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, June 27, 2007

SELF DEFENSE AND PROSECUTORS

UPDATED: Judge P drops a dime in a divorce case. See below.

Self defense- a topic near and dear to our own heart and practice.

In West Palm Beach this week, Public Defender Carey Haughwout's client was acquitted of murder and attempted murder after he fired fourteen shots into a vehicle of three men who were gang members and were intent on beating him with a baseball bat.

The Sun Sentinel's story is HERE.

What has us a bit puzzled are the comments from the prosecutor. It should be said that the prosecutor did not appear to attempt to hide from the defense or the jury the criminal nature of individuals who were killed or injured in the case (we can hardly call them "victims").

However, given what appears to be the undisputed proof these men intended to seriously harm the Defendant, the question is why prosecute the case at all?

Here is part of the article, including quotes from the prosecutor that have us troubled:

Williams, who argued that only Borden's first five shots could be construed as self-defense, said it was difficult to overcome the evidence that even the surviving victim, Juan Mendez, conceded the men planned to beat Borden. Williams said he was upfront with the jury about the reputations of the men involved as well as their plans to hurt Borden because he wanted a fair trial.

"The truth hurt me in this case," said Williams, who expressed no surprise at the verdict.

"They were bringing a lot of violence to this defendant. It's tough to put yourself in that guy's shoes and say he didn't act appropriately. It's really tough."

Ultimately, Williams said, the self-defense issue was one for the community, not prosecutors, to determine. He said it would be a tragedy if Borden became a victim of another crime in retaliation for the shootings.

Rumpole says: here appears to be the dividing line on prosecutorial philosophy: The prosecutor who says "here's the evidence, let the jury decide" versus the prosecutor who says "this person acted appropriately under Florida law and should not be prosecuted".

Here is a question we have for those who think the jury should decide- What if the Defendant was found guilty? Florida law does not provide for any sentence other than a mandatory life in prison. Would anyone have thought that justice was served if that occurred.

We believe- and we invite comment on the matter- that a prosecutor's job is to not take those types of cases to the jury where a defendant acted lawfully, even if that acted included the lawful and justified killing of another human being.
Look at it like this- if the Defendant in this case was a police officer, would there have been a prosecution?

In the end, who can feel secure about justice being done with prosecutors who analyze their losses with the statement "the truth hurt me here"? Isn't every case in a Dade County Courtroom tried beneath the banner of "We who labor here seek only the truth."?

Apparently not in West Palm Beach, where the truth may hurt, but it also acquits.

Well Done Ms. Haughwout.!

See you in court, seeking the truth.

UPDATE:
The Herald reports today HERE
that Judge Pinero, hearing a divorce case involving a controversial Miami Preacher, has "dropped a dime" on the good reverend and sent the Feds a transcript of the proceedings, saying he was "ethically bound" to do so. The Feds have confirmed they have opened an investigation.

Are Judges ethically bound to report such details of a person's private life exposed in divorce court?

57 comments:

Anonymous said...

I almost lost my filet and lobster with this one, Rump. What kind of maniacal prosecutor goes forward on a case like this much less admits it. When I worked for Reno, as I remember under bourbon's influence, the standard was never prosecute a case unless you have a reasonable certainty of getting a conviction. The ASA should be disciplined.

CK

Anonymous said...

The main case which led to the new self-defense non-duty to retreat in public places law was from a Miami-Dade case before Judge Miller. The case lasted 7 years, State v. Al James. One of his attorneys: future Public Defender Rod Vereen. This county needs an African-American or Hispanic Public Defender, the current staff is old and tired, overpaid and just going through the motions. A perfect argument for term limits for the PD and SAO.Both offices need infusion of new blood which only will come with a change at the top.

abe laeser said...

While I cannot tell you that mistakes are impossible in Miami-Dade, I can assure you that in any case in which there is a plausible affirmative defense on the face of the fact pattern, the ASA knows that a 'staffing' with senior lawyers and Chief ASAs should be scheduled.

Since the passage of the recently modified self-defense statute, or even applying the common law and statutory defense which has always been available - this is, indeed, part of the prosecutor's screening function.

No case should be filed, let alone come before a jury if one could ever say: "THE TRUTH HURT ME IN THIS CASE." The truth is objective, and not trying to hurt the prosecution - it should prevent prosecution of the questionable case. That 'reasonable doubt' stuff actually should have a meaning. I truly hope that my WPB colleague was mis-quoted.

If the defense bar has such a case, and believes that it has not been properly evaluated, the SAO chain of command will ensure a full review of the case. Or you could even track me down to complain - I do have a voice with my supervisors.

Anonymous said...

Rumpole, you suck!

Anonymous said...

Rumor is that Mark " Batman " Leban is in a snit because others were chosen to be tv judges and he was not . You know it wasn't David or Christina's fault that they had the talent.

Anonymous said...

By the way, Carey Haughwout, is the ELECTED PD for Palm Beach COunty.

Rumpole said...

CK, you should be a guest blogger.Send me an email.You too Mr. Laeser, if you are so inclined.

Rumpole said...

In response to Mr. Laeser, from my perspective, your office has always had an open door policy, and I believe that on a case with this fact pattern as we now know it- and we do not know all the details- if it was filed- a supervisor would have stopped the prosecution.

The criticism of the Dade SAO lies with more mundane prosecutions in which the punishment does not always seem to fit the crime.

Jason Wandner said...

To Abe: I appreciate your comments, and i believe you absolutely mean what you say. Indeed, those "mistakes" do happen in miami dade. For instance, in a very recent attempted first degree murder case, the state fought very hard to make sure the truth did not come before the jury, by obtaining a pre-trial ruling that excluded multiple reliable admissions (to numerous persons including a sworn statement to an investigator) that he, not the defendant, committed the act underlying the prosecution. The case stemmed from a fight, and the 3rd party said he shot the victim as he was attacking the defendant. The 3rd party was on probation at the time, and the defendant, in a stupid act of loyalty, initially said he shot the victim in self defense. The defendant later passed a polygraph where he said he only admitted it in order to protect the guy who saved him. The only eye witness testified the only person that he saw shoot a gun, was the 3rd party (he did not see the 3rd party actually shoot the victim). The state had the 3rd party in custody, threatened to prosecute him, so he took the 5th, and the state convinced the judge that the 3rd party's statements should be excluded because his admissions that he shot the victim in the defendant's defense was not against his interest. This case went to trial, and the prosecutor argued in closing that the 3rd party was a "mystery man" and that there was no evidence he committed the act in question. The defendant is now doing 25 minimum, and the 3rd party was never charged.

Abe, while i am confidant you had nothing to do with it, and would have acted differently had you been involved, this case went up the chain, and the rest is history. I, for one, will take a prosecutor who at least believes the truth should come out.

Rumpole said...

7:57 points out that the PD is the ELECTED PD for West Palm. I did not know that. Imagine that- an elected official trying a case! What a novel idea. Hmmmm....

Anonymous said...

Was not there a case in Miami Dade about ten years ago where a store owner blasted a robber and was prosecuted. Eddie O'Donnell represented the owner. I recall the facts of that case were far more devastating to the prosecution than what happened in West Palm. Any one remember this case and the attendant circumstances?

Anonymous said...

Does anyone know how Jeffrey Schwartz' interview went with the Governors lawyers regarding the opewning to replace David Young?

Anonymous said...

I did not know that Jeffrey Schwartz was on the list of those nominated to the Governor. I think if he were there would have been a lot more written.

old guy said...

I think Eddie O' represented Mr. Rasheed, who had rigged an electrocution device to prevent burglars from entering his store. It worked, and he was prosecuted for Manslaughter.

Perhaps it was Ellis.

I must really be getting old...Huh, what did you say?

Batman said...

Judges are required to report any violation of the law that of which they have knowledge. Obviously facts came out to Judge Piniero that led him to believe that there had been substantial violations of Federal or State statutes. So much so that he felt compelled to submit the evidence to a prosecutor's office to review. He did the right thing. I would hope that all judges would do the same.

Anonymous said...

rumpole
a long time ago an elected public defender named phil hubbert would try cases. he was and still is a great trial lawyer.

brummer is not a trial lawyer. infact, in his life he has only second chaired one trial. can anyone name the assistant public defender who first chaired the case? i will give you a hint. she is a sitting criminal judge.

the trialmaster said...

bennett was an appealate attorney under hubbart. and a good one at that.gerstein as a state atty never set his foot into a courtroom and got the building named after him!!!!

Anonymous said...

1. Why bother prosecuting if you know you will not win.
2. I wish judges wouold stay nuetral and not report anything.
3. I do not think Jeffrey Swartz has his name go to the gov. Is that a mistake?

Rumpole said...

1:03 PM- Of course we remember when Phil Hubbert was the PD and tried cases. And yes- he is still a great lawyer. We don't fault BHB for not being a trial lawyer.

We do fault him for banning attorneys like Dave Pettus and Lynn Overmann from the PD's office. That's just wrong.

The Fake Captain said...

Swartz did not apply to the JNC for Judge Young's seat.

Anonymous said...

trialmaster

you stand corrected. gerstein actually defendend cases to the jury as a criminal defense atty.

your a bug, fly away.

Rumpole said...

Very true. "The boss" was a sought after criminal defense attorney.

What Judge has the sign of Richard Gersten State Attorney in his chambers?

Anonymous said...

what would happen if the banned lawyers entered the public defender's office intent on yanking the squirl from weed's head? could they be arrested and charged with burglary with a battery and face no bond?

Anonymous said...

Oh Rumpole how easy is that. Try the Most Honorable Leonard Glick.

Anonymous said...

Dear Abe:

Several (actually more) years ago, I was in the Miami-Dade State Attorney's office, prosecuting a homicide case.

The case was initially filed as a more serious offense but I reduced it to a lower offense level after attending the depositions and having reviewed the facts of the case.

I will never forget YOUR words when I was called to answer for my actions (along with my D.C.).

After being introduced to you with your response (paraphrasing) of "who is this piss ant and who does he think he is in reducing the charge?", I was told to re-file the information with the higher (initial) charge. When I explained that I had sat in on the depositions, had reviewed the file, the evidence and the law and that it did not support the higher charge, you responded with a most memorable (as you can see) line:

"THE VICTIM'S FAMILY WANTS IT CHARGED THAT WAY AND SO THAT IS THE WAY WE ARE GOING TO CHARGE IT!"

So much for a prosecutor's independent evaluation of the evidence, I thought!

Now I don't mean to tar you with words made many (many) years ago as people do change. And perhaps the circumstances were different from what I evaluated them to be. But those were your words and they certainly had a very negative effect on a relatively young prosecutor who believed in Janet's very strict "standards for prosecution".

I ended up trying the case and, much as I expected, the jury found the defendant guilty of the lesser offense.

I wonder what your response is?

A FORMER Prosecutor

Anonymous said...

you young twirps dont know what you are talking about Gerstein tried the Candace Mossler murder case in the 50s and got his greatest PR,those were the good old cowboy days when there was a real High Sheriff in Dade County and the out of state cops were treated to "free" companionship in good ole Miama to act as a setoff to have to come to the hot south fla from Texass !

the trialmaster said...

3:34. you are dead wrong. gerstein became partners with f. lee and judge dresnick. gerstein never said a word in front of a jury.if there was a trial[ which i doubt] dresnick would have handled it. their most notable case was when pee wee herman masterbated in ft. meyers. and this case was pleadout.in fact, some atty argued to jurys that the information had gersteins signature on it, but he was afraid to come into court so the case had no merit!!the trialmaster is never,never wrong. take that to the bank, jack.

fake judge yale feder said...

In answer to 1:08's trivia question, the first chair lawyer in the BHB jury trial extravaganza was Diane V. Ward, and I was the trial judge in the big courtroom.

Anonymous said...

the 1st floor W/C was closed for cleaning today at 10:00. This is an outrage. The bathrooms should be cleaned before or after normal court hours. Further, I have found that the State attorneys loo is always clean and the best place to leave a biggie.

My Bubbe's Baytzim said...

rumpole, if your nose were stuck any further up abe's ass you'd be sniffin his wife's kasha and varnishkes.

"Az der bubbe vot gehat baytzim vot zie geven mein zayde"

Anonymous said...

who is batman? someone said Mark Leban? i am going with judge blake but leban sounds interestingonly problem is why would leban have it in for judge adrien?

uummm emmmm...

fake Jackie Childs said...

I have several responses to the deplorable actions of that west palm beach asa:

1. It's an infringement on constitutional rights. It's outrageous, egregious, preposterous!

2. this trial is outrageous!

3. That's totally inappropriate. It's lewd, lascivious, salacious, outrageous!

4. That's deplorable, unfathomable, improbable.

Anonymous said...

Judges CANNOT stay neutral, MUST report as Judge P did.



Stacy Glick, filed to try and keep Lenny's seat with the Glick family name. mario garcia not alone anymore.

Anonymous said...

Dave Pettus and Lynn Overman were "banned" from the office for very good reasons. They know what those reasons are; and no, the reasons are not because the were on the other side during the election.They are actually lucky that nothing worse than being told not to come to the PD's office happened to them. AND some of their counterparts should have been included in that "ban" and were not.
Now, since you are STILL whining about this nearing three years later, I'm assuming you are one of the disgruntled Gabe'ers. Just remember, you are who you associate with!

Anonymous said...

Prentice Rasheed was initially charged with manslaughter but Reno took the case to the grand jury and it did not return a true bill so that was the end of that.

Anonymous said...

That case that Mr. Wandner cites is a disgrace to justice and a black eye for the SAO. I hope it is being appealed.

What say you Abe about your office's successful efforts to suppress the truth by excluding the admissions and then threatening prosecution to the witness to force him to take the 5th?

The fact that the witness took the 5th with regards to those admissions is prima facie evidence that they were against his interest.

Anonymous said...

Jason, can you give us the style and case number of that case?

Anonymous said...

Gerstein did try cases as State Attorney. There was an anecdote about him in court and the judge (Cannon, I think) was throwing spitballs at the clerk. The clerk moved and the spitball hit Gerstein in his good eye and it made him very mad at the judge.

Anonymous said...

Hey, trial-bozo:
I watched Gerstein and Carhart put Thomas Knight on Death Row.
A 6'5" guy with one eye and lots of facial scars, and a bellowing voice did really well in Court. And he knew both the law and human nature.
Frankly, he kicked ASS.

Rumpole said...

5:34- I frown on comments that contain a foreign language. I am assuming that is Yiddish.

2) If I was biased as you say, would the comments critical of Mr. Laeser be on the blog tonight?

3) Mr. Laeser may be many things, but he is also the most experienced trial prosecutor in Dade, if not the State of Florida. You can judge a lawyer but what his opponents say about him. Go back and read Mr. Roy Black's memories of cases he had with Mr. Laeser including the case that made Miami burn. You may not like Mr. Laeser, but his is almost universally respected by everyone. That means something. As it should.

Anonymous said...

As a PD in Broward, we fight against unreasonable line prosecutors daily. Often, I hear my collegue on the State side say, "I wish I can time serve or breakdown that case, but I simply can not do it."

CAPTAIN said...

THE CAPTAIN REPORTS:

As a reminder, these are the names on the gov's desk for Judge Young's seat:

Joseph I. Davis
Darrin P. Gayles
Shirlyon McWhorter
David Peckins
Alan Sackrin
John W. Thornton

And yes, Stacy Glick has indeed filed papers in Group 38 against Mario Garcia.

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

abe laeser said...

I welcome the opportunity to discuss any individual matter with any of the Anonymous authors. I may have been in error - although I do not recall ever saying such a thing about "victim's families" controlling my decisions. It is directly contrary to how I actually feel.

If I truly said something offensive, let's talk. If it is an apochryphal summary of what you heard someone say in the hallway - so be it.

In spite of my countenance, I try to learn from my own mistakes, and would be truly glad to discuss any slight that I may have offered, or phrase interpreted as an offense.

Jason Wander - please talk to me about your case.

As always, you know where I work.

Anonymous said...

Hey 6:16 PD - if we are who we associate with, does that mean that you (1) are paid a state salary yet never come to work let alone the courthouse (Bennett),
(2) eat danish daily in your 5th floor kingdom and never set foot
in the courthouse either (Rory),
(3) gave yourself a 50K raise in
the past 3 years (Carlos), or
(4) lie to all the new attorneys about how going to trial will get you the bonuses then give non-lawyer administrators the biggest raises (Weed).

Nice crew you associate with homey.
I'll take my crew any day, at least we still have some fight left
in us and are not just trying to hang on and max out our retirement
income.

The Translator said...

self-loathing son of abraham that you are rumpole, i wouldn't expect that you would know the age old yiddish phrase:

"Az der bubbe vot gehat baytzim vot zie geven mein zayde"

translated:

"If my grandmother had balls, she'd be my grandfather".

probably because you're from the midwestern tribes where yiddish is spoken with an assortment of vegetables on your hot dog.

The Apple Doesn't Fall Far said...

stacy glick would make a horrible judge.

can you say "leslie rothenberg"?

just switch out raven for red.

Anonymous said...

Rump
'One-eyed' RichaRD 'dick' GESTEIN DID TRY cases, He losT THe Candice MOSLER CASE, BUT THAT WAS IN 65 OR 66, I remmember Ralph Rennick and the Herald having the trial as lead stories when I was a kid.
D. Sisselman

the truth said...

Abe rocks!

Anonymous said...

Wadner..........people frequently admit to murders they didn't commit. Without knowing a lot more about the case, I'll give the prosecutor the same benefit of the doubt every professional deserves.

Anonymous said...

FORMER prosecutor: I also am a former prosecutor. Like you, I do not like Abe. Unlike you, I respect him. I had an encounter very different from yours. Abe criticized my obtaining a warrant on a case he considered too weak to file. I obviously disagreed with him (he was far more experienced that I was, so I concede that I may have not analyzed the case as well as he did). I had a problem with the way he handled it (he was an asshole, as usual), but no problem with the difference in opinion (this stuff often isn't easy). Reasonable people can disagree on how strong a case is. And, I find it impossible to believe that Abe would tell you to charge an unprovable offense simply because the victim's family wanted you to do so. Abe makes decisions and takes actions irrespective of people's feelings (sometimes necessary, often a major fault). Witness the Echevarria case where he humiliated the State Attorney herself.

Batman said...

To 5:39

Excuse me but do you know anyone who frequents the REGJB that does not "have it in" for Peter (it is so hard to call him "judge") Adrien? He is not the only embaressment, but he is the worst. One thing at a time. Only 1,647 more days.

Anonymous said...

ANNOUNCING: COMMITTEE (to) REMOVE ADRIEN PERMANENTLY

CRAP

GIVE CRAP

GET CRAP

DO CRAP NOW

Anonymous said...

Adrien is surely not a bad Judge. I am surprised that you would even dare say that when Judge Newman is still on the bench as well as Judge David Miller. Get a life man.

Anonymous said...

Again Peter Adrien joins the discussion, this time dumping on other judges to deflect from his own inadequacies and stupidity. Judge Newman, although not the brightest bulb on the tree, shines through for his affablility and harmlessness. Judge Miller is doing an outstanding job in civil (where he probably belonged all along). But Adrien has no inate abilities, lacks any semblence of demeanor or any modicum of intelligence. As we all said to Dave Wanstadt, Adrien don't buy a house.

Jason Wandner said...

Sorry for the delayed responses to those who wrote in reference to my post on Wednesday. I appreciate your responses.

The case is being appealed, so I am a little uncomfortable placing the actual case style and number on the blog at this time. That being said, I would be happy to privately provide any information regarding the details of the case to any person who is interested. Feel free to call my office at 305-375-6053, or email me at jason@wandnerlaw.com. I will not publicize the names of any inquirer.

Obviously, we are hoping the case will get reversed on appeal, and there is a plethora of cases directly on point from the USSC down to the DCA's that stand for the proposition that a 3rd party's reliable admission of guilt should be admitted as both a statement against interest and on due process grounds. Holmes v. South Carolina (2006) is the most recent pronouncement.

Abe, I appreciate your interest in the case, and I will give you a call.

To the reader who claimed that he will stand with the prosecutor on this one because only guilty people admit to being guilty, clearly you have not paid much attention to those cases where confessions have been proven false by subsequent forensic testing or confessions of others. Most of those instances result from police misconduct during questioning, others from persons like Mr. Carr (of Jon Benet Ramsey fame), who wanted his name in the paper and a free flight from Thailand to Colorado, and others where people admit things to protect other people, like when a husband protects a wife, a brother protects a brother, or as in my case, a friend protects a friend who had just saved his life.

There was no reason to deprive the jury of the evidence. If they thought the third party confession was wrong, and the defendant's initial confession was true despite the surrounding physical and circumstantial evidence to the contrary, then at least the jury would have had all the information necessary to make a fully informed decision had it been admitted.

The prosecutors were obviously not confident that the jury would convict if the jury had all the evidence, and they did not want the chips to fall where they may.

They only wanted the jury to hear what they believed was the truth. If you want to stand with them on that score, that is your business. I hope you recognize however, that that is not the way the criminal justice system is supposed to work.

Anonymous said...

Hey Wadner.........learn to read buddy. I said I wouldn't judge the prosecutor without knowing more because people often admit to crimes they DID NOT commit. I didn't say I stood by the prosecutor because only guilty people admit to crimes.

You've been around long enough to know that people do that all of the time to build street cred.

As for the prosecutor moving to exclude the admissions, big deal. Both parties routinely move to exclude evidence that is unduly and unfairly prejudicial. You ever move to exclude a gory photo? Why? Were you "hiding" evidence? Weren't you "confident in your case?" Were you trying to prevent the "chips from falling where they may?

Get off your high horse. You sound ridiculous.

Anonymous said...

is abe running for something/bucking for a promotion? This guy is inviting everyone into his office, when for years he would never even say hello to asa's who worked at the office for many years.