Wednesday, July 12, 2006



Appellant, **
vs. CASE NO. 3D05-1767

Opinion filed July 12, 2006.
An Appeal from the Circuit Court for Miami-Dade County, David H. Young, Judge.
Jeffrey L. Freeman and James K. Rubin, for appellant.
Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellees.

Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

Rumpole takes this moment to note that a careful reading of the caption of the appeal would lead experienced appellate lawyers to suspect that things are not heading exactly in the way pilot/defendant Hughes would have wanted.

Judge Rothenberg wrote the opinion for the court:

(readers will remember that trial counsel for the pilots decided that the best defense would be that since the aircraft was being towed to the taxiway in preparation for takeoff, the pilots were not in control of the aircraft for the purposes of the DUI prosecution. )

Here is the way the “Red Baron” dealt with “Snoopy’s” defense at trial

"But more importantly, whether the defendants could move the aircraft under its own power during the time it was being towed by the tug is irrelevant and, with all due respect to the defense, nothing more than a red herring. The undisputed evidence at trial was that the defendants “operated” the aircraft well before it was attached to the tug and towed away from the gate in preparation for its takeoff."

We don’t always agree (ok, we never agree) with the way the Honorable Judge Rothenberg interprets criminal law. But even we are forced to admit that the Judge is correct. The defense at trial was a red herring and nothing more.

When you get past all the legal issues and so forth, you still have to deal with the common sense of jurors at trial. What would any person with a brain think was going to happen after the aircraft was towed to the taxiway? That Amelia Earhart would swoop down and sit in the pilot’s seat and take over?

The technical legal distinction that these two soused pilots were not in control of the aircraft at the particular moment the plane was stopped was ridiculous, and almost as reckless as the act of the pilots themselves.

Now we realize that sometimes the defense is reduced to arguing “venue” at trial because there is nothing else to contest. And certainly there will always be a certain amount of second guessing the losing side when a publicity case goes to trial.

But we can’t help feeling that the second mistake these two pilots made (the first being staggering out of Mr. Moes and hailing a cab to the airport) was in their choice of trial counsel. There are several highly trained and very successful DUI defense attorneys in this county, and none of them were retained for this case.

In the final analysis, these pilots almost killed over a hundred people. Men, women, husbands, wives, fathers, mothers, and children all boarded that aircraft and placed their lives in the hands of two men who cared so little for the responsibility entrusted to them, that they spent the night before the flight drinking in Coconut Grove.

The first thing they teach you in flight school is “24 hours bottle to throttle”.

The actions of these pilots was inexcusable. In the scheme of things they probably got the defense they deserved and the sentence they deserved.

See You In Court.


Anonymous said...

I think the first mistake was the trial judge

Anonymous said...

Why do you think the pilots didn't hire "big shot" DUI attorneys?

Anonymous said...

Rumpole, can we get any info on if the judges at the 3rdDCA get paid by the word. If they do Judge Rothenberg is in for a huge check.

43-frekin pages. No wonder Judge Schwartz simply said Concur in results only, he took one look at the 43 pages that made no sense and simply read page one the results and concurred.

Anonymous said...

Boy did you get that right.

With all the experienced DUI lawyers in town, why did they go with the guys they got?

Also, that whole idea of going to Federal Court was a waste of time and just pissed off the prosecutors.

That case should have been plead out.

Anonymous said...

Anonymouse Candidate says:

Today, the Supreme Court unanimously DENIED the JNC's
Motion for Clarification (trying to stop election officials from
accepting qualifying papers next week) Go Candidates!

Anonymous said...

As I understand it, they did everything within their power to plea the case, but David wouldn't accept any plea whatsoever.

Anonymous said...

A good trial lawyer is a good trial lawyer. Would anyone seriously argue that these guys would have been better off with Essen & Essen than Roy Black simply because this was a DUI case? Of course not. They had bad lawyers, but not because they stayed away from the DUI bar. They should have gone with real trial lawyers.

Anonymous said...

Boy, you gotta read that stupid opinion.

Leslie really screws up lots of law and really was dishonest in her idea of harmless error.

Anonymous said...

David really wanted the limelight at the expense of the pilots lives.

Anonymous said...

Rumpole - those pilots in your words "almost killed hundreds of people?"

When's the last time you were in a cockpit?

Had they taken off, nothing would have happened that the computer didnt want to happen. ANd dont give me the bad weather, what if argument.

What they did was inexcusable, no question. But saying they almost killed hundreds of people is a little much.

Rumpole said... don't know when the last time we were in a cockpit was. But we do know this:
Pilots make judgments all the time, from pre-flight to the information that they have to put into a comptuer to make sure the computer calculates weight, fuel, balance, time, and distance properly, we do not feel we are exagerating when we say that these drunken lushes could have easily killed those people flying under the influence of alcohol. Even when shooting an ILS approach or departure pilots are asked to constantly make adjustments or turns to avoid traffic, not to mention the risk of getting lost on the ground and wandering on to an active runway.
Of course its not flying under the influence, its crashing under the influence that is the real problem.

Anonymous said...

The DUI bar has an ego that would make barry bonds proud. like they could have beaten this case-yeah right. what they do is so hard beating up on lawyers who just got out of law school.

Anonymous said...

The most critical and dangerous parts of a flight are take-off and landing, and those are not done by computer.

Anonymous said...

Funny, to the person who wrote, had they taken off there would have been no problem..........
sounds like, "I only had 2 beers" or "I was only 1 block from my home"
Congrats to the DCA for grounding these pilots.

Anonymous said...

Three comments on the pilots case: (1) As long as you're bashing the trial attorneys, you might as well note that the same attorneys handled the appeals as well. (2) The decision in Cloyd's case is actually 53 pages long, while Hughes is "only" 43 pages. The difference and I think you missed this Rump, is that the pilot got an attempt instruction while the copilot didn't. He probably tried an all or nothing strategy and didn't want any lessers. (3) I agree with the 8:47 poster. Rothenberg doesn't know how to properly analyze harmless error. You don't look at all of the evidence which shows operation. You look to see if there was any evidence which showed only an attempt. If there was any, then an attempt instruction should have been given.

All that said, the end result from a very nonlegal perspective is probably just. How stupid must you be to drink all night then try to fly a commercial airplane.

Anonymous said...

c'mon now lets place equal blame on Judge Suarez as he concurred with Leslie.

Judge Scwartz did the right thing by concurring in results only. Although I was surprised he did not write his own opinion. My guess is he looked at the 43-pages and 53-pages of the other pilot and threw his hands up in frustration with the new DCA Judges (ie, Rotheberg and Suarez).

Anonymous said...

Some of you must think that these were the first two pilots to ever enter a cockpit with over an .08. Listen, its happens every day, all over the world. Like many criminals, these guys just got caught.

Anonymous said...

10:04:24 is correct. It happens pretty often, but FUI pilots are rarely caught.

Jason Grey said...

You can’t defend a case on those awful facts by claiming the pilots were not in control of the plane. You might as well just stand up flip the jury the bird and be done. It’s a JOA argument sure but I can’t believe any lawyer went with that to the jury.

abe laeser said...

It really is a sad commentary on our noble profession when someone calls an appellate judge "dishonest", and then does not have the courage to sign their name to such libelous words.

Anonymous said...

Don't blame Judge Young (or the lawyers) for the failure of the pilots' case to plea. Blame the defendants (they initially were not willing to take anything other than PTI).

Anonymous said...

Those pilots should have taken the first no-jail plea offer they were given. They were probably more concerned with losing thier pilot licenses and jobs. Can you get any less jury appeal than two drunk idiots sitting in the cockpit of a loaded (no pun intended) jet? That case was a guilty from the get-go, unless Deisy and Hilah forgot to prove venue.

Having represented union aviation employees in the past, I know that the union lawyers tell them that if they take ANY plea, down to a withold and court costs, they will be terminated. So they risk prison to save a job.

Anonymous said...

Many who have responded do not know the case and the way pilots work.

1. There was no plea offer.
2. The FAA would have taken the licenses even if acquitted.
3. Pilots are more important than the computers... the computer will not launch a plane.
4. David Young really wanted to burn those pilots.
5. They deserve to get punished but, Leslie Rothenberg's idea of harmless error is downright stupid.

Anonymous said...

3:33:41 - THANK YOU

now everyone else shut up

Anonymous said...

A drunk pilot can easily over-shoot the runway and crash the plane.

Anonymous said...

So can a sober pilot.

Only prosecutors use the old tired "he could have killed someone argument"

Try something new, c'mon, I know you can do it.

MaraJade said...

Just curious, based on the facts that are known about this case, what defense would you have put to the jury?

Anonymous said...

Leslie Rothenberg reached the right result even though her legal reasoning was faulty. That used to be called The Tipsy Coachman Rule, but from now on it shall be known as The Tipsy Pilot Rule.

Anonymous said...


Anonymous said...

because judge suarez is almighty and we feel sorry for him because he had to share the south dade justice center with judge hernandez and that creep of a JA. Human compassion ....

Anonymous said...

Judge Rothenberg has a very simple and logical definition of harmless error: unless the prosecution compares the defendant to hitler or osama bin laden, the error is harmless. and even in those cases the "real guilt" doctrine may still apply.

Jason Grey said...

“Actual physical control” at trial, is a who gives a shit? Defense. A drunken guy sleeping in his parked car with the motor running is arrested by Davenport. The defense wins that case 99 out of 100. No one on any jury gives a shit. (What was he supposed to do drive? oh that’s much better. Now that the cops got the car sleepers we can go after the jaywalkers Etc.) let the prosecutor try to talk the panel into an Apc conviction, good luck.
“Who gives a shit” does not apply to commercial jetliners taxiing for takeoff!
At Gut level you lose 99 of 100 unless you can convince a jury at least one of the pilots wasn’t impaired or had a Bac. Above .08. You attack the “roadsides” (runwaysides?), the breath, get experts, hire Hersch, Reiff, and Catalano, and sacrifice small animals to the gods.

Anonymous said... don't know what you're talking about. There were many plea discussions. The pilots initially asked for PTI (not particularly realistic since the office doesn't give PTD on misdemeanor DUIs). Anyway, they had their chance to plea but didn't.

Anonymous said...

David Young wanted to burn the pilots? Did he max them both after trial? NO.

Rumpole said...

I don't know about Judge Young but I know that if I was a Judge I would view the actions of the pilots-if proved at trial- as a very very serious offense deserving of a very very severe prison sentence. This case was very much out of the ordinary and required a severe punishment- in my humble opinion.

Anonymous said...

very very very very good point rumpole but your wrong.

Anonymous said...

very very very very good point rumpole but your wrong.

Anonymous said...

Regards the Pilots who got no compassion:

They did not deserve prison. It was there first offense and the better sentence would have been the max fine and a with-hold sentence of the max and I mean max probation.

We treat career criminals with slaps on the wrist, why are we sending 2-guys that yes made a huge error in life to prison. First time it’s a mistake, second time you do not pass go, you go directly to jail.

Probation you say does not send a message. It does because a max probation is better than a soft prison sentence because if they fuck up they will get prison on the max withhold sentence.

Why is there no remorse for these guys. They have families, wife's, a mom and dad.

We have become to quick to just throw away a life. Many factors should come into play at sentencing not just public pressure (and a Judge is supposed to not rule under public pressure). Does there whole life of never doing anything wrong and being stellar Americans mean nothing?

Why then should we all be good decent citizens if when at our lowest point in life we cannot cash in on all the good we have done as American’s.

We all at some-point in life will commit human error.
We all should be able to cash in on all the good we have done for a one-time break (ie. special probation conditions that put the defendant in prison for the max if they violate probation).

The problem is these pilots did not have any connection to Miami so they had no political ties that could have helped as we know has helped many of our more famous local crooks in time of need. If our judges were appointed for life just like Federal Judges they would not have had the rulings or the sentence they received. Look the district court federal judge at first trumped the charges (although reversed on appeal). That federal judge was not under national and local public pressure.

Is there no human compassion in our legal system for human error? Before you disagree with this stop and think for just a moment that maybe, you get wrongly accused and wrongly convicted do you want to cash in all the good deeds you did in life for compassion for your first human mistake.

Anonymous said...

Yeah, giving a non-jail sentence would send a great message to other stupid pilots who fly drunk.

Anonymous said...

I happened to be at the DCA, and I stayed to hear all the arguments in the pilots' case. The pilots' appeal was argued by Bill Richey; some of you may recall him as a former distinguished ASA, and a very smooth and articulate oralist. The bench was quite "hot," and the arguments took a substantial time (well over the time allotted). I do not plan to read the 43-page opinion (or is it 53 pages? -- either way),but I can tell you that the pilots certainly had vigorous and well-prepared representation at argument. So did the State, in the person of an Assistant Attorney General (who,by the way, unlike Mr Richey, did not have a number of puppies on hand to hand her cases, transcripts, etc., to respond to the court's questions). But the judges, all three of them, were also well-prepared, clearly knew the law and the facts, and did not let either side slide unchallenged. This case got headlines again and again for precisely the reason Rumpole stated: the potential for great (and fatal) injury to dozens of entirely helpless people is hard to overstate, when pilots are UI. With respect to a plea, of course, no defendant is prevented from pleading straight up to the court, so it is difficult to see how Judge Young can be faulted; that he refused proposed plea bargain(s) is entirely within the court's discretion. I heard no arguments made that the sentence was illegal, or otherwise erroneous.

Anonymous said...

On November 7th, 2006, the good people of Miami-Dade County and Monroe County will VOTE either Yes or No for the retention of three Judges of the Third District Court of Appeal. Most people do not realize that the Third District Court of Appeal is the last appeal available to the citizens of Miami-Dade County and Monroe County on almost every legal issue. A loss in the Third District Court of Appeal almost always may never be appealed to the Florida Supreme Court, leaving a litigant only one appeal to the United States Supreme Court which will likely be denied very quickly. The United States Supreme Court accepts for review less than 1% of all appeals filed in their court, in addition just the printing cost of the briefs in this court will set you back $5-k.

The Third District Court of Appeal has literally in essence denied almost 50% of all the appeals filed by the citizens of Miami-Dade County and Monroe County, by issuing what is called a PCA, meaning the Court denies the review without any reason. Although the Florida constitution guarantees the right of appeal, the Third District Court of Appeal has side swiped this right by issuing a PCA denial of review. All PCA orders in Florida are NOT reviewable by the Florida Supreme Court and any attempt to seek review by the Florida Supreme Court will be denied on its face by the Clerk of the Florida Supreme Court (this decision is by choice of the current justices of the Florida Supreme Court). As noted filing an appeal to the United States Supreme Court is basically useless.

This November 7th, 2006, is the opportunity for the Voters of Miami-Dade County and Monroe County to send a message to the Third District Court of Appeal that we will not tolerate not being allowed meaningful appeals. An appeal is a right guaranteed by the Florida constitution, for example you could lose your, freedom, child custody, house, life savings and so much more by a trial court who might not follow the law and on appeal the Third District Court could simply say PCA without any explanation. Some have written on the subject that it is because of lazy Judges that sit on the Third District Court of Appeal that over 50% of the appeals are PCA denied without reason.

Miami-Dade County has been known as the capital of judicial corruption since the F.B.I. sting of the 90's titled "Operation Court Broom" that nailed several Miami-Dade Judges who took money bribes to fix the results of cases. In Miami it means so much more to get meaningful due process and provided a reason why you lose your freedom, house, car, life savings, etc;. When justice does not work in a town full of history of corrupt Judges it gives the appearance of impropriety. A detailed account of “Operation Court Broom” and the resulting indictments and trials, including the trial of Judge Sepe, is contained in the opinion in United States v. Shenberg, 89 F.3d 1461 (11th Cir. 1996), cert. denied sub nom. Sepe v. United States, 117 S.Ct. 961 (1997). CLICK HERE to read the details of this case.

No appeals Judge in any Florida appeals court has ever been removed by the voters. We believe it takes 51% of the voters to vote "NO" for the Judge to be removed. For a list of all the current Judges on the Third District Court of Appeal with picture and biography, CLICK HERE .

Here are the names of the Judges up for retention on November 7, 2006 :

Judge Leslie B. Rothenberg - Vote Yes or No

Campaign Treasurer:

Ramon A. Abadin, Esquire.

Judge Angel A. CortiƱas - Vote Yes or No

Campaign Treasurer:

Elena Maria Almeyda

Judge Richard J. Suarez - Vote Yes or No
Campaign Treasurer:

Steve Goldston