Wednesday, March 08, 2006


Muldowny Team Member Michael Catalano writes in with a preview of tomorrows fireworks. For obvious reasons we cannot say whether we will be in attendance and invite Catalano to post a wrap-up of the days events.

To All Defense Attorneys and the Phantom Blogger

From Mike Catalano

This is my unofficial attempt to explain what we are doing with a little bit of comedy thrown in....very little comedy...

Re: Muldowny

The hearings start at 1:30 pm on Thursday March 9th, Courtroom 4-1, MJB.

The first half hour will be wasted with speeches and nothing important.

Then, brief, hopefully very brief opening statements. Yea.... right.

First witness: Stephan Rose, MD. He will explain everything you really need to know about the intoxilzier. He will bring a machine for all to see.

We start with Dr. Mylar, the electrical engineer. He will explain that you really can not know what is going on in that box unless you have all the programs... like the source code.

We rest.

State calls Laura Barfield. She is the FDLE boss. She will say, worry not... it works fine and we know it does because we take the word of the manufacturer and have no reason to ask any questions...

State then calls Mr. Schofield. He is the engineering boss at CMI, Inc..... the manufacturer of the machine. He will claim that the machine is fine and we should just take their word for it and he will claim that the 1983 microwave oven technology source code is a trade secret.

Last, they will call Chip Walls to rebut what Rose said. Funny, how a guy with a BS will try to rebut a MD when Walls does not even know what model intoxilizer we use in Dade County.

Most likely, there will be a future hearing date... in a week or so, when all judges will get together and hear final argument.

We hope to have this all wrapped up in two weeks

Rumpole replies: We are sure Richard Hersch will throw an elbow or two during cross and manage to link the fact the government was sure there were WMD's in Iraq with the current prosecution's position that if the FDLE says the machine is OK, then it must be OK.

Querry: why can't the machine be reverse engineered?

Housekeeping: a person posted on the blog using the name of a Judge. But the email address was anonymous. When a Judge makes a a post, it usually comes from their email with an 11th circuit attachment. Any email from anonymous with a Judge's name on it should be treated as phony.

Anonymous wrote:

I heard the PD's office hasn't told their attorneys about the arrest of the cop on perjury charges. Since they're barred from this blog, how will they defend their clients in cases where Gary is the eyeball? Guess the matter of lying cops doesn't bother the office too much.

Rumpole replies: we thought the issue of PD's access to the blog was settled. It is the SAO employees that don't have access to the web. The PD's do.

We leave with a few choice quotes from the Bard for our friends who do battle on the morrow:

One draught above heat makes him a fool; the second mads him; and a third drowns him.

12th Night.

"Things won are done; joy's soul lies in the doing."

A favorite quote of the Bard, but the title of the story escapes us at the moment.
Good Luck tomorrow Team Muldowny.

See You in Court.


Anonymous said...

Let's face it, there are computers in cars and you don't really know what's going on with the car unless you have the source code for the car's computer. Doesn't matter if you arrived at your destination safely - something else was happening.

Just like when I drafted a motion the other day. Unless I have the source code for Microsoft Word and Microsoft Windows, how do I know the program actually printed out my motion?

If a tree falls in a forest, will anyone hear it unless we have the source code? I think not...

Here's some source code right here, written in DRE-BASIC:


Move over Harry Houdini...

Anonymous said...

that first post was a sad attempt at humor.

Anonymous said...

Your Honor, how can I defend my client against charges he kept pornography on his computer if Microsoft refuses to give me the source code for Windows XP?

Anonymous said...

I guess you're one of those people who just want to "trust" those Diebold voting machines without knowing how they can be hacked into and without a paper trail to confirm their accuracy.

"Trust me, I'm with the government."

Anonymous said...

Gee, I don't know, we've got these 16 year old machines that when we open them up, they look nothing inside like the manufacturer's schemanics show they should look like. I guess that really doesn't mean anything, does it Bill Gates?

Anonymous said...

Next you guys will be asking for the source codes for the cars:

Your Honor, how am I supposed to show the Jurors that it was in fact the cars fault it swerved down the street, ran through a ditch, crossed into on-coming traffic and hit the officer's car? I need that source code for the flashlight too to show that it was in fact the cause of the nystagmus, not the 15 beers my client allegedly drank....and, I want the source code for the tap too, who can be sure it was pouring beer?

Sam I Am said...

I think he's seeing someone.

Anonymous said...

I think a little better analogy may be the fact that my car will run on 87 octane gas or 93 octane gas. Does the fact that it runs on both mean that both types of gas are the same? What if the intoxylizer is programmed to output the same information even if the samples put in are different?

Anonymous said...

Dear Mr. Source Code:

You just don't get it, do you? 16 year old, broken down machines, run by cops (not scientists or electrical engineers), and that should be guilt of a crime that cannot be expunged? I don't think so!

What other crime is guilt determined by a machine? Yet, under the DUBAL portion of the DUI statute, if you have a .08 or above, you are guilty! Not even DNA is given that type of respect! Hell, polygraphs aren't even admissible!

Sorry, but I believe our Constitution, and our "justice" system, deserve a whole lot more than blind faith in this glorified toaster.

Anonymous said...

That makes zero sense because the Intoxilizer does not test for alcholic beverages, only alchol. It does not matter whether you drink 100 proof or 50 proof. It will give you a number based on the measurments of alchol in your breath.

Anonymous said...

You just don't get it (and you spell it a-l-c-o-h-o-l). It's a machine! Just a machine! The manufacturer who sold it to the various police departments 16+ years ago (for approximately $5,000.00) only gave the police departments a 1 year limited parts & labor warranty! And they don't run or maintain it, a bunch of cops do! The thing should NOT be the arbiter of guilt!

Anonymous said...

a limiting instruction is the best that we can hope for in the long run. but it's a great delay motion. i opted in and i blew a .23. i was wasted.

Anonymous said...

That is B.S. It is actually an instrument and it is regularly calibrated. Does a ruler go bad just because it is 50 years old? I think you have a great argument for the jury but everyone knows that if you blow a .08 on that thing, you are pretty drunk, unless you are a pro. The cops do a drinking lab with ASAs to train rookies and I can tell you I blew over a .08 at the lab (but less than a .09)...I was waisted, and shocked the number was so low. The truth is you have to be pretty drunk to hit .08.

Anonymous said...

QUOTE: "I was waisted, and shocked the number was so low. The truth is you have to be pretty drunk to hit .08."

Maybe you're just a lightweight pussy who can't spell...W-A-S-T-E-D!

Anonymous said...

No, s/he is just a brain washed ex(?)- prosecutor.

Anonymous said...

LOL. What a load of crap. Do you really believe your own nonsense?

The county court rulings requiring the State to turn over the codes are ridiculous. Nothing like this happens in circuit court. I'd love to see you ask a circuit judge for the source code for the instrument that did the DNA, GSR, etc. Or the source code for the hospital instrument that tested the medical blood in a felony DUI. LOL. Maybe if you spent more time in felony court you'd understand how stupid this is.

Anonymous said...

so stupid.

Anonymous said...

"Towering genius distains a beaten path. It seeks regions hitherto unexplored."
--From the January 27, 1838 Request for Source Code, Abraham Lincoln

Anonymous said...

My take on this whole Muldowny stuff is that ultimately it will be
soundly defeated by either the courts or the legislature. Why not
leave this stuff alone and argue it
all on cross, the defense case and closing?

Instead you brainiacs do all these complex motions and with what result. A new anti-discovery law limiting the ability of defense attorneys to get the source code and probably a law limiting defense
attorneys ability to even bring this stuff up at trial at all.

Sometimes from a strategy standpoint, it is better to leave stuff alone, than to fight it and either create bad case law or
bad legislation.

On the other hand, I think it's all smart business. By bringing up these motions, the normal DUI case drags on and on and allows
attorneys to charge more and collect more fees.

Moreover, it's great business for
the BIGS (Catalano, Reiff and Hersch,etc.), it gets them some pub and some new cases.

In regards to all the DUI lawyer
haters claiming that they are not
real lawyers because they are never
seen in felony court. The fact is
again on the pure business side of
things, County Court is where its
at. Quicker resolutions, fewer depositions, fewer jail visits, lesser punishments for the clients and a ton of easy Nolle Prosses every month.

Shit I handle 75% felony cases and I would die to get more County Court cases. It's just smart business to concentrate on County
if your in private practice.

Felony v. County

Anonymous said...

Genius wrote: "On the other hand, I think it's all smart business. By bringing up these motions, the normal DUI case drags on and on and allows
attorneys to charge more and collect more fees."

Two words: flat fee.

Anonymous said...

I'm sorry you didn't like my little attempt at humor, guess it didn't meet your discriminating tastes. So much so it made you forget to capitalize the first letter in your sentence.

As for the 16 year old machines, guess you need to stop using telephones too, since the telephone connections in some houses in America have not changed in nearly a century. A person can plug in an antique phone from the 1920's and it would still work fine. If someone's telephone were wiretapped, the evidence ought to be thrown out because the lines in use were probably more than 16 years old.

I'm surprised they all didn't go bonkers in the year 2000... the Intoxilyzer probably wasn't Y2K compliant and should have shut down like all office computers and the internet. ;-)

Anonymous said...

I agree, the defense should just lay down and accept the intox results. In fact, the defense should not question any evidence the state puts on in any case, it just takes time, and causes judges to have more cases in their division.

The people who are so willing to question the evidence the state puts on in criminal cases are probably the same people who question whether there were weapons of mass destruction in Iraq. We all know that there were, and we will find them, real soon. Very, very soon. Like in a few....months, weeks. They're there, because my president said they were there and I believe everything he says.


Anonymous said...

Re the comments about it being silly to rule that the source code must be turned over: Hey, its county court, what do you want??

I remember when Judge Winton and that mean judge who would sit in temporarily and wear the cobalt blue robe (can't remember his name) made the ASA bring in the photographer to get a photo into evidence.

Rumpole said...

We removed a post today. Calling a young female attorney a "ho" doesn't cut it on this blog. Never did, never will.

Anonymous said...

Felony offenses are not proven by a machine's results alone! DNA is only evidence of the commission of a crime. Having a .08 on this toaster means that you are toast! Sorry, but I don't buy it! Its just the usual bullshit of doing it cheaper and easier and accuracy be damned!

Anonymous said...

I don't see how a .08 on a toaster, means you are toast.

I've watched defense attorneys beat out a .09 without breaking a sweat.

They didn't even challenge the maintenance. They could care less. Because in the end, if you pick the right jury and you say the right things, a jury will disregard it all and go with their gut.

.08 is only a rebuttable presumption nothing more. Innocence is a rebuttable presumption too, but I've seen juries take innocence a lot more seriously than they take a .08.

Because in the end, after the State goes through all of the foundation they need to lay to get the .08 or more in, the jury is asleep having been lost in the scientific jargon.

Anonymous said...

Hey flat fee savant,

I guess that means you've never signed anyone up on a payment plan
and had to work at collecting the
remaining fees.

More power to you if you always get all the money up front and don't have to collect the rest.


Anonymous said...

My comment was that many actually most of the lawyers are not "billing hours" for this source code stuff, they have received a flat fee and are not participating because they will make more money off it, payment plan or not, Genius

Anonymous said...

"Felony cases are not proven by a machine's results alone." No kidding, genius. Either are DUI's. The registered BAC alone doesn't mean guilt. Check the statute, the law criminalizes a person who DRIVES with a BAC of .08 or above. Regardless, defense attorneys remain free to convince the jury that the instrument wasn't working right. Your response to my post re DNA, GSR etc. evidence makes no sense. Try understanding the law before you make your next silly argument.

Anonymous said...

It's true that it may be a better trial strategy to say some things are better left alone in order not to create bad case law or legislation.

Despite the near-sighted nature of the strategy to contest the non-distribution of source codes, with regards to possibly creating bad law, PR for defense attorneys and the collection of greater fees are not the only possible achievements of this motion.

It seems that worse case scenario for the portion of the defense bar that opted into this litigation of the source code issue is an extended delay in the litigation of their DUI cases. This delay will only serve to dim the memory of police officers who will have come to court on other cases and will continue to charge new defendants in the meanwhile. Such delays will generally contribute to a higher rate of nolle prossed cases.

santa claus said...

hey rump,

just wanted to say "ho, ho, ho!" to all the young female attorneys in the justice building! happy holidays too!

st. nick

Anonymous said...

bottom feeders

Anonymous said...

...a somewhat simple question that has probably been asked and answered elsewhere...can the machines demonstrate repeatable accurate readings when given a known sample? The source code becomes nothing more than a new & insignificant line of argument if the machines can (or cannot) demonstrate such repeatable results. If the argument is really about cops maintaining machines that they then use as (in effect) arbiters, is the correct solution in finding someone else to maintain and test the machines?

Jason Grey said...

The legislature is trying to make it a 1st degree MM to refuse to blow even once. It would be nice to know that the intoxilyzer actually works as advertised. When my computer starts acting up and spits out crap I do what everyone else does, unplug it and it "fixes" itself.
That's why monthly maintence checks are bullshit. Just cause it worked ok one day last month and again yesterday doesnt mean it worked ok in between.
I don't see the metro dade crime lab using cops to maintain their equiptment.

Anonymous said...

Someone asked: "If the argument is really about cops maintaining machines that they then use as (in effect) arbiters, is the correct solution in finding someone else to maintain and test the machines?"

Answer: No, its not a solution, but it is a good start in providing impartiality. Can anybody say Corzo? He's the infamous Miami-Dade police department maintenance officer from the late 90's who admitted that he manipulated the maintenance results until he got the answer that would "pass" the machine. Bad result=cards go in the garbage and he starts again. And he is not the only officer in this county to admit to destroying agency inspection cards to hide failed tests.

By the way, Corzo testified that The State Attorney's Office advised him to do the maintenance that way.

Anonymous said...


Justice System
Courthouse extortion claimed

March 1, 2006
By Julie Kay

Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.

The Miami-Dade state attorney’s office has launched a criminal investigation into whether the judicial assistant to a Miami-Dade County Court judge extorted judges to get them to hire him as a campaign consultant.

According to sources close to the investigation, Richard Scruggs, special assistant for public corruption at the office, is looking into that charge as well as charges that Juan D’Arce, judicial assistant to Judge Ivan Hernandez, did private consulting work while on his judicial assistant job.

“Justice is not for sale in Miami-Dade County and our investigation into these allegations are intended to clearly prove that,” said Ed Griffith, a spokesman for Miami-Dade State Attorney Katherine Fernandez Rundle. “The actions we are revealing appear to strike deeply at the heart of the justice system, and as prosecutors we can’t tolerate that.”

Griffith confirmed the investigation is under way but declined to discuss specifics.
Sources said prosecutors seized D’Arce’s computer as part of the investigation, which D’Arce denies.

Scruggs, who handled the Miami International Airport corruption case and investigations into former Miami City Commissioner Art Teele, did not return calls for comment.

Bob Levy, campaign consultant to a handful of judges up for re-election, said several of his judicial clients were called by D’Arce.

“He said if they didn’t hire him, he would run someone against them,” Levy said. “People feel in fear. This is extortion and intimidation.”

D’Arce, 34, acknowledged in an interview that he has worked for judicial candidates in past years, including Diane Ward, Judy Rubenstein, Peter Adrien, Gabriel Martin and Ivan Fernandez, and has set up a corporation to do political consulting, called Pericles. “It’s from Greek mythology — he invented the voting system,” D’Arce said.

But D’Arce insists that he has never contacted a judge, asked for money or done work while at the courthouse.

“This is a smear campaign,” he said. “Yeah, I dislike some judges and would like to see them out. But I have every right to do this on my own time. I get approached by people all the time.”

One candidate who recently hired D’Arce is Juan F. Gonzalez, who is running against County Court Judge Steven Leifman. Gonzalez said D’Arce “works with me, he’s helping me.”
Gonzalez is a former county traffic court officer who was fired by Judge Leifman two years ago because of what Leifman said were complaints about Gonzalez’s conduct in traffic court. Gonzalez said D’Arce is helping his campaign “on a volunteer basis, for now. But he only does work for me during off hours.”

Judge Leifman — who heads the county court’s traffic division and has won acclaim for founding and running Miami-Dade’s mental health court — said in an interview that it doesn’t matter whether D’Arce worked for Gonzalez on or off the government clock. Either way, he said, it’s unethical and “horribly offensive” for a judicial assistant to work as a campaign consultant.

“I don’t think any J.A. should be involved in political activity,” Leifman said. “The judiciary prides itself on being free of bias and impropriety. I think this would send the wrong message to the public, and I don’t think any judge would want to be associated with this.”

D’Arce said Monday that he “just found out” about the investigation. “In a way I’m honored by this,” he said. “I guess I must be a feared individual if so many people are talking about me. I’m a little immigrant boy from Nicaragua who should be a nobody.”

He said he only does political work on his own time, and only sometimes asks for pay. He said he is being targeted because many in the legal community believe he writes the anonymous blog, justicebuilding.blogspot, which he insists he does not.

D’Arce’s lawyer, Henry Ferro of Ocala, said the allegations were the work of “bailiffs and judicial assistants who do nothing but gossip eight hours a day. They have a lot of time on their hands.”

Ferro speculated that someone in Judge Leifman’s campaign used influence with the state attorney’s office to get an investigation started. He said it is racial and ethnic politics “interfering with the courthouse.”

Linda Pearson, general counsel for the 11th Judicial Circuit of Florida, declined to say whether it is unethical or a violation of court policy for J.A.s to moonlight as judicial campaign consultants.

“If you work for the court system, you can do whatever you want once you leave the office and turn your computer off,” she said. “But you can’t use your position in the courts to further your own personal agenda.”

For his part, Judge Ivan Hernandez, for whom D’Arce works, said he has no problem with D’Arce working for political candidates on his own time “as long as he doesn’t use my office. And he hasn’t.”

“I don’t think it’s against the law,” Hernandez said. “He has a constitutional right … to freedom of speech.”

Gonzalez filed to run against Leifman two weeks ago. The qualifying period for the election is May 8-12, the primary is Sept. 5, and the general election is Nov. 7.

Gonzalez approached D’Arce to help on his campaign before filing to run. He said he chose to take on Leifman, his former boss, because “not everyone is satisfied with the job he is doing.”

Leifman received the highest rating of any county court judge in the 2005 Dade County Bar Association poll of lawyers. More than 53 percent of those responding rated Leifman as “exceptionally qualified.”

Other observers said Gonzalez is running to retaliate against the man who fired him.

Gonzalez denied he is running against Leifman to seek vengeance. “This is not about that,” he said. “If I was running against a woman, you’d ask me why I’m running against a woman. If I was running against a Haitian, you’d ask me why I’m running against a Haitian. He is an honorable individual who is doing a good job, and I consider him a friend.”

Leifman said he fired Gonzalez after 11 years as a hearing officer because he displayed “inappropriate demeanor and incompetence.” According to Leifman, Gonzalez “was getting up on the bench and yelling at people about the Holy Trinity. He would yell at lawyers. We have a file of 12 to 15 complaints.”

Gonzalez said he was never told why his commission as a hearing officer “was not renewed” and said he does not remember whether he mentioned the Holy Trinity. “I had one-and-a-half million to 3 million cases in 11 years,” he said.

One lawyer, who practices in traffic court, said Gonzalez generally was a fair traffic court hearing officer but was known for having “attitude in the afternoon.” The lawyer said that if Gonzalez “didn’t have his colada [Cuban coffee], you didn’t want to appear before him.”

But there may be another factor in Gonzalez’s decision to target Leifman. Many Miami-Dade judicial hopefuls see non-Hispanic male judges such as Leifman as increasingly vulnerable in elections in the heavily Hispanic county. In recent elections, several white and black male judges were defeated by Hispanic candidates.

Brian Tannebaum, a Miami attorney and president of the Miami chapter of the Florida Association of Criminal Defense Attorneys, called the situation involving D’Arce and Gonzalez “ethnic politics at its worst.”

“I believe these guys targeted Leifman because he’s beatable, not because he’s not qualified,” Tannebaum said. “It’s a despicable situation.”

Julie Kay can be reached at jkay@alm.com or at (954) 468-2622.

The name of Linda Kearson, general counsel for the 11th Judicial Circuit, was misspelled The Review regrets the error.

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