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Friday, April 24, 2015

NEW COURTHOUSE OPENS

Sitting in the shadows of Miami's dilapidated civil courthouse, the new Gelber-Gladstone Children's courthouse  opened on Friday, with a bevy of local politicians and former Governor Bob Graham in attendance. 


Gelber-Gladstone courthouse
The Herald article is here. 

The new courthouse replaces perhaps the worst courthouse facility in the United States: the juvenile facility off of 27th avenue. 

But one wonders what chief Judge Soto must have thought, when glancing at the civil courthouse just a few blocks away, standing in asbestos-ladden, mold-ridden splendor. With vultures appropriately circling the higher floors, the civil courthouse is demode, and  stands as a constant, mocking and derisive reminder to Soto's failure last year to obtain funding for a new courthouse. The civil courthouse is her Israeli-Palestine conflict- an inscrutable  problem seemingly incapable of a solution. 

We wish those who will use the new children's courthouse well. We can't  count the number of juvenile cases we have handled, because the next one will be our first one.

We just have one question: will the new courthouse spawn a blog? 

Enjoy your weekend. 


Thursday, April 23, 2015

CLIENT NEEDS COUNSEL

Running the most widely read, most popular, and if we may so humbly say, most well written legal blog in South Florida, we are often approached (via e-mail) with requests from attorneys to advertise or otherwise associate themselves with this blog. We refuse all requests. 

But this client approached us for representation after a traffic stop, and county court not being our preferred milieu, we are soliciting counsel for this client. 

He is a good client, appears well mannered, mostly uses the potty, and cannot attend meetings or court between 2pm and 4pm (nap time). Shoot us an email if you can assist this young fellow.



Pursuant the recent Supreme Court case we discussed in our blog in the last post, we are reliably informed that the stop lasted only as long as was necessary to check license, registration,  sing the ABC song, and then the officer was on his way. 


Tuesday, April 21, 2015

THE RETURN OF THE 4TH AMENDMENT

In Rodriguez v. United States,  the redoubtable Ruth Bader Ginsberg, writing for an unusual  6-3 majority, held that a delay of seven to eight minutes after a traffic stop was concluded for the purposes of holding the driver until a dog could arrive to do a K-9 sniff for drugs, was an unreasonable seizure within the meaning of the fourth amendment.  Thomas, Alito (no surprise) and Kennedy! (surprise) dissented. Scalia joined his fellow opera lover RBG in the majority. 

We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. 
...
We hold that a police stop exceeding the time needed to handle thematter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. 
Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.” Ibid. See also Caballes, 543 U. S., at 407. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. See Sharpe, 470 U. S., at 686 (in determining the reasonable durationof a stop, “it [is] appropriate to examine whether the policediligently pursued [the] investigation”).
Beyond determining whether to issue a traffic ticket, anofficer’s mission includes “ordinary inquiries incident to[the traffic] stop.” Caballes, 543 U. S., at 408. Typicallysuch inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance 

A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond, 531 U. S. 32, 40–41 (2000). 
If an officer can complete traffic-basedinquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop’s] mission.” Caballes, 543 U. S., at 407. As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” thatpoint is “unlawful.” Ibid. The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as JUSTICE ALITO supposes, post, at 2–4, but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop,” supra, at 6. 

Query:  does this sentence read right: 
JUSTICE KENNEDY, dissenting. 
My join in JUSTICE THOMAS’ dissenting opinion does not extend to Part III. 

Thomas wrote this in dissent: 
Because the stop was reasonably executed, no Fourth Amendment violation occurred. The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices.

Query: Should the Supreme Court decide fourth amendment cases based on "a number of common police practices" ?
Should what the police do be a yardstick in determining reasonableness under the fourth amendment? 

Thomas seems to think so, and yet, in part II of the opinion he writes this: 
We have spurned theories that would make the Fourth Amendment “change with local law enforcement practices.”  

Thomas cites Terry v. Ohio with approval: 
This Court created an exception to that rule [requiring probable cause] in Terry v. Ohio, 392 U. S. 1 (1968), permitting “police officers who suspect criminal activity to make limitedintrusions on an individual’s personal security based onless than probable cause,” 

Query: Since a Terry Stop is a judicially created exception, reading into the constitution words for an exception that the founders never wrote nor contemplated, what in the world is Thomas, of all the justices, doing citing Terry with approval? 
Just wondering. 

Anyway, the fourth amendment struggles on, doing just a bit better today because of the Notorious RBG. 
See you in court. 


Monday, April 20, 2015

PAROLE

Is it time to reconsider parole? 

Florida, like most states, used to have a system of parole, where sentenced inmates could earn an early release with good behavior in prison. The people released early were monitored as if they were on probation. Then a series of highly publicized events in which parolees committed new violent crimes caused an uproar and legislators, never one to miss a popular cause and align themselves with the "tough on crime" crowd, did away with parole in Florida. 

It's never good to make a wide ranging change in policy based on a media-fed frenzy. 

Parole existed in Florida from 1941 until 1983, when the first version of Florida's sentencing guidelines were adopted. At the time, parole was essentially replaced with a system that institutionalized a thirty three percent reduction in a sentence, based on good behavior in prison. 

Then a series of highly publicized crimes committed by prisoners who were released "early" caused an uproar and legislators, never one to miss a popular cause and align themselves with the "tough on crime" crowd, did away with most of the sentencing guidelines and early release. 

Sense a pattern? 

But here is the question: with crime rates falling, and with decades of research proving that there are less expensive and equally effective alternatives to prison available, is it time to re-consider parole? 

There are moral reasons.  If we are truly a society based on Judeo-Christian ethics, then don't we believe in redemption?  Are people just that bad that a conviction for  sale of of a few ounces of cocaine with a prior for burglary of a vehicle at age eighteen requires twenty years in prison? There are sound scientific surveys that show that people age out of their criminal conduct in their mid-forties. But a pain-killer addict found with enough oxycontin faces a twenty-five year minimum mandatory. And make no mistake, there are simple drug addicts serving that quarter-century sentence in our state. 

In the early 1980's Florida was suffering from the simultaneous plagues  of crack cocaine and the immigration wave from Mariel, Cuba. Many of the people who arrived from Mariel (not all) were released from Catsro's prisons.  Cuba's incarceration problem became Miami's. It was a brilliant and bold stroke by Castro, but the unintended consequences were that many Floridians were caught up in the draconian response to the crack fueled  crime wave that followed. 

Today, the tragedies that make headlines are the crazy people who empty automatic weapons into classrooms at schools- but lets not get crazy and restrict a lunatic's right to purchase a semi-automatic rifle with a high capacity magazine and armor piercing bullets. 

Maybe, just maybe, we can apply the go-slow approach of gun control to incarceration. 

A good place to start would be the hundreds if not thousands of Florida's inmates serving decades for non-violent drug offenses. Drugs are the scourge of society. But for every dealer imprisoned, a new one, lured by the easy money, takes his or her place. Prison is not the answer for most drug crimes. 

Then we can look at the felony murder rule and consider parole for the hundreds if not thousands of people serving minimum mandator sentences for driving the get-away-car or, walking into the store with their friend who, unbeknownst to them, had a firearm. 

We should consider parole. It's cheaper then prison. It's effective. And it's the moral thing to do. 

"Let he who has not sinned, cast the first stone."  Somebody important once said that, right? 

See you in court. 

Friday, April 17, 2015

DID THE HERNANDEZ DEFENSE BLOW IT?

Roy Black has a new take on the "how can you represent those people" question that is the bane of the criminal defense attorney  in social situations. Check his blog here.

The final take on the Aaron Hernandez tragedy is that we find it hard to believe that a person who seemingly has it all- fame, money, a sports hero, would throw it all away and act like a common street thug.  And as the comments from the last post show, we also engage in shadenfreude , which as long time and careful readers of this blog know, means taking pleasure from the misfortune of others. 

The jurors gave interviews here  in which they said they were shocked that the defense admitted in closing argument that Hernandez was present at the murder scene. It's easy to be a Monday morning quarterback and criticize the defense for a gamble that didn't pay off. But if the prosecution was able through painstaking evidence to place Hernandez at the scene, then that might have been the only card the defense could play.  

Been there. Done that. And it's not pleasant. We don't like it when trials end up with facts that we didn't think the prosecution could prove. It's not a good sign. The best of us can adapt, but it tilts the odds even more in the favor of the prosecution. 

Who's getting the Apple watch? 
Not us. Our seiko works just fine. 

But we will be first in line for Star Wars. 
Enjoy the trailer and your weekend. 



Wednesday, April 15, 2015

HERNANDEZ GUILTY ON ALL COUNTS

The jury has spoken.  Guilty on all counts.  Life without parole.  The fall of this one-time all-pro athlete is complete.  But is this a surprise considering what was known about him as far back as his days at the University of Florida.

What kind of idiot making millions of dollars year commits one murder over nothing but an insult, and then covers it up by murdering his fiance's brother in law because he said something you don't like?  Once a gangster, always a gangster.

They are hardly done with him.  He has another murder in Massachusetts for which he must answer.  It may be time to open up an investigation as to what this evil guy may have done in Gainesville.

Tuesday, April 14, 2015

PERCY SLEDGE

Nobody seems to care about wrongful death penalty convictions, so at the risk of sounding like a Magistrate Judge Jonathan Goodman opinion, we will write about Percy Sledge and his death today at age 74.

Sledge, a Rock and Roll Hall Of Fame inductee, is primarily known for his 1966 #1  hit "When a Man Loves a Woman". 

Our favourite lyrics: 
When a man loves a woman
down deep in his soul
she can bring him such misery
if she is playing him for a fool
he's a last one to know
loving eyes can never see. 

The 60's & 70's: when music was music. 
Maybe someday we'll quote those lyrics in a DV case and make Magistrate Goodman proud. 

Not this Pitbull crap that Senator Rubio says he likes. 

See You In Court.


IMAGINE

Imagine getting stopped for speeding. Imagine a rude cop (we know, it's hard, but try). Imagine telling the officer you weren't speeding and then imagine finding yourself on the ground, in cuffs, arrested for resisting arrest with violence. 

Imagine getting your case set before one of these new "get tough on crime judges" who are trying to develop a reputation by sentencing people to maximum prison sentences who go to trial and lose. 
Imagine getting a win-at-all-cost-prosecutor assigned to your case. Imagine going to trial and the jury believing the police officer and imagine the judge sentencing you to four years in prison and telling you s/he was giving you a break and not sentencing you to the maximum because you have no priors and young children. 

Imagine being innocent and being in prison. 

Now imagine being convicted and sentenced to death and being innocent. 

This NY Times Op Ed has all the latest stats on innocent people being sentenced to death. 

152 since 1973. 

Imagine being innocent on death row and after a decade of work by under-paid-over-worked public attorneys, they get you off death row and your sentence commuted to life. They are thrilled having saved your life. You are still condemned to a living hell. 

Here's what you don't have to imagine: the current view of prosectors.

Responding to the searing honesty of Mr. Stroud’s letter, the parish’s current first assistant district attorney, Dale Cox, offered up some candor of his own: “I’m a believer that the death penalty serves society’s interest in revenge,” Mr. Cox told The Shreveport Times. “I think we need to kill more people.”

Mr. Cox, a prosecutor charged to do justice, made this comment in response to A.M. Stroud, a former prosecutor in Cox's office who made an apology to a man he wrongfully convicted and put on death row and who remained in prison for 30 wrong years. Mr. Stroud said he worked in a system that had  a "win-at-all-costs" atmosphere. 
Mr. Cox, responded to that criticism by upping the ante, as it were. He moved all in. "Kill em all, let the lord sort em out." 

Nice. 

There are at least a 152 people who don't need to imagine this scenario in the country with the world's greatest justice system.* It happened to them. 

See You In Court. 




* We don't believe that for a moment. This is sarcasm. Our system is broken almost beyond being fixable.