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. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, December 29, 2005

POETRY DELUXE

POETRY DELUXE.


The Christmas Epidemic of poetry continues:
You need to read this carefully. Its sort of a Dr. Seuss book on our little world.
Say- “The Grinch who was arrested before Christmas”; or "Green Eggs in the Dade County Jail."

(we figured almost all of the abbreviations- see the code below)


Speedies fell from the skies with glee,50 days to Christmas week!
The PDs slept with thoughts of jury pardons;
While ASAs cried about the promotions.
“I will not come…you can’t make me do it."
“But you won’t let me give the guy PTD!”
“Get a continuance, Judge X, loves us.”
“You don’t understand, 3.191 says no way.”
A poor ASA with no wits to go forward,PDs circling like waiting vultures.
What to do to save my record?I’ve never lost a case…I want to stay like Mr. Reiff (just kidding Mr. Reiff, please don’t hurt me).
So up the chain the ASA did go;
First his DC says “CYA it ain’t so!”
Then to HP for candy galore….If you have ________, better leave open the door.
Oh damm you’re the wrong body type,What about Don, he could help set things right.
Oh? DH has reprimands to deliver…Some ASAs forgot leave slips for Christmas Dinner.
KFR will surely have the answer!All I must do is mention the paper....
What’s that, she will not take my call?But why not, I donated to her campaign dole.
There are dinners to do, cocktails to drink, Wine to taste and friends to thank.
It is something the SA must do;Stay away…that camera’s for me!
But the cop refuses to come and say,Why he took the guy to jail that day.
And if he doesn’t than I must do,The KNP dance before Judge (you know who).
What’s that? I should have set it earlier?
But the AV said he would deliver.I should have called just to make sure?
What the hell is CJIS for?
Now a reprimand I must take,Due to the filing decision I did not make.
Don and Lorna, they stood side by side,To make sure the HR file hurts my pride.
And what happened our famous leaders?A pound cake, a pay raise…a personal driver.
CYA is the name in the office today;It is kind of sad for the poor ASAs.


  • HP= Howard Pohl?; DH= Don Horn? KFR= Kathy Fernandez-Rundle fer sure.

  • AV=???

We really have no comment.

By the way: your posts and emails about how boring Senseless Sentencing was, have been read.

Happy New Year.

SENSELESS SENTENCING

A critic comments on our position on sentencing:


Rump, you have taken the politically correct and expedient position on the HVO/PRRP sentencing issue. I know what I write will be heresy among my fellow criminal defense attorneys BUT the fact remains that the Judges of the 11th judicial circuit have themselves to blame for all the Career criminal sentencing laws. When I was an ASA in the mid to late 1990's the Judges in Miami did everything they could to undermine the Guidelines and the Career criminal statutes. Rump I know you remember the days when you could send Jethro or Merry a few hundred bucks and have your client whine about his drug problem and voila', you had a BARBERA deviation and a sentence of 364 SORT on a career criminal case. That all ended when the Miami Herald in one its few decent investigative pieces, exposed the sham of the SORT program in its "crime and no punishment series". The SAO through the FPAA then lobbied and passed a law outlawing drug deviations.
The next attempt by the Miami Judges to subvert the intent of the legislators on Career Criminals came when they decided that the word "Shall" really meant may and that Judges had the Freedom to not impose Minimum Mandatory sentences on HVO cases. Incredibly the Third DCA accepted their reasoning and the response was the GORT statute which proposed min-mans which were only waivable if the judges filed a written reason stating why it was not necessary for the protection of the community to impose the min-mans. Without skipping a beat Judges waived the min-mans like there was no tomorrow and now we have the PRRP statute which only allows the state to waive a Min Man.What used to disturb me as an ASA and now helps me as defense attorney is that the judges biggest concern always seems to be getting the case off their audit as opposed to what the facts and the offenders prior record is. Sometimes with a particularly ugly case or the rare case when the media is watching the Judges were more cautious. For the most part the question on a Judges mind seems to be "what is the lowest sentence I can offer this guy to make this case go away and not have the SAO appeal me?". I know this is great as a criminal defense attorney but is that really how important criminal cases should be handled?


Also Rump I know you will never admit this but the strengthening of the Career Criminal Sentencing Laws has also helped in the enormous reduction of crime that has occurred from the late 1990's until the present. Many of your younger readers may not recall but in the Mid 1990's this town was the Wild West. German Tourists were getting gunned down with a depressing regularity and robberies were close to 50 percent higher then they are now. I know you wont admit this Rump but part of this massive reduction came about because of the tougher sentencing laws.

As to the Drug Min Mans you are right on the money. They make no sense at all and the truly insidious thing about them is that the Major Drug Dealers can get waivers because they have info to give but low level mules get stuck with the min man because they can’t rat anyone out.Finally you are incorrect that Judges have no one to lobby for them. It has come to my attention that the DCA Judges are trying to get a pay increase and that A well connected lobbyist is lobbying on their behalf without compensation. Anyone else out there heard the same rumor?

Rumpole Responds: You have taken the time to write a well thought out critique and we thank you for that. In response to your points on an individual basis:

1) Guideline Drug deviations and the actions of Judges in offering pleas that under cut the Prosecution had more to do with the epidemic of over charging cases and criminal records that do not accurately reflect a person’s criminal history, then trying to clear an audit.

Lets look at a common scenario:

A defendant gets into a fight with his girlfriend and rips a chain off her neck in her apartment and gets charged with burglary with assault and robbery. He then pleads the case out to CTS and two years probation. Three years later he pleads guilty to grand theft auto at bond hearings when he is arrested in a stolen car driven by another person. One month later the Defendant gets into a fight with the same girlfriend’s brother and is charged with agg assault for waiving a stick at him or agg assault for driving his car at him, or agg battery for punching him and giving him a black eye. The State seeks enhanced penalties based on the priors. The Defendant has a drug problem.

What’s the solution? 10 years? 20. 30?

Read Judge Seals well reasoned concurrence in : Schaffer v. State, 779 So.2d 485 (Fla.App. 2 Dist. 2000) portions of which we have excerpted here. It answers most if not all of your points more eloquently than we could.


Mr. Schaeffer committed the instant offense at the age of twenty-five in the twenty-fifth month following his release from a Florida prison on December 29, 1995. Thus, Mr. Schaeffer was eligible for punishment pursuant to the PRRPA…

The events leading to this young man's incarceration for thirty years began at a Burdines Department Store…

In the young men and boys' department, they took merchandise off of hangers and hid it inside the purse. They exited the store the same way they had entered…

Mr. Schaeffer's conduct technically met the elements of an armed robbery. ..

What occurred here was nothing like the familiar, and far more dangerous, "stick up," where the perpetrator's deliberate intent from the start is to confront his victims with a deadly weapon for the sole purpose of freezing them in fear and rendering them incapable of interfering with the successful execution of the ensuing theft and getaway...

The prosecutor, however, made the choice to charge Mr. Schaeffer with the far more serious crime, the elements of which were technically and fortuitously met, rather than to bring charges that more accurately reflected the events that actually occurred. ..

The prosecutor's charging decision was lawful. Because reasonable people may disagree about the suitability of the charging decision, let that issue be debated elsewhere. It is the next decision the prosecutor made which in all truth profoundly shocked my judicial conscience. ..

Because the criteria for the PRRPA were met, the sentence could follow one of two paths: a judicial sentencing under the sentencing guidelines or an executive sentencing. The choice was in the hands of the prosecution. ..


At sentencing the defense attorney attempted to persuade the trial judge to find that "[o]ther extenuating circumstances exist[ed] which preclude[d] the just prosecution" of Mr. Schaeffer as a prison releasee reoffender.

Mr. Schaeffer's employer, his father, his wife, and a family friend testified without exception that in the year between the commission of this crime and his sentencing Mr. Schaeffer had done everything in his power to "turn his life around." He held a steady job, he purchased a home, he married his fiancee, and he became a father. His attorney argued that his prior offenses were drug-related and that Mr. Schaeffer had been an addict from a young age, but now he was doing all he could to reform his criminal behaviors. Recognizing that the facts were "technically" sufficient to convict Mr. Schaeffer for armed robbery, his attorney pointed out that the sentence he was receiving was as severe as if he had taken a gun and pointed it at the victim...


The prosecution countered that the judge did not have the discretion the defense was urging him to exercise and averred that the victim, Ms. Mumford, had requested that the prosecution seek the maximum sentencing range for the offense.

The record, however, does not tell us what "maximum sentence" she had in mind when she made this out-of-court declaration to the prosecution. Was it the maximum sentence for shoplifting and resisting a merchant? Was it the maximum sentencing guidelines sentence for armed robbery? Or was it the PRRPA sentence? Did she know that the PRRPA sentence was over four times greater than the high end of the sentencing guidelines range? Did she know that he had only been to prison once for nonviolent crimes that apparently resulted from a drug problem? Did she know what was now happening in Mr. Schaeffer's life as described at the time of sentencing by the witnesses? Did she know that the PRRPA sentence would prevent him from raising a new son? Did she know how much it would cost the State of Florida to incarcerate him for 10,958 days? Did she really believe that the retribution of a thirty-year sentence was worth the potential cost this sentence would exact upon Mr. Schaeffer's wife and baby?

Although there were plenty of extenuating circumstances in this case to outweigh even a fully informed victim recommendation for a sentence to the fullest extent of the law, the prosecution was free to ignore each and every one of them — and did.

.. The PRRPA does not require the prosecution to consider anything in the exercise of its discretion because the prosecution's decision cannot be challenged, appealed or set aside. In a time when the legislature is more and more frequently requiring trial judges to make written findings to support their discretionary decisions, all of which are reviewable for abuse, it has contemporaneously given the prosecutor, a party with an interest in the case, the absolute, unchecked power to make choices that could have a drastic effect on a person's liberty. This anomaly is quite a departure from our state's journey to a more just and fair jurisprudence.

... In one county Mr. Schaeffer could have received a short county jail sentence for shoplifting and resisting a merchant followed by probation with a requirement to repair the harm done to Ms. Mumford and Burdines.

Although the judge could exceed the guideline maximum, what judge who had been present throughout all the proceedings and heard all the facts in this record would have found adequate reasons to require the continued expenditure of tax dollars to keep this foolish but repentant new father behind prison walls beyond 88.75 months? Yet a prosecutor was given authority to quadruple that sentence. That alone is unreasonable. The fact that the authority was exercised is incredible.

The legislature was not present at Mr. Schaeffer's trial or sentencing. We do not know if the person in the prosecutor's office who elected to have him sentenced under the PRRPA was present at trial or sentencing. We do know that the judge who heard all evidence at both trial and sentencing was there. Yet his experience, his specialized training, his knowledge, and his independent judgment, which he and countless other judges use when fashioning a punishment to fairly and justly fit each individual defendant's crime and surrounding circumstances, were all pre-empted. Instead the sentencing decision was made, if not entirely at least in part, somewhere other than in the courtroom.


The result, in my opinion, is draconian. It does not sound like the sentence of an American court.

In 1798 the Congress of a young nation with vast unprotected borders and a fledgling national defense passed the Alien and Sedition Acts. Fearing disruption of this great new democratic republic from both the outside and within, Congress gave the President the extraordinary power to deport, detain, or require sureties of certain citizens of any foreign nation deemed hostile to the United States. It was the responsibility of the courts and its marshals to carry out whatever proclamation the President set forth.

These laws raised cries of protest from the states. They prompted the Virginia General Assembly to pass the Virginia Resolutions of 1798 only five months after Congress passed the Alien and Sedition Acts. Among their complaints the Resolutions pointed out that under the Alien Act Congress united legislative and judicial powers and delegated them to the executive, which, according to the Resolutions, "subverts the general principles of free government." Congress soon thereafter repealed the Alien Act.

Two hundred and two years later our legislature, under the PRRPA, has united legislative and judicial powers and delegated them to the executive — the state attorney. What is the legislature so concerned about today that it takes traditional judicial authority away from judges and gives it to prosecutors?

Rumpole mourns: This is the damage, the injustice, the draconian sentences that legislative mandated sentences create in the hands of an unwise, over-zealous, or just plain mean prosecutor.

See you in court preventing horrors like this from reoccurring.

Wednesday, December 28, 2005

POETRY UPDATE

POETRY UPDATE

A Poet writes:

one last poetry response:

ah, rumpole, again you are wrong,
for the judge murphy trial was not quite as long

a week and a half was all it took
for the jury to declare the client a crook


Rumpole Writes: It must be the holidays that sets our thoughts to rhyme and little reason. We are hoping that the lull in courthouse news, posts, rip-roaring controversies is just because people are out of town. It has gotten so slow that we are beginning to long for the days when Mr. Bobby Reiff was stirring the pot.

Hopefully the new year brings health, happiness, and some great REGJB posts.

PS: You wouldn't be an ASA that posted, would you?? We anxiously await, like the return of the Emperor Penguins, the "March Of the Prosecutors" though the glorious pages of our blog.


Anonymous, who obviously didn’t take a trip for the holidays, and is just as bored as we are, writes:

the problem is that we mistakenly bundle people together, when what we should do is categorize them. In any field there are incompetent or lazy people. The real issue is the character that these people have when entering the office.There are ASA's who come in to the office hating the defense and defendants and wonder why the podium next to them even is allowed to be staffed with a lawyer. They are on a "mission" and have no perception.Then there are PD's who believe all of their clients are getting screwed by the government and that they should not only fight their cases, but hate the ASA's personally.The best ones are the ASA's and PD's (especially the ASA's as they hold the "power of the plea offer") who understand that there is a system that we all live in and that respect for each other, FOR EACH OTHER is most important.So let's stop debating what the "problems" are in the system. If PD's or ASA's came to the office for money or appreciation, they should resign immediately. These jobs are a calling, and wonderful experience. There's nothing we can ever do about some of the jerks who accept them.


Rumpole Replies: Your complaint about characterization is what we mean when we say people paint with too broad a brush. The essence of an experienced and successful attorney is the ability to separate the work from personal feelings. Like a surgeon, the attorney needs a degree of detachment so that professional judgment as to what’s best for the client is not impaired by personal views.

Just the other day we were in court on an economic crimes type of case. We learned that the prosecution did not have many of the documents necessary to tie our client to many of the charged counts. However, we had met several times with our client, and secured a probation plea. Our client has a family with two small children to support. We explained our view of the case, and the distinct possibility of an acquittal oN most if not all of the charges at trial. However, the client had already admitted culpability to us, and sought our advice about what to do. It was the classic situation: whichever way we colored our advice, the client was sure to follow. After more talk and examination, we jointly decided that the client could not bear the risks, no matter how small, of proceeding to trial. Thus, despite our personal desire to proceed to trial, gain an acquittal, and bask in professional glory, the client agreed with the decision to settle the matter, albeit more favorably than before.

Prosecutors and PDs should (and hopefully will) learn by experience that the other side is a necessary component to our system of justice. Ideally, their zeal will become tempered by experience.

Until then, that’s what us older attorneys are for: to pound them senseless until they learn their lesson.

See You In Court Next Year.

Tuesday, December 27, 2005

12 Days of Christmas

On the twelfth day of Christmas, my true love sent to me Twelve drummers drumming, Eleven pipers piping, Ten lords a-leaping, Nine ladies dancing, Eight maids a-milking, Seven swans a-swimming, Six geese a-laying, Five golden rings, Four calling birds, Three French hens, Two turtle doves, And a partridge in a pear tree!

The following is a parody * It is not meant to be taken seriously and is considered protected speech by the US Supreme Court

For the 12 Days Of Christmas,
Judge M_____Sentenced with Glee:

12 Life Sentences
11 Crack Pipe Cases
10 ten-twenty-life cases
9 Ladies of the Evening
8 Maids who were stealing
7 Strong Armed Robberies
6 GORT sentences

5 15 year minimum mandatories….

4 technical probation violations
3 guideline enhancements
2 Grand Theft Autos

and one withhold CTS.

*HUSTLER MAGAZINE v. FALWELL, 485 U.S. 46 (1988):

“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas andopinions on matters of public interest and concern. "[T]hefreedom to speak one's mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of United States,Inc., 466 U.S. 485 , 503-504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.The First Amendment recognizes no such thing as a "false"idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).As Justice Holmes wrote, "when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." Abrams v. United States, 250 U.S. 616,630 (1919) (dissenting opinion).


“The sort of robust political debate encouraged by the FirstAmendment is bound to produce speech that is critical of those who hold public office or those public figures who are"intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas o fconcern to society at large." Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U.S. 130,164 (1967) (Warren, C. J., concurring in result). JusticeFrankfurter put it succinctly in Baumgartner v. UnitedStates, 322 U.S. 665, 673-674 (1944), when he said that"[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures." Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to "vehement,caustic, and sometimes unpleasantly sharp attacks," NewYork Times, supra, at 270. "[T]he candidate who vaunts his spotless record and sterling integrity cannot convincingly cry`Foul!' when an opponent or an industrious reporter attemptsto demonstrate the contrary." Monitor Patriot Co. v. Roy,401 U.S. 265, 274 (1971).

“Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person,literary style, etc. by exaggerating features or mannerisms for satirical effect." Webster's New Unabridged TwentiethCentury Dictionary of the English Language 275 (2d ed.1979).

"The appeal of the political cartoon or caricature isoften based on exploitation of unfortunate physical traits orpolitically embarrassing events — an exploitation often calculated to injure the feelings of the subject of the portrayal.The art of the cartoonist is often not reasoned or evenhanded,but slashing and one-sided. One cartoonist expressed the nature of the art in these words: "The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters." Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill 56, 57 (Nov. 1962).

Parodies: fair game or foul ball for the blog???

Sunday, December 25, 2005

CHRISTMAS COOKIES

Anonymous theorizes:

Perhaps the legislature has to take some responsibility for prosecutors with no discretion: ho, hvo, gort, prrp, vcc, drug min man, etc.....

Rumpole Ponders: Judges do not have any groups lobbying for them. The real insult with the legislative mandated sentences is to the Judges. The legislature has said loud and clear to the judiciary: “You shall be a well paid calculator. Just add up the points and impose the min-man.” Legislative sentencing is both a violation of the separation of powers and a clear statement by the legislature to the Judiciary that Judges will not be trusted with sentencing issues. A 24 year old prosecutor has more influence and say over a 3 year drug min-man case then a judge with 30 years experience. Something is wrong with that.


We have a fan:

Anonymous agrees with Rumpole:

I agree with Rump, the beef with Pasano and Calli was over what Pasano said himself.Complaining about the 90 per hour fee, when you'll get more publicityfrom this case than you've ever gotten before and your already pullin' in 250,000 plus per year is stupid.


Rumpole affirms. Yup.


We have another Fan:

Anonymous writes:

re: "andrew stanton - best appeals lawyer."thank you thank you! that's hilarious!reminding us constantly of the law school from which he graduated, but not offering much substance on the practice of law, he [edited out by Rumpole]

Rumpole Responds: The last barb is a personal attack and was stricken. Mr. Stanton should log on and defend himself.



And Now For Something Completely Serious:

A Barrister with experience reminisces:

I read with interest the blog and comments about ASAs. I was an ASA under both Gerstein (who asked me, at my 20-second interview, whether I could send people to prison) and early Reno (who carved in stone the present system of "career prosecutors"), and those regimes had their own problems. Under both, for example, there was NO training. The first jury selection I ever saw was the jury I selected in my first felony trial (arresting Miami PD officer Gerry Green, then a narc, bet $5 I would lose; I don't know if he paid up, but it was certainly a fluke that I won). Sentencing was not the grueling and rigid guideline score sheet & HFO/HVO/Gort minefield it is today: many felonies were pled to the ubiquitous "2 years probation and a withhold," and no one opened a law book. The fact is that today both ASAs and APDs are sorely lacking in research skills and most lack any realistic understanding of what they are doing. ASAs think the accuseds are animals without feelings; the APDs think the victims deserve no thought or consideration, and dismiss the cops as dumb (at best), but more probably thugs. Time will moderate both of those youthful and therefore heartless views; we just hope someone's life is not lost while we are waiting. I say this because I lived it; only after I did some post-ASA time as a cop did I actually learn what "probable cause" was, and how a case could and should be developed and prepared for trial. There are opportunities for defense lawyers to offer helpful advice to the puppies on both sides; some did for me, and this blog is a new and wonderful way to exchange such information. But some defense lawyers, now and then, persist in being arrogant jerks. For them, I have often thought with satisfaction of the cops' true saying: "What goes around, comes around."


Rumpole Responds: We think you are painting with a very broad brush when you characterize the ASAs and PDs. However your comments about the “early years” and training by fire are right on the money. Today, the training for both sides is much improved. While age and experience tend to moderate a lawyers conduct and views, that is not always the case.



Our Battle of Poetry Continues:

twas the week before chrismas and what you say is not true, for a long trial took place in courtroom 2-2.
There was, however, not a public defender in sight,
instead a lonely private, defending his client with all his might.


Rumpole Responds: We are aware of one very very long trial as private attorney Andy Rier battles the State Attorneys Office in a Murder slugfest before Judge Miller. But this is the wrong courtroom for that.

Friday, December 23, 2005

DEFENSE OF THE PROSECUTION

A former Prosecutor Defends the SAO:

As a former ASA (and one with close contacts still in the office) the only ASA's that have internet access are division chiefs. That could explain why there have not been many ASA/Kathy related posts.

Furthermore, this site continuously bashes on the incompetence of ASA's and how they don't look into their cases, they are apathetic, it is easy for the defense to beat them, etc, all the while extolling the virtues of the APD's (see previous comments as to how PD's do a better job than SAPD's, etc.) Perhaps, as many ASA's have long griped, if they didn't have a caseload at least two times of what their counterparts in the PDO have, made comparable salaries to the APD's that do half the work the ASA's have to do on their cases, they might be able to do a better job prepping cases and might even have some time to read this blog. Instead they get buried by: motions made without merit ("Look, my client is paying me, I have to make this motion even though I know it's crap, and force you to argue it so I don't get a rule 3" or worse--the attorneys that know the motion is complete crap but still insist on arguing like it actually has merit, requests for continuances solely because the attorney hasn't been paid yet, and then deal with the added joy of the daily dose of whiny privates arguing for the millionth time why their client with a list of priors longer than my arm needs a break on this case. There are many ASA's out there who do prep their cases, take their job seriously, and do a good job for the State. You just don't hear about them because that wouldn't make interesting blog reading, would it???

Rumpole Responds: Excellent comments. First, we are astounded that in this day and age not all ASA’s have internet access. They are entrusted with the ability to incarcerate someone, but not the ability to access the internet? And that in a way proves our point.

An ASA is (by definition) an attorney. So they should be trained to think, plan, and act like an attorney. Have you ever heard an Assistant PD say they need to speak to a supervisor? Granted, the client is to a large part in charge. But still, the PD’s learn to think quickly on their feet. In the Janet Reno era, when a prosecutor made a decision in court, based on the facts, and was otherwise prepared to try the case, that prosecutor was ALWAYS supported by Reno if someone complained. Reno never tolerated prosecutors who made mistakes because they were not prepared, but she expected and supported her attorneys to think and act like attorneys with the responsibility and respect commensurate with their office.

Our criticism of ASA’s is not that they are less bright, or anything ridiculous like that. Our criticism is that the culture of their office does not create an independent and confident attorney who feels trust and in turn earns that trust. What we hear is that no matter what kind of job you do as an ASA, there is an undercurrent of distrust. And that breeds apathy, and all the other adjectives you have read.

There are many many dedicated prosecutors. And we have long heard that the PD salary is not comparable but exceeds the salary for the ASA and we have heard that the reason squarely rests on Bennett Brummer’s ability to fight for additional money. That is an inequity that should be redressed, but only Ms. Rundle and her administration can do that. If a PD of comparable experience is earning 5-10K more than their counterpart in the SAO, that is bound to cause morale problems.


An Attorney with a Fee due writes:

Anonymous gripes about "requests for continuances solely because the attorney hasn't been paid yet". There is nothing wrong with such a request. None of us does this job for sport and we all know that once a case is closed we'll rarely get paid the balance owed unless the client picks up a probation violation or the case is re-filed. Most judges and prosecutors understand this and will not object when you tell them that your client still owes you money. I even heard a judge once tell attorneys to say that "Mr. Green failed to appear for deposition" when requesting a continuance under this circumstances


An Optimistic Poster writes:

Rumpole, since you don't want to focus the blog on which judges should get opposition, perhaps it'll be more positive to ask the bloggers which attorneys they would like to see running for, or seeking appointment to, judgeships in Dade County.



Rumpole Replies: Why not focus on the positive instead of the negative? Because sex and scandal sells more papers. But we are a free service, and without being the unintended mouth piece for judicial candidates, we would welcome a discussion of people who should be judges. To start the discussion we nominate________


Our Poet Laureate writes

Hi Rumpole,
It was the week before XMAS & all through MJB , who was in trial? Not any Private Attorneys, just a lonely PD.
Liberty's Second to Last Champion.




NEWS RELEASE:

Some times we are called upon to perform a public service. The Dade County Department Of Corrections has requested that we inform the members of the defense bar that the following items will not longer be allowed to be given to inmates at the TGK detention center:

1) Hacksaws; 2) Mountain Climbing gear, including ropes, hammers, pitons, etc.
3) 3 dozen sets of bed sheets.


Thursday, December 22, 2005

OF JUDGES LAWYERS AND RUMPOLE

Anonymous takes a hit –n-run shot:

in 20 years in that office, the diminutive warren s. has not tried a case, and he pulls down close to a buck 30. ick.

Rumpole Retorts: Not true. We know for a fact Mr. Schwartz tried and won a case this past year. We have no idea what his salary is.


Anonymous weighs in on Slom & Leifman on the Phone:

Why do they have to call Slom or Leifman to tell them how to rule on misdemeanors or traffic? Can't they research and learn the law by themselves? Or, could it be that they want to know the current politically "acceptable" way to rule? I sure hope not!




Rumpole Responds: Slom and Leiffman, the Politically Acceptable Odd Couple.

A play by Neil Simon, staring Sam Slom as Oscar Madison and Steve Leifman as Felix Unger. Tickets on Sale Now.


Anonymous recently lost a case before Judge Johnson:

What about Judge Johnson? It is an absolute disgrace that he is a circuit court judge. If ANYONE deserves opposition, it is HE

And a Lawyer leaps to Judge Johnson’s defense:

Is Anonymous referring to William Johnson in juvenile? Why is he such an absolute disgrace? I've been in front of him a number of times and he's always ruled according to the law and the evidence, plus he's nice and easy going in the courtroom.

Rumpole Responds: Comments on Judges should ideally include some reason why the commenter is criticizing the Judge.

Anonymous Shoots a few well aimed missiles our way:

Stupid criticism of Calli and Pasano. First, both of them have tried more cases (and more important cases) than Rump or the other posters on this blog put together. Calli started as a PD in the MJB and Pasano started as an AUSA. Pasano is known to try more cases a year than just about anyone in town. But they're not seen in DUI court with the rest of you jokers so you don't see them. Finally Rummmppppy should learn how to spell Marshal before criticizing the Marshals' lawyers.

Rumpole Responds: How do you know what kind of cases we try? We won the Penge Bungalows Murder Cases when we were young. Pasano tries more cases than anyone in town? We will go dollar for dollar with you: you have your boy Posano, we select with our first round draft pick, he walks the 40 in 5 minutes, but he tries a boat load of cases-----Sy Gaer.

DUI court jokers?? We believe this site is well represented by many lawyers who practice in Circuit Court and Federal Court. Granted, there was a brouhaha among a small group of DUI lawyers, but that does not mean we are a DUI lawyer site. It shows they were drinking and blogging.

We plead guilty to the Marshal mix up. We write most of our commentary on Word, but sometimes we do a last minute edit on the site which does not have spell check. We corrected the error (did we get all the Marshals changed? Just calm down and be a bit more Marsh-mellow)

We criticized Mr. Pasano for his comments to the media. They were self aggrandizing and annoying. Either take the case and shut up about the fee, or turn the blasted case down. But don’t take the case and then whine in the media about what a great sacrifice it is to do it for government wages. That just makes us angry.

As we are wont to do, we quote:

The charity that hastens to proclaim its good deeds, ceases to be charity, and is only pride and ostentation.
William Hutton






This is William Hutton, Distinguished Chap. Never bragged about his charitable activities.
See You In Court watching Mr. Pasano try case after case.

Bah... Humbug.

We know this is a long post. Make sure not to miss the "gratuitous cheap shot on a Judge " alert at the bottom of this post.

Scrouge” offers a riddle:

Question: what do the easter bunny santa claus and "an agressive pd who tries at least twelve trials a year" have in common?answer-- THEY DON’T EXISTIn the PDO they got people who haven’t tried 12 cases since Miami Vice was a TV show.

Rumpole Replies: And the PDO has dedicated attorneys who try several cases a year, and have been doing so for many years.

Anonymous repeats a charge already made:

There was no legitimate reason for the pd to conflict on Chavez. So, given the timing of it, and given what we know about BB, is there any rational (or even irrational) reason for the conflict other than election politics? And the pd did give out 30k to the private, and Stanton ghost-wrote the brief.


Rumpole Responds: For 30K per brief we would give up our anonymity to write briefs for the PDO that Mr. Stanton would not have to ghost write.

Anonymous politely says:

Sir You need to stop pulling punches because you are worried about the I.D. issue. You can't try to please everyone....

Rumpole replies: Don’t call us sir. It makes us feel old. We have carefully considered your thoughtful post and respond as follows : “OK - stop posting –you annoy us.”


ID is not an issue. When we have an opinion, we state it. We do feel an obligation to engender an honest and forthright discussion of the issues, which is why we scrupulously ensure that all posts critical of us are posted for comment.


Anonymous challenges us:

Why did you fail to address the Brummer poll? Was that intentional or just an oversight on your part? Rumpole are you feeling guilty??

Rumpole (in a seriously bad mood now) Rages:

We created the poll genius, so how could we be ignoring it? We are waiting for the final results before commenting. Feeling guilty you say? We REPRESENT the guilty, we don’t feel guilty.

In Reply to the Brandeis Post, Anonymous writes:

Very prescient opinion... As actual and valid today as it was in 1928. We beat fascism in World War II and communism in the Cold War, yet, each day we seem to go one step further down the slippery slope to a police state

And another poster has a different opinion:

that shit sounded like it was on the Markus blog Rumpy - I thought you were gonna keep it at my public school level.

Rumpole replies: You are correct that the post came very very close to violating our internal guidelines and general policy of not reading case law when there are comic books around. However, we accidentally ended up on a legal research site while looking for the “wild college girls” site, and stumbled into the Olmstead dissent. We are so upset at our president that we could not resist being a voice in the wilderness, a cry for the right to be left alone – which if you knew us personally- is our most favorite and cherished right.


On “Whither the ASAs?” Anonymous writes:

If, as you say "that is not the office Gerstein and Reno ran", then why is Ms. Rundle of limits and unbeatable?I agree with what another defense attorney said - the tax payers have no idea how incompetent some of the ASA's are. Surely you would think this incompetence would mean that on election day she could be beatable. Any ex-PD or current PD who tried cases can tell you how many cases we won simply because of State incompetence. And of course these wins were always with GORT/HVO/HO clients. But you know what, it don't matter. Rundle is a Cuban Democrat and in this county, that is the perfect recipe for success. It really doesn't matter how she does the job, does it? Either way thank god Al Milian is not the head State Attorney.

Rumpole replies:

Rundle is not off limits to this blog. When we started the blog we thought for sure the majority of posts would be about her not BHB. We invite comments on Rundle and her office since, as we have said, when you skulk the halls of the REGJB like we do, the most oft heard comment is about the SAO and how the ASA’s are unhappy, unmotivated, unloved, under compensated, over-supervised, and swamped by adjective spewing defense attorneys.

A loyal ASA rushes to the Boss’s defense: (note- we do not really know who wrote this)

Leave Kathy alone! Whatever her shortcomings, she's probably the best State Attorney in Florida. Go out of the 11th Circuit and you'll see how true this is.

Rumpole Replies: Ms. Rundle has had the equivalent of the Disney Its A Small World Ride on this blog compared to her compatriot Mr. Brummer. What the future holds for comments on Rundle depends on what she or her office does that is worthy of comment.

Anonymous comments on the question about Judges and this blog ;

While the blog should not encourage opposition to sitting judges, it should not discourage it either. Because of its anonymity, this blog can be an excellent vehicle to offer candid, constructive and educational criticism to our judges so that we can have a more professional and judicial bench in our beloved Justice Building.

Rumpole (in a better mood) replies:

Your comment is why we think we should remain anonymous, and why we allow comments to be posted 100% anonymously. We strive to edit any personal attacks that are not relevant to professional activities or cannot be verified.

Unless you have a personal friendship with a Judge, then the only way to criticize the bad or unprofessional conduct of a Judge, and generate a discussion in our legal community, is through this site (absent a formal complaint to the JQC). Gripping in Au Bon Pain just doesn't cut it anymore. The Pickle Barrel had better discussions.


On the SAO investigation regarding the Federal Marshals shooting of a passenger, anonymous writes:

In the highly unlikely event that these marshals were charged, do you think that they'd stick with Pasano and Calli to defend them? Or would they hire one of us Justice Building regulars without stuffed shirts?

Rumpole Replies: They have chosen counsel and while we have absolutely no way of knowing this, they would probably stick with their counsel. The defense of these Marshals would be like shooting fish in a barrel. Even those stuffed shirts could win this one, so long as someone told them where to park. With all the concerns about terrorism these days, what juror would not be putting themselves on that plane as a passenger and asking if they would want the Marshal to protect them and their family? The bottom line is that it appears that a very disturbed man was killed at a time, when as a nation, we do not tolerate disturbed behavior when it comes to airplanes and possible terrorist acts.

As we have written, most bomb threats in the REGJB are met with a shrug.


disclaimer: The Department Of Homeland Security, which can read emails and thoughts requires us to state that it is illegal to make a bomb threat anywhere. This blog strongly suggests that if you are so inclined to make a threat, you surrender to a Cheeney re-education camp for immediate "therapy".

Gratuitous Cheap Shot On A Judge Alert!!!!
Legal Quiz:

What type of speech is not protected by the Constitution?

1) yelling fire in a crowded movie theatre?
2) yelling "I want a trial" in Judge Arces's courtroom?

Prevailing wisdom is that the calendar is out of control there and it takes a speedy trial notice of expiration to even get you close to a jury.

We ended this post in a bah humbug mood. See You In Court.

Wednesday, December 21, 2005

SHOULD THE BLOG ENCOURAGE OPPOSITION?

Readers like commenting on Judges who have opposition and Judges who should get opposition. It’s easy to blast a Judge and say he/she should have opposition. But lets remember folks, these are people’s lives and careers we’re casually trashing.

Plus, we like our Robed Readers.
It encourages us to keep our sentences short and refrain from our unabashed love of the polysyllabic. We don’t want our Robed Readers to develop a severe case of Onomatophobia- (Fear of hearing a certain word or of names). (See, there we go again).
[This is a great site: all the phobias are listed:

http://www.phobialist.com
including , we are not making this up: Oneirogmophobia- Fear of wet dreams) ]

We think the answer is a resounding NO. This blog should not encourage candidates to target any particular Judge. However, we will print (within reason) readers thoughts on the matter. Like this one:

Anonymous growls:

I know you focus mostly on MJB, but your readers should be asking why Judge Cardonne hasn't drawn opposition. Al should have challenged her.

Rumpole Replies: Why? Back up your assertion counsel. Judge Cardonne has been on the bench for many many years. What has she done or not done that merits opposition?

Anonymous writes about Judge Langer:

It'd be a shame that Milian had Langer's seat in his sights. Langer is a great judge and, unlike the Schwartzes, has done nothing to deserve opposition.Rumpole, maybe you ought to post a topic where bloggers can list the judges who they think deserve opposition and why. It could be an eye opener for those judges and might hopefully lead to changes in their behaviors.

Rumpole Replies: Here it is. We are against listing all Judges and stating "which ones deserve opposition?" We will print comments on individual Judges.

Anonymous weighs in on the Schwartz/Mendez race:

On the Mendez/Schwartz contest I Think the question you posed in your poll was silly. If any Hispanic Female puts in against Schwartz he was chosen because he was a Jewish Male. Why she chose him is a completely separate question than her qualifications.I have tried cases against Ms. Mendez when she was a Prosecutor and can state that she was quite competent and a worthy adversary. Since leaving that office she has been in private practice handling Family and Criminal cases. What about her resume makes you opine that she is unqualified?


And what about Schwartz make you so enamored with his qualifications?
He was a teacher then an ASA assigned to the economic crimes division. As you know Rump, that unit is not exactly a hotbed of the most active trial lawyers in the SAO (ok I understate my case). As a Circuit Judge he has been difficult to deal with as you have noted over and over again. Just don’t get your unwavering support for someone whose attitude you don’t like when there is a qualified alternative.

Rumpole Responds: 1) You see, we do print criticism of us. Its just easier to respond to the “you suck” comments then something as well thought out and argued as your comment.
2) SAO Economic Crimes Unit: How you can trash any unit that has both Bill McGhee and Bill Kostrewzski is beyond us. A "twin Bill" of Power and Experience ( and they are always pleasant to deal with).

3) Seriously- Your comments about Ms. Mendez are well put. She is as experienced as any other judicial candidate, more than some, less than others. And we have seen very clearly that the prevailing REGJB opinion is that Larry Schwartz has opposition not because Ms. Mendez is a Hispanic female, but because he deserves it.

We thought otherwise, and remain in the minority.
Our opinion is that Judge Larry Schwartz, when you get past the bluster, has many fine qualities and is a good judge. We never denied the fact that he needed to treat lawyers better. And as to Ms. Mendez, our comment was (in retrospect) more about our personal opinion that a lawyer who seeks the bench should have more than just a well rounded resume, and less about Ms. Mendez personally.

Whither Prosecutors?
Anonymous wonders where the ASAs are?

Throughout your posts you have continually exhorted prosecutors to enter the fray of this website. As a Criminal Defense Attorney who has been opposing the SAO for many years I am not surprised that you have not gotten any takers. I don’t know about you Rump, but I notice a certain apathy that exists in that office. Apathetic people aren’t going to respond to your attacks no matter how hard hitting they are (This coupled with the fact that I have heard that ASA's aren’t trusted with internet access which squares well with your commentary re them having to ask for permission to go to the bathroom let alone offer a plea but I digress).


It seems like the young ASA's have no fight in them and are only going through the motions. They seem to be not wanting to offend anyone so that they don’t jeopardize their chances at further career advancement whether it be the bench, the civil bar, or criminal defense. As a Criminal Defense Attorney I am constantly amazed at how often they agree to things that ASA's never used to agree to. For Example, ASA's used to always fight Arthur Hearings now It seems a lot easier to get a bond stipulation on PBL's. On Trafficking cases they routinely agree to massive bond reductions. On Career Criminal cases the ASA's are often standing there asking the Judges to offer lower pleas than their supervisors have authorized. I am not complaining about any of this as a criminal defense attorney but as a taxpayer I sometimes wonder what is going on in that office.


Rumpole Responds: Does anyone else know if the ASAs cannot supplement their work day with a ten minute “Rumpole respite”?

We agree that the prosecutors appear apathetic and seem to act mostly out of fear of upsetting their career path. But our experience is the opposite of yours.

Because Prosecutors are afraid to upset the apple cart and because they have so little authority (“Too Many Chiefs…Not Enough Indians” Judge Moreno used to say) we find that they are afraid to conduct an honest analysis of a case and respond appropriately. Thus we find that young prosecutors will automatically oppose any bond reduction request, and are afraid to offer anything other than the maximum. We actually saw a Prosecutor OBJECT to an attorney who after the defendant surrendered moved the court to revoke the bond and discharge the surety. The Judge looked a bit taken back, and then wisely commented something to this effect: “Do you know what you are doing? Are you trained to just object to anything a defense attorney asks for? Don’t you realize revoking a bond is in your favor?”

Young prosecutors have no fight in them because their opinions are ignored. The powers that be just want to wind them up, point them towards the courtroom, and tell them to object to anything other than the maximum sentence.

It’s sad. Its frustrating. That is not the office Richard Gerstein and Janet Reno ran.

See you in court { we're the lawyer getting the objections hurled our way.}

BRANDEIS FOR THE AGES

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Querry: The foregoing is

1. Just a bunch a hooey.

2. The Fourth Amendment to the Constitution of the United States.

3. The ramblings of an activist judge.

4. The preamble to the constitution of the former Soviet Union.


President Bush answered 3 until Dick Cheeney advised him to switch to 4.
Don Rumsfeld answered 1.

In OLMSTEAD v. UNITED STATES, 277 U.S. 438 (1928) the US Supreme Court first dealt with the issue of the Fourth Amendment and wiretapping. The opinion by Chief Justice Taft is no longer law, but the dissenting opinion written by Justice Brandeis is one of the greats of all time, astounding in its scope and its prescience. It is just as applicable today as when it was written in 1928.

Justice Holmes first dissented and called wiretapping a “dirty business”.

Holmes framed the issue as a problem between allowing the government to break the law to catch criminals. Once framed, Holmes decision was easy.

But Justice Brandeis had bigger game in mind.

Brandeis was writing for the ages. And his topic was liberty and the defense of the individual.

First Brandeis tackled the issue of original intent and how the Constitution should be interpreted. The writing is clear and logical and would automatically exclude him today from an appointment to the Supreme Court and probably the County Court in Florida as well.

Brandeis dismisses the conservative view that original intent must guide the interpretation of the Constitution:
" 'We must never forget,' said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 407, 'that it is a constitution we are expounding.' Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which theFathers could not have dreamed.” Id 472.

The issue does not seem so hard when Brandeis analyzes it. Of course it helps to be able to quote Chief Justice John Marshall.

“Time works changes, brings into existence new conditions
and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall `designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and badtendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it wouldbe deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent andlifeless formulas. Rights declared in words might be lost in reality." Id. 473.

Brandeis continued by noting that when the 4th Amendment was adopted, “force and violence” were the only means used by the government that the amendment was designed to protect against. But Brandeis recognized that over the course of time, threats to liberty change and evolve:


Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” Id. 474. .. Moreover, in the application of a constitution, our contemplation cannot be only of what has been but of what maybe. The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court,and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of everyman in the hands of every petty officer" was said by James Otisof much lesser intrusions than these.'

While we are sure President Geo. Bush was not the “petty officer” referred to, the prescience of this opinion is amazing.


Brandeis then sought to bolster his reasoning with stare decisis: Citing Boyd v. United States, 116 U.S. 616 , 627-630, and calling it ' a case that will be remembered as long as civil liberty lives in the United States' Brandeis cited a case cited in Boyd:

“It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment.”Id. 475

With the framework properly laid, now it was time for Brandeis to write for the liberty of the day, and to protect the unforeseen threats to liberty in the future:


"The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.Id. 479.

Brandeis then set to warn future generations of the real threat to liberty. These are the words that need to be read and re-read today:

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion oftheir liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal,well-meaning but without understanding.


In the present day analysis, the greatest danger to our liberty is not Al Queda, but Bush, Cheeney and Rumsfeld who tell us to trust them as they erode our rights to privacy and use Karl Rove to crumble the Fourth Amendment like he crushed Senator Kerry.

Brandeis concluded with his famous peroration that is as much or more applicable today then it was in 1928:

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct thatare commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.

Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in ordert o secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Wow. It doesn't get any better than that.

Of course, as we have previously quoted our learned and wise president, regarding the Fourth Amendment: “it don’t apply if you ain’t read it.”

Will anyone in the Justice Department bother to read Brandeis in Olmstead?

We think not. They don’t like what he had to say.


See you in court defending the Fourth Amendment.

Tuesday, December 20, 2005

FUN WITH POLLS

FUN WITH POLLS


BLAKE NIPS ROSA RODRIGUEZ

No- Judge Blake is not biting his colleagues.

Stan Blake scored a small victory which is really a statistical tie, when out of 100 people voting, 26 said that they would like Judge Blake to be assigned to their case if they were arrested. Judge Rosa Rodriguez was second with 23 votes. Judges Ivan Fernandez and Luise Krieger Martin tied for third with twelve votes each.

Many judges wondered why they were not included in the poll. No real reason. These were the Judges that came to our Chateau Miami River altered mind during one late night when we were bored. Please do not feel slighted. Rumpole will get to you. With a 100 votes, this poll is closed.


BOTH JUDGE SCHWARTZS HAVE OPPOSITION BECAUSE THEY DESERVE IT.

Our poll as to why Judges Larry and Sheldon Schwartz have opposition has a clear and surprising winner. 43 of 84 voters have said both Judges have opposition because they deserve it. Gender Politics (our vote) is second with 19 votes. Only one lonely voter said the Judges have opposition because their opponents have distinguished themselves in their legal career. Thus we can glean that while the voters are not necessarily impressed with the challengers, the prevailing sentiment is that anybody is better than these two Judges. Somehow, we find that kind of sad. This poll remains open.


JUDGES PUNISH DEFENDANTS FOR GOING TO TRIAL.

31 of 52 voters have declared that Judges punish defendants for going to trial and the Judges should be ashamed of themselves. 11 voters said Judges do not punish defendants extra for going to trial, and 10 voters agree that judges need to punish defendants for going to trial to keep the case load down. We thank those 10 JUDGES for participating in our poll. See, this site is fun and anonymous. We invite our robed readers to check in often. Probably during that third or fourth hour of voire dire is as good as time as any.

SY GAER JUMPS INTO THE LEAD.

10 of our first 14 voters believe SY GAER does a better job representing defendants than either PDs or court appointed attorneys. Depos schmepos. Go Sy Go,


See You In Court.

BORED WITH BRUMMER THE READERS MOVE ON

Anonymous handicaps the Judicial Election Scene:

2006 judicial races handicapping: Langer-- Word on the street is that every criminal defense attorneys worst nightmare/former state attorney candidate Al Milian is putting in for this seat. Poor Langer is one of vics of jewish male judge syndrome in which Dade will no longer be called the 11th JEWDICIAL circuit as it was called for so many years by the fine jurists north of palm beach. Poor Langer has also been in Juvenile not exactly the best place from which to obtain contributions. Milian wins this in a rout although It will be interesting to see if PBA is still going to be behind him. Milian is also a twice tested battle veteran of campaigns and like him or hate him is a very good speaker and will make an impressive candidate with his former ASA creds.
(Larry) Schwartz v. Mendez-- Fascinating race. A well financed campaign, Schwartz, VS a great name. This is not to say Ms Mendez isn’t qualified as she was a prosecutor and has been a successful criminal defense/Family law attorney for many years. She is also battle tested having gone through the race once before. This will be an interesting test to see if a mega financed Jewish male can beat a Hispanic female. Last year Jeff Swartz lost to AdA Pozo- Revilla But in that race there was no huge financial disparity. If Mendez pulls off this upset, look for sales of antacids to spike amongst the Jewish male judges up in 2008. Schwartz Bar poll ratings may be his undoing. Too close to call, if this was a football game it would be pickem.
Judge Glazer-- kind of surprised that she hasn’t drawn any opposition in 2006. Bar poll ratings not so good. Like Langer has spent so much time in Juvie hasn't gotten the chance to pad the campaign coffers.Please no mas on the Brummer wars they are a bore.

Rumpole Responds: If you had signed your name, you’d be in the running for post of the month. Excellent analysis. Witty commentary (especially the antacids quip). We can’t really disagree with anything you write except most participants in our on-line Blog Poll believe Ms. Mendez is running because of name/gender and not because she’s qualified. Certainly we have opined that Judge Larry Schwartz is better qualified and should not have opposition. But the clear sentiment around the courthouse is that he brought this on himself with his snippy attitude and condescending treatment of attorneys. Are you reading this Judge Schwartz? We like you, but many are happy you have opposition. It just goes to show that being nice counts. See the next post.

Anonymous writes:

Mindy Glazer? She hasn't drawn opposition because she has a good reputation and is a nice person. Notice a few who have drawn opposition recently - Postman, Swartz and the 2 Schwartz's, - all with reputations of being nasty, unfair. People don't mind tough judges, they mind arrogance, rudeness, and unfairness. Why there is not a line out the door to run against David Miller is beyond me.

Rumpole replies: "The series isn’t over until the fat lady sings" (Dick Motta, coach Washington Bullets, circa 1977) There is plenty of time for people to announce their intentions.

Anonymous poses a new topic: PD verus SAPD?

Instead of no mas on Brummy - how about this as a new topic -Although public perception (or at least my pd clients' perception)is that private attorneys on average do a better job than us –
Do private attorneys handling court-appointed cases do as effective a job on the cases asthe public defenders office?I will admit this is a vague question and there are many factors which I will leave for later discussions if anyone actually wants to address the issue.My answer is simply - HELL NO.For the most part, if I was an indigent client, I would want anactual PD and not a PCAC.We've all seen it - PCAC do not want to go to trial. PCAC want to get a quick plea agreement. PCAC want the quick money of a few court appointments, but want to concentrate on there privately retained cases. PCAC will only prepare the case for trial oncethe Judge gets on there case a little.Any takers on this indigent defense issue?


Rumpole Responds: As a private defense attorney that takes some appointed cases, we speak with a bit of authority. You, Sir/Madam are 100% CORRECT.
The reason is simple economics. Court appointments do not pay for the time attorneys put in. This comment may out us, as we have said this several times:

Lets say a defendant is charged with armed robbery, and is a gort/perp/everyletterintheblastedalphabet. He/she is facing close to a life sentence. Yet the fee is $3,500.00 How can any attorney accept this type of case and spend the proper amount of time for $3,500.00 ?? Sure, you can bill more, but it will get slashed back to around $3,5000.00.

If society wants to warehouse criminals and not let them back on the street, they should damn sure pay the bill so the accused has a proper defense and a tragedy does not occur. If we were in that position, we would want a PD who is not affected by the pressures of rent and private clients to represent us, as long as the PD was experienced. The thought that the PD’s office is just a training ground is outmoded. Many experienced and dedicated lawyers spend their career there. So does Mr. Stein (We are sorry…we just could not help ourselves…we know it’s a cheap shot and wrong…but it was an Irresistible impulse.)

Anonymous agrees with us:

an agressive p.d.(one who tries at least 12 jury trials a year), always gets better results then the private atty will. at least thats the way it worked when I worked there.


Anonymous attacks anonymous (huh?) :

[anonymous wrote]: "Anonymous said –
most everything the gabers said has turned out to be false."
[and then anonymous replied to anonymous } Yeah I guess that's 200K worth of BS right?


Anonymous does a hit and run:

i don't think Rory has anything better to do with his time? therefore, that will not be his last post.


A curious George wrote:

Just curious.Who is running against Shelly?Did you get the name yet?

Rumpole replies: Be aware, curiosity killed the cat.
We believe Sheldon Schwartz is currently being opposed by current assistant public defender Migna Sanchez-Llorens.

Monday, December 19, 2005

ETHICAL BLOGGING

Anonymous questioned:

What, are you in trial Rumpole?

Rumpole replies. No. This week we have been cleaning up messes in the office and watching the fur fly between Mr. Reiff and his admirers.

A Fan writes:

Is this petty bickering the best the blog can offer? This is more boring than jury duty.Having adopted a pseudonym and a suitable blog title, Rumps, you are obliged to fulfill the promise of your press comments. Find some dirt -- or at least some humor -- and leave the bickering to the comment sections no one bothers to read.

Rumpole Replies: We’ve picked a fair number of juries in our day.
This is decidedly not as boring as that. (We realize that you can do the JUMBLE during the other side's voire dire and not get caught. Many would say this Blog is a JUMBLE)

Anonymous worries:

Unfortunately, making justice, much like sausage, is rather ugly when you look at it up close. While I'm sure your motives were pure in creating this blog, it is clear that it has disolved into a haven of petty sniping and the opportunity for people to take anonymous potshots at anyone they feel may have wrong them. So far, it has been other lawyers who have been the primary targets of these shots, but I wonder how long it will be before someone makes truly unseemly and unfounded allegations about those on the bench or makes allegations that have disastorous consequences. Art Teele's wife on T.V. the other night talking about how he took his life because of the allegations of a transvestite prostitute has to give you pause. And I'm sure that outsiders looking in will only come away with a disgust at the sausage that is being made. Perhaps it is time to leave the sniping to the coffee shop for those who choose to stick around this pit that we call the Justice Building and for you to pull the plug on this experiment before it really blows up in everyone's face. Sorry, but I want to avoid making myself a target too so I'm staying anonymous too.

Rumpole Replies: Don't worry. Be Happy. You Worry too much. The content on this Blog has all be 100% professional. Umm... meaning it has been confined to professional activity.
IF Art Teele were still alive and someone posted a comment on him visiting prostitutes we would remove it immediately. That is not what this is about.

Comment On Judge XYZ's behavior in trial or how he/she runs a sounding, or their sentencing policies are fair game. Comment on Judge XYZ visiting transvestites would never make the blog. (Actually visiting a transvestite is harmless. Having sex is what we are talking about not talking about).

We have been strict about not allowing personal matters to be published and people have responded appropriately. Lawyers have attacked each other on professional matters ( the Sun also rose in the east today, not shocking news on either account), not private matters. We will keep it that way.

But you post does relate to our concern, so we edited this Post to include your relevant comment.

Dirt and Rumor are harder to come by then we initially expected. We get a lot of juicy rumors our way. There are two problems we are currently encountering:

1) We are on the lookout for red herrings. Some friends of ours, say a sneaky criminal defense buddy with a large proboscis and a bad case of halitosis (you know who you are) drops a juicy tidbit during a conversation. Then he sits back to see if it makes the blog, confirming his deepest suspicion about our identity. So we are constantly running down rumors to make sure we don’t get had ourselves.

Second, and more troubling is being able to draw the line between what is public comment worthy, and what is not. Despite our guidelines about private life being mostly off limits, there are still troubling issues we admittedly cannot resolve.

Ethics and Blogging 101.

Here is an example of what is vexing us:
without naming names, is it proper to comment on the fact that a recently named Judge was the Governor’s second choice? It’s not that Judge’s fault. The Governor tapped a political crony who turned him down for financial reasons, so (we hear) the Governor got really angry and made his second pick.
Now there are many successful Judges who were not a first choice ( Anthony Kennedy was tapped by Reagan after Bork exploded and Ginsberg imploded; and Justice Blackmun was selected by Nixon after Carswell and Haynsworth were defeated in the Senate) . But is it fair to this Justice Building Judge to bring that matter up?

With great power comes great responsibility.
With writing a humble little blog also comes a bit of responsibility.

Did you hear the one about Joe Farina? He walks into a bar with Bennett Brummer and Janet Reno. Sitting at the bar are a priest, a rabbi, Kathy Rundle and a goat. Farina says…….

Anyway, give us time and we will muddle through this and find a happy medium
(no, smart guy, not a good natured soothsayer).

STUFFED SHIRT ALERT

We got one.
Law.com reports that the Federal Government has hired private lawyers to represent the two air marshals (motto: Miami- See it like a Native) who shot and killed Rigoberto Alpizar. Zuckerman Spaeder partner Michael Pasano and associate Paul Calli were hired to represent the two air marshals as the Dade State Attorneys Office
( motto: “Welcome to Miami. Take your Meds….or else”) decides whether to file charges.

How did these two fine lawyers get hired? Here’s what the modest and unassuming Mr. Pasano had to say:

"I guess they have a list of good lawyers somewhere that they call in such cases," he said. Some lawyers, he noted, won't take these cases because the government pays "extremely low" fees.

Lets look at that quote closely. It’s not enough for Mr. Pasano to toot his own horn. Ignoring the amazing publicity he will receive, Mr. Pasano wants us to think he’s an altruist: doing it for the good of humanity despite the low pay he must scrape by on.


Mr. Pasano: you win our stuffed shirt of the week award. We say: start a collection in the Justice Building for Mr. P! Lets knock Santa Claus who’s ringing his bell for the Salvation Army on his butt, and replace his kettle with a donation box for poor Mr. Pasano.

Mr. Pasano, in the unlikely event your clients are arrested, go here to get a map to our little world:mapquest.com and type in 1351 NW 12th Street.
We are concerned that in the lofty environs of ZS, your driver will not know the way to the REGJB. If you do honor us with the pleasure of an appearance, here are a few tips:

1.The Lox and Bagels at Au Bon are both cheap and great.
2.Judge Murphy’s 8:30 Friday calendar starts on time.
3.You can’t use the escalators to get to the seventh floor.
4.Yes, Sy Gaer means what he says.
5.Use the back entrance and have your bar card and DL handy.

5.Warn your clients before hand: most visitors to the building do not take their meds on a regular basis.
Many Judges do.
Bomb comments are met with a shrug.

Kudos to our own Brian Tannebaum, who put his money where his mouth is:

Mr. T, identified as a “legal expert” was also quoted in the article:

But legal experts don't expect any criminal charges to be filed against the two air marshals.
"Law enforcement traditionally has been supported when they use deadly force based on their belief that someone has a weapon," said Brian L. Tannebaum, president of the South Florida chapter of the Florida Association of Criminal Defense Lawyers. "No charges will be filed -- you can put all your money on that."

Umm….. Can anyone say L..O…Z….A…N…O..? How about Arthur McDuffie.?
Janet Reno’s office filed charges in those cases.
Be that as it may, we agree with Tannebaum.
Put us down for 50 that the SAO passes on this one (where's John Hogan when you need him?).

We are not advocating the prosecution of the air marshals.
We just hope the SAO does a thorough job.
People are watching.

See You In Court unless the Marshalls get us first.

Sunday, December 18, 2005

CANT PLEASE EVERYONE

We’ve lost a reader. It saddens us. We like readers. We need readers and contributors for this blog to lead a purposeful life.

Anonymous complains:


Rumpy: You should be ashamed. You claim to be promoting some type of thoughtful discussion regarding people and events around the Justice Building. The fact is, your blog has turned into a vehicle for the sore losers who backed the "Gabe" campaign and wish to circulate the same specious garbage that they used and failed to sway the electorate with. They lost because the public (but not Rumpole) is able to determine that an item is BS when they hear it. You guys LOST THE ELECTION. Get over it already. I'm a former PD who worked for several years in the office. It's irrelevant whether you like BHB. Whether you like him or not, you have to respect his body of work. He has given more than 30 years of his life to public service and has worked to establish a PD's Office that has a national reputation for excellence. That didn't happen by itself. Somebody has to establish the policies and get the money to make that happen. Do you think that their opponents across the street have the same high quality rep? More importantly, it was the absolute height of arrogance and ego mania for Martin and his supporters to have thought that a 4-year lawyer who tried a few second and third degree felonies could manage an office with 400 employees and a multi-million dollar budget without any previous tangible management experience. I'm sure that they don't know what the PDO funding formula is, and I'm certain that some of them can't spell it. Rumpy, does experience count? The voters figured it did.Lastly, I thought you were a criminal defense lawyer? Most of us presume the charged to be innocent and wait for matters to get a full hearing before coming to conclusions. Most everything that the "Gabers" have alleged has turned out to be BS. The Koch thing will likely be another. Keep it up. Your blog makes the National Enquirer look like the NY Times. This is my first and last post. There has to be better things to do with our time. Have fun.


Rumpole Replies: Maybe you don’t get it. We do not have any agenda other than promoting a thoughtful discussion of the REGJB, the events, and the people and colorful characters who inhabit it.

If we used this forum to prostylize our personal beliefs without allowing other thoughts, the blog would turn into a little read, boring ego trip. (Wow, that’s a phrase from the 60’s you don’t see much these days).

Of course we have an opinion. So do others. All are welcome, and we will moderate the discussion.

One thing is for sure. We are surprised of the course and turn of events. The PD’s this week have taken over from Bobby Reiff and his band of admirers and detractors. If we were to have taken bets, we would have thought the assistant state attorneys would have been more active. From our (admittedly limited) perspective the prosecutors are the ones usually complaining about morale, lack of authority, inability to do very much without obtaining a string of permissions from a congo line of chiefs and supervisors.

Instead the contributors were PDs. So be it. We will not censor a post because we don’t like it. Your post has points that were well made. We don’t like everything you say, but we have no problem printing it. We have been called worse (just ask any Judge or former client)

By the way, have you actually read what we have written about Mr. Brummer? We have consistently said he must be doing something right because he runs what appears from the outside to be a good office with very committed public service attorneys. This is not a “Bash Bennett” site by any means. He put himself in a bit of a sticky wicket and we took the time to comment on it, and things took off from there.

Finally, you are invited to stay. Want to change the subject? How about our posts on the death penalty, or wrongful convictions based on junk eyewitness identifications and sloppy detective work? How about the posts on prosecutors who try and intimidate judges, or the issue of sentencing? Those are topics we are personally interested in and have had little response to. Create a post on a legal issue or a Judge who has acted up in court or the issue of the upcoming judicial races and we will cast it upon the waters of public opinion and see if you get a bite.

President Bush just took the Fourth Amendment and snapped it over his knee like a cheap flimsly twig. Anyone care about that? Are his actions in the best traditions of Lincoln (suspension of habeus corpus) or Nixon (and the enemies list)?

Join us in thoughful and fun discussion of the topics of the day, or you can just be cranky, complain, and criticize. Of course we get enough of that at home and we don’t really like it here (just kidding to our significant other who may peruse this at some latter time. )

PS: See the next post- the commenter called you a liar.


Anonymous quips:

I'll bet that is not his last post

Rumpole replies: Mr. Brummer posts more often then even he would admit. (It’s a joke. Calm down. We CANNNOT tell who posts anonymously).

People are reading this according to our site meter:

Total
1,924
Average Per Day
122
Average Visit Length
4:40
This Week
854


On the Chavez case and the PD’s office, Anonymous writes:

Andrew Stanton(a.p.d.), is one of the best criminal appeals lawyers in miami. he sat through the chavez case in order preserve the record. after chavez was convicted, the case was taken from stanton and farmed out to some private atty with $ from the pd budget. 30k to be exact. if you see andy, ask him if he in fact ghost wrote the appeal after he read the first draft which was garbage. brummer for life....


Rumpole Replies: The foregoing was a paid political advertisement for “Andrew Stanton” – best appeals lawyer in Miami. Punch 676 on November 5, 2006 for Andrew Stanton- Best Appeals Lawyer.

Anonymous complains:
Enough with bhb. BHB, Stein and Warren Schwartz writing the pd equivalent of "allah u akbar" are getting BORING.Go back to talking about the bench

Rumpole replies:

OK lets move on. Things are beginning to heat up on the judicial election front. Rumors are flying about who’s going to get opposition. Lets see some posts. Who doesn't have opposition but deserves it???

Anonymous writes:

i thought it was only nancy grace who bragged about her perfect trial record. bobby you should get your own t.v. show.


Rumpole replies: Just when you thought it was safe to go back into the water….(jaws music) …a Bobby Reiff shot appears.

Folks, Mr. Reiff has never said in our presence, and certainly has never written or implied on these pages that he never lost a case. He is a very successful criminal defense attorney and we do not understand why people are taking shots at him. Personally, if you knew us, we have a much bigger ego than Mr. Reiff. (Bobby, the check cleared Friday, thanks).