WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Tuesday, March 07, 2006

AUTHOR ARTHUR!!!!!

Today, we take up our role as self appointed critic of the legal media.

Take a quick legal quiz: What’s wrong with this paragraph, as written on page 2B of our local fish-wrap Herald by reporter Ashley Fantz:


”The procedure, known as an Arthur Trial, is available to defendants held on first degree felonies facing life behind bars.”


We count three major errors, which is a lot to squeeze into one sentence.

1) Its an Arthur HEARING not an Arthur Trial.
2) The “procedure” is not a “procedure” it is a hearing, technically a bond hearing.
3) The hearing is available to any defendant held NO BOND on a first degree punishable by life felony, a life felony, and Capital cases. The hearing is NOT available to ANY defendant charged with a first degree felony facing life in prison. (Yeah, it’s “life in prison” not “life behind bars”, unless you’re Jimmy Breslin in New York.) The qualifying factor is that the defendant must be held without bond. An Arthur Hearing is all about whether there is enough proof to hold a defendant without bond, and even if there is such proof, whether the defendant a risk of flight and a danger to the community?

Call us picky, but we take pride in our profession, and the least the Herald could do is employ reporters who have a fundamental working knowledge of the criminal justice system. So far, our favorite local scribe Oh Susannah Nesmith has passed the test.


Now here’s the tricky part. An Arthur Hearing is known by several other names North of The Border (Broward) including A “You really think you’re getting a bond? hearing”; A “Motion Denied” hearing;
and our personal favorite , A “Look what the stupid lawyer from Miami wants” hearing.

Lawyers who venture North of the Border can relate to this.

You’re in court with a client being held no bond. You ask for an Arthur Hearing. The courtroom deputy snorts and controls a laugh, then ambles over to the phone (those courtrooms in Broward have phones everywhere for some reason) and calls a bunch of his buddies. And you hear him whisper “Hey, get over here quick. Some lawyer from Miami wants a bond. You gotta come see this.” The prosecutor has a wide grin on his/her face and suddenly a bunch of BSO cops fill the courtroom and you and your client are the only people in the courtroom who don’t work for Broward County. A trickle of sweat runs down your forehead as your client starts frantically whispering to you to drop it, as he doesn’t like the fact the judge has twisted the small piece of rope in his hand into a small noose.

Welcome to Broward. Now leave!


See You In Court. Just not North of The Border.

25 comments:

Anonymous said...

Rumpo:

For discussion, the infamous “nanny cam” case, with the Miami Herald’s article presented below:

1. Was this a case of an ex-prosecutor manipulating the justice system when he thought his family was the victim?
2. Why did he really destroy the contents of the videotape, other that the “offending” portion? Was it because it showed him having sex with his wife in the living room? Perhaps he was having sex with the nanny? Was it because it would show him doing the same things that the nanny was accused of (and jailed for in excess of 2 years)?
3. Didn’t he know the rules of evidence? Of discovery? Of fair play? Couldn’t he have just turned over the entire tape to the prosecutors with the request that the contents only be showed in camera?

Kudos to defense attorney Allison Gillman for her hard work, for Judge Elijah Williams, the best judge in Broward County, by far, (who initially through out the videotape due to the destruction of its other contents), and to Prosecutor Dennis Siegel, for finally dropping the charges rather than trying that farce (but what took so long to do the right thing, Dennis?)

-----------------------------------

THE MIAMI HERALD

Prosecutors drop 'nanny cam' case

Video surveillance evidence will still play a key role in future cases although it wasn't sufficient to prosecute a nanny charged with child abuse.

When a hidden surveillance camera appeared to catch nanny Claudia Muro violently shaking and slapping a Hollywood baby in 2003, the ''nanny cam'' video was broadcast around the country. Muro was jailed, publicly branded a ''monster'' by the 5-month-old's mom. Child-care experts offered tips on how to hire a caretaker who is not a violent abuser.

Monday -- two years and five months after the initial uproar -- the case sputtered to a quiet conclusion: All charges dropped.

Prosecutors acknowledged that the jerky video was worthless as evidence.

''Video is a very, very powerful tool when it's used properly and examined by a qualified analyst,'' said Grant Fredericks, a defense expert in Muro's case, and considered the preeminent forensic video expert in the country. ``The dangers are when a a lay person examines video without interpreting it, it can lead to the wrong conclusion. This case was the most gross example of how video can be misinterpreted.''

Brett and Jennifer Schwartz discovered a bruise on the face of their 5-month-old baby Lauren, then reviewed the nanny cam in their Hollywood home. They believed it showed Muro violently shaking their daughter. Despite a medical exam that showed Lauren was not injured, they pressed charges.

In the end, experts agreed that what viewers saw -- or thought they saw -- was not what really happened. While a typical television program shows 60 images per second, the nanny cam recorded only about four images per second, Fredericks said. The video essentially captures snapshots, but not complete actions.

Two such ''snapshots'' -- a hand on a lap, and a hand on the baby's face -- viewed quickly, may look like the baby is being struck. That's because the human brain tends to fill in gaps not captured in the video. In reality, the hand may be only be touching or wiping the baby's face.

But other defense attorneys hoping to exploit technical glitches such as those in the case against Muro will need more than a video expert.

In general, video evidence works hand in hand with other evidence.

That's where the state's case against Muro fell short: Prosecutors had nothing else. The infant wasn't injured, and in the video, she doesn't appear to react as if she's been hit.

`NO ASSAULT'

''There was no assault,'' said Fredericks, a former police officer who teaches officers worldwide how to analyze videos.

``It was so obvious to me and obvious to any forensic video analyst who looked at the tape.''

In a brief court hearing Monday, prosecutor Dennis Siegel announced the state was dropping the case.

Muro, 32, and her attorney Allison Gilman embraced and cried after the hearing.

''I am so proud of you,'' Gilman told Muro. ``You did not waver.''

Muro gave her parents a smile, and flashed them the peace sign with her fingers, before a bailiff led her away in handcuffs.

She now must face immigration charges that she has been living in the United States without proper documentation. Muro, who is from Peru, has been living on an expired visa. She is married to a U.S. citizen.

Gilman said she expects Muro to be released soon.

Joe Brooks, Muro's husband, said he looks forward to a ''big hug and kiss'' from his wife.

Controversy over use of the video has delayed resolution of the case.

Brett Schwartz, a former Miami-Dade prosecutor, refused to give police the full recording because he said it showed some intimate moments in his home. Instead, he provided police with selected portions. The full original recording was destroyed.

That raised the eyebrows of Broward Circuit Judge Elijah Williams, who tossed out the recording in 2004. The Fourth District Court of Appeal later reversed him.

Muro's victory Monday won't bring an end to videotaped evidence in court, Fredericks said.

''This case should send a strong message out to prosecutors . . . to have an expert look at the video when somebody's liberty is at stake,'' he said. ``This should be handled no differently than fingerprint evidence, blood splatter, footwear, DNA evidence.''
Prosecutors have increasingly used videotaped evidence in recent years as the technology has become more accessible. Video cameras are found in stores, banks, ATM machines, homes and even on public streets. A videotape from Wal-Mart led to last month's arrest of Brian Bethell, who charged items on the credit cards of murder victims.

When a homeless man was beaten with a baseball bat in Fort Lauderdale in January, the televised video led to arrests of three teenagers.

That video could be used by the prosecutor to argue the teens intended to kill, said Chuck Morton, a prosecutor who heads the Broward homicide division.

Unlike in the Muro case, prosecutors can point to other evidence: the man's injuries were consistent with beating beaten with bats, he said.

MORE SHOWN

Fredericks said the beating video also shows much more than the nanny cam. It shows suspects swinging baseball bats and a victim on the ground reacting.

''You've got a lot of information,'' he said.

Despite the agreement of experts on both sides that the Schwartz's nanny-cam images were misleading, the baby's parents still believe their daughter was abused.

''We stand behind the video 110 percent . . . it is proof to us what truly took place in our home. . .,'' reads the parents' statement. ``If the state needed our daughter to sustain brain damage to prove their case, then let the nanny walk away a free woman. . . . Apparently we live in a society where a person may only be held responsible for their actions against children when it ends in tragedy.''

Anonymous said...

shame!

Anonymous said...

Incidentally, that ex-prosecutor is none other than the son of your friend and mine, Judge Sheldon Schwartz.

Anonymous said...

A judge's son also? And he still didn't get it?! I'd just love to ask him at the civil deposition (when she sues for malicious prosecution) "What exactly were those 'intimate moments' you spoke of to cause you to destroy potential evidence in a criminal prosecution?"

Anonymous said...

the kid has always been a bit dull.

Anonymous said...

When I saw the video I was stunned they dropped the charges. Only after I read the defense expert's explanation did I understand that the slow frame-rate rendered the tape essentially meaningless.

With that video, you wouldn't stand a chance in hell going after Schwartz for malicious prosecution.

Anonymous said...

ONCE HE WAS MADE TO UNDERSTAND THE SCIENCE, HE SHOULD HAVE BACKED OFF. BUT WHO'S TO SAY WHEN WERE TALKING ABOUT A PERSON'S CHILD.

Anonymous said...

So why did he destroy the rest of the videotape before letting anyone, even the judge or the prosecutors, look at it? That is the most troubling aspect of his behavior, especially considering his background. Certainly, I'd like to know what was really on that tape.

The only way we'll (potentially) know is if he's sued ... and it wouldn't surprise me if Ellis Rubin was preparing the lawsuit (and press conference) as we speak.

Rumpole said...

Any good Republican learned the lesson from Nixon well. When in doubt, "destroy the tapes." Kudos to Alison Gillman who took on a very unpopular case and did a great job.

That being said, child abuse is an ugly topic. No good comes from this case. You have parents that are freaked out, a child that was bruised, and a possibly innocent person accused. No winners anywhere you look.

Anonymous said...

For those of you critical of Brett and Jennifer Schwartz it is suggested you review your own priorities.You should further review your knowledge of the law.
Upon the family discovering a bruise on their five month old childs face they viewed the video .nanny cam and observed that which you saw clearly on television.Thye brougfht the child to the hospital and the police responded.The police viewed the video and looked at the bruise,and proceeded to charge Muro.The State Attorney was provided with the video the following day.The case was presented by the police to the State Attorney who files or "presses"the charges.
Perhaps those of you with the vitriolic comments would not check your child or not care if your child had a bruise,nor would you seek nor expend the funds to protect your family but the Schwartz family did.
Yes,perhaps the entire disc should have been turned over,but look at yourself and see if you would wish your most intimate moments being used in evidence.Perhaps you would but what of your significant other.view this in the context of everything occuring within twenty-four hours with law enforcement agreeing the entire disc is not needed.
Now to those skeptics of the video tape.Yes,their is a time factor but remember what you saw.One television chanel even showed on television side by side clips with the time frame from the nanny cam vs.the experts statement as to time lapse/frame and you still would see the actions were not loving taps by Muro:the child head does not go back and forth under any circumstance;the child is "thrown ove Muros' shoulder.What normal movement it to hold a child from over ones head then lowering the child to where she disappears from view.Even if you speed up the tape you will note questionable acts being committed:I suggest criminal acts of child abuse.
But for the grace of the Almighty,this child could have been severly injured,but noy severe injury was found.Had severe injury or worse occurred the State would have proceeded with the prosecution.Mrs.Schwartz was correct that if it was between her child having received injury,and Muro being set free,the family wast thankful for the childs health.
Now,look at the "statement"where Moro indicates it happened only this one day.This was played by a station on Monday.
Atty.Gillman should be nominated for an Academy Award.Yes,she most definately did a fantastic job for her client securing a molle prosequi on the day of trial.But Atty.Gillman is also a liar,no LIAR in the biggest sense is that she knew this cas was being dismissed for no less than one week prior to Monday,yet in her interview she stated"we have been preparing for trial night and day for the past four to five weeks".Indeed,she also contacted the media last week,some six days prior to the State going before Judge Weinstein in Broward County.Her tears and her character are to be questioned.She is a person not to be trustred.
So now search your sole as to what you would have done and how you would have reacted had you been in the place of Brett and Jennifer Schwartz.If you feel their actions were inappropriate perhaps you should speak with a person like Dr.Jacobson.

Anonymous said...

jenny schwartz is a great girl. i went to high school with her. this is not a vindictive couple and they would NEVER try to put an innocent person in jail.
good luck with a vindictive prosecution case. Who ever came up with that idea is a real "shitbird".
as for the tapes, i agree that they should have been excluded.

Anonymous said...

Anonymous said...

Yes,perhaps the entire disc should have been turned over,but look at yourself and see if you would wish your most intimate moments being used in evidence.Perhaps you would but what of your significant other.view this in the context of everything occuring within twenty-four hours with law enforcement agreeing the entire disc is not needed.


Get fucking real. What happened, they FORGOT they set up a nanny-cam? Didn't know how to turn it off for their monthly roll in the hay? Couldn't manage a change of venue to another damn room? Gimme a break.

jane doe said...

is it any surprise that this asshole is a former miami-dade prosecutor? he's no hack! to the contrary, he's had formal training in concealing and destroying exculpatory evidence! why expect anything different in his private life? i hope she sues the fuck out of him and wins.

Anonymous said...

there's a brand new dance. it's called the dirty sanchez.

Anonymous said...

there's a brand new dance. it's called the dirty sanchez.

Anonymous said...

Fuck the State, and fuck this slimey ex-prosecutor. Intimate moments? Garbage!!

Anonymous said...

Those of you who have children and feel the "nanny"was wronged are invited to invite her to your residence and allow her to watch over your child/children!Those of you who believe the does not merely distort but grossly shows nothing whatsoever happening to the child are invited to hire Moro.But before you do,make sure that your spouse is in agreement since you are to trusting and apparently do not care about your sibling.
I dare any of you,if you love your children and view that which is on the video tape following observing a bruise on your childs face to tell anyone you would have done anything different from that which Brettand Jennifer Schwartz did.
The "nanny cam"was placed as security,not believing such would ever record such an incident.
The parents did what any loving parents would do.The video was not intentionally destroyed and law enforcement did not believe the entire tape was needed;and yes the family did not want intimate moment to be shown.
Those of you who disagree should re-evaluate your feelings towards your family:your partner be it your wife,husband or significant other and just as importantly your childredn.If you say you would have done any different perhaps you should seek immediate counselling because your family is truly in danger!

Anonymous said...

whats her number, i need cheap, illegal day care?

Anonymous said...

lets stop with the drama and the pontification brett. the nanny was guilty. we all saw the tapes. but sign your name for gods sake. your talking about your family.

Anonymous said...

OMFG!

"The parents did what any loving parents would do..."

Let their own nanny cam record their "intimate moments." Wow, they really were "loving parents!"

Verrrry credible!

Anonymous said...

Dcf ought to investigate the parents. The video indicated the nanny did nothing wrong, so how did the bruises get there? Maybe this husband and wife are covering for each other. Perhaps the souls that "need to be looked into" are the parents of this child? Its starting to look like maybe the parents have something to cover up, that's why they made up the lie about "intimate moments".

Anonymous said...

Dcf ought to investigate the parents. The video indicated the nanny did nothing wrong, so how did the bruises get there? Maybe this husband and wife are covering for each other. Perhaps the souls that "need to be looked into" are the parents of this child? Its starting to look like maybe the parents have something to cover up, that's why they made up the lie about "intimate moments".

Anonymous said...

The comment that prosecutors receive formal training in hiding/destroying evidence may be the singled stupidest comment I've seen on this site. It amazes me that so many defense attorneys who think nothing of defending guilty scumbags destroying our societey and vigorously asserting their innocence in the press are so quick to stereotype prosecutors.

Anonymous said...

YEAH - stop accusing prosecutors of receiving formal training!

Stephen Magadov said...

I know this post is 6 years old but its wjat I was saying the whole time that the nanny should not have had to be in jail so long and that the family was wrong!!!