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

Wednesday, January 31, 2007

ENOUGH IS ENOUGH

Updated for Thursday:

rick freedman said...

This is the message from the JAC re funds for Court Appointed Counsel:

The Justice Administrative Commission has processed a request for early release of 4th quarter funds for the Court-Appointed Criminal Due Process and Dependency/Other Civil Due Process appropriation categories. The Governor’s Office has notified the JAC that these funds for both appropriation categories will be released on Monday, February 5th.

As of January 29, 2007, funds in the Court Appointed Criminal Due Process category were exhausted.

Currently there are adequate funds available in the Court Appointed Dependency/Other Civil appropriation category. The Chief Financial Officer’s staff has requested that JAC continue to send over payment processing data on a daily basis, so that when funds are available on Monday, they will be prepared to process this week’s payments as soon as possible. Payment requests submitted by the JAC to the CFO this week would likely either be returned to JAC in the form of a check to be mailed to vendors, or deposited in vendors’ accounts via the direct deposit process next week, many as early as Tuesday.

FACDL and FACDL-Miami will continue to lobby the appropriate officials, (state senators, state house reps, members of the criminal justice appropriations committee, governor's office, etc.) to try and resolve this funding problem.
We appreciate your support.

Rick FreedmanFACDL-Miami


Rumpole says: This has got to be resolved. Nobody wants to incarcerate innocent people. If they run out of funds to pay for competent representation, that is just what is going to happen.

Here is our concern: there is plenty of money to pay for more officers, new courthouses, more judges, and politicians who run on "get tough on crime" platforms. But when it comes time to paying for the lawyers- and we mean prosecutors, PD's, and indigent defense, there is no money. In federal and state court, private lawyers are paid about 90 bucks an hour. That is a lot of money, until you pay rent for an office, 40 thousand for a competent secretary, plus medical, plus a year end bonus, plus all the other expenses necessary to run a private practice. Then the 90 an hour becomes a loss leader. Which is OK as well, so long as we didn't have to beg for it, fight to not have the bills cut, and then fill out form after form to get paid, only to have it kicked back because one form was signed in black ink instead of blue ink.

Let us be clear- we rarely accept court appointments. We do so only in cases that catch out eye, or in which a judge has specifically requested out help. But we have been in practice a while, and do not depend upon court appointments. But other lawyers do, and the problem is that there ability to effectively defend indigent clients is compromised when they have limited time to devote to their indigent clients.

The system is broke and needs to be fixed. As a purely altruistic exercise (something we are normally philosophically against) we will ponder this problem over the weekend and post a solution on Monday.



47 comments:

Anonymous said...

who says they care about who they incarcerate? or competent representation?

Anonymous said...

Eventually if this keeps up we (attorneys taking court appointed
cases) need to simply boycott and
stop accepting all appointments.

If we did this for a one month period, we could really put a wrench in the system.

We need to fight this from a position of power. The power being that these clients are constitutionally entitled to have a lawyer and we are the lawyers who qualify to handle these cases.

So once the 4th quarter money runs
out, I am proposing a one month
boycott of acceptance on all court
appointed cases.

If we stick together on this, we can really stick it to them.

Anonymous said...

now back to reality.....

Anonymous said...

7:09
put down the crack pipe. what we should do however is collect money so that we can lobby the legislature. and rumpole, it's about us not them.

Anonymous said...

WELCOME BACK!!!!!!!!!!

Armando Oliveros is back in town after serving 6 1/2 years.

Anonymous said...

nice that armando is back. is anyone gonna give him a job running cases?

when do we get shenberg back. he was a prick before he got caught, but he didnt flip. paralegal for scott saul maybe?

anyone know the whereabouts of roy t. gelber or steve glass?

i gotta say that the "Stand By Your Man" award goes to mari jimenez. thats loyalty, compadre.

Rumpole said...

I think a strike might be in order. Say 2 weeks, or even a week. Might open some eyes.
60's flashback- fight the power; take'n it to the streets; tune in; turn on; drop out. can you dig it?

Anonymous said...

...or you could all quit practicing law + we start over with the next crop out of law school.

Anonymous said...

80000 members of the bar and a never ending stream of attorneys leaving pd and sao to take court appointments, if for no other reason than to brag about their murder case. we have no clout, will never be fairly compensated except for death penalty cases and that is why i don't do it anymore after 10 years and the door did hit me on the way out and i didn't get a party and a watch.

Anonymous said...

...also see F.T.C. v. Superior Court Trial Lawyer's Association, 493 U.S. 411 (1990) (work stoppage by indigent counsel to effect fees was classic restraint of trade, horizontal conspiracy to fix prices, illegal boycott prohibited by Sherman Act. It's not a pretty decision.

Anonymous said...

Disorganized resistance, on the other hand, without concerted action... The private bar will not flock to scoop up these cases SAPD may stop accepting. Will the court "recruit" (impose upon) the big firms to pitch in? Those very firms can be allies in your struggle to encourage political support for increased funding.

Anonymous said...

F.T.C. v. Superior Court Trial Lawyer's Association, 493 U.S. 411 (1990) is an interesting case. clearly due process affords defendants with right to counsel. but how about the notion of getting paid for work?

i am sure a vast majority of employees dont work for free. why should defense attorneys have to work on court appointments for free?

Anonymous said...

our friend judge harvey shenberg is being released this september from federal prison. he was arrested 16 years ago on june 6, 1991. he could have been chief judge back then. he was so popular with the other judges. what do you all think of him?

Anonymous said...

i think he needs a long weekend on south beach after all that time in the hole

judge roy bean said...

He was an arrogant pr*ck who sold his soul and his office for a few dollars more. Hang em high! His term was the good the bad and the ugly.

Anonymous said...

It takes a strong character not to snitch on others that you know are even more guilty than you. He did long term federal prison time when he could have been let out long before if he would have told the feds what he knew about Judge _ and other crooked lawyers and Judges. He knew EVERYTHING. Many other judges sweated it out because he could have taken them down. His new book telling all should make certain folks nervous?

Anonymous said...

Make the guy a hero for taking drug money to set up a confidential informant and get the guy killed over greed. STOP making this crooked Judge into some hero because he did not snitch on half of the Miami Dade Judges back then.

Lets deal with todays stars like: Ivan Hernandez, and that Judge that said if we send back all the cubans the jails would be empty or the Judge that is appearing at anti gay, anti abortion rallies.

Why does Holland & Knight or Steel Hector & Davis to name a few not providing pro-bono work with the power of a major law firm to petition to get rid of todays cancer.

ANSWER: Because they are part of the cancer.

The days of a big law firm coming down like a ton of bricks on corrupt Judges are forever gone.

So so sad...

Rumpole said...

1) Far be it from me to conspire, combine or confederate...

2)Shenberg sold his robes and sold a man's life-so he thought- for 50 grand. He deserved every day he served...and I admit the sentence was stiff. He's no hero for not snitching on other Judges. All he did was show that he thinks judicial corruption was fine, because when he had a chance to help stop it-help himself-help his family- step up and be a man and admit his crimes and try to make amends for them-all the things a judge should be about- he did nothing. If not for the nature of his crimes, he doesn't even deserve to be mentioned or remembered.

Anonymous said...

This man gets a 25 year minimum mandatory sentence because he cannot, like Rush Limbaugh, afford to pay various doctors to write multiple prescriptions for his pain killers.

From Abstract Appeal

Second District: Cruel and Unusual Punishment
The result in this case might disturb you.

A 48-year old man suffering significant back pain, and generally confined to a wheelchair, was convicted of seven counts of trafficking, and eight counts of possession or obtaining by fraud, various prescription painkillers. Apparently, he forged prescriptions to obtain pills to treat his pain. He never sold the pills to others. His seven trafficking convictions, all of which were based simply on the volume of oxycodone he obtained, each earned him 25-year minimum mandatory sentences under Florida's sentencing scheme.

The volume of oxycodone he trafficked was determined from the total quantity of the substances he obtained, even though the quantity of the illegal drug in the overall mixture was rather minute. In fact, the oxycodone pills the defendant trafficked each consisted of 325 milligrams of acetaminophen and 5 milligrams of oxycodone. He was therefore prosecuted based on a total drug weight of 330 milligrams per pill.

The trial court ordered the defendant's sentences to be served concurrently, letting them overlap, but that still left him with a 25-year prison sentence to serve for, in essence, stealing drugs to treat his pain.

The defendant appealed. He argued that the 25-year sentence was unconstitutionally cruel, and unconstitutionally unusual, under the state and federal constitutions. A panel of the Second District divided on the question, and a majority affirmed the sentence.

The majority opinion extensively discussed both the federal "cruel and unusual punishment" proscription and Florida's former (but applicable to this case) "cruel or unusual punishment" proscription. Ultimately, the court concluded that a court's role in such matters is a limited one, that the legislature is the authority for such public policy decisions, and 25 years of imprisonment for these offenses was not so outside the legislature's policymaking authority as to be unconstitutional. The majority was not insensitive to how unattractive the result might appear to some. As Judge Wallace concluded:
Because of the unusual circumstances present in this case, reasonable people might come to different conclusions about the wisdom of the twenty-five-year mandatory minimum sentences that the trial court was required to impose on Mr. Paey. Although Mr. Paey is responsible for his actions, his history of chronic pain and consequent need for analgesics has resulted from circumstances largely beyond his control. These factors­combined with Mr. Paey's age and other persistent health problems­naturally evoke sympathy for what he has endured and concern for his future welfare. Nevertheless, this court's function is limited to determining whether the trial court committed legal error in connection with Mr. Paey's trial and sentencing. In our system of government, which is characterized by a separation of powers, the power to grant pardons and to commute sentences is the prerogative of the executive branch, not the judiciary. Thus Mr. Paey's argument about his sentences does not fall on deaf ears, but it falls on the wrong ears.


(citation and footnote omitted).

Judge James H. Seals, a circuit judge sitting as an associate judge in the appeal, vigorously dissented. Focusing partly on how trafficking is a term of commerce, not personal consumption, partly on the particular circumstances of this individual case, and partly on the Florida constitution's now modified, but then-effective "cruel or unusual punishment" provision, Judge Seals explained how he would have held the sentences unconstitutional. Like the majority, he also suggested that the defendant might pursue clemency from the executive branch at some point.

The case is surely an interesting one -- a good example, or a bad one, depending on your perspective, of the relative inflexibility of statutory sentencing schemes. We are long past the days when judges imposed sentences based largely on their subjective views of the appropriate punishment.

Anonymous said...

Great idea.

Except that we got guidelines to prevent every bigoted judge from sending a young black kid to jail for life while giving the rich white kid probation for the exact same offense.

Does that sound better to you? Perhaps only if you are the rich white kid.

Yes there are flaws -- but the cure is worse than the disease.

fake brummer said...

I will not sleep until these J.A.C. issues are resolved.

fake brummer said...
This comment has been removed by the author.
Anonymous said...

as long as we are stolling down the shenberg memory lane......

can anyone recall the sentences of attorneys nancy lechner and arthur luongo in the court broom scandal. they kicked back 300 bucks to gelber on a sapd cases and got fed time, right?

does anyone know how randy maultasch and mayra trinchet got swept away from the court broom. is it true that trinchet gave a loan to a circuit court judge in return for court appointments?

Anonymous said...

HMMMMMMMMMMMMMMMMMMM

Anonymous said...

12:20 and 1:40

The ANSWER was in teh plea bargan. What dopey attorney decided to take this to trial and not seek probation and a with-hold.

I am more interested in what was the States offer before trial and what was the trial judges position to the offer?

No one is forced to trial when they have a good offer from the State.

I would like to have the citation for that 2nd DCA case or link. Gov should pardon the guy.

Anonymous said...

the cfc memtioned by :

http://www.youtube.com/watch?v=CVMFqp6i5aM

Anonymous said...

Mayra and others secretly gave kickbacks to judges both for appointments and for signing off on bills -- some of which showed well over 24 hours worked in a 24 hour period (on different cases).

Anonymous said...

the trialmaster is amused by you bottom feeders whining over a $90 an hr. appt. how very sad.

Anonymous said...

if 150 of you bottomfeeders get together and start a firm you guys could be the next Holland & Knight

Anonymous said...

trial master you are a turd blumpkin. what is it like to be a legend in your own mind?

the trialmaster said...

the trialmaster is amused by 6:24. soon, he will receiving a fee of almost a million dollars on a civil case out of state where he obtained a verdict of 3 milllion/. so 6:24 keep getting those 90 dollar an hour ct. appt. i pay my plumber more than that/

Anonymous said...

bid deal.
so you had a case with perfect liability....
to bad the case is up on appeal. I would venture to guess that you made equally stupid comments on the record which will result in a reversal. You are indeed a T.B..

Anonymous said...

you know trialmaster, most people who have or make that kind of money, dont talk about it.

Anonymous said...

trial master, from now on, your delta tao name is- turd blumpkn

j said...

Shenberg was a cool guy if you knew him. Shenberg fucked up and sold the robe ,but you have to respect the way he shut up and took his time like a man. Thats old school, omerta.you dont have to like it but you gotta have respect for a guy who says "mia culpa" and shuts the fuck up .

Jason Grey said...

That last post was me I hit a button and...

Anonymous said...

jason
i love you but I disagree. i wish he would have ratted out the rest of those scum bag judges.

Anonymous said...

Who were the other corrupt judges that Judge Shenberg could have given up?

Anonymous said...

I can assure you the reason the JAC runs out of money is based on this example. In juvenile there are tons of attorneys who bill and bill and bill, set depo's don't show up, know the case is a dead bang loser, lead their client down a path that is certain to not be beneficial all because a few of these jerks don't know how to practice law at all and all they know how to do is steal money from the system and whine in court.

Anonymous said...

excuse me if that was the case they could simply concede to dependency and get a case plan and make a quick buck for 1 or 2 court appearances.

The problem is also on untrained DCF attorneys and the GAL volunteers who can barely figure out how to use the internet let alone protect children from abuse.

I have always said we have some of the best juvi Judges around. However, when you have school children operating the juvi justice system it makes the talented Judges look bad.

Jonathan Blecher said...

"omerta", jason?

Omertà is based partly on fear and partly on idealism – it is an extreme form of loyalty and solidarity in the face of authority. One of its absolute tenets is that it is deeply demeaning and shameful to betray even one’s deadliest enemy to the authorities.

do you really think shenberg lived by any code? he was willing to sell the life of a fake snitch for 50K. i dont have to grant him respect because he "shut the fuck up", thats wannabe wise-guy crap, jason.

the only people who should grant him respect are the other robes who got away because he didnt rat.

Jason Grey said...

Ouch, that hurt Jon!
Shenberg was a scumbag, Agreed, But I am of the opinion no one should ever rat on anyone. You do the crime, you get caught, you do the time, period. I am sick of whiny defendants who were tough guys on the street crying to their mommies and running to rat the minute cuffs go on.
Why ruin someone else’s life cause you fucked up?
Shenberg kept his mouth shut and did his time, to me that alone is an act of courage.

abe laeser said...

So let me get this straight:

Let us say that you represent the getaway driver in a felony murder, who is 19 with no priors. He has confessed at length and is looking to avoid Life/without Parole.

Following me so far?

Now he obviously knows who enlisted his aid, fired the fatal shots, put the plan together. The government wants that information, and is willing to reduce the charges and offer your client Youthful Offender sentencing for the information and his trial testimony.

This seems to me to be the proverbial 'offer he could not refuse'. Because you are offended by the "RAT", do you tell your client to enjoy every last day of his life in prison?

Who is the client? Who should be giving 'best' advice to his client?

Who should turn in his Bar card if he tries to convince his client to take a pass on the deal -- because his lawyer does not like want to ever counsel the "RAT" or will not represent the 'snitch'?

Maybe you can pass him off to a less skilled attorney who does not have your beliefs -- unless you think that your client really is entitled to the best possible result in his case.

Yes, the client could bite the bullet and do his time. I am certain that his fellow prisoner's might consider him to be a man's man for taking the hit. You, on the other hand, should hang up you license to practice law if this is the advice you would give him.

Back in the real world, the snitch often does get a second chance to live a life, perhaps raise a family, and become a good citizen.

People like Shenberg deserve only our scorn for selling their noble office -- to kill a witness, no less -- and not have the apologists say that he did the honorable thing by not being a "RAT".

Someone needs a reality check -- and it is not me.

Act of Courage? Glad I was too busy in Court to get lunch -- would have hated to upchuck over this courageous and noble jurist.

Jason grey said...

I never have, nor will I advise a client to accept or decline a plea offer. When a plea offer is made I convey it. I will tell the client the relative strengths and weaknesses of the case and what I believe the odds of winning are, then the client makes the call. If he wants to rat so be it.
I am not in favor of crime. I stopped doing death penalty cases because my experience with the type of people you prosecute convinced me most of them deserve death.
I am not advocating the criminal acts of Shenberg or anyone else. I do on the other hand admire the guts of a guy who rolls the dice, or pleads guilty and takes his medicine. I don’t expect a career prosecutor like you Mr. Laser to agree, but the Hang up the license stuff? A little heavy, no?

jason grey said...

A postscript Mr. Laeser. I respect your experience, skill and commitment. I can only imagine how many times you have had to make a “sofies” choice and give a deal to a thug you despised to get at another you judged to be more blame worthy. I am sure you would rather try them all (if you could), and let a jury make the call. So would I, it is not so different is it? In a perfect world every case would go to trial, every defendant would be judged and there would be no deals for rats. We live and work in the real world, what I consider guts, you consider foolhardy. Take your pick, choose your poison, to each his own

abe laeser said...

Jason,
Sorry to vent - it just struck me as wrong.

Been a long week - with way too little sleep. No excuse, just an explanation.

Mea maxima culpa.

jason Grey said...

Nice touch, sleep well,no hard feelings here.thanks.