Wednesday, April 25, 2007

AUTHOR ARTHUR

Controversy surrounding the State Attorneys Office's unannounced policy of revoking plea offers for Defendants who request Arthur Hearings has been making the rounds lately.

Here is what we think:

Do not give into this “policy”. If a prosecutor insists on threatening your client, request that they put it in writing. If they refuse, ask why they will not commit to their policy in writing.


Ask them what they are afraid of? If they refuse to put the threat in writing then you should confirm the conversation in writing and file a copy with the court. Of course the prosecutor would not put something like that in writing, because they know, and we know, such a policy is unethical and would be grounds for discipline from the Bar.


Lets game play this out a little bit.

A prosecutor that threatens not to make any plea offer if a defendant elects his or her rights under the Florida Rules Of Criminal Procedure to seek a bond in a life felony case, is basically abandoning their responsibility to seek justice. If a client has an Arthur Hearing would the prosecutor continue to prosecute the defendant if they later learned the defendant was innocent? How about the requirement to seek justice and proper punishment? Is it ethical to seek life in prison for an individual who otherwise should be placed on probation, house arrest, or receive youthful offender sanctions based on the specific facts of the case?

A prosecutor who threatens you with a "policy" is stating that they will no longer evaluate a case based on the specific facts. Does that seem right? A prosecutor would never publicly admit to abandoning this responsibility, and therefore like any bully, like any individual who makes illegal threats, the way to handle the threat is to cast the light of truth on the situation. And like any bully, publicity is the last thing they want.


Can you imagine Kathy Fernandez Rundle standing on the courthouse steps and proudly announcing her office’s new policy of seeking the maximum for any defendant who has the audacity to defend themselves and invoke rights guaranteed by the Florida and Federal Constitution?

If we as defense attorneys let them get away with this, what is next?

A policy to seek the maximum sentence for any defendant who does not confess?

A policy to seek the maximum sentence for any defendant who takes deposition?

Sy Gaer already has more than enough business.

Make no mistake that such a policy is a direct attack on the criminal defense bar, the Constitution, the courts, and our clients. We cannot and shall not allow prosecutorial bullies to scare any defendant into forsaking any right they are guaranteed.

If we do, we as defense attorneys bear the shame, because we know better.


A prosecutor's case load is too heavy? Tell it someone who cares. We don’t ask prosecutors to offer lesser sentences because we’re too busy. A responsible lawyer handles their own problems and does not let their problems effect any particular case.

It takes a lot of time to prepare for an Arthur Hearing?
Do your job.
As citizens of Florida, we depend on good and honest prosecutors to do their job and prosecute those individuals who deserve it. A person who kills someone or commits a sexual assault may well deserve to spend the rest of their life in prison. A 17 year old kid with no priors driving a car occupied by someone who has just committed an armed robbery may well deserve youthful offender sanctions. And any prosecutor who would have the vicious and evil intent to punish him with a life in prison sentence because his attorney requested an Arthur Hearing deserves to be disbarred.

David O Markus, who runs the Federal Blog is president of the FACDL Miami chapter. He has been receiving emails on this issue. If you are currently having a problem, you should contact him. But take our suggestion and see if the prosecutor who threatens your client will put it in writing. And if they refuse to do it, write them a letter confirming their “policy” and send a copy to Kathy Rundle Fernandez and she how she responds.

We have nothing to fear from this except our own temerity and inaction.

Our system of adversarial justice depends upon both sides aggressively advancing their cause. The system stops working when one side gives in prematurely. The only thing that can come out of a well contested Arthur Hearing is a well developed set of facts for the rest of the case to proceed on. What's wrong with that?

Tragedies happen- and innocent people are convicted- when defense attorneys pre-judge a case and abandon their job to challenge the evidence aggressively, ethically, and legally.

See You In Court, and at Arthur Hearings in any and every case where our client is entitled to one.

48 comments:

Anonymous said...

It may be an unrealistic plan, but as defense attorneys if we feel that the prosecution is abusing their position, we should coordinate an effort to announce ready on every case; Or take depos on every case, Or make them read the information at every arraignment, etc.

Anonymous said...

March 7, 2006

Was the last time the title "Author Arthur" was used. Only took this blog a year and a month and change to recycle it. Title so good, just had to make an encore appearance.

Anonymous said...

Good to see Judge Skip Gross having lunch with Susan Fried and for Christina Pereyra-Shuminer to be with Susan as well today. Was it payoff day?

Remember, Susan Fried does not win elections anymore. She even lost to Peter Adrien. Sorry Fried.

fake GOVERNOR CRIST said...

3rd DCA JUDGESHIP vacancy will go to Dade County Attorney Eduardo Sanchez according to several Judges on the Third DCA. The Governor's General Counsel also is giving EDUARDO SANCHEZ the thumbs up.

CAPTAIN said...

THE CAPTAIN REPORTS:

The 3rd DCA Judicial Nominating Commission recommended Miami-Dade Circuit Judges Jennifer D. Bailey, Kevin Emas and Cristina Pereyra Shuminer; Hunton & Williams partner Vance E. Salter; Hanzman Criden & Love partner Michael A. Hanzman; and Eduardo I. Sanchez of the Miami Dade county attorney’s office.

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

Anonymous said...

They have been threatening to withdraw from plea negotiations if we take depositions in felony cases and to do enhancements if we roll over for trial DUI cases. It's all just politics in the State Attorney's Office. Maybe they ought to be that tough with the Sweetwater politicians and with Bob Levy.

An Old Time Prosecutor said...

I miss the days of honor with Janet Reno at the helm of the State Attorney's Office. She never would have put up with all of the vindictive and unethical behavior that occurs at the office, especially in recent days. "The job is to do justice, not harm!" she would say. Janet, please come back for a few weeks as State Attorney Emeratis!

Anonymous said...

"would be grounds for discipline from the Bar"

Rump the Florida bar does not have jurisdiction over prosecutors in criminal cases.

Anonymous said...

Is this really news Rumpy? Who cares what the SAO's policy is? In the end, has anyone actually experienced the SAO carrying out the threat? I wouldn't sacrifice an Arthur hearing in any case. Or take pleas at sounding; or not do motions on any DUI case; or plea at a ptc; or take a plea on a felony on any juvenile case. Don't most of us miinimally practicing our profession already follow these policies?

Anonymous said...

FYI, I've also heard of prosecutors threating defendants who go forward on APH's with classifying them as GORTS, PRRP's, etc. I guess this goes hand in hand with their new "policy".

Hey Susannah, why not do a Herald story on this?

Anonymous said...

9:52 writes: "but as defense attorneys if we feel that the prosecution is abusing their position, we should coordinate an effort to announce ready on every case; Or take depos on every case, Or make them read the information at every arraignment, etc."

That would work perfectly, in 1953, when we weren't spending our days undercutting each other on fees, and trashing each other to get a case. Nice thought though.

Prosecutors have been abdicating their authority to the all mighty "office policy" for a while now. How many times have you heard a prosecutor say "I would never to agree to Youthful Offender," or a county court prosecutor not object to a deposition? It's all about the "policy," not what's right.

This supposed policy of revoking pleas upon seeking a bond at arthur hearings is not surprising, it's the way we do things these days.

And the defense bar, if there is one, will just continue to try and get more cases, at the expense of their colleagues. If we all got together on any of these issues, and did any of the things 9:52 talks about, things would change, rapidly.

Back to putting labels on your mailers and waiting for that new client to come in so you can tell him that the other lawyer "sucks," or reduce your fee by $500 to get the case.

Anonymous said...

When a defendant is charged with a life felony, gives a taped confession, is identified by several witnesses, and qualifies as a career criminal, an Arthur Hearing is an exercise in futility. It's a waste of everyone's time, as we all know what the result will be: no bond. So why do defense attorneys set Arthur Hearings on these types a cases? Because they're on a discovery fishing expedition and think an Arthur Hearing is a hell of a lot quicker than taking depos. I've had defense attorneys admit as much to me. So perhaps if defense attorneys didn't abuse Arthur Hearing, prosecutors wouldn't revoke pleas.

Anonymous said...

BREAKING NEWS:

Actor, Richard Gear has a warrant for his arrest in INDIA for kissing a lady in public.

Thank god I live in america

Anonymous said...

According to a story in the NYT today:

"The Justice Department has asked a federal appeals court to impose tighter restrictions on the hundreds of lawyers who represent detainees at Guantánamo Bay, Cuba, and the request has become a central issue in a new legal battle over the administration’s detention policies."



NYT

Anonymous said...

two private attorneys and one government attorney have been recommended to Gov. Charlie Crist to succeed outgoing 3rd District Court of Appeal Judge John G. Fletcher, who’s retiring.

The 3rd DCA Judicial Nominating Commission on Tuesday recommended Miami-Dade Circuit Judges Jennifer D. Bailey, Kevin Emas and Cristina Pereyra Shuminer; Hunton & Williams partner Vance E. Salter; Hanzman Criden & Love partner Michael A. Hanzman; and Eduardo I. Sanchez of the Miami Dade county attorney’s office.

They were chosen from 27 applicants after the JNC conducted interviews, checked references, and evaluated candidates’ experience and qualifications.

“It was a lengthy process; we had a list of outstanding candidates,” said Gerald B. Wald, who chairs the nine-member JNC. “We believe we’re sending a list of candidates with outstanding credentials, wonderful temperaments and great reviews from their peers, colleagues and The Florida Bar. They all have the tools to become appellate judges.”

The JNC made the selection with the help of new commissioner Lilly Ann Sanchez, a shareholder at Fowler White Burnett who was appointed to the panel by Gov. Crist. Sanchez replaced Coral Gables attorney Thomas Spencer, who resigned

Anonymous said...

the florida bar absolutely has jurisdiction over prosecutors, as lawyers in general, and specifically under rule 4-3.8

Anonymous said...

Arthur Hearings are done for a variety of reasons. Sometimes thet are done for discovery purposes, sometimes they are done at the request of the defendant's family and they are more of an "interview" for the defense attorney. It may appear to be an excercise in futility but the attorney has to go through the motions in order to satisfy the family and keep his job. A good judge will recognize that and whether even if he denies bond, he will complement the attorney in front of the family. The State can not punish a defendant for exercising their Constitutional right.

Batman said...

To Fake Governor Crist

Sorry Charlie, but General Counsel Paul Huck, Jr. (a.k.a. Mr. 3rd District Court of Appeal Judge Barbara Lagoa) owes Hector Lomabana bigtime. Hector fell on his sword to defuse the ticking time bomb of disingenuousness of Judge Lagoa (Re: her leave of absence from the U.S. Attorney's Office) and got her out of committee so she could be appointed before your election. He has to deliver for Hector and that means none other than Judge Christina Schuminer will receive the appointment. Remember she did not apply last time so Lagoa would have no problems. Time to pay up Paul.

Juan Mourin said...

Some SAO policies, such as not offering pleas after a child victim has been deposed in a child sex batt. case, have a rational basis to them. This arthur hearing "policy" clearly has no legitimate purpose. I doubt any experienced SAO would actually make such a threat, and I doubt any experienced defense attorney would give in to it.

Anonymous said...

As a former ASA , I can tell you that when an ASA tells you that there will be no negotiaitions after the Arther hearing, the case has been thoroughly investigated and the ASA believes they have a strong case.

When I received requests for Arther hearings after hearing about some poor kid sitting in jail my response was always "Gee, I'm sorry that your juvy kid has no priors... sorry that he thought it was a good idea to shoot up a car load of people and the people of state are so glad that no one died but that kid is a menace to society."

The bottom line is that I did not want a fishing expediton on a case that will have extensive depos taken anyway. On the other hand, I actually agreed to bond on other cases. It depended.

As far as APHs, I did that as well... and guess what every defense attorney I did ? They backed down. Think about it this way, you could be in another county where you will receive no plea offer from the state - just trial.

When the public stops hearing about people out on bond commiting yet another violent crime, then maybe Kathy's office will back down. Also- do you think anyone in Kathy's office is stupid enpugh to put anything like that in writing? Please! No ASA wants to be that person who let someone back on the streets. ASAs do not make that much money but most value their jobs. Believe me the office will not back you if you screw up . It makes them look soft on crime

Anonymous said...

Fear the Q

Admire The Q

Watch the Q kick some ass at Arthur Hearings.

Rumpole said...

to 10:52 PM. You sir (or Madam) earn mention as a long time and careful reader of this blog. Take a bow.

Anonymous said...

Rumpole, could you let your readers know that most attorneys who read the blog admire the Q and respect the Q but don't really fear the Q? Thanks.

Anonymous said...

to 1:35 PM - the last time I checked, the judge at the Arthur Hearing is the one who gets to decide who' a "menace to society." (and then, ultimately, the jury) I can't believe you would actually attempt to bolster the SAO's misinformed policy much less admit to being a part of it. Get over yourself.

Anonymous said...

neophyte lawyer says: i didn't know dudley moore practiced law, why not call it a lear hearing, and why is the hearing always named after a man, why not call it a mary hearing, arthur sounds so confrontational, only the weak threaten-if an asa is afraid of an arthur hearing what do u think his reaction will be to 5 pre-trial motions and depos. i only dealt w one asa in 12 years who stood by his word about what would happen to the plea offer if i took the depo of the victim. the bad thing thing about complying w your client's demand for an arthur hearing is that if he gets out he may kill- it happens and who wants that on their conscience, ask the firm of Grey & Morin.

Anonymous said...

Hey Batman - there is no way Judge Shuminer gets this appointment to the 3rd DCA. Judge Barbara Lagoa and her husband Paul Huck Jr. (Governor Crist's General Counsel) are specifically pushing hard for EDUARDO SANCHEZ. They pushed the JNC very hard for him to come out and he did. Hector Lombana has very little pull with Governor Crist. What about Michael Hanzman? Is Paul Huck Jr. and Judge Lagoa going to push him aside for their friend Eduardo and is the Governor going to have a dispute on this appointment over qualifications vs. ethnicity vs. friendship vs. campaign contributors? Does Governor Crist who has Presidential aspirations need to appoint a Hispanic applicant for his very first Miami - Dade County selection vs. a Jewish white male? What say you Batman and other colleagues and Judges?

Fake Mel Kiper said...

Here is how I see the NFL Teams drafting the top ten in the DUI Power rankings:

1. Raiders. Lots to choose from. Reiff is the easy choice but Al Davis is crafty, and Reiff wants a alot of money. Raiders shock the draft and save some money by drafting the L&L Twins-Lurvey and Lyons. Real value and one can cover dade and one can cover broward.

2. Detroit Lions. Another shocker as they draft Carlos Cannett over Reiff, who now is falling like a rock amid rumors.

3. Cleveland Browns. Shocked that Reiff is still on the board, they grab him.

4. Tampa Bay Bucs. Now the Board is clear of the top three, it's anybodys game. Catalano is fast out of the backfield and does a good job in court AND at the DMV. A good value at 4, they choose Catalano.

5. Arizona Cardinals. The Miami PDs. They need lots of help, the PDs have the bodies to fill the slots.

6. Washington Redskins. A real tendency for over priced veterans, they make a slight reach and draft Jimbo Best.

7. Minnesota Vikings. The Q. Pure and simple.

8. Atlana Falcons. Thrilled that the Vikes picked the Q, the Falcons grab Richard Hersch who was their man all along.

9. Miami Dolphins. We have said it all along- Blecher is a value at nine, and he's still on the board, and a home town favorite. Plus the Dolphins could use a really good DUI attorney.

10. Houston. Mark Lefcourt. Not on anybodys board, a draft day shocker.

Fake Albert Einstein said...

Rumpy- there is some confusion about the Q and how people should view him. You have three choices: respect the q; admire the q; fear the q.
Mathematics represents all the possible choices as 3 factorial, denoted as 3!.
The factorial function is formally defined by

N!= axbxc= all possible combinations of N where N is a positive interger.

So, with three choices, there are six possible combinations (n=3x2x1) of how one may view the Q.

For instance, and this is non exhaustive, you can fear and admire, but not respect the Q. Or one could admire and respect but not fear the Q.

I hope this helps your readers.

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Anonymous said...

who cares about the Q?

isn't it more important to discuss the THIRD D.C.A.?

Anonymous said...

F the Q...Be the E

Elortogi- the E in Miamieee.


PS those two posts on the NFL draft and the Q! factorial are funny funny funny.

Anonymous said...

NFL DRAFT POWER RANKINGS: PREVIOUSLY THE DUI RANKINGS ARE FOR PEE WEE FLAG FOOTBALL:1. Roy Black 2. Richard Sharpstein 3. Neal Sonnett 4. Jayne Weintraub 5. Jose Quinon 6. Kendall Coffey 7. Sam Rabin 8. David Marcus 9. Gene Zenobi 10. Abe Laesaer

Rumpole said...

1

Even Steven said...

Rosie O'Donnell announces she's not returning to the view. A few ABC execs go to dinner at the 4 Seasons that night. "Oh, look, it's Mr. X. He's an agent." MR. X stops by with his trophy girlfriend, sits down, has a few drinks while his girlfriend shows off her new breasts. Very quietly, Agent X whispers a name into the ABC execs ear. A few minutes later he gets up, shakes hands, his girlfriend gives one last blast of cleavage and off they go. Soon, Blackberrys up and down the east coast are beeping and buzzing.

Can it be true?

Is Miami's favorite TV Court Judge and the host of Vox Populi about to be offered a guest shot to replace Rosie? It would take a lot of money, and uprooting her family to NYC. But you heard it hear first folks. People are talking and Blackberrys are buzzing. All because a few ABC execs wanted to see someone cleavage.

Anonymous said...

To Fake Mel Kiper, I think what you were trying to say is that Oakland plays a cover 2 defense, and by drafting Lurvey and Lyons, they could cover dade and broward- cover 2.

I love this blog.

CAPTAIN said...

THE CAPTAIN REPORTS:

to 10:48 am

A little late on the 3rd DCA reporting, as I already gave that information on Wednesday.

Now for all of you pundits of the professional, why don't you spend your time touting the MOST qualified candidate for the job, rather than the one who you believe deserves the political payout.

Our legal profession needs to rise above the petty politics of the Governor's Office and promote the one judge that has the best legal mind and the one judge who is far and away the most qualified for the seat on the 3rd DCA.

Sure, we can all predict who will be picked, because of who they know, or who owes who, but isn't that for the politcos?

Isn't is our job to call, write, email, the governor's office and tell him who deserves the job.

Look at the names - examine the qualifications - ask any judge (off the record) who is the clear front-runner when it comes to qualifications - and you will hear the same name mentioned over and over again.

As a member of the BAR, it is your responsibility to promote and speak up on behalf of that person.

To contact Gov. Crist, please go to the following link:

http://www.flgov.com/contact_form

or you can call or write the Gov:

Phone: 850-488-7146
Fax: 850-487-0801

Mailing Address:
Office of the Governor
The Capitol
Tallahassee, FL 32399-0001

So, I say, get to it!!!

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

Anonymous said...

NFL DRAFT UPDATE: PICKS 11-20: 11. Ed Shohat 12. Jeff Weiner 13. Sy Gaer 14. Robert Barrar 15. David Marcus 16. Rod Vereen 17. G.T. Smith 16. Gail Levine 17. David Waksman 18. Michael Gilfarb 19. Edith Georgi 20. Steve Potolski.

Anonymous said...

Round 1. picks 21-30 21. Howard Roark 22. John Lipinski 23. Benedict Kuehne 24. Jack Denaro 25. Scott Saul 26.Laura Adams 27. Marie Matos 28. Erik Courtney 29. Fred Moldovan 30. Joe Rosenbaum.

Anonymous said...

While I very much like Rumpole's writings, the Captain has more relevancy to my every day existence. Therefore, I'm going to request that the Governor appoint the Captain. Is (s)he on the list of 6?

Anonymous said...

NEWS FLASH!

Courts to stay open until 5 pm because the Harvey Ruvin said that Judicial Staff leaved home too darn early.

In response to that comment, but without much support Judge Steve Leifman stated that they were all leaving early to help him with his Mental Health Division.

Stay tune for more.

Anonymous said...

Rump,
The thing ASA's never get about Arthurs is that it shows the client how strong or weak a case at trial will be. Cases that are open/shut for the state will suddenly beviewed more realisticly by a client and a fair resolution may occur. A Client that doesn't see how a case really adds up will likely reject a good plea in a loser case, as oppossed to a client who has an Arthur and starts seeing the writing on the wall. Additionally , ASAs can see that maybe their case aint so good and maybe even the poor guy in jail is not guilty?
D. Sisselman

Anonymous said...

LOL. Rump, with all due respect to you and the others taking your position (I guess you now know what's coming....), the complaints about the supposed Author Hearing and APH policies are ridiculous. There's nothing wrong, legally, ethically or morally, with prosecutors offering defendants incentives to plea early.

Anonymous said...

moderation sucks and will bury the blog.

Anonymous said...

I sent in my email for the support of Judge Bailey.

Great Judge.

Anonymous said...

CAPTAIN - who do you think is the most qualified to be the next selection to the 3rd DCA? You said that if you ask around and ask the judges that you will hear the same name as the one who is most qualified. Who would this be and why is he or she the most qualified?

Anonymous said...

I think that Kevin Emas would be the most qualified for the DCA. He has an intellectual mind, and, though he's a bit acid, that ain't necessarily bad to be a good DCA judge a la Schwartz.

Anonymous said...

Any info on whether the PD's and ASA's will get raises? Or did Jeff Loria get all the $$$.

Anonymous said...

I have a case in Broward and I had an arthur hearing for my client, who did get a bond. The ASA told me that attorneys in Broward never conduct arthur hearings, because they always stipulate to Proof Evident and Presumption Great. By they way, I still have not received a plea offer, unless you consider a sworn statement from my client and then the consideration of an offer is a plea offer.