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

Monday, November 13, 2006

SOUNDING FOLLIES REDUX.

Well, we have the same problem again.

Careful and long time readers of the blog remember when readers complained about Judge Reyes’ putative policy of not allowing continuances at sounding. Out of nowhere, Judge Larry Schwartz jumped into the fray agreeing with the readers (but not criticizing his colleague). To his credit, Judge Reyes listened to the complaints and agreed to change his policy.

Now word reaches us that Circuit Judge Tunis has adopted a similar policy. The request for continuance must be in writing and filed five days before the sounding. We like Judge Tunis. We respect Judge Tunis. Judge Tunis is at the top of the list of any judge we would want hearing a case.

But she is wrong. And here is why:

It is not easy being a private attorney these days.

There are more cases, but there are also more lawyers.

Only a very few attorneys are at the pinnacle of their profession and able to pick and choose their cases. For the rest of us, the business of law is a careful balance of quantity versus quality. We need to take on more cases for less money. Much like doctors under the thumb of an HMO, private attorneys are constantly struggling with the problem of having to handle more cases with less time available to devote to each case and client. It is an unfortunate result of the economic climate.

With time at a premium, the last thing we need to do is remember that of the twenty some odd (no offense intended) Circuit Judges, one requires a motion in writing five days before the sounding.

Our client’s face an ever increasing array of minimum mandatory sentences. More cases require bringing the case to trial or to the verge of trial before clearer heads (read: reasonable prosecutors) prevail.


If you handle federal cases, even when you have a client that can afford your services, you have to watch out who pays you and how, or you can end up on the wrong side of the jury box.

If you take court appointed work, you have to now deal with a bureaucracy in Tallahassee that is so complex and incompetent that a secretary recently admitted to us that the person who handles the help desk gets more calls per day than the rest of the office combined. You need written authority to do just about anything outside of getting your client a cup of water at trial.

The bottom line is that the average criminal practitioner is under more pressure to defend clients facing more jail time, and does not have the time to spend writing motions for continuances and making sure they get filed on time.

Yes the motion takes a minute or two on a computer. But the real problem is remembering that cases in that division require a five day notice before the sounding.

Many of us spend our days putting out fires when not in trial. There are a myriad of reasons and problems that crop up every day that keep lawyers out of the office. If that day happens to be the 6th day before the sounding, then you have missed the deadline and are out of luck.


Apparently Judge Tunis’s division has a problem with old cases. This was a problem she did not cause, as the backlog occurred before she arrived. Making private attorneys do grunt work for no reason other than to frustrate their ability to continue a case is not the solution.

Judge Pinero has a low case load and he does not require motions prior to the sounding.
Judge Pinero has a realistic view of the criminal justice system and he can separate the wheat from the chaff. He knows which cases are worth extra time and attention and which cases should be resolved quickly.

You want to lower your case load? Tell prosecutors to stop making unreasonable pleas. Don’t accept a prosecutor stating that their supervisor told them to try the case. Get the supervisor’s butt in court and make them sit there for the three days it takes to try the possession of cocaine or resisting with violence case.

How about these ideas:


Set a discovery schedule for each first degree felony or above, and require monthly reports to the court; Judges should intervene with reasonable plea offers when prosecutors offer five years on a first offense third degree felony “because the victim wants the max”; deny continuances at the sounding for legal and reasonable reasons, not just because an attorney was otherwise busy and missed an arbitrary deadline; refuse to calendar discovery motions or other motions that can and should be worked out between the attorneys when the motion does not include the required affirmation stating the actions taken by counsel to resolve the issue prior to filling the motion; require the police departments to pay the costs of the court reporter, witness fee, and service of process for every deposition an officer misses without good cause.

In short, if you want lawyers to be more lawyerly, then set rules designed to achieve those goals, not arbitrary rules designed to make the practice of law more difficult for everyone.

As we said: we think Judge Tunis is one of the best and brightest new Judges.
But this policy is wrong wrong wrong.


Or to quote a wise Rabbi from Brooklyn we once knew: “That dog won’t hunt.”

See You In Court.

17 comments:

Anonymous said...

"You want to lower your case load? Tell prosecutors to stop making unreasonable pleas."

That's a little simplistic, don't you think Rump? Fact is, that there are PLENTY of defense lawyers dragging out cases to meet Mr. Green or stalling to weaken the State's cases. That's why Pando and other judges giving away the courthouse also had/have backlogs (and, in fact, have higher caseloads than judges like Piniero, Glick, Ferrer, etc., who are known for hammering serious offenders after trial). Yes, judges and prosecutors shouldn't waste everyone's time on lesser felonies, but dumping cases doesn't solve the problem.

Anonymous said...

The real issue to me is not having to write out a motion, but rather having to attend a sounding calendar that has no use whatsoever. If the policy is five days prior to trial, that would be fine. But why have to both file a motion for continuance and then sit
at a sounding hearing just to say
yeah we're ready judge. Either get rid of soundings or get rid of the motion rule. Having both is a waste.

at least we dont have this judge said...

Judge gets mentoring after bringing loaded gun to courtroom
THE ASSOCIATED PRESS

PANAMA CITY, Fla. -- A first-year Bay County judge was ordered to accept mentoring after bringing a loaded gun into his courtroom and announcing he was "locked and loaded."

County Judge Michael Hauversburk said he brought the handgun to court because he was frustrated that a defendant facing a felony parole violation was being tried for a separate misdemeanor charge in a courtroom with inadequate security, The News Herald reported for Sunday editions.

According to the courtroom's recording system, Hauversburk told the defense attorney he was "locked and loaded," then said: "Tell your client that the deputies have certain constraints about the rules of engagement, but I do not. If he does anything that I see as a threat to me or anybody in this courtroom, then I'm going to fire first and ask questions later."

Hauversburk told the newspaper that he overreacted. This year is Hauversburk's first on the bench.

"I got frustrated when I shouldn't have," he said.

The July 24 incident was not reported to Chief Circuit Judge William Wright until last month. Wright said Hauversburk assured him it was an isolated incident and accepted mentoring.

"He made the wrong decision," Wright said. "All new judges have a learning curve they have to go through, and it takes a while to get adapted to the system."

Judges are permitted by state law to carry concealed weapons.

Anonymous said...

Judges who make rules like the 5 day written motion rule have never been a private defense lawyer.

Those rules make us crazy. We hate judges who make rules like that.

We miss those deadlines, no matter how hard we try and then the judge makes the lawyer look like a jerk.

Then, the judge asks for money for his or her campaign.

DENIED!

Anonymous said...

10:33 am

great story. that story made my day.

Thats the kind of justice we need more of.

CAPTAIN said...

THE CAPTAIN SAID:

County Judge Michael Hauversburk was appointed to the bench by our own Gov. Jeb Bush on October 6, 2005. The new County seat was created by the legislature.

Who are Mark E. Graham and Edmund D. Quintan; they are the two lawyers looking at each other and asking, "how the hell did Hauverschmuck get the appointment over either of us"?

Judge "I tote a gun to court locked and loaded" Hauver-schmuck attended FSU for both his undergradutae degree, where he majored in Rifelry and his law degree. His law review attempted article was on, of course, "Clint Eastwood" and the "Art of Intimidation". By the way, while in private practice, one of Mr. Hauversburk's specialities was, I kid you not, probate! This man knows death.

What did you expect from a Seminole!!!

I want to take this personal opportunity to thank our well respected commander in chief, Governor Jeb Bush, for vetting such a fine lawyer and deciding that he was truly the best person for the job.

CAPTAIN OUT ...............

Anonymous said...

lol

Anonymous said...

The Captain is a Gator!

Anonymous said...

or a domer (ND fan for you dumbies)

Anonymous said...

Rump Judge Pinero has a low case load not becuase he knows that wheat from the chaff or forces the state to do anything.
The reason he has a low caseload is because he is a hard worker. While his colleagues would prefer to try one c case on monday and tuesday and take long lunches the rest of the week, Pinero makes it clear that he will try 2-3 even 4 cases in one week. Its not that he often tries that many in a week, but everyone knows that they have to ready. An amazing thing happens-- proesecutors actually evaluate cases and bring them to supervisors instead of offering 30 years and hoping that when they rotate in 2 months it will be someone else's problem to handle.
The other amazing thing that occurs is that when defense attorneys realize they cant continue cases forever they tend to plead out thier cases much faster than in other divisions.

Pinero is a great Judge and should teach the other judges how to manage thier caseloads

Anonymous said...

Re: 7:35 Pinero is a great judge. You are right. But you are barking up the wrong tree on this one. I assure you I was there when Judge Tunis had a jury deliberating on a Tuesday afternoon and had another panel outside in the hallway for trial number two.

Anonymous said...

As an ASA, I can tell you I have seen more than my share of judges grant continuances for the very same reason, over and over again. That's because they are all verbal. So when you say Rump: "deny continuances at the sounding for legal and reasonable reasons, not just because an attorney was otherwise busy and missed an arbitrary deadline", you of all people should understand how that doesn't work with any attorney who might take advantage of that system, whether a prosecutor or defense attorney. Maybe Judge Tunis should just make the number of days shorter. Can I suggest 3 days before sounding?

Anonymous said...

We need a calendar call for the sounding.

Anonymous said...

Rump: I have found you to be fair and even handed over this past year. You are virtually always a voice of reason. You tell it like it is. I think THAT'S why people log into this blog. If your ideas were always stupid, no one would care. When you think you're right you say so, and when you have been shown by others that you may have missed the mark, you likewise say so. That's why you have the following you do.

You correctly state Judge Dava Tunis's deserved credit for being respected and at the top of the list for any judge we'd want hearing a case. You say she is one of the best and the brightest, but then you write: "Making private attorneys do grunt work for no reason other than to frustrate their ability to continue a case is not the solution."

Come on Rump! The policy she came up with applies not to just private attorneys, but to all attorneys-including pds and asa's. It also says that if there are legitimate reasons why a motion can't be made in time or in writing, she'll consider that. As far as I know, have seen, and have heard, she never simply denied a continuance because it wasn't in writing. I have only two cases in there, but it has given me enough exposure to her efficiency. My guess is that it would be more like her to deny something because it's on its 8th continuance and is coming up on two years old, irrespective of whether the newest request to contine is in writing. Then she applies serious pressure toward trial/resolution, written continuance or not. And as you fairly pointed out, those are 8 continuances that she herself did not grant over those two years.

Frankly what I've seen of her in being in the court, I cannot imagine that she's going to deny a first time up or even second time continuance for any reason, written motion or not. She might remind the lawyer of the policy for future times, but as you said she's respected and one of the best and brightest.

It appears like she reads everything that's given to her and cuts down on the time it takes to address something, because she already has read whatever motion you have filed (terminate probation early/motion to travel/whatever) That also means she's not foolish with the decisions she makes. In the times I've been there and talked to the pit people on both sides, I've not had occasion to witness or hear about any strict knee-jerk reaction by her on anything. My guess, and it's just a guess from what I've seen in the flow of the court, is that she's just trying to come up with some policy to create accountability and stop that gravy train from continuing (no pun intended) to flow unchecked.

Besides, have you (or all of us) forgotten that the criminal rules provide for written motions of continuances 'with certificate of service stated by counsel that it's made in good faith'. 3.190(a),(g)(4)?

Asking for somethin in writing is really not the Judge Izzy Reyes Reduex from last year that you compared this to.

By the way, she already took your advice - three to four weeks before you posted it - when she discussed with all the people in her division not putting motions for disco/better addresses, etc. on calendar until they could show by memos or email that they have already made a good faith attempt to get the missing items, to avoid clogging up the calendar.

So, your comments about her are very fair and accurate, but this: ore tenus or nothing else, doesn't hold water. I personally faxed an Agreed Motion for continuance to her chambers sometime last month, asking my presence and my client's presence be waived on a first time up case. She granted it and I got a call from her JA asking me what trial date the state and I agreed to, without requiring my presence at the sounding.

So come on, lets get real and actually practice law. Just from the way she acts and welcomes suggestions in the court, I would imagine a tweeking to this policy could easily be accomplished, maybe by someone talking to her. But to say ore tenus or nothing, is a bit much. Doesn't sound like that reasoned Rump I've come to know over this past year.

Rumpole said...

An excellant rebuttal

Fred Garvin said...

All lawyers are blood-sucking, motherless scum who should be incarcerated in prisons and only let out into the courtroom to defend the reasons why they shouldn't just be killed outright, and then killed anyway as a show of true justice.

In other news, GO BUCS! No not Tampa Bay you schmucks, THE Ohio State Buckeyes! Now go take some poor abused wife's last dime defending her against some Neanderthal psychopath that your drinking buddy is defending (and who you crack jokes about the case with) in your latest divorce case that you are dragging out in the hopes of collecting a greater percentage of the house money. You vile filth of a human being. I hope you get hit by a gas truck and taste your own blood as you die a slow, painful death. Of course you can all suck my ass before dying.

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