Hector Flores (a Federal Assistant Public Defender), Treasurer Sabrina Puglisi (a Federal Assistant Public Defender) and Secretary Robin Kaplan (an associate with David Oscar Marcus, PA).

The highlight of the evening will be the awarding of our three most distinguished honors: The Honorable Gerald Kogan Judicial Distinction Award to County Judge Steve Leifman, The Rodney Thaxton "Against All Odds" Award to The Padilla Trial Team and The Daniel Pearson-Harry Prebish Founders Award to Benedict Kuehne.

Below is additional information about the Awards:
The Honorable Gerald Kogan Judicial Distinction Award: This award is given in recognition of an extraordinary career contribution and dedicated service to the improvement of the criminal justice system and for the preservation of constitutional rights. This year's award will be presented to the Honorable Steven Leifman.

The Rodney Thaxton “Against All Odds” Award”: Named after the late and gentle Rodney Thaxton, this award is given, when appropriate, to a criminal defense lawyer who, having taken on a particularly difficult or unpopular client or cause, represents the heart and spirit of criminal defense, and who epitomizes the courage of the criminal defense lawyer to stand apart (and often alone) as Liberty's Last Champion. This year's award will be given to the team of defense lawyers in USA v. Jose Padilla, et al. Jeanne Baker, Michael Caruso, Orlando do Campo, Marshall Dore Louis, Anthony Natale, Marjorie Russell, Kenneth M. Swartz, William W. Swor.

The Daniel S. Pearson-Harry W. Prebish Founder's Award: This award is given in recognition of a lifetime commitment to preserve the constitutional rights of all citizens and for manifesting the very best principles for which FACDL-Miami stands – an openhearted devotion to justice, civility, discretion, courage, respect for human dignity and mercy. This year's award will be presented to Benedict Kuehne.

NEW COUNTY COURT JUDGE AND TRISCADECAPHOBIA

DOUBLE BREAKING BLOG NEWS: Guilty of first degree murder verdicts in the Merrick Park murder case tried these past few weeks before Judge Reemberto Diaz. Grim faced defense attorneys vowed to appeal.

A reader posted this BREAKING BLOG NEWS:


Move over, Capitan:Breaking Blog News....Rodney Smith has just been appointed as a County Court judge. Good luck to everyone.


TRISCADECAPHOBIA

We were poking around the new Federal Courthouse the other day, seeing just how far we could get until the Marshals asked us to leave, and we actually got to the top floor, which just happens to be the thirteenth floor. Further investigation revealed that Chief Judge Federico Moreno, complete with the circa 1987 Justice Building wooden sign that he was first given to put outside his courtroom when appointed as a county court judge, was there with the old sign hanging outside his new courtroom.

The rumor was Judge Paul "Take all the time you need to get ready" Huck was going to start his calendars in the new building on the thirteenth floor today.

Query: Just how many clients are going to be happy having trials on the thirteenth floor of the courthouse?

Of course the real luck , as longtime and careful readers of this blog know, is in hiring the right lawyer, as opposed to the lawyer the client's bondsman tells him/her to hire (if you look in the mirror and the previous sentence applies to you counselor: for shame for shame).

In any event, it seemed a bit warm in the building, and the elevators were not nearly as nice as the refurbished ones we have in our humble Justice Building.
How many years late is this courthouse in opening? And they still have A/C and mold problems? And they tempted fate by making it thirteen floors? As Judge Moreno once told one of our clients: "Be careful what you ask for in life, because you may get it."

See You In Court, NOT on the 13th floor (not that it really matters to us. A "not guilty" is a "not guilty" wherever it comes.)

SY AND WHEAT

(Scott Saul posted a legal question so interesting that we are posting it below this post. Scroll down, and read Scott's question, and confine your comments under that post to possible answers.)

We received this email:

Rumpole, I do not know if you were at ceremony for the dedication of Sy's memorial. Stan Blake was his usual ebullient self. He pulled out a bag containing dozens of black books from all his years in private practice, saying he learned to keep track of his cases from Sy just the way Sy did.

Barry Wax, representing FACDL Miami mentioned you; apparently you have been on his case to get the memorial done. Barry was also the driving force behind getting the picture framed along with Sy's famous Black Book and some nice words by Milt Hersch.

Sy's son spoke, and so did David Markus, who noted he shared and office with Sy for more than 20 years, and that was longer than many marriages these days. Also in attendance was Sy's long time secretary Ibis (spelling?). Both David and Ibis seemed near tears.

As I mentioned, there are some wonderful words by Milt Hirsch, memorializing Sy, hands outstretched, pleading his defense on behalf of his client. Milt's written words and David's small speech both refer to the fact that Sy was the lawyer of the people. He gave people pride in the fact that they hired someone who would be going to court fighting just for them.

Sy worked in our building for over 45 years. He started his criminal defense practice sometime around 1962!! When you think of all the giants who have worked in our building: From Judges like Ed Cowart to lawyers like Ed Carhart, the fact that Sy and only Sy has earned a special memorial and a place in our hearts and memories is something special.

I'm glad the memorial of Sy is up, and I know, as Stan and Barry mentioned, that when I'm having a tough day, I can always walk by and take a look at Sy's picture, and smile, and that will help get me through the day.

Rumpole says: Well said.

WHEAT:

There has been some discussion on the order signed by the Judge, linked in yesterday's post, ordering an attorney to take a case he did not want to handle.

We have many thoughts on the subject, but for now we will say this:
There is nothing surprising in the Judge's order. It is just the chickens coming home to roost. We live in a society whose laws are built around altruistic collectivist ethics. You are not entitled to the fruit of your labours when measured against the need of the collective good. Don't believe us? We leave you with these two items:

1) The Florida Bar Oath, states in part:

"I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice. So help me God."


2) The decision in Wickard v. Filburn 317 U.S. 111 (1942);
The Wikipedia explanation is HERE

What the case holds is that Congress, through the Commerce Clause has the power to stop a farmer from eating the wheat he had grown. And if the Government can do that, what makes us think the Judicial Branch of Government doesn't have the power to force a lawyer to take a case?

From the Supreme Court decision:
Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most "indirect." ...

The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution,taken together with that of many others similarly situated, is far from trivial...
It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.

Rumpole explains the philosophy behind the last paragraph that is highlighted:

Some people produce things that other people need. The needs of those that need it outweigh the rights of those that produce it. Need is the standard. Congress has the power to decide who needs what. And when Congress decides someone needs something, the person who produces it must give it to the person who needs it.

In Florida, a Judge has decided someone needs representation. That person's needs outweigh the rights of the Lawyer to his or her own work. The Lawyer must subject their own personal welfare to the needs of the collective. To the greater good. The lawyer must take the case. This is called altruist collectivist ethics. And as a side note, we mention that just about every proclamation in Nazi Germany was justified on need, and for the public good.

When you see someone championing the rights of the needy, and demanding the sacrifice of someone's skill, talent, or money, you can be sure of two things: 1) The person making the demand is not the person with the skill or talent; 2) The person making the demand usually has their own self interest in obtaining power (elected office) or expanding their power. More people need than produce, so the people expand the power of those that give them what the producers make. Vox Populi.

See You In Court with our well worn copy of
AtlasShrugged

SPEEDY TRIAL CONUNDRUM

Scott Saul said...
WHO KNOWS THEIR SPEEDY TRIAL ISSUES HERE?
The scene is Broward!
I have a client that was arrested, and had charges filed, for a felony and corresponding misdemeanor.Without ever taking a continuance and 170 days into the case, the State nolle prossed the felony. Because the client did not want to close the misdemeanor, the State had the Judge transfer the misdemeanor to county court. It took the Clerk's Office 3 days to create a county court case number.The day after the nolle prosse, but before the creation of the county court case number, I filed a NOE. I put the citation number on the pleading. The County Clerk's Office refused to take it and mandated that it be filed in circuit court (which was the still existing case number).

After 15 days passed, I filed a motion for discharge and set the motion.The Broward Judge denied the motion and struck my NOE. Her reasons were because;1) She felt that I should have requested a supervisor in County Court and forced them to take the pleading at that level;2) She felt that it was underhanded to file the NOE before a county case number was created and
3) There exists an "administrative order" where all lawyers must cc the Judge on the filing of a NOE. You must give them a courtesy copy.This order is not posted anywhere but I did not comply with it.(Can an administrative order expand, clarify or distinguish an enacted Rule of Criminal procedure?)

I feel that her reasons are no good. However, my concern is 3.191 (f). Under that rule, if a misdemeanor is consolidated with a felony, the applicable speedy trial time is the felony one.
Sounds logical!

In my case, if the felony is nolle prossed leaving just the misdemeanor, does the speedy trial time revert to 90 days or does the misdemeanor enjoy the 175 day period since it started out in a felony information? Did my filing of the NOE before the 175 days make it a nullity under 3.191( f)? Does a misdemeanor always get felony speedy trial treatment if it's point of origin is in Circuit Court? I want to take a writ on the Judge's ruling yet not if 3.191(f) makes her (seemingly) erroneous ruling immaterial.
Instead of bashing lawyers and spreading gossip, this is what the blog should be for? What do y'all think?