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Sunday, May 20, 2007

Another Tragedy

KEN FELDMAN MEMORIAL

A memorial service honoring former St. Thomas Law School Professor Ken Feldman will be held Monday, June 11th at 6:00 PM at the St. Thomas Law School in Miami Lakes, Florida.


Here is part of the NY Times story we mentioned in a comment about an innocent man convicted. We would like prosecutors to comment on professor Scheck's statement that

ELIZABETH, N.J., May 15 — A man who served 19 years in prison for the sadistic murders of his companion’s two children walked out of the Union County Courthouse flanked by his family members after a judge vacated his convictions on Tuesday.


Prosecutors contended that DNA evidence in the case would probably change the mind of the jury that convicted the man, Byron Halsey, 46. They also said that the DNA evidence pointed instead to Cliff Hall, a neighbor who testified against Mr. Halsey at his 1988 trial and who is currently in prison for three sexual assaults.
Mr. Halsey, who was handcuffed, sat crying silently during the brief proceeding in Union County Superior Court before Judge Stuart L. Peim.


As he left the courthouse, Mr. Halsey said, “I thank my Lord and savior Jesus for keeping me.”
Asked about his emotional state, he smiled and said, “I don’t want to get in more trouble.” He added, What was done to me was criminal at best.”


Barry Scheck, co-director of the Innocence Project, the Manhattan legal clinic that revived the case, said: “It’s a miracle that Byron is here with us, because if ever there was a case where there was a risk of executing an innocent man, it was this case. Because the facts of the case were so horrible.”

Prosecutors had sought the death penalty for Mr. Halsey in the 1985 killings. The crimes were particularly chilling — Tina Urquhart, 7, was raped and strangled, and her brother, Tyrone Urquhart, 8, died after four nails were hammered into his skull with a brick. The children’s bodies were found in the basement of a rooming house in Plainfield where Mr. Halsey lived with their mother.

...

Mr. Halsey contacted the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University after exhausting his appeals. Advanced DNA techniques that were not available at the time of the trial showed that the evidence had no link to Mr. Halsey. It did, however, show a match with Mr. Hall, whose DNA samples were already in the state’s database because of his convictions in sex crimes that occurred after the Urquhart children were killed.

...
Mr. Scheck noted that in about a quarter of the 201 wrongful convictions that have been overturned with the use of DNA evidence, people had confessed or admitted to crimes they did not commit. Mr. Halsey signed a confession after 30 hours of interrogation, Mr. Scheck said. Mr. Halsey’s lawyers said he had a sixth-grade education and severe learning disabilities.


Rumpole says, the next time a prosecutor tells us that they will revoke all plea offers if we seek a bond hearing, or file any motions- because our client confessed and is clearly guilty- we will just attach a copy of this newspaper article to our letter to their supervisor complaining about their actions.

This business of "punishing" defendants for having attorneys who vigorously defend them has got to stop. We call on the State Attorney to either abandon this policy or defend it in public, and we call upon Judges to not let prosecutors get away with such bullying tactics in their courtrooms.

And before all the emails start flooding in- yes, we recognize that in certain limited cases- like where children are victims, or in the case of sexual assault, it is good policy to remind all parties that the prosecution may revoke a plea offer after all the other work is done, and the defense indicates it wishes to depose the victim.

How can we work in a legal system where we revere the Constitution, and then punish a defendant who seeks to use the rights afforded by the Constitution?

This merits serious discussion.

Have a good weekend.


33 comments:

Anonymous said...

I aM BiG aNd StRoNg I fIgHt FoR dEaTh I'm ShArP aS a RaSoR mY NaMe AbE LeAsEr. MaNy MeN i HaVe On ThE RoW BuT hOw MaNy InNoCeNt I dOnT kNoW.

Anonymous said...

Alan?

Anonymous said...

Yws, Chris.

Anonymous said...

Whaere are we, Alan?

Anonymous said...

In heaven, Chris. Pass the dim sum.

Anonymous said...

Rumpole, of course this New Jersey case is a tragedy. Anytime an innocent person is convicted, it's a tragedy. And all I can say as a prosecutor is that we, as prosecutors, must remain ever vigilant and ever skeptical. But we are a nation of over 300 million people. In Dade County alone, the SAO handles more than 40,000 felony cases and 60,000 misdemeanors a year. Extrapolate to the country at large, and prosecutors handle tens of millions of cases a year. Our system is not perfect. Cannot be perfect, even with the best prosecutors, defense attorneys, judges, and jurors possible. Statistics will not allow perfection in a system such as ours. So all I can do as a prosecutor is remain skeptical at all times, and try and impart that skepticism on those I supervise.

I should also add that you, as a defense attorney, probably never see the many many cases that I and other prosecutors no action precisely because there is insufficient evidence to go forward. On occassion, I have even no actioned cases where there is no doubt that the defendant committed the crime, but for one reason or another (illegal search and seizure, other constitutional violations, etc.) I cannot go forward.

As for your ongoing obsession with Arthur Hearings, there are cases that shouldn't be taken to an Arthur Hearing. Murders with multiple disinterested eyewitnesses or incontravertible forensic evidence, for example. To take such a case to an Arthur Hearing is done in bad faith. There is no reasonable expectation of getting a bond (the purpose of an Arthur Hearing), and the hearing then only serves as a discovery fishing expedition or to show off for one's client (both not purposes of an Arthur Hearing).

Anonymous said...

"no plea" B.S. is the mindless rant of some, not all, ASAs. The good ones will work with us on a case-by-case basis, understanding the realities of the business.

And while we're talking about sex cases, who are the lawyers that had that carjacking/rape/atm robbery case verdict that was on tv and in the Herald this morning. That was one seriously creepy looking dude-

Rumpole said...

I guess I am obsessed with Arthur Hearings because its a Rule of Criminal Procedure based on the Constitutional Right to have a bond.

The best case- DNA, confession, bus load of nuns as witnesses needs to be challenged vigorously or the system breaks down. How? Because if the best case does not get challenged, then maybe the second best case does not get challenged, and soon lawyers are substituting their judgment for Judges and juries as to whether or not a defendant is guilty. IT IS NEVER bad faith to exercise a constitutional right. EVER.

Rumpole said...

A little birdie just whispered in my ear some VERY intersting news about fired ASA Utpal Dighe. Seems there may well be ANOTHER shoe to drop. Not about the arrest, but other matters. We'll keep you updated as soon as we verify the allegations. Kinda serious. Black eye for the SAO and that kinda stuff.

Anonymous said...

Hey Rumpole is that a clue as to who you are???
obsessed with Arthur Hearings then all the talk on...
Criminal Procedures.
i got it now for sure.

Anonymous said...

Where are the DUI power rankings? I woke up early to check the blog for them and they are not up yet. Please post them ASAP!

Anonymous said...

In reply to 2:59:00 PM
David Maer and Terence Martin for the State and Alexandra Rengel and Ivan Mercado for the creepy dude. He really did looked creepy on TV, the victim looked devastated.

Anonymous said...

As I sit here today, years removed from the prosecutor's office, I have much better perspective. I wish I had this knowledge when I was prosecutor-----I would've been more effective and fair. That said, ........

It always amazes me how some defense attorneys (such as you Rump) wax poetic about how they spend their lives protecting the public at large and that it's "NEVER bad faith to exercise a constitutional right. EVER." The fact is that that there are limits to everything. I'd submit that it's bad faith for a defense attorney to ask permission to have his client present when he deposes the 6 year old child the defendant raped (the cleint does, afterall, have a right to confront the witnesses against him). Yet, stuff like that happens all the time. Defense attorneys file motions to suppress a stop, arrest, etc., knowing full well that everything was done correctly. Is that bad faith? Your comment suggests you'd be fine with that. I say otherwise. I don't believe any of can accuse people of wrongdoing or error without at least some basis to do so. As a prosecutor, I hated when people accused me of excluding jurors based upon race simply because they wanted to keep the _______ (choose your protected class here) who hated cops and prosecutors. This happened in countless cases where it was more than abundantly clear that the venire person couldn't be fair (in fact, it happened in several cases where the venire person admitted that). That's just plain wrong (also wrong is what happened to me in one case where a judge sustained the Neil/Slappy challenge simply so he could get a panel).

It's appalling that some defense attorneys vigorously protect the rights of defendants, but think nothing of trashing cops and prosecutors with no real basis to do so on a regular basis. There simply is no reason or justification for that.

There are no extremes in the law. We cut deals all the time as lawyers. That's what we do. There's nothing wrong with prosecutors incentivizing defendants to plea without having to go through an Arthur Hearing or any other type of discovery process.

the dui guy said...

SUNDAY DUI POWER RANKINGS

1) Bobby Reiff-1.00+ the master goes off the chart with a masteful whooping of the SAO in a breath case.

2)Carlos Canet- .993

3)Richard Hersch .990 some great work lately.

4)Rob Biswas .901 quietly improving

5)Phil Reizenstein .899 a good week for him boosts his ratings.

6) Lurvey and Lyons .875

7) The Miami PDs .870

8) Jon Blecher .801 Quietly falling. Has he peaked?

9) Mike Catalano .799 Doesn't get enough credit in the ratings for driving the DMV batty.

10) Mike Braxton .755 Poised for a big run?

Can't give Reiff enough props this week.

Anonymous said...

"It's appalling that some defense attorneys vigorously protect the rights of defendants, but think nothing of trashing cops and prosecutors with no real basis to do so on a regular basis. There simply is no reason or justification for that."

As a former ASA and criminal defense lawyer myself, I could not have said it better. The overwhelming majority of criminal defense lawyers say they are protecting the rights of the accused and the defending the constitution when all they are doing is showboating becasue it brings them $$$$. The exception has to be the really new PDs.

Anonymous said...

I guess Laeser would still say "there's no proof this has ever happened in our jurisdiction."

Get a clue Sir, the innocent are
convicted in all states of this
country and yet you so-called
"justice seekers" still threaten
the death penalty on potentially
innocent defendants.

Why do you think sir that even though innocents have been found
in Illinois, New York, Northern Florida, Georgia, etc. that this
has never happened on a Miami-Dade
case? (And what about the Bird rapist) Explain yourself.

Rumpole said...

10:25- I must disagree with you on this rainy day.

Lets say someone pays me 10,000.00 to represent them on a Marijuana Trafficking growhouse case. The house is in my client's name, and when the police bust through the door there was my client, in the garage with a hose in her hand, watering the crops.

My client turns down a 364 offer and says they will accept nothing. I explain to them 364 is not bad for a case with a min/man. My client says no. I then spend another year taking depos and litigating the search and entry into the house; I also file CI motion. How have I made more money litgtating the matter an extra year, when I could have closed the case out for 364?

Most criminal lawyers do not get paid by the hour.

Batman said...

Today’s Miami Herald reports on the Judicial Qualifications Commission’s determination that it
will take no action against Judges Daryl Trawick and Victoria Sigler for approving false entries in
court dockets. The report indicates that the entries were made at the request of the prosecution and with the concurrence of the defense counsel. This may be the most public non-action the JQC has ever taken.

However this is not the only such incident. Does anyone remember Operation Courtbroom. The
questions are asked: “Did the judges who created the false records or the State or Federal
Prosecutors who created the illusion face such an examination? Was what they did wrong?”

This incident points out the balance judges face in allowing the public to see and scrutinize the actions of the courts and prosecutors. There are legitimate investigative reasons for this deception. Examples of this legitimacy are for the protection of cooperating witnesses and
informants as well as the investigation of corrupt judges, prosecutors, defense attorneys and
police officers.

There has to put in place certain protections for these instances. I suggest that the Chief Judge
has to review and approve in writing these decisions. This allows for review and accountability as well as protections for the judge to show that this was done in “good faith” and without personal objectives.

I am watching from the dark alcoves of the REGJB

Excluded Club Adios Member said...

Very interesting article in Joan "Yenta" Fleishman's column today about a 3rd DCA hopeful. It would appear that one M. Hanzmzn was a member of a club that excluded 1/2 of the population. Seems like a good prerequisite to be an appellate judge. Are these people stupid or do they believe the rules don't apply to them? How can a person in good faith apply for a position, which at least on it's face, that requires a neutral, unbiased, and fair outlook on his fellow humans? I guess the Governor won't be happy about this latest development. How about all of the jockeying for position going on behind the scenes? What about all of the JNC members that knew about Mr. Hanzman's issue and kept it on the down low? Politics is a dirty business and some are dirtier than others. So what say you attorneys and judges all, is this the best we can do?

Rumpole said...

We updated the post with news of a Memorial Service for Ken Feldman this Monday at St. Thomas University.

Anonymous said...

Someone mentioned that David Maer was the ASA in the rape trial last week. I recently was defense counsel on a sex crime case that David prosecuted. He was willing to listen to my arguments and objectively review the evidence I presented to him. Thank you David.

Anonymous said...

Must be the weather that causes the beat a dead horse discussion of who operates in bad faith, and Mr. "former ASA and criminal defense lawyer myself," at 10:25, listen up - you are only practicing defense work because you wanted to stay in criminal law and make more money. You are not a "criminal defense lawyer," you are a "former prosecutor." Trust me, when you go on TV or talk to the paper, you will insist they refer to you as a "former prosecutor," and not a "criminal defense lawyer."

So let's resolve this:

I will stop filing motions that you believe are friviolous or in bad faith when you:

1. Stop objecting to things because your office tells you to, and not you believe you have a valid objection

2. Stop offering pleas based on what someone else told you you had to offer, not what you believe is a fair resolution

3. Stop announcing ready when you are not

4. Stop arguing that the judge's order was wrong and should be reversed when you are in court explaining why you haven't followed it

5. Stop making me coordinate depos with you that you don't show up to

6. Say three sentences in court without the words "my supervisor"

7. Stop threatening me to take a plea or you'll do something really really bad

8. Stop coming to arthur hearings and asking for a continuance you don't need

9. Stop telling everyone you "wont offer YO, ever," but I can ask the judge.

Until you stop doing at least 2 of those things, all motions are being filed, all hearings are being requested.

Good day.

Anonymous said...

Hey rump, this is 10:25. You DO NOT get paid by the hour. I do now that I am at a civil firm. If you get 10 K for a case, you chalk it up to a good month and worry about the case as it moves along. How hard is is to merge the new clients name into any form motion you have prepared several dozen times in the past, anyway? Then you go in one afternoon and argue it, again, with a new client's name. Also, if your client had insisted on taking the 364 one month into the case (to save her son or husband) you would NEVER return ANY of the 10K and if you say you would, you are not being truthful. You would then advise her to at least let you take depos, file motions, etc., which drags the case along for a few more months.

You DO NOT work by the hour, you work by the month.

Oh and batboy is back...IDIOT!

Anonymous said...

dui ratings are stupid. the best dui trial lawyer in miami is eddy o and he didnt make your list. booby rieff a great trial lawyer? get a sense of things dui guy-you are a stooge.

FAWL Member said...

Adios....and good riddance Hanzzmann!

Anonymous said...

If the Ken Feldman memorial at St. Thomas is on June 11th, the circuit judges will not be able to attend because we will all be in the judicial conference. Could St. Thomas consider changing the date?

Rumpole said...

Listen 10:24 nee 12:42- If someone hires me because of my experience, and I sit down and work up the case, call the prosecutor a few times, mention some problems in a case, cite some law, send over some draft motions, and they offer 364 on a 3 yr min man. I'm not returning nothing. I earned my fee. And per chance, if the state doesn't offer anything, and I work on the case for two years and win a motion or win a trial, I also earned my money. I do not work by the day, week, month, hour or year. I work by the case. And I never cheat my clients by writing stupid and insipid memos because my boss requires me to bill 2100 hours a year like you civil boyz and gurlz have to do.

Anonymous said...

Rump, You honestly think (as a person, as a human being, as a lawyer with morals) you would deserve 10K on a case that you signed before the 21st day and when you get to the arraignment the ASA says, "listen, this one is kind of iffy I'll offer 364 and let's get rid of it"? You would tell the client to jump on that 99% of the time. You are a thief if you think you deserve the full 10K. And you have the gall to criticize anyone? You are the type of lawyer that sits at the Pickle Barrel and yuks it up with other lawyers about how you charged 5k on a grand theft for a first time offender, didn't do shit and when you got to the arraignment they offered you PTI. You then proceed to call your client and tell him how hard you worked to get PTI. You probably haven't put a label on your file and punched the holes in your pleadings yet and you want the full fee? What about "quantum meruit" (sp?)?

Rumpole said...

Did I say anything about pleading the case at arraignment? I don't steal money. However, in many cases when I am hired the day after the arrest and I meet with the pre-filing ASA, presnet witnesses, work up the background, and then the state No Action's the case or offers PTI. I have earned my money. And by the way- all of those contingencies are in my fee agreement, so the client knows all the possibilites and just what they are paying for. What I don't do is churn a file for a corporate client so I can increase my billing hours by writing useless memos that just waste trees.

Anonymous said...

8:04, stay at the state, and stay angry. You don't have a clue.

Anonymous said...

12:28:00 .....

If a prosecutor does what you claim, shame on him or her. However, the prosecutors' alleged misconduct does not justify your bad faith pleadings. This isn't a matter of deal cutting. EVERYONE has an obligation to act in good faith, regardless of how unprofessional the other side may be. Nice try, but your response reflects 1/2 of what's wrong with the system. Too many people rationalizing unethical behavior.

Judge Lenny Glick said...

Try to go online to the link for the online guestbook for Ken Feldman.
Add a comment of your own and read the wonderful tributes already written.
I would hope that the upcoming Memorial could be delayed to Thursday or Friday of that week since so many friends of Ken will be at the Circuit Court Judges Conference until Wednesday the 13th of June.
Perhaps we could intercede with Dean Garcia to make that change.
Make a call .....Make it happen
Lenny Glick

Anonymous said...

Hey Rump, sorry I didn’t get back to you last night but on Sundays, Sopranos takes priority.

I would never expect you to plead your client out at arraignment on a 10k or even a 5K case. First, you tell the client not be there for the arraignment on the off chance you are offered a reasonable plea or PTI on a case. If the client is there and hears the offer after hiring you a few days earlier, he is going to wonder what you possibly could have done on the case. I know on some/very few cases you contact the ASA prior to the arraignment but on your typical grand theft where the client has no priors, you know the offer is probably PTI with restitution or, at worst, probation with restitution. The judge wants to reset it for 10 days but you request 30 so you can explain fully this PTI offer. That afternoon you call the client (who’s already called you by 9:25am) and tell him that you fought hard with the ASA and told them that the only deal you would accept is PTI. You arrange to see the client and spend the better part of an afternoon explaining the PTI offer in order, to some extent, to justify your fee.

The fact that you have all those contingencies in the contract does not make you any less of a thief. You have those contingencies there as a result of having been burned in the past on just this type of situation. Also, the client is usually signing at a moment when they are too scared to argue, discuss or negotiate. Why wouldn’t you charge a fee if the case is resolved by PTI or probation at or near arraignment, and then an additional fee if it has to go any further? To quote myself at 8:04pm, “You probably haven't put a label on your file and punched the holes in your pleadings yet and you want the full fee? What about "quantum meruit (sp?)?”

I hate to burst your, 12:28 and 8:50’s bubbles but I do transactional work for very wealthy clients who are too smart to get screwed by their lawyers. Last time I was at the JB I was ordering Cuban toast from Murray.