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

Tuesday, December 05, 2006

THE CONSEQUENCES OF COVERAGE - PART II

Rumpole, your posting is timely.

A Bonita Springs attorney was recently charged with Contempt of Court after she failed to show up for her client's trial. Diane Gonzalez agreed to enter a PTI program and the Judge required her to take a professionalism course, write a letter of apology to the court, make a $250 donation to charity and do 40 hours of community service.

On October 10th, Gonzalez should have been in court for the trial of her client. Her client had been charged with driving while his license was suspended, he was an HTO. Instead, the attorney was in South America on vacation. She had spoken to her client and thought that he had agreed to a plea agreement. So she had someone "cover" the trial for her. On the day of trial, the plea agreement fell through and the "coverage" attorney told the judge that they knew nothing about the case and that they were not prepared to take the case to trial. The Judge was outraged and stated that it would be considered malpractice for an attorney to try and rely on another lawyer to represent a client at trial.

If Gonzalez fulfills the terms of PTI, all charges will be dismissed against her. As a footnote to this story, Dade lawyers should note that the defendant eventually pled guilty to the charge and was sentenced to serve four months in jail followed by one year of probation.

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

34 comments:

Rumpole said...

Justice Is Blind said...
I have seen young lawyers, not much older than their college clients plead them out on misdemeanor charges that will effect their clients after college, when the case could be won. Then these young lawyers, told the judge, "I am covering for ....... "
I sure hope they have coverage insurance......

Rumpole says: THATS WHAT I'M TALKING ABOUT

TRAFFIC HONCHO said...

Here is the most common problem in traffic court-which Rumpole does not know about because he's too busy and stuck up in Felony or federal court-

3 dwls convictions- EVEN 3 WH'S ON DWLS WILL GET YOUR LICENSE SUSPENDED FOR 5 YEARS.

I cannot count the number of times I have seen a coverage atty plea a person into their third dwls and tell the client it was not a conviction because it as a WH. That is malpractice with a capital M.

TRAFFIC HONCHO said...

PS -the situation that the Captain posted should only happen to some of these ass-h-les who just send out mailers and never go to ct. They are ruining this for all of us.

Anonymous said...

oh please, every county court judge tells defendants that a withhiold is not a conviction or that it's "not on their record"

BS

Rumpole said...

And every county court Judge is wrong. We're going to do a post about that. WH's are criminal history. They may not be a conviction for some purposes, but are convictions for many others.

Anonymous said...

I hate lawyers who send out mailers. They cost me a fortune.
Roy Black.

Even Steven said...

Chatter has it that Elortigui is going through the new DUI prosecutors like a hot knife through butter. Trial animal.

ASA said...

More like a hot kinfe through concrete.

Anonymous said...

Rumpole

Shut this shit house down. Youre starting to remind me of George Bush in Iraq- don't stay the course.

Anonymous said...

This is a bad example of an important problem that deserves serious discussion. You could've done much better.

The attorney expected this case to plea. And, apparently had a planned vacation to South America scheduled. We don't know why the plea fell through. Did the prosecutor change his or her mind? What was the case history? Regardless, why did the judge begrudge her a continuance? I wouldn't condemn the attorney without knowing a lot more about this case.

PS---I guaran-damn-tee you that the judge wouldn't have hesitated resetting the case if it conflicted with his/her vacation and he/she couldn't get coverage.

Anonymous said...

Indeed, there are many - far too many - County Court “regulars” who think nothing of having their client take a plea to a misdemeanor. Well, think again! The consequences are life long and far reaching. For example, Immigration consequences are a real probability if not certainty - Immigration does not care if the client took PTI, a withhold, plead guilt, or was convicted - to Immigration all are the same!! Yes - think again before you tell a client who is not an US citizen or who is in sensitive career or employment that the “PTI will make it all go away” - wrong!

I still recall - with disdain - the young prosecutor who told me I should tell my client to take PTI because “everyone takes PTI”- well I don’t advice my clients to simply take PTI because of my personal convenience. At the end of the day, in Miami-Dade, the consequences of most clients taking PTI or being found guilty on a misdemeanor are the same.

If we think the traffic division is bad, how about taking a critical (or cynical) view of the domestic violence division! The plea offers are a joke. The mailers telling defendants that they can avoid going to court if they agree to enter this or that program are a miscarriage of justice! In my opinion, these mailers violate a defendant’s constitutional rights, circumventing or undermining the right to advice of counsel, and are outright fraudulent! Why is our Court system doing or allowing these mailers - suggesting to a client that by entering a program they can resolve a difficult or unfortunate situation, when whomever sent out the mailer has no clue about the facts of the case or, more important, the individual’s legal status!

What makes the domestic violence division worst is that many in the system, including the SAO and the Bench know the truth - too many police officers and departments arrest for the sake of arrest - for example Miami-Dade Police have an official policy to arrest in a domestic violence call. Unfortunately, for the real victims, domestic violence calls tend to be abused, and responding officers have little patience, simply flipping a magic coin to decide who wins the swearing contest of he did she did, with men too often losing the contest and going to jail. Then, with this knowledge, our system sends out the infamous mailer, the defendant signs onto the “recommended” program and a life long stigma begins.

Tell your client - after taking PTI, accepting a withhold, or completing any program - to apply or get a job in a number of scrutinized fields and see the consequences of a PTI or withhold.

Is pushing pleas and programs, (by punishing the defendant for going to trial) for the sake of avoiding a burden to the system or only to move a calendar what this Country - or County is all about - judicial expediency rather than fairness and justice! I trust not! But please do not blame the police, the SAO, or the bench, the lawyers who are afraid to do their job are at the heart of the problem!! To my brethren in the defense bar I say - if we all push more of these misdemeanor cases to trial and fight for our clients rights - the whole cycle of madness will ultimately stop. Perhaps some of us more seasoned defense attorneys could lend a hand to those less experienced - offer to second chair - yes a misdemeanor trial - we might make a difference. And before you laugh, think, you would not be doing it for the less experienced lawyer, not for yourself, and not even for the defendant - you are doing it for the community as a whole to make the system better- try it - I know doing something altruistic is foreign for many lawyers, but it may give you a new sense of being! There I go again with my idealistic streak - Oh well!!

Anonymous said...

Now if there was ever a time to hear from the guru of traffic court: SCOTT HIDNERT-where are you when we need you? You still have a license- didn't lose if for bribing the clerk's office.

Anonymous said...

pro se defendant: "judge, whats a withhold"

Judge: (annoyed and needing to get on with it) "it means its not a conviction on your record."

pro se defendant: "no contest"

Anonymous said...

9:28,
I think the theory behind what you write is sound. But... in large number of misdemeanor cases... the defendant IS actually guilty. Simply because everyone should have qualified representation doesn't change the fact that the client changed the price tag on the purse and walked out of the store. Or that they did expose themself to the officer in the park. So if you go to trial and the state proves it, then what? Your client no longer has a nolle prosse after PTI. Your client has a conviction which will probably be a lot worse in the long run.

Many clients are afraid and embarrassed and don't even want to speak up to answer the questions when the judge is taking the plea.

Going to trial on every case for the sake of going to trial is not the answer.

Anonymous said...

The consequences of taking PTI or being found guilty on a misdemeanor are the same???? Is that really what I read?

Have you seen the mailers sent out by the Advocate program or Court Options? I think those need to be scrutinized as unlawful practice of law.

Anonymous said...

"....in large number of misdemeanor cases... the defendant IS actually guilty"

Crack head!!

Anonymous said...

I had a client turn down PTI with my approval as he was innocent.

Case went to bench trial. Judge forced him into PTI during the trial. CLient went... to one session, and bounced out. He kept telling everyone he was innocent.

Judge then found him guilty but, no jail.

We appealed. REVERSED. Judge Schwartz said.... PTI is for GUILTY people only.

I will never forget it.

Anonymous said...

4:38

case cite please

Anonymous said...

I have an idea, how bout if everyone just shuts the f*c* up

Anonymous said...

First, I do not advocate trying all cases. I do propose that lawyers work their cases and do more than simply negotiate any plea out of fear of going to trial. Too many lawyers are not doing much of anything on these misdemeanor case, because they expect to plea the case out, without ever having seriously looked at allegations against their client or researched the law.

If after doing your homework, you realize the facts and the law are against your client, then a well plea is proper. What I am suggesting is wrong is to negotiate a plea before you ever investigate the facts and/or the law relevant to your client’s case.

What may seem a slam dunk for the State may not be so and may not pass the scrutiny of an adversarial system. And no, not everyone is innocent nor are they guiltily. And going tit for tat, all too many police officers write and testify creatively, and the SAO seems not to really care.

Second, for immigration purposes, indeed a PTI, withhold, or finding of guilty makes little if any difference. Immigration does not care the manner in which the person made it through the system. I have had clients who were acquitted or the case no actioned, and even then Immigration has required both a full documentation and a full explanation of the underlying incident. If the defendant took a diversion program or was found guilty - for immigration you are guilty - period, and talk about an uphill battle. Immigration considers it an issue of “moral turpitude” and if you entered a program you are presumed guilty “with an explanation” and they demand all sorts of explanations. Also, for example, talk to anyone in the medical field, the Board does not care how you resolved your case, they often file the administrative complaint while you are still litigating the criminal case.

Anyone who thinks that all misdemeanor defendants are guilty must work for the SAO.

Again, the point is, investigate your client’s case, both the facts and the law, it is what you were retained to do. Appreciate the fact that your client has reposed trust in you. Respect that this person is probably scared and this is a significant event in their life. Give them your best shot at attaining justice, don’t just take the fee expecting to plea the case out. I know it is hard, but act like a professional, not like a used car salesmen or a shylock! There I go again - Oh well!

Anonymous said...

do any of you that are saying PTI is considered a conviction for immigration purposes know what you are talking about?

Immigration is only concerned with whether the client made an admission of guilt or pled no contest (required for broward PTI). If the client enters PTI without pleading guilty or no contest, then it is not a conviction for immigration purposes.

Sheesh.

north of the border update said...

Hate crimes down, but Broward has most in the state

TALLAHASSEE - (AP) -- Reported hate crimes fell by more than 22 percent last year, the lowest level since 1998, but Broward County had more than any other county in the state, the attorney general's office said Monday.

Anonymous said...

The attorney I use for "coverage" has handled more jury trials than I, has been practicing for a few years longer and does a great job when he does my cases.

With any areas Rumpole has talked about, bondsman, ASA's, etc, there are the good and the bad. Generalizations don't work.

The issue is often the communication between the 'hired' attorney and the 'coverage' attorney.
Some of the time the problem is with the attorney who signs up lots and lots of cases, knowing he won't be handling them and figuring he'll just pass them off to a "coverage" attorney.

Some of the time the coverage attorney is at fault for telling an office "give me a name, time and courtroom and I'll take care of it" without even knowing what the case is about.

Both of these types of attorneys deserve criticism.

There are many of us though, who need to take on a lot of cases to pay the bills and we do a good job at representing our clients but we can't be in more than one place at a time. Using competent qualified attorneys to help us handle routine matters is a necessity. There can always be unforeseen circumstances though. I try to give my covering attny as much info as possible so that if my client changes his mind about a plea, he can make an informed decision about how to proceed.

Also, my retainer agreement does mention the possibility of other attorneys and when my clients are required to appear I always tell them who to look for.

Anonymous said...

It seems that many of our learned members have plenty of time to write these treatises on how to handle a misdmemeanor case. I assumed they were too busy researching and investigating all of their fabulous cases.

Anonymous said...

retainer agreement? you just lost half, no 70% of this blog.

Is a retainer agreement a credit card receipt for the 25% down payment on the payment plan?

Anonymous said...

im an experinced def atty (40+ felony trials). its still fun to a a MM trial, you learn something in every trial, you can try new strategies out, and will likely win as we have many years experience on the newbies (which we once were.) all you need is an a form and a pen. its a blast

Anonymous said...

Victor are you paying attention?

Anonymous said...

The coverage guys are your best bet if you got an infraction ticket. They are there all the time and know every type of infraction motion. Dellow, Robinson, Adams/Culver, enabling statute, etc. They know all the cops and get favors on vip clients, they know which hearing officers are reasonable and thus when to plea and when to set. They know which cops show and which dont. Id take one of them no frills coverage guys if i have a ticket over a name brand attorney anytime.

Anonymous said...

check out the recent case law; PTI can have an affect on immigration. i would cite the case but some people need to learn to read their FLW's

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David

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